People v. Mack CA4/3 ( 2024 )


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  • Filed 10/29/24 P. v. Mack CA4/3
    NOT TO BE PUBLISHED IN OFFICIAL REPORTS
    California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
    publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
    or ordered published for purposes of rule 8.1115.
    IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
    FOURTH APPELLATE DISTRICT
    DIVISION THREE
    THE PEOPLE,
    Plaintiff and Respondent,                                        G062401
    v.                                                           (Super. Ct. No. RIF1700487)
    BRUCE MACK et al.,                                                     OPINION
    Defendants and Appellants.
    Appeal from a judgment of the Superior Court of Riverside,
    Timothy J. Hollenhorst, Judge. Affirmed in part and remanded with directions.
    Christopher Love, under appointment by the Court of Appeal, for
    Defendant and Appellant Bruce Mack.
    William Paul Melcher, under appointment by the Court of
    Appeal, for Defendant and Appellant Jamie Yvonne Mack.
    Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
    Attorney General, Charles C. Ragland, Assistant Attorney General, Daniel J.
    Hilton and Steve Oetting, Deputy Attorneys General, for Plaintiff and
    Respondent.
    *                *                 *
    Defendants Bruce and Jamie Mack, husband and wife (the
    Macks), appeal from a judgment finding them criminally liable for multiple
    1
    counts of recording a false document. (Pen. Code, § 115, subd. (a).) They
    recorded various documents pertaining to two properties they had owned, but
    which had been foreclosed upon. Despite the foreclosures, they filed for
    bankruptcy and listed the properties as assets. At trial, the Macks testified
    that because the properties were not disposed of in the bankruptcy
    proceeding, they believed the properties returned to them and thus they
    owned the properties. They argued they did not knowingly record a false
    document and could not be held criminally liable. They requested a standard
    mistake of fact jury instruction, but the court refused it, instead giving a jury
    instruction on mistake of law. On appeal, the Macks contend this was
    prejudicial error. We agree the court erred, but we conclude the error was
    harmless and affirm the underlying conviction.
    However, one aspect of the judgment requires partial reversal:
    The parties agree, as do we, that a probation condition requiring Bruce Mack
    to participate in any treatment recommended by his probation officer was an
    unconstitutional delegation of authority to the probation officer. We will
    remand and direct the court to strike the probation condition. The court may,
    in its discretion, impose a more specific condition.
    1
    All statutory references are to the Penal Code unless stated
    otherwise.
    2
    FACTS
    I.
    THE VIA DEL RIO PROPERTY (COUNT 1 AGAINST BOTH DEFENDANTS)
    In 1992, the Macks purchased a home located at 1404 Via Del
    Rio, in Corona, California (the Via Del Rio Property). In April of 2009, the
    property was sold in a foreclosure sale (also known as a trustee’s sale). The
    new owner was H&R Block Bank. The Macks had no ownership interest in
    the Via Del Rio Property at that time.
    In June of 2009, H&R Block Bank filed an unlawful detainer
    action against the Macks. In September 2009, after a trial in the unlawful
    detainer action, the Macks were formally evicted.
    That same year, the Via Del Rio Property was purchased by
    Abbas Faradjollah from H&R Block Bank. The property was in poor condition
    at the time. Faradjollah repaired the property and rented it out to tenants.
    Faradjollah pays the property taxes and homeowner’s association fee
    associated with the property.
