People v. Arlov CA1/1

Filed 11/2/22 P. v. Arlov CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 ONE
THE PEOPLE,
Plaintiff and Respondent,
A163674
v.
GALINA ALEXANDRIA ARLOV, (Lake County
Super. Ct. No. CR945634)
Defendant and Appellant.
Defendant Galina Arlov was placed on probation after a jury convicted
her of welfare fraud and two counts of perjury, all felonies, in connection with
her receipt of food stamps, and misdemeanor elder abuse, in connection with
her care of her mother. On appeal, Arlov claims that (1) the trial court erred
by denying her motion to suppress evidence supporting the elder-abuse
conviction and (2) insufficient evidence supports one of the perjury
convictions. We affirm.
I.
FACTUAL AND PROCEDURAL
BACKGROUND
A. Background and the Underlying Conduct
In 2013, Arlov moved from New York to a residence in Kelseyville,
which was owned by a trust for which she was a trustee. The following year,
in early August 2014, she applied for CalFresh benefits (food stamps) through
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the Lake County Department of Social Services (Department). The
application was successful, and Arlov began receiving benefits. At the time,
food stamps were provided through an electronic benefit card (EBT card),
which required a PIN to use.
On the CalFresh application, Arlov stated under penalty of perjury that
her “household’s monthly gross income and cash on hand or in checking and
savings accounts [was] less than the combined cost of rent/mortgage and
utilities.” She also claimed that she paid $350 per month in rent and, as
discussed further below, had no income.
In fact, bank records from accounts controlled by Arlov showed regular
deposits and her use of that money for personal expenses. To begin with, a
disability benefit of $781 was deposited monthly into her personal account,
which she did not disclose on the CalFresh application even though there was
a checkbox for such income. The trust account showed deposits totaling
$1,400 between May and August 2014, with several hundred dollars being
spent at Lake County grocery stores and other businesses. An account in the
name of Arlov’s web development company showed deposits totaling
approximately $7,000 between May and July 2014. And finally, within days
after submitting the CalFresh application, Arlov began receiving income from
Airbnb for renting out the Kelseyville residence. For the month of
August 2014, this income totaled approximately $1,900, which was deposited
into Arlov’s business account.
Arlov, who testified in her own defense, claimed that the expenditures
from the trust account were on behalf of workers who performed projects to
improve the Kelseyville property. Similarly, she claimed that she rented out
the residence on Airbnb as part of her obligations to the trust and did not use
the income for her personal expenses. Finally, she claimed that she intended
2
to transform her company into a “nonprofit business,” and the expenditures
from that account were likewise not for her personal expenses.
In early 2015, Igor B., an acquaintance of Arlov’s from New York,
moved to the Kelseyville residence to help her maintain the property. In July
of the following year, Arlov moved her elderly parents to the residence from
New York after learning her father had terminal cancer. Arlov’s father died
a few days after arriving in California. Her mother, Aza Shmirun, who was
then 73 years old, continued to live with Arlov.
Arlov, an only child, inherited a significant amount of money from her
father. Hundreds of thousands of dollars were deposited into Arlov’s personal
account between June and August 2016, and she received over $16,000 in
Airbnb income that year. In August 2016, she purchased an Airstream
trailer for approximately $105,000, paying in full. Two days later, she
purchased a truck from a Toyota dealership for approximately $54,000, again
paying in full.
Arlov testified that she stopped using her CalFresh benefits in
June 2016 and did not use them again. But that November, she submitted to
the Department a recertification application to renew her benefits. She again
stated under penalty of perjury that no one in her household was receiving
income or “money from any other source.”
At trial, Arlov claimed that she did not submit the recertification
application and that her signature was forged. She admitted that she had a
recertification interview with a Department worker, but she testified that she
told the worker she no longer needed food stamps and the worker “said just
don’t use the card.” Arlov claimed that after she stopped using the EBT card,
Igor B. continued to use it without her permission or knowledge, implying
that he was the one who submitted the recertification application.
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In August 2016, Igor B. had a falling-out with Arlov and moved from
the Kelseyville residence into a detached garage on the property. That
November, Arlov moved Shmirun into the garage with him. Arlov claimed
that she thought the garage would be a safer place for her mother to stay
because Shmirun was having cognitive difficulties, and it was easier to
control her behavior in a smaller space. Arlov also testified that Shmirun
liked her living quarters kept “very hot,” and it was easier to keep the garage
heated.
