P. v. Wilson CA1/5 ( 2013 )

Filed 3/28/13 P. v. Wilson CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and Respondent,
A134570
v.
(Solano County
ESTHER D. WILSON, Super.Ct.No. FCR262375)
Defendant and Appellant.
____________________________________/
A jury convicted appellant Esther D. Wilson of forgery (Pen. Code, § 470, subd.
(c))1 and filing a false or forged instrument (§ 115, subd. (a)). The court placed her on
probation.
On appeal, appellant contends insufficient evidence supports the convictions. We
affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In 2000, Make Porter lived with his wife, Louise Toles, in a house he owned at 33
Woodridge Place in Vallejo (the house or the property). Porter died in July 2002 and
1
Unless otherwise noted, all further statutory references are to the Penal Code.
Appellant’s codefendants, Melvin Strong, Jr., Kevin Merck Frazier, and Brian Maxwell
Fabian, are not parties to this appeal and are mentioned only where relevant to the issues
raised in appellant’s appeal.
1
Toles continued to live in the house. A few months after Porter died, Toles’s daughter,
Grennan Whitfield, moved into the house to care for Toles.
After Toles had a stroke in April 2003, Whitfield began to help Toles organize her
finances. In early 2004, Whitfield learned that Porter had taken out a loan on the house
before he married Toles and that Toles was three months behind on the loan payments.
Shortly thereafter, Whitfield borrowed $1,300 from a “dear friend . . . Ms. Hattie,” to
“pay what was owed on the house, to catch up with that bill.” Whitfield then tried to
borrow money from various loan agencies using the house as collateral to repay Ms.
Hattie and to get her mother’s “credit cards straightened out. . . .” The loan agencies,
however, would not loan Whitfield money because Toles’s name was not on the title to
the house.
Kevin Frazier Obtains a Grant Deed to the House
At that point, Whitfield called Ms. Hattie’s son, Melvin Strong, Jr., and told him
she needed help getting a loan. Strong told Whitfield he had a friend, Frazier, who could
help her. Whitfield and Toles met with Frazier; Whitfield told him they needed $5,000 to
repay Ms. Hattie and to settle Toles’s credit card debt. Whitfield explained that she could
not borrow money because “the title deed to the house was in [Porter’s] name” and that
Porter was deceased. Frazier represented he was a loan agent and said he could help
Whitfield and Toles and asked for Porter’s social security card.
Several months later, in September 2004, Toles became very ill and was admitted
to the hospital. Whitfield called Frazier and told him her mother was “in critical
condition” and that she needed to get Toles’s financial “problems resolved[.]” Frazier
came to Toles’s hospital room with Caitlin America, a notary; he said he needed Toles’s
thumbprint and Whitfield’s signature on numerous documents, which would help get
financing. According to Whitfield, Toles “couldn’t speak. She was just laying there, and
[Frazier] took her hand and took her thumbprint.” Neither Frazier nor the notary tried to
2
speak with Toles. Instead, Frazier took Toles’s thumbprint on a paper and left the room.2
Outside the room, Frazier had Whitfield sign a grant deed. The notary stamped the deed,
which Frazier also signed.3 When Whitfield signed in the wrong place because she was
“so emotional,” Frazier showed her where to sign. Whitfield did not see Toles sign the
grant deed and did not believe she was capable of doing so. Whitfield did not have
power of attorney for Toles. Whitfield and Toles never discussed granting or selling the
property to Frazier. Frazier left the hospital with all of the documents. Toles died in late
October 2004.
A few months after Toles died, Frazier told Whitfield he wanted to have the house
appraised. He also said he was working on the getting Whitfield the loan and that he
needed Toles’s death certificate. Whitfield never received any money from Frazier. She
stopped speaking to Frazier after she later “found out that [he] was not who he claimed to
be. . . .” Frazier recorded the deed; after Toles died, he recorded an affidavit of death of
joint tenant.
Escrow Proceedings Involving the House
In 2004, Shannon Esclovon-Hunt was working as an escrow officer for New
Century Title. In December 2004, Rowan and Associates opened escrow for the
purchase of the house.4 Esclovon-Hunt prepared documents showing Frazier was the
buyer and Porter was the ostensible seller. Several of the escrow documents Esclovon-
Hunt received from Rowan and Associates were “signed” by Porter in January 2005, well
after his death. There were also four demands for payment ostensibly signed by Porter.
