People v. Abrahamian ( 2020 )

Filed 2/18/20
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B289162
(Super. Ct. No. 2014030327)
Plaintiff and Respondent, (Ventura County)
v.
MICHELLE ABRAHAMIAN,
Defendant and Appellant.
Michelle Abrahamian appeals from the judgment entered
after a jury convicted her of knowingly procuring or offering a
forged quitclaim deed for recordation in a public office (count 1 -
Pen. Code, § 115, subd. (a))1 and knowingly possessing a false
completed notary public’s acknowledgment (notary
acknowledgment) with intent to defraud (count 4 - §§ 475, subd.
(a), 470, subd. (d)). The jury found true an enhancement
allegation that the victim’s loss exceeded $200,000. (Former
§ 12022.6, subd. (a)(2).) The jury also found true an “aggravated
white collar crime enhancement” allegation that a “pattern of
related felony conduct” had resulted in a loss of more than
Unless otherwise specified, all statutory references are to
1
the Penal Code.
$500,000. (§ 186.11, subds. (a)(1), (a)(2).) Appellant was
sentenced to prison for an aggregate term of seven years, eight
months - the two-year middle term on count 1, plus a consecutive
eight-month term on count 4, plus two years for the former
section 12022.6, subdivision (a)(2) enhancement, plus three years
for the aggravated white collar crime enhancement. Pursuant to
section 186.11, subdivision (c), the trial court ordered appellant to
pay a fine of $500,000. Pursuant to section 1202.4, subdivision
(f), it ordered her to pay restitution of $189,382 to the victim.
Appellant contends: (1) the court erroneously admitted
evidence of uncharged acts, (2) the evidence is insufficient to
support her conviction for possession of a false completed notary
acknowledgment with intent to defraud, (3) the court failed to
instruct the jury sua sponte on an element of this offense - the
false notary acknowledgment must be completed, (4) the evidence
is insufficient to support the aggravated white collar crime
enhancement, (5) the court erroneously imposed a two-year
consecutive term for the former section 12022.6, subdivision
(a)(2) enhancement because the statute was repealed before she
was sentenced, and (6) the matter must be remanded so that the
trial court may conduct a hearing on appellant’s ability to pay the
$500,000 fine and victim restitution of $189,382.
Because the evidence is insufficient to prove that appellant
possessed a completed notary acknowledgment, we reverse her
conviction on count 4 for possession of a false completed notary
acknowledgment with intent to defraud. (§ 475, subd. (a).) We
also reverse the true finding on the aggravated white collar crime
enhancement allegation. We strike the $500,000 fine imposed
pursuant to section 186.11, subdivision (c), and remand the
2
matter to the trial court for resentencing. In all other respects,
we affirm.
Charged Offenses2
Appellant, together with her husband, Patrick Abrahamian
(Patrick), and her sister, Taline Indra, were charged in count 1
with procuring or offering for recordation a forged instrument,
i.e., a quitclaim deed conveying Thomas Cotton’s residence to
appellant. (§ 115, subd. (a).) In count 4, appellant alone was
charged with possessing false completed notary
acknowledgements executed by Indra, a California notary public.
(§§ 475, subd. (a), 470, subd. (d).) The notary acknowledgements
purported to authenticate Cotton’s signature.
Cotton was “having trouble meeting [his] financial
obligations.” He was behind on the mortgage payments for his
residence on Mustang Lane in Bell Canyon (the Mustang
residence). He had unsuccessfully sought a loan modification.
Cotton met Patrick through a friend. Patrick said that “he
could get [Cotton] a loan modification.”
By a lease dated October 1, 2012, Cotton rented the
Mustang residence to appellant and Patrick for one year at a
monthly rent of $5,000. Patrick agreed that he would work on
obtaining a loan modification. Patrick helped Cotton find
another place to live while appellant and Patrick were staying at
the Mustang residence.
Patrick did not obtain a loan modification for Cotton. After
their one-year lease had expired on October 1, 2013, appellant
2 The facts underlying the charged offenses and the
uncharged acts are complex. The summary of the facts comprises
39 pages of appellant’s opening brief and 34 pages of respondent’s
brief. We include only the most salient facts in our summary of
the evidence.
3
and Patrick stopped paying rent. They continued to occupy the
Mustang residence despite Cotton’s demand that they move out.
Cotton learned that on October 8, 2013, a quitclaim deed
had been recorded conveying the Mustang residence to appellant.
The deed states that the conveyance is a gift so no documentary
transfer tax is due. Indra authenticated the grantor’s signature
on the deed as the signature of Cotton. She declared under
penalty of perjury that, on October 3, 2013, Cotton had personally
appeared before her and had “proved . . . on the basis of
satisfactory evidence to be the person whose name is subscribed
to the within instrument.” Cotton denied signing the deed.
In her notary journal, Indra was required to document the
notarization of Cotton’s signature. Information was missing from
the journal entry for Cotton’s signature, including his
thumbprint. Heather Tallent, a district attorney investigator
who specializes in the investigation of real estate fraud, testified
that the notarization of a signature “that affects real property . . .
requires a thumbprint.”3 Tallent opined “that a missing
thumbprint [in a notary journal] for a real estate document is one
indicator of fraud.”
Cotton gave appellant and Patrick a three-day notice to pay
rent or quit. Appellant filed a verified complaint against Cotton
seeking to quiet title to the Mustang residence. She asserted
that, pursuant to the quitclaim deed, she was “the fee simple title
owner of the . . . property.” She claimed that on October 1, 2013,
3Government Code section 8206, subdivision (a)(2)(G)
provides, “If the document to be notarized is a deed, quitclaim
deed, deed of trust, or other document affecting real property, . . .
the notary public shall require the party signing the document to
place his or her right thumbprint in the journal.”