The same month, Arlov went to New York for about a month to
renovate her parents’ old apartment, leaving Shmirun in Igor B.’s care. In
late November, shortly before Arlov returned from New York, Shmirun, who
was noted to be “very weak,” was admitted to the hospital. Although Arlov
reported her suspicion that Igor B. was abusing Shmirun, Shmirun said she
felt safe going home with him.
In early December, Arlov brought Shmirun back to the hospital because
Shmirun had been bitten by the family dog. Medical records also noted that
Shmirun had a sprained arm, fractured wrist, fractured fingers, and “[e]arly
onset Alzheimer’s dementia without behavioral disturbance.” A week later,
Arlov brought her to the hospital again because the dog bite needed to be
“reassessed” and Shmirun appeared to be declining mentally.
In early 2017, Arlov left for another long trip to New York, again
leaving Shmirun in Igor B.’s care. While Arlov was gone, Shmirun burned
her hand because the bandages for the dog bite ignited when “[s]he went to
throw a log on a fire.” In late January, after returning to California, Arlov
brought Shmirun to the hospital for further treatment for the burns.
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B. The Investigation
On the night of February 11, 2017, a Lake County sheriff’s deputy, Jose
Martinez, responded to Arlov’s residence and contacted Igor B. Igor B. led
Deputy Martinez to the garage, which “appeared to have been turned into
living quarters.” The garage had a kitchen, a living room, a bathroom, and a
bed, next to which “was a wood-burning stove that had a fire going.” One
side of the bed had cinderblocks next to it, apparently to protect it from the
stove. The floors were “bare concrete,” and the garage was not insulated.
Shmirun and Arlov were lying on the bed together. Deputy Martinez
testified that Shmirun was “frail” and “hardly moved” or spoke while he was
there. About an hour later, a sergeant arrived to assist Deputy Martinez,
and Arlov was arrested. Ultimately, Shmirun was appointed a conservator,
and she died in a nursing home in 2019.
On February 16, five days after Arlov was arrested, two welfare-fraud
investigators visited the residence again and contacted Igor B. Igor B.
brought the investigators into the house, which “looked like it was well kept”
and “in good shape.” The interior, including a distinctive copper bathtub,
matched photographs on an active Airbnb listing. Based on the Airbnb
information and other financial records, a Department eligibility specialist
calculated that Arlov was overpaid approximately $3,000 in CalFresh
benefits between December 2015 and April 2017. This included a time period
when Arlov was in jail and someone else used her EBT card.
C. Procedural History
Arlov was charged with six felony counts: elder abuse, theft from an
elder, vandalism, welfare fraud, and two counts of perjury. She was also
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charged with a misdemeanor count of elder abuse.1 The theft count was
accompanied by allegations that she took property of a value exceeding
(1) $65,000 and (2) $200,000.2
At the People’s request, during trial the trial court dismissed the
vandalism charge and the allegations accompanying the charge of theft from
an elder. Arlov also successfully moved to dismiss the felony elder abuse
count. The jury acquitted her of theft from an elder and convicted her of the
remaining counts. The court suspended imposition of the sentence and
placed her on probation for two years.
II.
DISCUSSION
A. The Trial Court Properly Denied the Motion to Suppress.
Arlov claims the elder-abuse conviction must be reversed because the
trial court prejudicially erred by denying her motion to suppress. Relying on
Georgia v. Randolph (2006) 547 U.S. 103 (Randolph), she claims that
Igor B.’s consent did not validate Deputy Martinez’s entry into the garage
because she was also present and refused consent. We are not persuaded.3
1 The charges were brought under Penal Code sections 368,
subdivisions (b)(1) (felony elder abuse), (c) (misdemeanor elder abuse), and (d)
(theft from elder), 594, subdivision (a) (vandalism), 118, subdivision (a)
(perjury), and Welfare and Institutions Code section 10980, subdivision (c)(1)
(welfare fraud). All further statutory references are to the Penal Code.
2 The allegations were made under section 12022.6, subdivisions (a)
and (a)(2), respectively.
3 Because we conclude that Arlov’s claim fails on the merits, we need
not address the Attorney General’s arguments that Arlov forfeited the claim
by failing to raise it below and that the search was also justified by the
inevitable discovery doctrine.