    In October of 2014, the Macks recorded a “Correction of Grant
    Deed,” which forms the basis of count 1. This document purported to correct
    the deed issued in September of 1992 whereby the Macks acquired the Via
    Del Rio Property. Whereas the original deed showed Frances Cook as the
    grantor and the Macks as the grantees, the correction filed by the Macks
    showed them as both the grantors and the grantees. The correction was
    accompanied by a “certificate and affidavit of acknowledgment” that
    contained various statements of dubious coherence. For example: “I/We,
    Bruce Mack and Jamie Mack are a man and woman living in the presence of
    Almighty God, is the original issuer, holder of security interest, with
    indefeasible title to our land, the tract or parcel of land and fixture, and
    3
    lawful owner(s) of the landed Estate and organizations known as BRUCE
    MACK and JAMIE MACK, and it’s real property, and interest, under the
    seal, ‘BURROW ESCROW CO.,’ or it’s derivation (dba), am recorded as the
    Grantees on the Grant Deed for the real estate described as follows: . . . .” “By
    our freewill act and deed, we execute this acknowledgment of our lawful
    acceptance of the delivery and ownership of the said deed, and lawful
    ownership of the real property under the terms of the said Deed. We ask that
    the record on file in the Office of the Register of Deeds be updated, to show
    our lawful acceptance of the Grant Deed and as lawfully seized owner(s) of
    the real estate in fee simple absolute (seisin). [APN: 101- 171- 143- 0]
    Thereby perfecting and correcting the Deed, without any intent of granting or
    assigning or selling or exchanging any right regarding said deed lawfully
    accepted by us, or regarding any property listed or inferred thereon, to any
    person(s) other than ourselves, Bruce Mack and Jamie Mack a man and a
    woman, flesh and blood, sui juris, sole owner(s).” “All of our other real
    property and interest issues for this real estate, the tract or parcel of land
    and fixture, and its gain are to be immediately returned to the Estate that we
    are the beneficiaries of.”
    Faradjollah testified that as a result of the correction of grant
    deed, title was clouded to his property, and he was unable to sell it to support
    his retirement as he had planned. He also testified that someone taped a no
    trespassing sign to the front door and delivered a copy to him. This caused
    Faradjollah’s tenant to question whether Faradjollah legally owned the
    property and whether the tenant should find a new rental property.
    4
    II.
    THE BLUFF VISTA PROPERTY (COUNTS 2 )
    In September 2006, Jamie Mack purchased a residence at 17201
    Bluff Vista Court, Riverside, California (the “Bluff Vista Property”). In June
    2008, the lender, Citibank N.A. (Citibank), foreclosed upon the property.
    From that time, Citibank was the owner of the Bluff Vista Property, and the
    Macks had no ownership interest. In 2008, Citibank filed an unlawful
    detainer suit to remove the Macks from the Bluff Vista Court Property.
    In May 2012, Jamie Mack recorded a rescission of trustee’s deed
    upon sale, which forms the basis of count 2. This document purported to
    rescind the transfer of the Bluff Vista Property to Citibank. It was
    supposedly recorded by Quality Loan Service Corp. (Quality Loan), which had
    been the trustee in the foreclosure sale. However, it was signed by someone
    named Benny George Lopez, who had no affiliation with Quality Loan. Benny
    George Lopez was a friend of the Macks. Included as exhibits to the recission
    were various documents purporting to abandon any interest in the Bluff
    Vista Property, which were signed by six different entities, including
    Citibank and Quality Loan. However, the person signing on behalf of those
    entities was Jamie Mack.
    In response to the filing of the recission, Quality Loan recorded a
    notice of rescission to try and undo the effects of Jaime Mack’s fraudulent
    rescission.
    In response, in August 2012, Jamie Mack recorded a “notice of
    rescission of notice of rescission of trustee’s deed upon sale,” which forms the
    basis for count 3. This was Jamie Mack’s apparent attempt to, once again,
    wrest title to the Bluff Vista Property back into her name. The document was
    signed by Duane Anderson on behalf of Quality Loan, but, once again, Duane
    5
    Anderson had no affiliation with Quality Loan. Attached to this document
    were the same exhibits signed by Jamie Mack on behalf of six entities,
    including Citibank and Quality Loan.
    At the same time, the Macks recorded a UCC financing
    statement in which they declared that they own the Bluff Vista Property in
    fee simple.2 This formed the basis of count 4 against both defendants.
    In October of 2014, Jamie Mack filed a correction of grant deed,
    which formed the basis for count 5. The correction of grant deed was similar
    to the one filed in connection with count 1. It attached the original grant deed
    by which Jamie Mack acquired the Bluff Vista Property from the prior
    owners, and it purported to “correct” that deed by substituting Jamie Mack
    as both the grantor and the grantee under the deed.
    III.
    BANKRUPTCY
    Around March of 2011, the Macks filed for bankruptcy. Bruce
    Mack testified that the two properties were listed as unsecured assets in the
    bankruptcy, and ultimately, when the bankruptcy suit concluded in
    September 2013, all assets were abandoned back to the debtors. As a result,
    Bruce Mack testified he believed the properties belonged to them. Jamie
    Mack concurred in that testimony.
