Opinion
2d Crim. No. B302955
05-19-2021
THE PEOPLE, Plaintiff and Respondent, v. LEVENTE LASZLO LAZAR, Defendant and Appellant.
David Andreasen, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Paul M. Roadarmel, Jr., and Allison H. Chung, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 18F-10480)
(San Luis Obispo County)
A jury found Levente Laszlo Lazar guilty of first degree premeditated murder. (Pen. Code, §§ 187, subd. (a), 189.) The jury found true that he personally used a deadly and dangerous weapon. (§ 12022, subd. (b)(1).) The jury also found true the special circumstance that he committed the murder for financial gain. (§ 190.2, subd. (a)(1).)
All statutory references are to the Penal Code unless otherwise stated.
The trial court sentenced Lazar to life in prison without the possibility of parole. The weapon use enhancement was stayed pursuant to section 654. We affirm.
FACTS
Athena Valentiny lived in Grover Beach where she owned a condominium. She also owned a condominium in Woodland Hills that provided her with rental income. She worked as a licensed vocational nurse at the California Men's Colony State Prison.
Lazar was Valentiny's son. He was living in Indiana with his girlfriend where he was pursuing a master's degree in history at Indiana University. He was 26 years old.
Lazar's primary source of income was an annuity he received in settlement of an estate. The most recent payment was $97,610 in 2017. By October 2018, the balance in his accounts had declined. He suffered a $49,000 loss in the stock market, he owed $69,829 in student loans, and another $12,000 to the Internal Revenue Service (IRS). He was due a payment of $236,000 from the annuity at age 30. But he agreed to sell it for an immediate payment of $186,000.
Events from May until October 23, 2018
Valentiny executed a will that named Lazar the executor and primary beneficiary. She named him the sole beneficiary of her retirement account.
Lazar e-mailed a real estate agent inquiring about the value of Valentiny's Woodland Hills condominium.
Lazar made Internet searches through Google on topics related to murder and probate, including whether murderers can inherit and how probate works when the decedent is murdered. He also inquired about driving across country and the directions to Grover Beach.
Lazar purchased a prepaid Cricket cell phone under a different name and used a Cincinnati post office box as the address. Lazar's permanent cell phone was a Galaxy.
Events on October 23 and 24
Lazar's Cricket phone traveled to California between October 23 and 24, 2018. Lazar's Cricket phone communicated with Valentiny's phone 20 times on October 24.
Security video from Valentiny's condominium complex shows she returned home from work on October 24, 2018, at 2:39 p.m., and left again at 3:13 p.m. At 3:26 p.m., Lazar parked in front of her home before making a U-turn and driving away. Valentiny returned home at 3:41 p.m., and could be seen outside cleaning her car at 6:00 p.m.
At 6:20 p.m., video shows Lazar driving northbound on 9th Street about two blocks from Valentiny's home. About 14 minutes later, a video shows a person walking southbound on 9th Street toward Valentiny's home. The person was wearing a baseball cap and white-soled shoes with a white upper toe. He appeared to be talking on a cell phone. At 6:24 p.m., Lazar's Cricket phone was in contact with Valentiny's phone in the vicinity of her condominium.
At 10:51 p.m., the camera at Valentiny's condominium complex shows the same person leaving Valentiny's residence and walking northbound on 9th Street. Valentiny's unleashed dog followed the person. At 10:55 p.m., video shows Lazar's car making a U-turn and traveling northbound on 9th Street until it drove out of view.
Events of October 25
At 11:03 a.m., on October 25, Lazar was parked in Winslow, Arizona. He made searches on his iPad, including "homicide grover beach ninth street," "levente lazar suspect grover beach," "levente lazar murder grover beach," and "grover beach murder."
When Valentiny did not appear for work that morning, coworkers asked the police to do a welfare check. The police discovered Valentiny's body in her bedroom at 11:48 a.m. She died from sharp force trauma to her neck.
The last communication from Lazar's Cricket phone was outside of Oklahoma City. He turned his Galaxy phone back on at 6:41 p.m. near Amarillo, Texas. His Galaxy phone was back in Bloomington, Indiana at noon on October 26, 2018.
Police Interview
In November 2018, Lazar voluntarily came to the Bloomington police station. He waived his Miranda rights and spoke with Investigator Casey Neall.
During the interview, Lazar gave Neall permission to search his Galaxy phone, his apartment, and his financial records. He gave Neall the passwords to his electronic devices.