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1. Additional facts
Before trial, Arlov filed a motion under section 1538.5 to suppress “[a]ll
of the photos taken . . . and observations made of the interior of [her]
premises” on February 11, 2017, evidence that was relevant to establish the
garage’s condition when Shmirun lived there, as obtained in violation of
Arlov’s Fourth Amendment rights. The prosecution responded that the
February 11 search, which was concededly warrantless, was lawful because
Igor B. “consented to the contact and had the apparent authority to allow the
search.”
At a hearing on the motion, Deputy Martinez testified that after
arriving at the Kelseyville property on February 11, he and Igor B. spoke
across the street from it. Igor B. told the deputy that “he lived in the garage
of the residence” and called 911 after he saw Arlov inside the garage,
damaging some of his electronics. Igor B. “escorted” Deputy Martinez into
the garage, where Arlov was with Shmirun. The deputy testified that he
spoke to Arlov, who said that Igor B. was Shmirun’s caregiver and lived there
“in exchange for food and rent.”
At the hearing, the defense introduced a snippet of a recording from
Deputy Martinez’s personal audio device. On the recording, the following
exchange occurred:
ARLOV: Get out of my house.
MARTINEZ: Galina, no one’s leaving right now.
ARLOV: Okay. Well, you have to—
MARTINEZ: We’re still—
ARLOV: —call my attorney. He stole my phone. I
cannot get my attorney. My attorney’s Robert
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Riggs. Please call him.
MARTINEZ: Okay. Let me grab my stuff. I want to make
sure my stuff don’t end up missing.
On cross-examination, Deputy Martinez agreed that he “did . . .
activate [his personal audio device] at some point,” but he could not recall
when he did so. He also recalled Arlov telling him to get out, but he testified
that he did not “remember if it was when [he] entered the home.” He
explained that the encounter “was a fairly long contact” during which he
moved in and out of the garage. He did, however, recall that Arlov “became
upset” with the sergeant when the sergeant arrived.
The trial court denied the motion to suppress evidence from the
February 11 search. The court found that Igor B. “did have apparent or
actual authority to permit entry into the . . . garage,” because he told Deputy
Martinez “that he was a co-habitant, perhaps a domestic consort to [Arlov], a
caregiver,” and “he was the complainant to law enforcement that evening
regarding [Arlov] and her alleged damage to his personal property.” The
court also found that the deputy did not exceed the scope of Igor B.’s consent
and “had a reasonable and good faith belief that [Igor B.] had authority to
allow entry and access.” Finally, the court found that this “initial
justification[]” for the search was not “negated by the subsequent statement
of Ms. Arlov, ‘[G]et out of my house.’ ”
2. Analysis
“The Fourth Amendment guarantees ‘[t]he right of the people to be
secure in their persons, houses, papers and effects, against unreasonable
searches and seizures’ by police officers and other government officials. (U.S.
Const., 4th Amend.) The touchstone of Fourth Amendment analysis is
whether a person has a constitutionally protected reasonable expectation of
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privacy, that is, whether [the person] has manifested a subjective expectation
of privacy in the object of the challenged search that society is willing to
recognize as reasonable.” (People v. Robles (2000) 23 Cal.4th 789, 794–795
(Robles).) It is uncontested that Arlov had a reasonable expectation of
privacy in the garage because it was “attached or adjacent to [her] home.”
(Id. at p. 795.)
“Under the Fourth Amendment, a warrantless search of such an area is
unreasonable per se unless it falls within a recognized exception to the
warrant requirement.” (Robles, supra, 23 Cal.4th at p. 795.) The prosecution
bears the burden of proving that a warrantless search was justified.
(People v. Williams (1999) 20 Cal.4th 119, 127.) In reviewing a ruling on a
motion to suppress, “ ‘[w]e defer to the trial court’s factual findings, express
or implied, where supported by substantial evidence. In determining
whether, on the facts so found, the search or seizure was reasonable under
the Fourth Amendment, we exercise our independent judgment.’ ” (People v.
Redd (2010) 48 Cal.4th 691, 719.)
“The Fourth Amendment recognizes a valid warrantless entry and
search of premises when police obtain the voluntary consent of an occupant
who shares, or is reasonably believed to share, authority over the area in
common with a co-occupant who later objects to the use of evidence so
obtained.” (Randolph, supra, 547 U.S. at p. 106.) Randolph established “a
narrow exception to this rule, holding that the consent of one occupant is
insufficient when another occupant is present and objects to the search.”