    2
    A UCC Financing Statement is a “a vehicle for perfecting a security
    interest.” (Cassel v. Kolb (1999) 
    72 Cal.App.4th 568
    , 572.) In other words, it
    creates a lien. (See Westamco Investment Co. v. Lee (1999) 
    69 Cal.App.4th 481
    ,
    483.)
    6
    VI.
    PROCEDURAL HISTORY
    In a second amended information, defendant Bruce Mack was
    charged with two counts of recording a false instrument (Penal Code, §115,
    subd. (a)); counts 1 and 4.) Defendant Jamie Mack was charged with five
    counts of recording a false instrument. In connection with count 1, it was
    further alleged that the defendants damaged the property in an amount
    exceeding $65,000 within the meaning of former Penal Code section 12022.6.
    After trial, a jury found the Macks guilty on all counts, and found it to be true
    that they had caused damage exceeding $65,000.
    The court suspended imposition of sentence and placed Bruce
    Mack on two years’ felony probation with a variety of terms and conditions,
    including that he “participate and complete at your expense any counseling,
    rehabilitation/treatment program deemed appropriate by probation officer.”
    Similarly, the court suspended sentence and placed appellant Jamie Mack on
    two years’ probation, but did not include the same condition regarding
    rehabilitation and treatment programs. Both defendants appealed.
    DISCUSSION
    I.
    THE COURT ERRED IN FAILING TO GIVE A MISTAKE OF FACT INSTRUCTION,
    BUT THE ERROR WAS HARMLESS
    The Macks’ primary contention on appeal is that the court erred
    by failing to instruct the jury on a mistake of fact defense. At trial,
    defendants requested a jury instruction on mistake of fact (i.e., CALCRIM
    No. 3406).3 This was based on the defendants’ testimony that they believed
    3
    CALCRIM 3406 states: “The defendant is not guilty of <insert
    7
    the bankruptcy proceeding had given them back title to the properties.
    Section 115 makes it a crime to “knowingly procure . . . any false or forged
    instrument to be . . . recorded . . . .” Defendants argued that their mistake of
    fact negated the scienter element of the crime.
    The court denied the request, reasoning that “whether or not they
    own that property” is “a question of law, not a fact.” “Their property rights
    were terminated. That’s . . . not a question of fact.” The court instead gave a
    mistake of law instruction based on CALCRIM No. 3407, which stated, “It is
    not a defense to the crime of Penal Code section 115, filing a false document,
    that the defendants did not know they were breaking the law or that they
    believed their act was lawful.” Defendants contend this was error. We agree.
    Generally, a defendant is entitled to any requested instruction
    that is relevant to a defense, an accurate statement of the law, and supported
    by the evidence. (People v. Daveggio and Michaud (2018) 
    4 Cal.5th 790
    , 851;
    People v. Ponce (1996) 
    44 Cal.App.4th 1380
    , 1386.) We review claims of
    instructional error de novo. (People v. Speck (2022) 
    74 Cal.App.5th 784
    , 791.)
    Section 26 provides, in pertinent part, that persons who
    “committed the act or made the omission charged under an ignorance or
    mistake of fact, which disproves a criminal intent,” are not criminally liable
    crime[s]> if (he/she) did not have the intent or mental state required to
    commit the crime because (he/she) [reasonably] did not know a fact or
    [reasonably and] mistakenly believed a fact. [¶] If the defendant’s conduct
    would have been lawful under the facts as (he/she) [reasonably] believed
    them to be, (he/she) did not commit <insert crime[s]>. [¶] If you find that the
    defendant believed that <insert alleged mistaken facts> [and if you find that
    belief was reasonable], (he/she) did not have the specific intent or mental
    state required for <insert crime[s]>. [¶] If you have a reasonable doubt about
    whether the defendant had the specific intent or mental state required for
    <insert crime[s]>, you must find (him/her) not guilty of (that crime/those
    crimes).”
    8
    for the act. Although mistake of fact is often described as a “defense” to a
    charge, that “term is somewhat misleading, because mistake of fact is,
    generally speaking, ‘not a true affirmative defense.’” (People v. Hendrix
    (2022) 
    13 Cal.5th 933
    , 940 (Hendrix).) “It is, rather, an assertion by the
    defendant that a particular factual error in his perception of the world led
    him to lack the mens rea required for the crime.” (Ibid.) In this sense, it is
    more in the nature of a failure-of-proof defense. (Ibid.)