2
America testified she read the grant deed to Toles, who indicated she understood
she was giving title to the house to someone else by squeezing America’s hand.
According to America, Toles signed the deed and the notary book with an “X.”
3
The grant deed states Toles “hereby grants [the property] to . . . Toles . . . and . . .
Frazier as joint tenants[.]” At trial, Whitfield testified the grant deed has a misspelled,
typewritten version of Toles’s name; above Toles’s name is a signature that is not
Toles’s. The words “zero gift” appear on the deed. During a deposition taken in civil
litigation involving the house, Frazier admitted writing “zero” and “gift” on the deed.
4
About a week or two earlier, Capital Investments tried to refinance the property
for Frazier but was unable to do so because Frazier was not the owner of the property.
3
In January 2005, appellant notarized a grant deed ostensibly signed by Porter and
received $150, a notary fee that Esclovon-Hunt opined was not “outrageous” for that type
of transaction.
Escrow closed in January 2005 and Esclovon-Hunt disbursed the funds according
to the instructions she received, including the payoff demands that bore Porter’s
signature. First InterBank Mortgage, a company controlled by Brian Fabian, received
$40,000. Online Construction Company, an entity associated with Strong, received
$25,000, and Strong personally received $3,500. Esclovon-Hunt distributed almost
$172,000 to a business Frazier formed.
The Investigation and the Relationship Between Appellant and Fabian
After escrow closed, Esclovon-Hunt learned from the title company that Porter
was deceased. She asked appellant for a copy of Porter’s driver’s license. Appellant
complied. She claimed she did not know Porter was deceased. As soon as Esclovon-
Hunt received the license, she knew something was “wrong with it” and that it “wasn’t
real” because the “name and everything was typewritten” and because the “birth date [did
not] match the date of birth. Your license expires on your birthday.” It did not look like
a “regular California driver’s license.” A document examiner determined Fabian was
“conclusive[ly]” the author of four of the documents from the escrow transaction, and
“probably” the author of Porter’s signature on the grant deed appellant notarized.5
Fabian worked at Rowan and Associates. Appellant performed notary work for
Rowan and Associates. Appellant had previously worked for Fabian in an office in
Richmond. In 2005, Fabian, Rowan and Associates, and appellant had offices on the
same floor of an Oakland building.
Ashley Ash, an investigator for the Solano District Attorney’s Office, spoke with
appellant on the telephone in early 2006. Appellant acknowledged notarizing the grant
5
The document examiner explained that there was “minimal doubt” about Fabian’s
authorship of the grant deed. He explained: “probably is a strong opinion. We are saying
that the evidence points rather strongly toward the individual being the author of the
writing. However, it falls short of being conclusive, and this again can be due to poor
copies, limited known writing, et cetera.”
4
deed in 2005 and said “that it was an older black gentleman that was in front of her at the
time of the notary signing.” According to appellant, Porter showed her a California
driver’s license. Appellant notarized the document at an office that “was a combination
of businesses. It was Mr. Fabian’s business, First InterBank Mortgage, and it was . . .
Rowan and Associates.” She claimed she lost the notary journal documenting the
transaction when she moved to her current office location.6 When Ash was at Rowan and
Associates, he saw appellant come into the office, but appellant left the office before Ash
could speak with her.
The Charges, Verdict, and Sentencing
A grand jury returned a 17-count indictment against appellant Strong, Frazier, and
Fabian. The operative indictment charged appellant with forgery (§ 470, subd. (c)) and
filing a false or forged instrument (§ 115, subd. (a)). At some point, Strong “pled to [the]
charges” and was severed from the case. The jury found Frazier and Fabian guilty of the
counts charged against them. The jury also found appellant guilty of forgery (§ 470,
subd. (c)) and filing a false or forged instrument (§ 115, subd. (a)). The court placed
appellant on probation and she timely appealed.
DISCUSSION
“‘When considering a challenge to the sufficiency of the evidence to support a
conviction, we review the entire record in the light most favorable to the judgment to
determine whether it contains substantial evidence—that is, evidence that is reasonable,
credible, and of solid value—from which a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt. [Citation.]’ [Citation.] . . . ‘Our inquiry on
appeal “in light of the whole record [is] whether any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.” [Citations.] The
standard of review is the same when the People rely mainly on circumstantial evidence.