Initially Lazar denied he had been to California since January 2018. He said that was the last time he saw his mother. He said he had remained within 100 miles of Bloomington since then. He said the last conversation he had with his mother was a two-minute call on October 22.
Lazar said he had no phone other than the Galaxy. He denied purchasing the Cricket phone. He said there would be nothing murder-related in his Internet browsing history.
Lazar said he trained his mother's dog to follow him or his mother without a leash. But the dog would also listen to other people it knew.
Lazar told Neall that he recently completed a master's degree in history and that he was employed by Walt Disney Publishing. He said he was a stock trader and had accounts with two brokerage houses. He said he had $100,000 or more in his brokerage accounts and $7,000 to $8,000 in his bank account. He said he had an annuity that would pay $236,000 in four years when he turned 30. He said he wanted to sell it now because he wanted to make a down payment on a house for himself and his girlfriend. He continued to deny he traveled to California and killed his mother. He said he had no motive, financial or otherwise, to kill her.
After Neall showed Lazar some of the evidence against him, Lazar made admissions.
Lazar admitted he purchased the Cricket phone and traveled to California. He said he wanted to buy marijuana legally. He stopped in Los Angeles to buy marijuana, and decided to make a surprise visit to his mother. He wanted to retrieve a ring from her to give to his girlfriend as a promise ring.
Lazar drove by his mother's residence on October 24, 2018, but denied seeing her. He called her phone but she did not answer. He speculated that she was at work. He decided to drive back to Indiana without seeing her because he had prior plans. He opted not to stay with her because she would have encouraged him to stay for a week.
Lazar said he lied about not traveling to California because he had purchased marijuana and he believed transporting it across state lines was a federal crime.
Financial Audit
In October 2018, Lazar had a bank balance of $2,200 and about $6,000 total in three brokerage accounts. He had an annuity from which he would receive a final payment of $236,312 in 2022.
Lazar had a student loan of $69,829 on which he was paying $14.84 per month. He owed the IRS $12,226.84.
At the time of her death, Valentiny had a net worth of about $493,412.
Defense
Lazar testified on his own behalf.
Lazar said he was born in Hungary and immigrated to the United States when he was five years old. He spoke both Hungarian and English.
Lazar admitted that he lied to Investigator Neall. He had not completed his master's degree. His master's thesis, on the history of a Disney character, was rejected by the university because it was too long. Nor was he employed by Walt Disney Publishing. He submitted his thesis to Disney in the hope of gaining employment, but Disney did not offer him a job. He said he lied about not going to California, because he had purchased marijuana in Los Angeles and believed it was a crime to transport it across state lines.
Lazar said he went to California to see his mother to discuss proposing marriage to his girlfriend and to obtain an engagement or promise ring his mother had. He also needed to take a break. He said he was "under a lot of stress regarding losses when it came to [his] finances."
Lazar arrived on October 24, 2018. He drove by his mother's residence at about 3:33 p.m. He said he did not get out of his car, never entered her residence, and did not see her face to face. He denied the person seen in the video walking toward his mother's condominium was him. He described a number of ways in which he claimed the person in the video was different.
When asked why he went back to Indiana without seeing his mother, Lazar explained: As he got closer to California on his drive, he had serious conversations with his mother on the phone about marriage and financial responsibility. She was the only person who knew that he had lost or squandered $40,000 to $50,000 of his inheritance. By the time he arrived in California, he told his mother on the phone that he did not think he was ready to propose marriage to his girlfriend. He said he failed multiple times. He failed to get his master's degree, he failed to get the publishing job, and he squandered $40,000 to $50,000 of his inheritance. He did not think he could let his girlfriend know about all the failures.
Lazar testified he had no reason to kill his mother. They got along very well and she never judged or scolded him. He said he was not in need of money. He had arranged with the IRS to pay his $12,000 back taxes at $200 per month. That was within his means. He was expecting to receive about $190,000 from the sale of his annuity after court approval in November 2018.
Lazar said he wanted his mother to sell her Woodland Hills condominium so that she could use the proceeds to retire. He was urging her to retire.
Lazar said he conducted the Google searches about probate and murder at the request of his mother because she was concerned her ex-husband would murder her. Lazar said the iPad searches he conducted in Arizona were the product of an uneasy feeling he had after he left Grover Beach. The connection of his name with the suspect in the searches was due to English being his second language.
DISCUSSION
I
Google Affidavits
Lazar contends the trial court erred in admitting subpoenaed documents provided by Google, LLC.