    On the other hand, a mistake of law is usually not a defense to a
    crime. “Generally, mistake of law is not a defense to a crime. [Citation.] ‘If the
    act itself is punishable when knowingly done, it is immaterial that the
    defendant thought it was lawful.’ [Citation.] Criminal intent in a general
    intent crime ‘is merely the intent to commit the prohibited act, not the intent
    to violate the law.’” (People v. Cole (2007) 
    156 Cal.App.4th 452
    , 483.)
    Drawing the distinction between a mistake of fact and a mistake
    of law can be tricky, particularly where the mistake is about a legal status. In
    drawing that distinction, our high court explained: “There are a number of
    circumstances . . . in which violation of a penal statute is premised on the
    violator’s harboring a particular mental state with respect to the nonpenal
    legal status of a person, thing, or action. In such cases, the principle is ‘firmly
    established that defendant is not guilty if the offense charged requires any
    special mental element, such as that the prohibited act be committed
    knowingly, fraudulently, corruptly, maliciously or wilfully, and this element of
    the crime was lacking because of some mistake of nonpenal law.’ [Citation.]
    [But] the mistake must be one of nonpenal law. [Citation.] Thus, a taxpayer
    may defend against a [tax fraud] charge on the basis, for example, that he
    mistakenly believed certain deductions were proper under the tax laws, but
    9
    not on the basis that he was unaware it was a crime to lie on one’s tax return.”
    (People v. Hagen (1998) 
    19 Cal.4th 652
    , 661, fn. 4.)
    Here, we confront precisely the situation our high court
    described: defendants claim to be mistaken about ownership of property — a
    nonpenal aspect of the law — and that mistake serves to negate the scienter
    element of Penal Code section 115 (i.e., knowing the document was false or
    fraudulent). On these facts, defendants were entitled to a mistake of fact
    instruction.
    The error the trial court seems to have made is in thinking that
    any question of law is automatically a mistake-of-law scenario. That is not
    accurate. As the Bench Notes to CALCRIM No. 3407 state, “Although
    concerned with knowledge of the law, a mistake about legal status or rights is
    a mistake of fact, not a mistake of law.” (Judicial Council of Cal., Crim. Jury
    Instns. (2024) Bench notes to CALCRIM No. 3407.)
    Having found the court erred, we next consider whether the error
    was prejudicial. We conclude it was not.
    In deciding whether instructional error was prejudicial, we apply
    the state law test articulated in People v. Watson (1956) 
    46 Cal.2d 818
    , 836,
    and consider whether it is reasonably probable that the outcome would have
    been different in the absence of the error. (Hendrix, supra, 13 Cal.5th at p.
    942.) As a general matter, this test applies to “‘“incorrect, ambiguous,
    conflicting, or wrongly omitted instructions that do not amount to federal
    constitutional error.”’”4 (People v. Beltran (2013) 
    56 Cal.4th 935
    , 955.)
    4
    In contrast, we would apply the stricter federal test articulated
    in Chapman v. California (1967) 
    386 U.S. 18
     had the jury been misinstructed
    in a manner that amounted to relieving the People of proving an element of
    the crime.
    10
    The error was harmless for two reasons.
    First, as noted above, the nature of the mistake-of-fact defense is
    really a failure-of-proof defense. The jury knew what proof was required of
    the People. The jury was properly instructed on the elements of section 115,
    and it was properly instructed that the People had to prove each element of
    the crime beyond a reasonable doubt.
    Second, the closing arguments demonstrated that the jury was
    well informed on the issue of whether defendants knew the documents to be
    false. The prosecutor acknowledged that the crux of the trial turned on
    whether defendants knew the documents they filed were false when they filed
    them. The prosecutor declared: “Intent is the issue in this case.” The
    prosecutor went on to argue extensively about what the defendants knew.
    Bruce Mack’s counsel then took his turn and continued the
    theme: “The law says knowledge. They got to know [N]ot that they should
    know, not that I know, not that anybody with common sense would know.
    They got to know.” His entire argument was about what Bruce believed when
    he filed the relevant documents. If Bruce was simply mistaken, “That’s not a
    crime. That’s a civil offense . . . . It’s not a crime if they didn’t do it with
    knowledge that the documents are fake or forged.”