[Citations.]’ [Citation.]’” (People v. Battle (2011) 198 Cal.App.4th 50, 61-62; see also
6
The parties stipulated appellant reported the loss of the relevant notary journals to
the Secretary of State in July 2005.
5
People v. Pugh (2002) 104 Cal.App.4th 66, 72 (Pugh) [sufficient evidence supported
forgery conviction under section 470, subdivision (d)].)
I.
Sufficient Evidence Supports Appellant’s Forgery Conviction
“Forgery has three elements: a writing or other subject of forgery, the false making
of the writing, and intent to defraud.”7 (People v. Gaul-Alexander (1995) 32 Cal.App.4th
735, 741.) “An intent to defraud is an intent to deceive another person for the purpose of
gaining a material advantage over that person or to induce that person to part with
property or alter that person’s position by some false statement or false representation of
fact, wrongful concealment or suppression of the truth or by any artifice or act designed
to deceive.” (Pugh, supra, 104 Cal.App.4th at p. 72.) Intent to defraud “may be inferred
from circumstantial evidence, e.g., the fact of the unauthorized signing, . . . false or
evasive explanations, or other similar offenses.” (2 Witkin & Epstein, Cal. Criminal Law
(4th ed. 2012) Crimes Against Property, § 176, p. 224.)
Appellant contends her forgery conviction must be reversed “because there is
insufficient evidence that she intended to defraud anyone.” She contends she notarized
the deed as a favor to Fabian, without knowing about Frazier and Fabian’s scheme to
obtain title to the house. She admits she “was negligent in performing her duties as a
notary by not observing someone sign the document,” but she claims there is no evidence
“she intended to defraud anyone.”
This argument — based on an interpretation of the evidence in a light most
favorable to appellant — fails. The evidence established appellant: (1) had a
longstanding relationship with Fabian and Rowan and Associates and was inferentially
familiar with Fabian’s handwriting; (2) notarized a fraudulent deed; (3) was presented
with an obviously fake driver’s license when she notarized the deed, assuming the
driver’s license existed when the deed was notarized; (4) tried to cover up the crime by
7
Section 470, subdivision (c) provides: “Every person who, with the intent to
defraud, alters, corrupts, or falsifies any record of any . . . conveyance, or other
instrument, the record of which is by law evidence, or any record of any judgment of a
court or the return of any officer to any process of any court, is guilty of forgery.”
6
claiming the notary journal documenting the transaction was somehow lost when the
falsity of the deed and the driver’s license were apparent to the suspicious title company’s
corporate headquarters; and (5) avoided meeting with Ash in person after realizing he
was investing the crime.
Because Porter was dead when appellant notarized the deed, appellant either
notarized a deed as to which no seller appeared before her, or notarized a deed as to
which Fabian appeared and signed before her. Either way, the deed was fraudulent.
From this evidence and the evidence discussed above, the jury could easily conclude
appellant aided and abetted a forgery and possessed the requisite intent to defraud when
she notarized the deed. (See Pugh, supra, 104 Cal.App.4th at p. 72 [evidence sufficient
to support finding that defendant prepared a document with intent to defraud]; People v.
Martinez (2005) 127 Cal.App.4th 1156 [defendant’s inconsistent statements and other
admissions supported conclusion he intended to defraud when he attempted to cash a
stolen and forged check].) Sufficient evidence therefore supports appellant’s forgery
conviction.
II.
Sufficient Evidence Supports Appellant’s Conviction
for Filing a False or Forged Instrument
Appellant contends sufficient evidence does not support her conviction for filing a
false or forged instrument in violation of section 115, subdivision (a) because she did not
know “Porter’s signature on the deed was not genuine.”8 We are not persuaded. As
discussed above, the evidence demonstrated appellant knew Porter did not sign the deed.
(See Generes v. Justice Court (1980) 106 Cal.App.3d 678, 681 [deed conveying an
easement to defendant over land she did not own was clearly “false” under section 115].)
8
Section 115, subdivision (a) provides: “Every person who knowingly procures or
offers any false or forged instrument to be filed, registered, or recorded in any public
office within this state, which instrument, if genuine, might be filed, registered, or
recorded under any law of this state or of the United States, is guilty of a felony.”
7
Accordingly, sufficient evidence supports appellant’s conviction for violating section
115.
DISPOSITION
The judgment is affirmed.
_________________________
Jones, P.J.
We concur:
_________________________
Simons, J.
_________________________
Needham, J.
8