The documents are copies of Internet searches performed by Lazar prior to his leaving for California. The documents were admitted under the business records exception to the hearsay rule. (Evid. Code, § 1271.) The prosecution subpoenaed the records from Google. The records were authenticated by an affidavit from Google's custodian of records pursuant to Evidence Code section 1560.
Evidence Code section 1560, subdivision (b) allows the custodian of business records to comply with a subpoena by mailing a copy of the records together with an affidavit described in Evidence Code section 1561. Evidence Code section 1561, subdivision (a) requires the affidavit to state in substance each of the following: "(1) The affiant is the duly authorized custodian of the records or other qualified witness and has authority to certify the records. [¶] (2) The copy is a true copy of all the records described in the subpoena duces tecum or search warrant, or pursuant to subdivision (e) of Section 1560, the records were delivered to the attorney, the attorney's representative, or deposition officer for copying at the custodian's or witness' place of business, as the case may be. [¶] (3) The records were prepared by the personnel of the business in the ordinary course of business at or near the time of the act, condition, or event. [¶] (4) The identity of the records. [¶] (5) A description of the mode of preparation of the records."
Google's affidavit stated in the first paragraph, "I am employed by Google LLC ('Google'), located in Mountain View, California. I am authorized to submit this affidavit on behalf of Google. I have personal knowledge of the following facts, except as noted, and could testify competently thereto if called as a witness."
The affidavit stated in the seventh paragraph, "Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge."
Lazar objected that the affidavit failed to comply with Evidence Code sections 1560 and 1561. It is not entirely clear from the record in what specific way Lazar was claiming the Google affidavit failed to comply with the Evidence Code. It appears, however, that Lazar was claiming the affidavit failed to adequately state the mode of preparation of the records. The trial court overruled that objection and admitted the evidence.
(a) Code of Civil Procedure Section 2015 .5
Lazar has abandoned his objection under Evidence Code sections 1560 and 1561, and for the first time on appeal contends Google's affidavit fails to comply with Code of Civil Procedure section 2015.5 (section 2015.5).
Section 2015.5 requires the affidavit "(1), if executed within this state, states the date and place of execution, or (2), if executed at any place, within or without this state, states the date of execution and that it is so certified or declared under the laws of the State of California."
Section 2015.5 requires "some acknowledgment on the face of the declaration that perjured statements might trigger prosecution under California law." (Kulshrestha v. First Union Commercial Corp. (2004) 33 Cal.4th 601, 606.)
The People do not dispute that section 2015.5 applies to an affidavit made pursuant to Evidence Code section 1561. Lazar claims Google's affidavit fails to comply with section 2015.5 in that the affiant fails to state that the declaration was signed in California or that the custodian of records is making himself subject to the laws of the State of California.
But the affiant declared, "I am employed by [Google], located in Mountain View, California." The reasonable interpretation is that the affiant is employed in Mountain View, California; thus, the affidavit is made there. In Mission Housing Development Co. v. City & County of San Francisco (1997) 59 Cal.App.4th 55, 71-72, the court held that verification on attorney's letterhead showing a California address sufficiently indicates that the verification was executed in and under the laws of the State of California. It is true Google's affidavit stated that it is executed under penalty of perjury "[p]ursuant to 28 U.S.C. § 1746," not under the laws of the State of California. But Lazar cites no authority that the reference to federal law invalidates an affidavit that was made in California.
In any event, even had the trial court erred in admitting the evidence, no reversal is required. The doctrines of waiver and harmless error apply.
(a) Waiver
Lazar objected to the Google affidavit as failing to comply with Evidence Code sections 1560 and 1561. He did not object that the affidavit failed to comply with section 2015.5. Lazar's failure to make a specific objection on the same ground asserted on appeal waives the objection. (People v. Johnson (2013) 222 Cal.App.4th 486, 493, fn. 3.)
Lazar argues that if the objection is waived for failure to make the correct objection, he received ineffective assistance of counsel. But if there is ineffective assistance of counsel, reversal is required only on the appellant's showing of prejudice. (Strickland v. Washington (1994) 466 U.S. 668, 694 .) As we discuss below, Lazar has failed to show prejudice.
(b) Harmless Error
Lazar argues the admission of the unreliable evidence deprived him of due process. Thus, he claims the error can only be deemed harmless if the People can show beyond a reasonable doubt that the error had no effect on the verdict. (Citing Chapman v. California (1967) 386 U.S. 18, 24 .)