(Fernandez v. California (2014) 571 U.S. 292, 294.)
In Randolph, a wife told a police officer “that there were ‘ “items of drug
evidence” ’ in the house” where she lived with her husband. (Randolph,
supra, 547 U.S. at p. 107.) The officer asked the husband, who was also
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present, “for permission to search the house, which he unequivocally
refused.” (Ibid.) The officer then obtained consent for the search from the
wife, entered the house, and found drug paraphernalia. (Ibid.) The husband
was criminally charged and unsuccessfully moved to suppress the evidence
on the basis that the warrantless search was “unauthorized by his wife’s
consent over his express refusal.” (Id. at pp. 107–108.) The Supreme Court
agreed that the search was invalid, concluding that where one occupant gives
permission to search but a co-occupant “is present at the scene and expressly
refuses to consent,” the co-occupant’s “refusal to permit entry prevails,
rendering [a] warrantless search unreasonable and invalid as to [the co-
occupant].” (Id. at p. 106.)
Arlov claims that the facts here are “squarely in line with [those in]
Randolph,” because “Deputy Martinez was presented with dueling
consent/non-consent by occupants of the same residence.” Unlike the
Randolph defendant, however, Arlov did not refuse consent before Deputy
Martinez entered the garage. This is significant, because as the Supreme
Court subsequently clarified, Randolph “applies only when the objector is
standing in the door saying ‘stay out’ when officers propose to make a consent
search.” (Fernandez v. California, supra, 571 U.S. at p. 306; see People v.
Ledesma (2006) 39 Cal.4th 641, 704, fn. 16 [Randolph inapplicable where
defendant not present when law enforcement received consent to enter].)
Because Arlov did not tell Deputy Martinez to leave until after he entered the
garage, her claim under Randolph fails.4
4We do not consider whether Arlov made her statement before Deputy
Martinez took photographs inside the garage, as she does not argue that the
admissibility of those photographs should be analyzed differently than the
admissibility of the deputy’s observations of the garage’s interior.
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In arguing otherwise, Arlov claims “there is some ambiguity about
whether [she] told [Deputy] Martinez to leave before or after he entered her
garage.” She contends this factual issue should be resolved in her favor
because the prosecution had the burden of proof. We disagree that the record
is ambiguous on this point. Deputy Martinez testified that upon entering the
garage, he saw Arlov and Shmirun lying on the bed, meaning Arlov was
already inside. In addition, Deputy Martinez’s testimony that Arlov became
upset when the sergeant arrived suggested that she made the recorded
statement at that point, not when Deputy Martinez originally contacted her.
And finally, her directive to “get out of [her] house” implies that Deputy
Martinez was already inside, further undercutting the conclusion that she
refused to give consent before he entered the garage. (Italics added.)
In short, there was ample, and certainly substantial, evidence to
support the conclusion that Arlov’s statement occurred after Deputy Martinez
entered the garage with Igor B.’s consent and therefore did not obviate that
consent. As a result, Arlov fails to demonstrate that the trial court erred by
denying the motion to suppress.
B. Substantial Evidence Supports the Perjury Conviction that Was
Based on the 2014 CalFresh Application.
Arlov also claims that the perjury conviction based on the original
CalFresh application must be reversed because there was insufficient
evidence that she made a false, material statement. To evaluate this claim,
“ ‘we review the whole record to determine whether . . . [there is] substantial
evidence to support the verdict . . . such that a reasonable trier of fact could
find the defendant guilty beyond a reasonable doubt. [Citation.] In applying
this test, we review the evidence in the light most favorable to the
prosecution and presume in support of the judgment the existence of every
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fact the jury could reasonably have deduced from the evidence.’ ” (People v.
Manibusan (2013) 58 Cal.4th 40, 87.)
Under section 118, subdivision (a), a person who makes a statement
under penalty of perjury “and willfully states as true any material matter
which [the person] knows to be false . . . is guilty of perjury.” To support a
perjury conviction, the statement must be “actually false.” (People v. Curl
(2009) 46 Cal.4th 339, 354.) In addition, the statement must involve a
material matter, meaning that the statement “ ‘ “might have been used to
affect [the proceeding in or for which it was made]” ’ [citation] or ‘ . . . could
probably have influenced the outcome of the proceeding[].’ ” (People v.
Feinberg (1997) 51 Cal.App.4th 1566, 1575.)