4
she and Cotton had “entered into an oral agreement whereby
[Cotton] would convey title to [her] in exchange for payments
totaling $175,000.” She “provided [Cotton] with the sum of
$175,000 . . . in return for fee simple title to the . . . property.”
On December 3, 2014, investigators from the Ventura
County District Attorney’s Office searched the Mustang residence
and a Ford Raptor pickup truck pursuant to a search warrant.
The Raptor was registered in Patrick’s name. Investigators
stopped the Raptor while appellant was driving it. A manila
envelope was on the dashboard. Inside the envelope were seven
notary acknowledgments bearing Indra’s signature and official
notary seal. These acknowledgments are the basis of appellant’s
conviction for possessing false notary acknowledgments with
intent to defraud (count 4). Each acknowledgment purported to
authenticate the signature of Thomas Cotton.
In a downstairs office of the Mustang residence,
investigators found statements of Cotton’s earnings from a
company named SCV Construction. Cotton never worked for this
company. Investigators also found Bank of America statements
in his name. Cotton did not have an account with Bank of
America. Cotton’s account number was the same as a Bank of
America account that Patrick had opened in his own name.
Uncharged Acts
Stephen Danel
Danel owned a home in Northridge. In 2012 he started
missing mortgage payments, and the lender began foreclosure
proceedings. A friend introduced him to Patrick, who identified
himself as “Rick Black.” Patrick and Danel orally agreed that
Patrick would purchase the home for $60,000. Patrick made a
down payment of $15,000 and said that he would pay the
5
remaining $45,000 when Danel vacated the property. After
Danel moved out, he did not receive the promised $45,000 and
was unable to contact Patrick.
Danel never signed any paperwork for the sale of his home.
After he had vacated the property, he learned that on June 1,
2012, a quitclaim deed had been recorded conveying the property
to Gabriel Abrahamian (Gabriel), Patrick’s father. The person
who requested the recording asked that the recorded deed be
mailed to Gabriel at Patrick’s home address. Rita Medvedev, a
notary public, verified that the grantor’s signature on the deed
was the signature of Danel. But Danel neither signed the deed
nor appeared before Medvedev. The deed stated that the
conveyance “is a bonafide gift.”
When district attorney investigators searched appellant’s
and Patrick’s Mustang residence on December 3, 2014, in the
master bedroom they seized a desktop computer that contained
Bank of America statements in Danel’s name. Danel did not
have an account with this bank. Danel’s account number was the
same as a Bank of America account that Patrick had opened in
his own name. The computer also contained an earnings
statement in Danel’s name from SCV Construction. Danel never
worked for this company.
It is reasonable to infer that the computer belonged to
appellant. The “name of the user account for the . . . computer”
was “Michelle,” appellant’s first name. The “registered owner of
the . . . computer” was also “Michelle.” The computer contained
“an Apple iPhone backup file.” The iPhone was named “M.
Abrahamian.” Kristina Bertilson, a district attorney investigator
and expert in conducting examinations of computer files, opined
6
that the desktop computer had “one user.” The computer is
hereafter referred to as “appellant’s computer.”
Gabriel Munoz
Gabriel Munoz owned a home on Bahama Street in North
Hills (the Bahama residence). At the time of trial in February
2018, he was 84 years old. He testified through a Spanish
interpreter. He was able to read “a little bit” of English.
On October 11, 2013, a quitclaim deed was recorded
conveying the Bahama residence to Mikael Puskulian. The deed
stated that the conveyance was a gift. Indra notarized Munoz’s
signature on October 3, 2013, the same date that she notarized
Cotton’s signature. Indra’s notary journal entry for the
transaction did not include Munoz’s thumbprint and other
required information. District Attorney Investigator Tallent
opined that, because of the missing information, “the journal is
indicative of fraud.”
Munoz testified that he did not know anyone named Mikael
Puskulian. He did not sign the deed or appear before Indra. He
did not request that the deed be prepared.
During the search of the Mustang residence, in the
downstairs office investigators found a handwritten note stating:
“Need to do a Quitclaim Deed from Gabriel Munoz to: Mikael
Puskulian.” The note includes an address that matches the
address of the Bahama residence.
Appellant’s computer contained false documents for Munoz.
These included Bank of America statements in Munoz’s name.
Munoz did not have an account with this bank. Munoz’s account
number was the same as a Bank of America account that Patrick
had opened in his own name. Another false document was an
April 2012 earnings statement for Munoz from SCV
7
Construction. Munoz did not work for this company. In April
2012 he “was in the hospital having surgery for cancer.” An
additional false document was an Internal Revenue Service Form
W-2 showing that in 2012 Munoz earned $44,201. Munoz did not
work in 2012.
Susan Shepard
In February 2013, a quitclaim deed was recorded conveying
from Karl and Susan Shepard to Francisco Guerrero a property
in Mojave. The conveyance was a gift. Indra notarized the
Shepards’ signatures. But Susan Shepard had died twelve years
earlier in 2001. In February 2015 a court entered a default
judgment in favor of Karl Shepard and against Indra and
Guerrero. The judgment decreed that the quitclaim deed is a
forgery and therefore void. Inside the manila envelope on the
dashboard of the Raptor that appellant had been driving, district
attorney investigators found documents pertaining to Karl
Shepard’s lawsuit, including his request for entry of a default
judgment. Karl Shepard did not testify.
Kelly Adcock
A quitclaim deed purported to convey from Kelly Adcock to
appellant a property in Chatsworth. The conveyance was a gift.