But the erroneous admission of evidence violates due process only when it makes the trial fundamentally unfair. (People v. Partida (2005) 37 Cal.4th 428, 439.) Here there was no fundamental unfairness. Any deficiency in Google's affidavit is technical at most. There is no indication that the documents Google provided were not accurate. In fact, their accuracy was confirmed in Lazar's statements to the police and his testimony at trial. Any error did not rise to constitutional dimensions. We must reverse only if Lazar can show that it is reasonably probable he would have obtained a more favorable result in the absence of the error. (People v. Watson (1956) 46 Cal.2d 818, 836.) He has failed to do so.
First, Lazar fails to show that had the proper objection been raised, Google could not have cured any deficiency in its affidavit. The trial court sustained Lazar's objections to affidavits authenticating the records of other businesses, and the prosecution was able to cure the defects by obtaining valid affidavits. There is no showing that Google was unwilling or unable to do the same.
Second, even without the Google documents, the evidence of Lazar's guilt is overwhelming.
There is overwhelming evidence Lazar committed premediated first degree murder. He purchased a Cricket cell phone in an attempt to hide his identity. He drove from Indiana to California for the admitted purpose of seeing his mother; yet he claimed he never saw her, an obvious falsehood. His car was in the area of his mother's condominium on the night she was murdered. A video shows him walking toward the condominium that evening and away the next morning. He lied to the police about never having traveled farther than 100 miles from his Indiana residence. Most damning of all are the Internet searches taken from his iPad the morning after the murder. Those searches sought information on his mother's murder and whether he is a suspect. Lazar made the searches 45 minutes before the police found his mother's body.
Lazar claims the admission of the Google documents is not harmless because even if the evidence he committed the murder is overwhelming, the documents are evidence that the murder was for financial gain. But even without the documents, there is compelling evidence that the murder was for financial gain.
Lazar testified that he wanted to become engaged and buy a house. But he claimed his failure to obtain employment and his losses in the stock market made him realize he could not go through with his plan. Lazar was the beneficiary of his mother's estate. Thus, he had a financial motive for murdering her so he could carry out his plan to become engaged and buy a house. He also lied to the police about his finances, thus showing a consciousness of guilt. In addition, Lazar testified that he got along well with his mother. There was simply no reason for murdering her other than for financial gain.
Lazar has failed to show it is reasonably probable he would have obtained a more favorable result had the Google documents not been admitted into evidence.
II
Limiting Instruction
Lazar contends the trial court erred in failing to give sua sponte a limiting instruction on evidence of his poverty.
Ordinarily, evidence of a defendant's poverty, without more, is inadmissible to establish motive for a crime. (People v. Clark (2011) 52 Cal.4th 856, 929.) It is unfair to make poverty alone a ground of suspicion and the probative value of the evidence is deemed to be outweighed by the risk of prejudice. (Ibid.) The defendant's poverty, however, may be admitted for the limited purpose of rebutting an assertion that he did not commit the crime because he did not need the money. (Ibid.)
Certainly, poverty alone is not sufficient evidence of a motive for a crime. The vast majority of people who live in poverty do not commit crimes. But Lazar was not impoverished. He had $2,203 in his bank account and $6,243 in his brokerage accounts. In addition, he had an annuity with a face value of $236,812 and a present value of $186,000. That is not poverty under any reasonable definition of the word. Lazar had debts, but his largest debt was student loans on which he was paying less than $15 per month. For a 26 year old, he was doing very well financially, even considering his debts.
Nor did Lazar claim poverty. He testified he was not in need of money. His counsel argued to the jury that Lazar had assets and was not desperate for money.
Finally, the prosecution did not argue Lazar was motivated by poverty. The prosecutor asked the jury, "[T]his guy who has actually worked for so little had so much given to him, how could this be about money?" She told the jury it is about money "when you want the woman you're trying to hitch your wagon to to believe you're a success."
There is simply nothing in the case that would support an instruction on poverty as motive. Lazar was not motivated by poverty. He had money. He was motivated by greed. He wanted more.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
GILBERT, P. J. We concur:
YEGAN, J.
TANGEMAN, J.
Matthew G. Guerrero, Judge
Superior Court County of San Luis Obispo
David Andreasen, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Paul M. Roadarmel, Jr., and Allison H. Chung, Deputy Attorneys General, for Plaintiff and Respondent.