In framing her claim, Arlov focuses on the information’s allegations
that she lied by stating on the application “that no one, including herself,
[whom she] buys or prepares food for has an income from a job and/or that no
one, including herself, [whom she] buys or prepares food for has any
resources and/or that she paid $350 in rent monthly.” But the perjury charge
was submitted to the jury on a narrower theory, that Arlov lied by stating she
had no income. Specifically, the jury was instructed that “[t]he People allege
that the defendant made the following false statement, that she had no
income. You may not find the defendant guilty unless all of you agree the
People have proved that the defendant made at least one false statement and
you all agree on which particular false statement the defendant made.”
Likewise, in closing the prosecutor argued that the “the false information
that was material was the lack of reporting the income.” As a result, we
conclude it is appropriate to limit our review to whether there is sufficient
evidence to support the perjury conviction based on the theory that Arlov lied
by reporting she had no income. (See People v. Brown (2017) 11 Cal.App.5th
12332, 341 [prosecution’s election of act to prove charge affects scope of
substantial-evidence review].)
Arlov interprets the information to allege she lied only about “the
income of hypothetical co-occupants she prepared food with and whether she
paid a monthly housing expense of $350,” not about her own income.
Although the perjury charge was not well-worded, as suggested by the
brackets we added in quoting it above, we disagree that the charge did not
encompass Arlov’s statements about her own finances. The information’s
actual wording, “that no one, including herself, buys or prepares food for has
an income from a job,” is more reasonably interpreted to include statements
Arlov made about “herself,” not just others. In any case, she never objected to
the jury instruction or the prosecutor’s argument permitting her to be
convicted based on statements about her own income. She cites no authority
to suggest that we are nonetheless barred from considering whether evidence
of such statements supports the conviction.
We therefore turn to whether there was substantial evidence that Arlov
made a materially false statement about her own income on the application.
Arlov checked “No” in response to two questions: (1) “Does anyone you buy
and prepare food with get income that does not come from work (unearned)?”;
and (2) “Does anyone you buy and prepare food with have income from a job
(earned income)?”5 Arlov interprets the phrase “anyone you buy and prepare
food with” in these questions to refer only to other people, not herself. Thus,
she reasons, even if she had income, she did not lie by checking “No” because
there were no other household members who could have had income.
5 Arlov also left blank a space in which to list the gross monthly income
of “[s]elf-employed household members.”
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Although this interpretation of the questions is reasonable in a
vacuum, when they are read in the context of the application as a whole it is
clear they refer to an applicant’s own income as well. An initial question
about the household’s information directed the applicant to “[c]omplete the
following information for all persons in the home that you buy and prepare
food with, including you.” (Italics added.) Moreover, no other portion of the
application asked for an applicant’s own income. Thus, if Arlov’s
interpretation were correct, an applicant could have millions of dollars in
income and still accurately check “No” so long as the applicant lived alone or
with others who had none of their own income. The jury could have
reasonably determined that, assuming Arlov did have income, she had no
rational basis for believing she answered the questions truthfully by checking
“No.” We conclude there was substantial evidence that she did, in fact, state
that she had no income.
Arlov does not contest that if she falsely stated she had no income, the
statement was material. Nor could she, as a Department eligibility worker
testified that income “determines” one’s eligibility for CalFresh benefits.
Rather, Arlov’s only other suggestion for why the evidence of perjury based
on her income-related statements is lacking is because “the record does not
clearly indicate what [her] income or expenses actually were in 2014.”
Although there was no evidence that Arlov was formally employed during the
time period at issue, there was plenty of evidence that she had unearned
income she failed to disclose. Not only was she admittedly receiving
disability benefits, but in the months leading up to the application, thousands
of dollars were deposited into the trust and business accounts she controlled.
In turn, those accounts were used to pay for goods and services that the jury
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could reasonably infer were Arlov’s personal expenses, despite her testimony
to the contrary.
In short, there was substantial evidence that Arlov made a false
material statement on the CalFresh application by reporting that she did not
have income. As a result, her challenge to the perjury conviction fails.
III.
DISPOSITION
The judgment is affirmed.
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_________________________
Humes, P.J.
WE CONCUR:
_________________________
Margulies, J.
_________________________
Devine, J. *
*Judge of the Superior Court of the County of Contra Costa, assigned
by the Chief Justice pursuant to article VI, section 6 of the California
Constitution.
People v. Arlov A163674
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