The deed does not show that it was recorded. On May 30, 2014,
Indra notarized Adcock’s signature. But Indra’s notary journal
does not include any entry for this transaction. District Attorney
Investigator Tallent opined that “it appears . . . that [Adcock] did
not appear before the notary because there is no correlating
journal entry.” Appellant’s computer contained Bank of America
statements and an earnings statement from SCV Construction in
Kelly Adcock’s name. Adcock’s bank account number was the
8
same as a Bank of America account that Patrick had opened in
his own name. Adcock did not testify.
David Lankford
A quitclaim deed purported to convey from David Lankford
to Redouane Zidani a property at 5162 West 142nd Street in the
City of Hawthorne. The conveyance was a gift. The deed does
not show that it was recorded. On October 1, 2014, Indra
notarized Lankford’s signature on the deed. Indra’s notary
journal includes an entry for the transaction, but the entry is
missing required information, including Lankford’s thumbprint.
Indra’s journal entry is dated the day after Lankford
purportedly signed the deed. Tallent opined, “If [the deed] was,
indeed, signed before the notary, the notary would have
completed [the journal entry] at the same time on the same date.”
A handwritten note inside Indra’s “notary journal bag”
said, “‘Property address is 5162 W’” and “‘From David Lan[k]ford
going to Red Zidani.’” Tallent opined, “If this was a legitimate
transaction, then the notary wouldn’t need to have a note to . . .
keep the facts straight on how to convey the property . . . .”
During the execution of the search warrant at the Mustang
residence, a district attorney investigator found a copy of
Lankford’s driver’s license. Below the license is a handwritten
note that says, “From David 5162 W. 142nd St[.] Red is
receiving.” Lankford did not testify. At the time of trial, he was
deceased.
Michael Jeffries
In May 2015, a grant deed was recorded conveying from
Michael Jeffries to Redouane Zidani a property on Whitcomb
Avenue in Simi Valley (the Whitcomb property). The conveyance
was a gift. Indra notarized Jeffries’ signature. Indra’s notary
9
journal is missing required information for the transaction,
including Jeffries’ thumbprint.
Tallent testified: “[I]f Mr. Jeffries had appeared before Ms.
Indra to actually notarize a legitimate deed, these [missing] fields
[in Indra’s notary journal] would presumably be complete . . . .”
“[T]he deed was, in my opinion, fraudulently notarized because of
that.”
The Whitcomb property had belonged to Dana Ashby.
Appellant’s computer contained Bank of America statements and
an earnings statement from SCV Construction in Ashby’s name.
Ashby’s bank account number was the same as a Bank of
America account that Patrick had opened in his own name.
Neither Jeffries nor Ashby testified.
Admissibility of Evidence of Uncharged Acts to
Prove Intent and Common Design or Plan
“‘Subdivision (a) of [Evidence Code] section 1101 prohibits
admission of evidence of a person’s character, including evidence
of character in the form of specific instances of uncharged
misconduct, to prove the conduct of that person on a specified
occasion. Subdivision (b) of section 1101 clarifies, however, that
this rule does not prohibit admission of evidence of uncharged
misconduct when such evidence is relevant to establish some fact
other than the person’s character or disposition,’ such as identity,
common plan, or intent. [Citation.] . . . We review the trial
court’s determination for abuse of discretion, and view the
evidence in the light most favorable to the trial court’s ruling.
[Citation.]” (People v. Edwards (2013) 57 Cal.4th 658, 711.)
“Cases sometimes describe Evidence Code section 1101(b)
evidence as ‘prior offenses’ or ‘prior bad acts.’ Both shorthand
formulations are imprecise. Evidence Code section 1101(b)
10
authorizes the admission of ‘a crime, civil wrong, or other act’ to
prove something other than the defendant’s character. (Italics
added.)” (People v. Leon (2015) 61 Cal.4th 569, 597 (Leon).)
“The relevance [of an uncharged act] depends, in part, on
whether the act is sufficiently similar to the current charges to
support a rational inference of intent, common design, identity, or
other material fact. [Citation.] ‘The least degree of similarity
(between the uncharged act and the charged offense) is required
in order to prove intent. [Citation.] . . . In order to be admissible
to prove intent, the uncharged misconduct must be sufficiently
similar to support the inference that the defendant “‘probably
harbor[ed] the same intent in each instance.’”’ [Citation.] . . .
[Citation.]” (Leon, supra, 61 Cal.4th at p. 598.)
“A greater degree of similarity is required in order to prove
the existence of a common design or plan. . . . [E]vidence of
uncharged misconduct must demonstrate ‘not merely a similarity
in the results, but such a concurrence of common features that
the various acts are naturally to be explained as caused by a
general plan of which they are the individual manifestations.’
[Citation.]” (People v. Ewoldt (1994) 7 Cal.4th 380, 402 (Ewoldt).)
Uncharged Acts Admissible to Prove Intent and Commission
of the Charged Offenses Pursuant to a Common Design or Plan
The trial court instructed the jury that it may consider the
uncharged acts for the purpose of establishing identity, intent,
motive, absence of mistake or accident, and common design or
plan. The instruction is “‘presumed correct, and it is the
appellant’s burden to affirmatively demonstrate error.’
[Citation.]” (People v. Sullivan (2007) 151 Cal.App.4th 524, 549.)
Count 4 charged appellant with knowingly possessing a
false completed notary acknowledgment “with intent to defraud.”