    Jamie Mack’s counsel jumped on the same bandwagon: “As my
    learned friend [i.e., Bruce’s counsel] just said, the key issue was knowledge.
    [¶] What was the knowledge going on in my client Jamie Mack . . . .?” Her
    argument proceeded to focus exclusively on what Jamie Mack believed when
    she filed the relevant document.
    The prosecutor, in her rebuttal, portrayed the defendants as
    “plugging [their] finger in [their] ears yelling no, no, no, no, no.” “It is
    knowledge that matters, not what you believe or you hope to be true. They
    11
    can hope all they want, but the knowledge is they know they don’t own the
    property.” “This is not a good faith belief that they had.”
    The overwhelming focus of the closing arguments correctly
    informed the jury that the Macks had to know that the documents they filed
    were false, and if they were mistaken about that fact, they were not guilty of
    a crime. We do not believe that a mistake-of-fact instruction would have
    materially changed anything about the trial. The jury simply did not believe
    the Macks held a good faith belief that the documents they filed were true.
    Accordingly, the instructional error was harmless.
    II.
    THE PROBATION CONDITION THAT BRUCE PARTICIPATE IN ANY COUNSELING
    THE PROBATION OFFICER RECOMMENDS IS UNCONSTITUTIONAL
    Finally, the parties agree that Bruce’s probation condition that he
    “participate and complete at [his] expense any counseling, rehabilitation/treatment
    program deemed appropriate by probation officer” is unconstitutional. The
    fundamental problem is that setting the conditions of probation is a judicial
    function, yet a probation condition that places so much decision making in the
    hands of a probation officer essentially delegates to the executive branch what is a
    judicial power.
    Probation officers enjoy broad discretion in carrying out court
    orders. (In re Pedro Q. (1989) 
    209 Cal.App.3d 1368
    , 1372-1373.) The
    probation department is vested with the power to “set the time and place for
    administration” of court-ordered probation conditions. (People v. Kwizera
    (2000) 
    78 Cal.App.4th 1238
    , 1240.) “Probation officers have wide discretion to
    enforce court-ordered conditions, and directives to the probationer will not
    require prior court approval if they are reasonably related to previously
    imposed terms.” (Pedro Q., at p. 1373.)
    12
    However, the probation conditions themselves must be set by the
    court. “Under the separation of powers doctrine [Citation], judicial powers
    may not be delegated to nonjudicial officers. [Citation.] While the probation
    officer may properly specify the details necessary to effectuate the court’s
    probation conditions, it is the court’s duty to determine the nature of the
    requirements imposed on the probationer.” (People v. Smith (2022) 
    79 Cal.App.5th 897
    , 902 (Smith).) “By leaving key determinations to be decided
    ad hoc, a vague probation condition may . . . result in an impermissible
    delegation of authority to the probation officer.” (Ibid.)
    In Smith a probation condition was deemed constitutionally infirm
    where it directed the defendant to participate in “any treatment/therapy/counseling
    program, including residential, as directed by the probation officer.” (Smith, supra,
    79 Cal.App.5th at p. 902.) Although the condition survived a vagueness challenge,
    it did so only because there was a context showing that a substance abuse
    assessment was ordered, and the treatment would be tailored to the results of the
    assessment. However, the condition was an improper delegation of authority to the
    probation officer because a residential program imposes far greater burdens than
    other types of programs. (Id. at p. 903.)
    Here, both parties agree that a condition permitting the
    probation officer to order any type of counseling or treatment program was an
    improper delegation of authority. We agree. We believe this case is a more
    severe constitutional violation than in Smith because, there, the defendant’s
    substance abuse program provided some context. Here, it is not clear what
    sort of treatment program would be appropriate. The court essentially gave
    the probation officer carte blanche to create conditions of probation.
    13
    DISPOSITION
    With respect to the probation condition permitting a probation
    officer to determine a counseling/rehabilitation/treatment program, the
    matter is remanded with directions that the court strike that condition. The
    court may, in its discretion, impose a more specific condition concerning
    treatment. In all other respects, the judgment is affirmed.
    SANCHEZ, ACTING P. J.
    WE CONCUR:
    MOTOIKE, J.
    GOODING, J.
    14
    

Document Info

Docket Number: G062401

Filed Date: 10/29/2024

Precedential Status: Non-Precedential

Modified Date: 10/29/2024