People v. Pemberton CA2/6 ( 2024 )

Filed 10/14/24 P. v. Pemberton CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B326488
(Super. Ct. No. 20F-02244)
Plaintiff and Respondent, (San Luis Obispo County)
v.
JEREMY PEMBERTON,
Defendant and Appellant.
Jeremy Pemberton was convicted by a jury of two counts of
sale of a security by means of a false or misleading statement or
omission (Corp. Code, § 25401; counts 1 & 2), one count of theft
from an elder (Pen. Code, § 368, subd. (d); count 3) and two
counts of theft by false pretenses (id., § 487, subd. (a); counts 4 &
5). The jury also found true that all five counts were related
felonies with a material element of fraud involving a pattern of
felony conduct and the taking of more than $500,000. (Id.,
§ 186.11, subd. (a)(2).)
On count 1, the trial court sentenced Pemberton to the low
term of two years, plus a consecutive two years for the multiple
felony fraud enhancement. The court imposed the same sentence
on count 2 to run concurrently with the sentence on count 1. On
counts 3, 4, and 5, the court imposed two year terms on each
count, stayed pursuant to Penal Code section 654. We affirm.
FACTS
The Project
In 2015, Pemberton had plans to open an entertainment
facility in the City of San Luis Obispo called Discovery San Luis
Obispo (the Project). The facility would offer bowling, dining, and
music. Pemberton operated a similar facility in Ventura County.
Pursuant to the plan, on March 1, 2015, Pemberton entered
into a lease of a building in downtown San Luis Obispo with
Jamestown Properties (Jamestown). The building was an empty
shell. Under the lease Pemberton would pay for improvements.
The Project was supposed to open by the end of 2015. But
Pemberton was experiencing various delays, including the
unanticipated need for seismic retrofitting of the building.
Jamestown refused to pay for the seismic work, pointing out that
under the lease such improvements were Pemberton’s
responsibility.
In the meantime, Pemberton was not paying rent on his
lease of the building. As of January 2017, he owed approximately
$616,000 in back rent. On January 12, 2017, Jamestown notified
Pemberton that unless the back rent was paid in five days he
would be in default.
On April 25, 2017, Jamestown filed an unlawful detainer
action against Pemberton. Pemberton surrendered possession of
the premises on May 22, 2017. In July 2017, Jamestown filed a
civil action against Pemberton for breach of lease and back rent.
Pemberton continued to negotiate with Jamestown for what
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Pemberton describes as an amended lease. But the negotiations
proved unsuccessful.
The Crawfords
Pemberton met Joanne and Jacob Crawford, an elderly
couple, through their son, a financial consultant. In June 2015,
the Crawfords invested $160,000 in the Project. Pemberton told
them that there were other investors, but he did not say who they
were. The Crawfords believed that the Project would be open by
2016.
Throughout 2016, the Crawfords, through their son,
contacted Pemberton to inquire why no construction progress was
being made. Pemberton assured them that construction would
begin soon, or blamed the City of San Luis Obispo for the delays
or simply did not respond to their e-mails.
In January 2017, Pemberton sent a letter to the Crawfords
stating that he was still fundraising. He claimed that he raised
$825,000 from an investor in Ventura and that the landlord
required 100 percent of the funding be secured before the start of
construction.
In August 2017, Pemberton represented to the Crawfords
he needed only $200,000 more to fully fund the Project. The
Crawfords agreed to supply the $200,000 as a loan. Pemberton
sent a promissory note bearing interest at 14 percent, payable in
three years. If Pemberton could not start the Project, the money
was to be returned. Pemberton told the Crawfords that they
were wiring the money into an escrow account, but the account
was controlled by Pemberton.
At the time the Crawfords funded the loan, Pemberton had
not disclosed that he had lost the lease and was being sued for
over $600,000 in back rent. Pemberton later told the Crawfords
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the Project was dead. The Crawfords never recovered any of
their money.
Carlos Fajardo
In 2017 Carlos Fajardo was a business investor. A real
estate agent referred him to Pemberton. In the middle of 2017,
he met with Pemberton about investing in the Project. They
toured the building. A custodian let them in because Pemberton
had surrendered the keys when he lost the lease. The building
was empty. Pemberton told Fajardo that he had a good
relationship with the landlord and that the landlord was excited
for Pemberton to get started.