11
(§ 475, subd. (a).) An intent to defraud is not an element of a
violation of Penal Code section 115, subdivision (a), which was
charged in count 1. (People v. Guevara (2004) 121 Cal.App.4th
17, 25.) For count 1, the mental element is knowledge that the
deed was false or forged when appellant procured or offered it for
recordation. (§ 115, subd. (a).)4
Appellant argues that the uncharged acts were
inadmissible to prove her intent because she did not dispute this
issue: “[A]ppellant’s defense was a denial of the alleged acts.
The defense asserted that no one forged Cotton’s name and that
Cotton did in fact sign the deed . . . . No dispute existed that if
appellant caused a false quitclaim deed to be filed and possessed
forged notary documents in Cotton’s name, she had [the] intent to
defraud. Thus, if the acts of forgery did in fact occur, appellant’s
intent in committing that offense was not reasonably in dispute;
the intent was to unlawfully transfer Cotton’s property to
appellant, plain and simple.”
Appellant’s intent was disputed. “[A] fact—like defendant’s
intent—generally becomes ‘disputed’ when it is raised by a plea of
not guilty or a denial of an allegation. (Pen.Code, § 1019 [‘The
plea of not guilty puts in issue every material allegation of the
accusatory pleading, except those allegations regarding previous
convictions of the defendant to which an answer is required by
[Penal Code] Section 1025’].) Such a fact remains ‘disputed’ until
4 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.”
12
it is resolved.” (People v. Rowland (1992) 4 Cal.4th 238, 260, first
brackets added, other brackets in original.)
Moreover, appellant’s defense placed the intent element in
issue. By providing an innocent explanation for Cotton’s
signature on the quitclaim deed, appellant in effect claimed that
she did not intend to defraud Cotton.
In her pretrial motion to exclude evidence of uncharged
acts, appellant stated, “She denies the act(s), therefore
inferentially admitting that if she did it [s]he had the requisite
intent.” (Italics added.) Appellant did not offer to stipulate that,
if Cotton’s signature on the quitclaim deed were forged, she had
knowledge of the forgery and intended to defraud him. Even if
appellant had offered to so stipulate, “[b]ecause we conclude that
the disputed evidence was admissible to establish a common
design or plan, . . . [her] offer to [so] stipulate [would not have]
affect[ed] the admissibility of the evidence.” (Ewoldt, supra, 7
Cal. 4th at p. 406, fn. 7.)
Appellant contends that “[t]he uncharged conduct was
inadmissible because it was not sufficiently similar to the
charged offense to prove intent.” Viewing the evidence in the
light most favorable to the trial court’s ruling, we conclude that
the uncharged conduct was sufficiently similar to prove both
intent and common design or plan. “[T]he charged and
uncharged acts together suggested a planned course of action
rather than a series of spontaneous events.” (Ewoldt, supra, 7
Cal.4th at p. 404.) The charged and uncharged acts showed that
appellant, Patrick, and Indra were involved in a scheme to
defraud property owners by preparing and recording forged deeds
with the owners’ signatures notarized by Indra. All of the
conveyances were characterized as gifts to avoid documentary
13
transfer tax. Based on the false Bank of America account
statements and SCV Construction earnings statements in the
owners’ names, it is reasonable to infer, as the People maintain,
that there was “a common plan to impersonate the property
owners for purposes of obtaining mortgage modifications.”
We reject appellant’s claim that the uncharged “property
transfers . . . failed to sufficiently implicate [her] and therefore
were not relevant to prove her intent.” Appellant was linked to
the uncharged property transfers through information on her
computer, documents in the manila envelope on the dashboard of
the Raptor that she had been driving, and documents found
during the search of the Mustang residence. Moreover, Adcock’s
property on Jordan Avenue in Chatsworth was conveyed directly
to appellant.
The charged transfer of the Mustang property involved a
conveyance from Cotton to appellant. Except for Adcock’s
property, the uncharged transfers involved conveyances to
persons other than appellant. This difference between the
charged offense and uncharged acts did not render the uncharged
acts inadmissible. The charged offense and uncharged acts must
be “sufficiently similar,” not identical, to be admissible to show
intent or common scheme or plan. (See Ewoldt, supra, 7 Cal.4th
at pp. 401-402 [“evidence of a defendant’s uncharged misconduct
is relevant where the uncharged misconduct and the charged
offense are sufficiently similar to support the inference that they
are manifestations of a common design or plan”].)
Adcock, Lankford, Jeffries, and Ashby did not testify.
Appellant claims that the absence of their testimony precludes a
finding that the transactions involving them were fraudulent.
The transactions were similar to those involving Cotton, Danel,
14
Munoz, and the Shepards. Cotton, Danel, and Munoz testified
that the transfers of their properties were fraudulent. Although
the Shepards did not testify, appellant concedes: “[T]he
[Shepard] property involved the filing of a fraudulent quitclaim
deed.” “[T]he default judgment against Indra was . . . strong
proof of fraud.” Based on the similarity of all of the transactions
and other evidence, a jury could reasonably infer that the
transactions involving Adcock, Lankford, Jeffries, and Ashby
were also fraudulent even though they did not testify. Of
particular significance is the absence of required information,
including the grantor’s thumbprint, in Indra’s notary journal.
For the Adcock transaction, there is no entry at all in her journal.
The trial court instructed the jury that the uncharged acts
may be considered to prove motive and identity. Appellant
argues that this instruction was erroneous because motive and
identity were not in dispute. Appellant also argues that “the
uncharged conduct was . . . insufficiently similar to be
admissible” to prove identity. “Evidence of an uncharged crime is
relevant to prove identity only if the charged and uncharged
offenses display a ‘“pattern and characteristics . . . so unusual
and distinctive as to be like a signature.”’ [Citation.]” (People v.