In August 2017, after the lease was terminated and the
lawsuit filed for back rent, Pemberton told Fajardo that he
needed $500,000 to complete funding for the Project. Fajardo
became a limited partner in the Project. Fajardo wired $500,000
into what he thought was an escrow account. The limited
partnership agreement had a paragraph entitled “escrow,”
stating that the money would be held in a segregated account at
Bank of America. The instructions Pemberton gave him for
wiring the money stated “escrow account number” followed by an
account number with Bank of America. In fact, the account was
controlled by Pemberton.
After Fajardo wired the money, Pemberton asked him for
more money. Fajardo became concerned because Pemberton had
told him that the $500,000 he sent was the last amount needed to
fully fund the Project.
Pemberton never disclosed that he lost the lease or that he
was being sued by the lessor for the back rent. Fajardo would not
have made the investment had he known. Fajardo never
recovered any of his money.
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Forensic Accounting
Forensic accounting conducted by a district attorney’s
investigator showed Pemberton used the money deposited by the
Crawfords and Fajardo for his personal non-business related
expenses. The money was used for trips to Cabo San Lucas, Maui
and the Diamante Resort in Mexico; lodging in San Francisco,
Los Angeles, Santa Barbara, Florida, Spain, and Mexico; Elton
John concert tickets; and Tony Robbins motivational materials,
among other uses.
Defense
Pemberton testified in his own defense. He blamed the
delay in starting the Project on difficulty in dealing with a new
Jamestown manager, on the unanticipated need for seismic
upgrades to the building, and on local citizen’s protests causing a
delay in the City’s approval of the Project.
Pemberton claimed that he was negotiating with
Jamestown over the back rent he owed when he was stunned to
get Jamestown’s default notice. He continued to negotiate with
Jamestown after he got the termination letter. Even after the
termination letter, Pemberton said he felt good about the Project
because he was getting support from David Frewing of U.S.
Bowling.
Pemberton denied that in raising money for the Project he
concealed from the Crawfords or Fajardo that he lost the lease or
that Jamestown was suing him for back rent.
The terms of the limited partnership agreement allowed
Pemberton to move the Project to a different location. Pemberton
contacted the City of Bakersfield about purchasing a parcel of
land from the city. Pemberton received a non-binding letter of
intent from the city. But the negotiations collapsed when the city
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found out about Jamestown’s lawsuit against Pemberton for back
rent. Pemberton also claimed that he was close to beginning
operations in Austin, Texas, but he could not proceed because
criminal charges were filed against him in this case.
Pemberton testified that he spent the money deposited by
the Crawfords and Fajardo for business purposes. He said the
trip to Cabo San Lucas was a business expense because it was a
prize to the highest salesperson at Discovery Ventura. The Elton
John concert tickets were a business expense because the intent
was to sell them on the secondary market. The Maui expenses
were for a development team retreat. The lodging expenses were
for research at various locations. Pemberton insisted that the
Tony Robbins seminars were also business related.
David Frewing testified for Pemberton. Frewing is
president of U.S. Bowling, a manufacturer of bowling equipment.
Frewing said he loaned money to Pemberton for the Project.
Frewing also wrote a letter to Jamestown stating that he was
fully committed to the Project. Frewing attached a financial
statement showing that he had $30 million in assets.
DISCUSSION
I. Due Process
Pemberton contends that he was denied due process when
the trial court failed to give his counsel notice before answering
one of the jury’s questions.
Before sending the jury to deliberate, the trial court met
with counsel. The court stated it would call counsel if the jury
asked any questions. The court requested that counsel be
available within 15 minutes to respond to any question the jury
might have. Neither counsel objected nor asked for more time.
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During deliberations, the jury asked the trial court if it
could have a definition of “fiduciary” or “escrow account.” The
court answered no. The terms were not defined in the jury
instructions.
Pemberton argues the record does not show that his
counsel was notified that the jury had a question. But it is not
enough that the record may not show notice. All intendents and
presumptions are indulged to support the judgment on matters
on which the record is silent, and error must be affirmatively
shown. (Dunham v. Superior Court (1970) 2 Cal.3d 557, 564.)
Here the record shows the trial court said it would notify
counsel if the jury had a question. Nothing in the record shows
the court failed to do so.
Pemberton points out that the record shows only 15
minutes elapsed between the jury’s question and the trial court’s
answer. He believes a reasonable interference can be drawn
counsel was not notified because counsel would have only 15
minutes to appear in court. But 15 minutes is the amount of time
the court told counsel it would give them to appear. If anything,
it shows the court did what it said it would do.
Pemberton argues that the minute order concerning a
subsequent jury question reflects that the parties discussed the
question before responding; whereas the minute order for the
first jury question reflects no such discussion. Pemberton
concludes that there was no discussion because his counsel was
not notified.