Kipp (1998) 18 Cal.4th 349, 370.)
“[B]ecause evidence of prior conduct may be admitted to
prove a defendant’s intent and plan, regardless of whether it also
is relevant to prove the defendant’s [motive or] identity as the
perpetrator, we need not decide whether the evidence was
admissible to prove [appellant’s motive or] identity. Assuming,
without deciding, that the jury should not have been instructed
that it could consider the evidence to establish [appellant’s
motive or] identity as the perpetrator, any error in this jury
15
instruction was harmless.” (People v. Foster (2010) 50 Cal.4th
1301, 1329 (Foster).)
Finally, appellant contends that the trial court should have
excluded the evidence under Evidence Code section 352. “If
evidence of prior conduct is sufficiently similar to the charged
crimes to be relevant to prove the defendant’s intent, common
plan, or identity, the trial court then must consider whether the
probative value of the evidence ‘is “substantially outweighed by
the probability that its admission [would] . . . create substantial
danger of undue prejudice, of confusing the issues, or of
misleading the jury.” (Evid.Code, § 352.)’ [Citation.]” (Foster,
supra, 50 Cal.4th at p. 1328.) “We review a challenge to a trial
court’s choice to admit or exclude evidence under section 352 for
abuse of discretion. [Citation.] We will reverse only if the court’s
ruling was ‘arbitrary, whimsical, or capricious as a matter of law.
[Citation.]’ [Citation.]” (People v. Branch (2001) 91 Cal.App.4th
274, 282.)
The trial court did not abuse its discretion. “‘Evidence is
not prejudicial, as that term is used in a section 352 context,
merely because it undermines the opponent’s position or shores
up that of the proponent. The ability to do so is what makes
evidence relevant. The code speaks in terms of undue
prejudice. . . . “‘The “prejudice” referred to in . . . section 352
applies to evidence which uniquely tends to evoke an emotional
bias against the defendant as an individual and which has very
little effect on the issues.’”’” (People v. Doolin (2009) 45 Cal.4th
390, 438-439.) Here, the prejudice resulting from the admission
of the uncharged acts was not undue. Evidence of these acts was
highly probative. “The testimony describing [appellant’s]
uncharged acts . . . was no stronger and no more inflammatory
16
than the testimony concerning the charged offenses. This
circumstance decreased the potential for prejudice, because it
was unlikely that the jury disbelieved [Cotton’s] testimony
regarding the charged offenses but nevertheless convicted
[appellant] on the strength of [the] testimony . . . regarding the
uncharged offenses, or that the jury’s passions were inflamed by
the evidence of [appellant’s] uncharged offenses.” (Ewoldt, supra,
7 Cal. 4th at p. 405.)
Insufficient Evidence of a False Completed
Notary Acknowledgment
Section 475, subdivision (a) (475(a)) provides: “Every
person who possesses or receives, with the intent to pass or
facilitate the passage or utterance of any forged, altered, or
counterfeit items, or completed items contained in subdivision (d)
of Section 470 with intent to defraud, knowing the same to be
forged, altered, or counterfeit, is guilty of forgery.” (Italics
added.) The statute is divisible into two parts. “The first portion,
‘any forged, altered, or counterfeit items’ is one category set apart
by the word ‘any,’ which means no particular limit is placed on
the type of forged, altered, or counterfeit items. [¶] The second
portion, ‘completed items contained in subdivision (d) of Section
470,’ in its plain meaning, is limited to completed items listed in
section 470, subdivision (d).” (People v. Mutter (2016) 1
Cal.App.5th 429, 434 (Mutter).)
One of the items listed in section 470, subdivision (d), is
“the acknowledgment of any notary public.” Appellant was
charged with possessing completed notary acknowledgements
under the second portion of section 475(a). She claims that the
evidence is insufficient to support her conviction because, as a
matter of law, the notary acknowledgments she possessed were
17
incomplete. Since this is a pure legal question, we exercise our
independent judgment. (Danser v. Public Employees’ Retirement
System (2015) 240 Cal.App.4th 885, 890 [“we exercise
independent judgment to address a pure legal question”].)
The violation of section 475(a) is based on appellant’s
possession of seven notary acknowledgments collectively marked
as People’s Exhibit 78. The notary acknowledgments
authenticate Cotton’s signature, are signed by Indra, and bear
her official notary seal.
District attorney investigators found the notary
acknowledgments in December 2014 when they searched the
Raptor that appellant had been driving. At that time, former
Civil Code section 1189, subdivision (a)(1) set forth the required
form for a notary acknowledgment.5 Former section 1189,
subdivision (a)(1) provided: “Any certificate of acknowledgment
taken within this state shall be in the following form:
State of California )
County of __________ )
On _____________________________ before me, (here insert
name and title of the officer), personally appeared
___________________, who proved to me on the basis of
satisfactory evidence to be the person(s) whose name(s)
5
Present Civil Code section 1189 requires the same form
except that the following new language must appear in an
enclosed box at the top of the form, “A notary public or other
officer completing this certificate verifies only the identity of the
individual who signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or validity of that
document.” (Id., subd. (a)(3).)
18
is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s),
or the entity upon behalf of which the person(s) acted,
executed the instrument.
I certify under PENALTY OF PERJURY under the laws of
the State of California that the foregoing paragraph is true
and correct.
WITNESS my hand and official seal.
Signature ______________________________ (Seal)”
As to the seven notary acknowledgments included in
People’s Exhibit 78, three fully comply with the required form
except for the date. On two of these three acknowledgments, the
space for the date was left blank. As appendix A to this opinion,
we attach a copy of one of these two undated acknowledgments.
The third acknowledgment contains the date of June 16, but the
year is missing. These three notary acknowledgments were not
affixed or attached to a document. The other four notary
acknowledgments were affixed to the last page of an unsigned
affidavit. They are undated and, although Indra signed them,
she did not do so under penalty of perjury as required by Civil
Code section 1189. These four undated and unverified notary
acknowledgments cannot qualify as “completed items” within the
meaning of section 475(a).
19
We must ascertain whether the three undated but
otherwise fully executed, verified notary acknowledgments
qualify as “completed items” within the statutory meaning. “In
construing . . . any statute, we strive to ascertain and effectuate
the Legislature’s intent. [Citations.] . . . ‘[W]e follow the
Legislature’s intent, as exhibited by the plain meaning of the
actual words of the law, “‘“whatever may be thought of the
wisdom, expediency, or policy of the act.”’”’ [Citation.] We give
the words of the statute ‘“their usual and ordinary meaning.”’
[Citation.] . . . ‘Interpretations that lead to absurd results or
render words surplusage are to be avoided. [Citation.]’
[Citation.] ‘If there is no ambiguity in the language of the
statute, “then the Legislature is presumed to have meant what it
said, and the plain meaning of the language governs.” [Citation.]
“Where the statute is clear, courts will not ‘interpret away clear
language in favor of an ambiguity that does not exist.’
[Citation.]”’” (People v. Loeun (1997) 17 Cal.4th 1, 8-9.)
The pertinent language of sections 475(a) and 470,
subdivision (d) - “completed” notary acknowledgment - is clear
and unambiguous. Webster’s Third New International
Dictionary defines “complete” as “possessing all necessary parts,
items, components, or elements: not lacking anything necessary.”
(Webster’s Third New Internat. Dict. (1981) p. 465, col. 1.) Both
former and present Civil Code section 1189 make clear that a
notary public’s certificate of acknowledgment must include the
date that the person seeking notarization personally appeared
before the notary public. The certificate of acknowledgment form
begins with the language, “On ________ before me, . . . personally
appeared ______________ . . . .” (Former Civ. Code, § 1189, subd.
20
(a)(1), present § 1189, subd. (a)(3).)6 Thus, as a matter of law, a
notary public’s certificate of acknowledgment is not a “completed
item” within the meaning of section 475(a) if it omits the date
that the person seeking notarization appeared before the notary
public.
Our interpretation of section 475(a) does not lead to absurd
results. The requirement that the certificate of acknowledgment
include the date is not a mere formality. The requirement assists
in verifying the identity of the person who signed the notarized
document. For example, suppose that a notary public’s certificate
of acknowledgment states that on March 1, 2018, John Smith
appeared before the notary in the County of Ventura and proved
that he signed the attached document. If John Smith can show
that he was not in the County of Ventura on that date, he may be
able to prove that he did not sign the document.
Accordingly, appellant’s conviction for possessing a
completed notary acknowledgment with intent to defraud in
violation of section 475(a) must be reversed for insufficiency of
the evidence.
6
The requirement of the date is set forth at page 10 of the
2019 Notary Public Handbook, published by the California
Secretary of State: “The certificate of acknowledgment must be in
the form set forth in Civil Code section 1189. In the certificate of
acknowledgment, the notary public certifies: [1] That the signer
personally appeared before the notary public on the date
indicated in the county indicated; [2] To the identity of the signer;
and [3] That the signer acknowledged executing the document.”
(Italics added.) The 2019 Notary Public Handbook appears at
https://notary.cdn.sos.ca.gov/forms/notary-handbook-2019.pdf.
21
Reduction to Attempted Possession, Vel Non
At our request the parties have submitted supplemental
letter briefs on whether appellant’s invalid conviction for a
violation of section 475(a) can be reduced to an attempted
violation of the statute, i.e., an attempted possession of a
completed notary acknowledgment with the intent to defraud.
In People v. Bailey (2012) 54 Cal.4th 740 (Bailey), our
Supreme Court discussed when an appellate court can reduce a
conviction of a completed crime to an attempt to commit the
crime. The court noted, “We have ‘long recognized that under
Penal Code sections 1181, subdivision 6, and 1260, an appellate
court that finds that insufficient evidence supports the conviction
for a greater offense may . . . modify the judgment of conviction to
reflect a conviction for a lesser included offense.’” (Id. at p. 748,
fn. omitted.) For an attempt to qualify as a lesser included
offense of the completed crime, the “elements test” must be
satisfied. (Id. at p. 752.) This “test is satisfied if the statutory
elements of the greater offense include all of the statutory
elements of the lesser offense, such that all legal elements of the
lesser offense are also elements of the greater. [Citation.] In
other words, ‘“[I]f a crime cannot be committed without also
necessarily committing a lesser offense, the latter is a lesser
included offense within the former.”’” (Id. at p. 748.)
Another test for determining whether an uncharged offense
is a lesser included offense is “the ‘accusatory pleading’ test.”
(Bailey, supra, 54 Cal.4th at p. 748.) Under this test, “a lesser
offense is included within the greater charged offense if the facts
actually alleged in the accusatory pleading include all of the
elements of the lesser offense.” (Ibid.) But “the accusatory
pleading test only applies in determining whether a defendant
22
received notice of the charges against him in order to have a
reasonable opportunity to prepare and present his defense.” (Id.
at p. 751.) To reduce the conviction of a completed crime to an
attempt to commit that crime, the attempt must still satisfy the
elements test. (Id. at pp. 751-752.)