Pemberton cites no authority requiring the clerk to be
absolutely consistent in recording the minutes. What is
consistent is that the minutes for neither jury question
affirmatively state that counsel was notified. It is quite possible
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that the minutes relating to the first jury question do not reflect a
discussion because the trial court and the parties dismissed the
question out of hand without substantial discussion. That would
explain why only 15 minutes elapsed between the question and
the response.
Moreover, the clerk’s minutes are not a model of clarity.
The jury asked the second question at 4:54 p.m. The clerk’s
minutes for the next day begin with the statement that the jurors
are present at 9:00 a.m. and resume deliberations. The next
entry is the trial court and counsel’s discussion of the jury’s
question off the record. The following entry is the court’s
response to the jury’s first question at 8:43 a.m., asking the jury
to clarify its question. The jury replied at 10:00 a.m. The court
answered the question at 10:11 a.m.
It appears from the clerk’s minutes that the trial court
responded to the jury’s first question at 8:43 a.m., prior to the
jurors being present at 9:00 a.m. Not only is this highly unlikely,
but if the court did so, that should be the first entry of the day.
More likely, the court asked the jury for clarification, not at 8:43
a.m., but at 9:43 a.m. That would place the entry in the correct
chronological order. It would also reduce the time between the
court’s request for clarification and the jury’s reply from one hour
and 15 minutes, to a more probable 15 minutes. More
importantly, unlike the 15 minutes between the first question
and the court’s reply, the court and counsel would have had time
to engage in a substantial discussion of the jury’s second
question. That would explain why the clerk’s minutes noted the
discussion of the second question but not the first. The clerk’s
minutes are too ambiguous to rebut the presumption against
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error, particularly when the court expressly stated it would give
counsel notice if there was a jury question.
Finally, even if the trial court had erred, the error would be
harmless by any standard. At most, Pemberton’s counsel could
have suggested definitions for “escrow” and “fiduciary” with
which to instruct the jury. But any reasonable definition of those
terms would only serve to emphasize the vast gulf between
Pemberton’s legal duties and his actions. The court’s refusal to
give the jury the definitions is the best result Pemberton could
have hoped for.
II. Mistake of Fact Instruction
Pemberton contends the trial court erred in denying his
request for a mistake of fact instruction. (CALCRIM No. 3406.)
A jury instruction is required only when there is
substantial evidence to support it. (People v. Avila (2009) 46
Cal.4th 680, 705.) Pemberton argues that there is substantial
evidence he was operating under a mistaken belief that he was
going to have an amended lease with Jamestown, and soon
thereafter would have a viable business in San Luis Obispo.
There is no substantial evidence of a mistake of fact.
Pemberton knew that he had lost the lease. He also knew that
Jamestown had no obligation to grant him an amended lease.
That is why Pemberton was negotiating. Pemberton’s estimate of
what Jamestown may or may not do at some point in the future
was not a mistake of fact; it was a mistake of prognostication.
Pemberton’s cites to People v. Hendrix (2022) 13 Cal.5th
933 and People v. Speck (2022) 74 Cal.App.5th 784, 791-792 fall
well below the threshold of mistake of fact. In Hendrix, the
defendant claimed he was not at a house to burglarize it, but he
was there because he mistakenly believed his cousin lived there.
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(Hendrix, supra, 13 Cal.5th at p. 937.) In Speck the defendant
claimed he thought he was driving the car with the owner’s
permission; he did not know it was stolen. (Speck, supra, 74.
Cal.App.5th at p. 788.) Neither case involves a belief about what
may or may not happen in the future.
Moreover, if it was error not to give the instruction, the
error was harmless. That the lease had terminated was not the
only material omission or fraudulent representation. Pemberton
omitted to tell his victims that Jamestown was suing him for
more than $600,000 in back rent. He fraudulently represented
that the victims’ money was the last amount needed for the
Project; that the money would be placed in an escrow account;
and that if the Project did not go forward, the money would be
returned. It is not reasonably probable that a result more
favorable to Pemberton would have occurred in the absence of the
error. (People v. Watson (1956) 46 Cal.2d 818, 837.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
GILBERT, P. J.
We concur:
YEGAN, J.
CODY, J.
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Timothy S. Covello, Judge
Superior Court County of San Luis Obispo
______________________________
Wayne C. Tobin under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Idan Ivri and David A. Wildman, Deputy
Attorneys General, for Plaintiff and Respondent.