The elements of a completed violation of section 475(a) are
(1) possession of a completed notary acknowledgment, (2) “with
the intent to pass or facilitate the passage or utterance” of the
acknowledgment, (3) with the intent to defraud, and (4) with
knowledge that the acknowledgment is “forged, altered, or
counterfeit.” (Ibid.) An attempt to commit a violation of section
475(a) “requires a specific intent” to commit the crime. (Bailey,
supra, 54 Cal.4th at p. 749.) “Section 21a states that ‘[a]n
attempt to commit a crime consists of two elements: a specific
intent to commit the crime, and a direct but ineffectual act done
toward its commission.’” (Ibid.)
We need not decide whether, under the elements test, an
attempt to violate section 475(a) is a lesser included offense of a
completed violation of section 475(a). Even if it is a lesser
included offense under this test, we cannot reduce appellant’s
conviction of a violation of section 475(a) to an attempted
violation of that section. We cannot do so because the jury was
not instructed that the possession of a completed notary
acknowledgment is an element of the charged offense. The jury
was instructed as follows: “The defendant . . . is charged in
Count 4 with possessing or receiving a forge[d] document in
violation of Penal Code [s]ection 475, sub[division] (a). To prove
that the defendant is guilty of this crime, the People must prove
that: One, the defendant possessed a false notary
acknowledgment [not a false completed notary acknowledgment];
23
two, the defendant knew that the document was forged or false;
three, the defendant intended to pass, use, aid the passage or use
of the document as genuine; and, four, when the defendant
possessed or received the document, she intended to defraud.”7
An appellate court can reduce a conviction of a completed
crime to an attempt to commit that crime only if “the jury, by
finding defendant guilty of [the completed crime], . . . impliedly
[found] all the elements of the attempt offense.” (Bailey, supra,
54 Cal.4th at p. 752.) Because the jury here was not instructed
on the requirement that the notary acknowledgment must be
completed, “the jury, by finding defendant guilty of [a violation of
section 475(a)], [could] not [have] impliedly [found] all the
elements of the attempt offense.” (Ibid.) In other words, the jury
could not have found that appellant had attempted to possess a
false completed notary acknowledgment. Since an attempt to
commit a crime requires “a specific intent to commit the crime”
(§ 21a), it follows that an attempt to commit a violation of section
475(a) requires a specific intent to possess a false completed
notary acknowledgment.
We have attempted to follow the law. But our conclusion
gives us some pause. The Legislature has determined that it is a
7 CALCRIM No. 1930, the jury instruction for section
475(a), does not require a finding of “completeness” where, as
here, the defendant is charged under the second portion of the
statute, which “is limited to [the possession or receipt of]
completed items listed in section 470, subdivision (d).” (Mutter,
supra, 1 Cal.App.5th at p. 434; see the discussion of section
475(a), ante, at pp. 17-18.) The jury instruction should be
modified to rectify this omission.
24
crime to possess a completed but forged notary document, with
the criminal intent to use it to obtain title to real property.
Paradoxically, possession of a nearly identical document with the
same criminal intent is apparently legal. If there is a rationale
for this distinction, we have not found it. Section 475(a) is
written in a way that seems to preclude application of the general
attempt statute. (§ 664.)
Although she was not charged with conspiracy, the record
shows that appellant, her husband and her sister were engaged
in a criminal scheme to fraudulently acquire title to multiple
parcels of real property. There were many victims. As part of the
scheme, appellant possessed forged but incomplete notary
documents with the intent to use them to further the criminal
scheme. This should be a crime. The fact that it is not, means the
punishment appellant will receive at resentencing is not
commensurate with her culpability.
Possession of even an incomplete forged notary
document shows a sophisticated disregard for the laws relating to
perjury and strikes at the heart of real property conveyancing in
the State of California. We urge the Legislature to revisit this
matter and clarify that possession of an incomplete forged notary
document with the requisite criminal intent constitutes an
attempted violation of section 475(a). (See, e.g., People v.
Wetmore (1978) 22 Cal.3d 318, 331, citing Witkin, Manual on
Appellate Court Opinions (1977) § 88 [suggestions to the
Legislature concerning potential change in the law].)
Aggravated White Collar Crime Enhancement
and $500,000 Fine
The jury found true an aggravated white collar crime
enhancement allegation that appellant had “committed two
25
related felonies as set forth in Counts 1 and 4 which resulted in a
loss to another person of more than $500,000 within the meaning
of Penal Code section 186.11(a)(2).” For this enhancement, the
trial court imposed a consecutive three-year term of
imprisonment.
Since we must reverse appellant’s conviction on count 4 for
a violation of section 475(a) and the conviction cannot be reduced
to an attempted violation of that section, appellant stands
convicted of only one felony, not two related felonies. We
therefore must also reverse the true finding on the aggravated
white collar crime enhancement.
The $500,000 fine must be stricken. Section 186.11,
subdivision (c) authorizes a fine not to exceed $500,000 only when
a person has been convicted of two or more related felonies.
Repeal of Former Section 12022.6
The jury found true an allegation that appellant “took,
damaged or destroyed property of a value exceeding $200,000,
within the meaning of Penal Code section 12022.6(a)(2).” The
trial court imposed a consecutive two-year term for this
enhancement. Appellant was sentenced in March 2018.
Pursuant to a sunset clause, section 12022.6 was repealed
effective January 1, 2018. (See former § 12022.6, subd. (f).)8
Because of the repeal, appellant contends that “[t]he true finding
8 Former section 12022.6, subdivision (f) provided: “It is
the intent of the Legislature that the provisions of this section be
reviewed within 10 years to consider the effects of inflation on the
additional terms imposed. For that reason this section shall
remain in effect only until January 1, 2018, and as of that date is
repealed unless a later enacted statute, which is enacted before
January 1, 2018, deletes or extends that date.” (Stats. 2010, ch.
711, § 5.) No such statute was enacted.
26
on [the] enhancement must . . . be reversed and the resultant
two-year term must be stricken as unauthorized.”
The only published opinion on this issue is People v. Shiga
(2019) 34 Cal.App.5th 466, 470-471: “Shiga contends . . . the
enhancement the trial court imposed . . . under former section
12022.6, subdivision (a)(4), for causing damage in excess of $ 3.2
million, must be stricken because the enhancement was
repealed by its own terms, effective January 1, 2018. (Former §
12022.6, subd. (f).) We reject this contention because the repeal
of former section 12022.6 does not apply retroactively.” The
excerpt from Shiga appears in the opinion’s introduction. The
portion of the opinion discussing the issue in depth was not
certified for publication.
The controlling authority is In re Pedro T. (1994) 8 Cal.4th
1041. There, a minor was found to have unlawfully taken and
driven a vehicle under an amendment to Vehicle Code section
10851, which increased the maximum punishment from three to
four years. The amendment had a sunset clause. The minor
“committed [the offense] during the effective period of the
provision for increased punishment, but [the judgment] . . . was
not yet final as of the ‘sunset’ date of that provision . . . .” (Id. at
p. 1043.) The minor was committed to the California Youth
Authority for the maximum term of four years.
The Supreme Court concluded that “the provision for
enhanced penalties shall apply to all vehicle thefts committed
during its stated effective period.” (In re Pedro T., supra, 8
Cal.4th at p. 1048.) The court reasoned: “Ordinarily when an
amendment lessens the punishment for a crime, one may
reasonably infer the Legislature has determined imposition of a
lesser punishment on offenders thereafter will sufficiently serve
27
the public interest.[9] In the case of a ‘sunset’ provision attached
to a temporary enhancement of penalty, the same inference
cannot so readily be drawn.” (Id. at p. 1045.) “[T]he very nature
of a sunset clause, as an experiment in enhanced penalties,
establishes—in the absence of evidence of a contrary legislative
purpose—a legislative intent the enhanced punishment apply to
offenses committed throughout its effective period.” (Id. at
p. 1049.)
Appellant has failed to show that, when the sunset
provision of section 12022.6 was enacted, the Legislature did not
intend to apply the provision’s enhanced punishment to offenses
committed throughout its effective period. (See In re Pedro T.,
supra, 8 Cal.4th at p. 1048 [“It is axiomatic that in assessing the
import of a statute, we must concern ourselves with the
Legislature's purpose at the time of the enactment”].) The trial
court therefore did not err in imposing a two-year consecutive
term for the enhancement. (See People v. Enlow (1998) 64
Cal.App.4th 850, 858 [“applying the reasoning of Pedro T., we
conclude that since Penal Code section 666.5 . . . provides for a
period of increased penalties and contains a sunset clause, the
legislative intent was that persons such as Enlow who committed
9 See In re Estrada (1965) 63 Cal.2d 740, 745: “When the
Legislature amends a statute so as to lessen the punishment it
has obviously expressly determined that its former penalty was
too severe and that a lighter punishment is proper as punishment
for the commission of the prohibited act. It is an inevitable
inference that the Legislature must have intended that the new
statute imposing the new lighter penalty now deemed to be
sufficient should apply to every case to which it constitutionally
could apply.”
28
his crime during the experimental period of increased penalties
are to be punished pursuant to the increased penalties,” even
though their sentences were not final when the sunset clause
took effect].)
Ability to Pay Victim Restitution
In a supplemental brief, appellant argues that, pursuant to
People v. Dueñas (2019) 30 Cal.App.5th 1157, “this Court should
remand this case to the trial court for a determination on
appellant’s ability to pay . . . the $189,382 in victim restitution
imposed under section 1202.4 subdivision (f).”
Appellant forfeited the ability to pay issue because she
failed to raise it in the trial court. (People v. Frandsen (2019) 33
Cal.App.5th 1126, 1153-1155; People v. Avila (2009) 46 Cal.4th
680, 728-729; People v. Bipialaka (2019) 34 Cal.App.5th 455, 464;
People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1033.) Even if
appellant had not forfeited the issue, Dueñas does not apply to
victim restitution under section 1202.4, subdivision (f). (See
People v. Evans (2019) 39 Cal.App.5th 771, 777 [“Based on the
significant differences in purpose and effect between victim
restitution and the moneys at issue in Dueñas, we decline to
extend the rule of Dueñas to victim restitution”].)
Disposition
The conviction on count 4 for possession of a false
completed notary acknowledgment with intent to defraud
(§ 475(a)) is reversed for insufficiency of the evidence. The true
finding on the aggravated white collar crime enhancement
allegation (§ 186.11, subds. (a)(1), (a)(2)) is also reversed. The
$500,000 fine imposed pursuant to section 186.11, subdivision (c),
is stricken. The matter is remanded to the trial court for
resentencing. In all other respects, the judgment is affirmed.
29
After resentencing, the trial court shall prepare an amended
abstract of judgment and send a certified copy to the Department
of Corrections and Rehabilitation.
CERTIFIED FOR PUBLICATION.
YEGAN, Acting P. J.
We concur:
PERREN, J.
TANGEMAN, J.
30
31
Michael Lief, Judge
Superior Court County of Ventura
______________________________
Kelly C. Martin, under appointment by the Court of Appeal
for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters,
Assistant Attorney General, Michael R. Johnsen, Supervising
Deputy Attorney General, Theresa A. Patterson, Deputy Attorney
General, for Plaintiff and Respondent.