Opinion
B227559
12-14-2011
THE PEOPLE, Plaintiff and Respondent, v. ADRIAN DAMICO MOON, Defendant and Appellant.
Stephen M. Hinkle, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Eric E. Reynolds and Lauren E. Dana, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BA332095)
APPEAL from a judgment of the Superior Court of Los Angeles County, Michael Johnson, Judge. Affirmed as modified.
Stephen M. Hinkle, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Eric E. Reynolds and Lauren E. Dana, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant, Adrian Damico Moon, appeals the judgment entered following his conviction by court trial for attempting to file a false or forged instrument (19 counts), attempted grand theft (6 counts), forgery (6 counts), preparing false documentary evidence (3 counts), and offering false evidence (4 counts) (Pen. Code, §§ 115, 664/487, 470, 134, 132). He was sentenced to state prison for a term of 20 years.
All further statutory references are to the Penal Code unless otherwise specified.
The judgment is affirmed as modified.
BACKGROUND
Viewed in accordance with the usual rule of appellate review (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence established the following. 1. Counts 1-5: the John Boddie scam .
Jill Boddie is the ex-putative spouse of defendant Moon, who was a licensed real estate broker. When they separated in February 2008, Jill moved in with her parents. At trial, Jill and her father, John Boddie, identified a deed of trust, a promissory note and a notice of default which had been recorded against John's property. John testified he had not borrowed money from either Anthony Monjet, whose name was on the promissory note, nor Moon. John testified the signature on the promissory note was not his, and that he had not given Moon permission to file a lien or deed of trust against his property.
Jill testified: "I was married to him for twelve years, but technically I found out in the summer of '07 that he never filed our marriage license."
Kurt Demire was the CEO for County Records Research Company, a firm which processed non-judicial foreclosures. Demire's company was contacted by someone identifying himself as Anthony Monjet who said he had a promissory note and a deed of trust which were in default, and that he wanted to start foreclosure proceedings. The deed of trust represented to be in default had been executed by DDM Investments LLC, as a transfer in favor of Anthony Monjet. Demire's company initiated foreclosure proceedings.
However, Demire was subsequently notified by his title company that the trustor, the original borrower on the loan, was not in fact the owner of the property. Demire then received a call from Jill Boddie saying Monjet was actually Moon, and that the promissory note and the deed of trust were bogus. Demire telephoned the person who had represented himself as Monjet. Demire was informed DDM Investments was indeed the property owner and Anthony Monjet was a real person. But when Demire requested proof, none was provided and he rescinded the notice of default.
The real Anthony Monjet was an acquaintance of Moon's. Monjet testified he did not know John Boddie, had never been affiliated with DDM Investments, had not lent Boddie or DDM any money, and had never been in contact with Demire regarding a foreclosure proceeding.
DDM Investments was Moon's company.
2. Counts 5 and 6: the Williams scam.
John Williams was an attorney who had defended several parties from unlawful detainer actions filed by Moon. Williams then discovered a deed of trust had been recorded against his home, the document asserting $690,000 had been borrowed from Monjet. The deed of trust bore the signature of Moon for DDM Investments. Williams testified he did not borrow $690,000 from Monjet, never gave anyone permission to encumber his property, and had not given Moon permission to sign the document encumbering his property.
3. Counts 7-14: the Garbutt scam.
Juanita Garbutt bought a home in 2004. Moon, who was the seller's real estate agent, arranged the financing. He gave Garbutt various documents to sign and told her not to bother reading them. A year later, Garbutt received a notice of default. Moon had recorded a $20,000 deed of trust against her property. Garbutt testified she had not borrowed any money from Moon and the signature on the deed was not hers. She hired an attorney, Ulric Usher, and had the deed of trust quashed and the notice of default rescinded. Two more bogus deeds of trust were subsequently recorded against Garbutt's property.
4. Counts 15-24: the Usher scam.
Shortly after the Garbutt incidents, Usher discovered there were deeds of trust recorded against nine of his own properties. The alleged lenders were Moon, Monjet and DDM Investments. Usher did not owe any of them money and he had never signed any promissory notes. Usher had, however, previously represented clients who obtained more than $2,000,000 in judgments against Moon, whose property had been sold in partial satisfaction of these judgments.
5. Counts 25 and 26: the Issacs Jackson scam.
Joyce Issacs Jackson was a trustee of the Charles Jackson trust. The trust received a property on East Woodbury Road in Alta Dena as a result of litigation against Moon. Subsequently, a deed of trust was recorded on Issacs Jackson's property in favor of Moon in the amount of $700,000. The trust had never loaned money to either Moon or DDM Investments.
6. Count 27: the Judge Berle scam.
Mark Aronson had represented Issacs Jackson in the litigation against Moon. Later, Aronson received a court order allowing Moon to renew the litigation. Judge Elihu Berle testified the court order reviving the litigation bore a photocopy of his signature, but he had neither granted such an order nor given permission for his signature to be used on the document.
7. Counts 28-31: the Miramontes/Ruiz scam.
Nick Miramontes and Sergio Ruiz worked in the records department of the Los Angeles County Superior Court. One day, Moon asked them if the case document imaging system was working. Told that it was, Moon asked if they would run a case number in order to make sure the system was working. The case number was run successfully. Moon then asked them to write their names down for him. Later that afternoon, Moon returned and showed Ruiz a declaration he had prepared for him and Miramontes to sign. Moon said he would come back later to collect the document. Neither Ruiz nor Miramontes signed the declaration, and Moon never returned. Ruiz and Miramontes identified a document, purportedly containing their signatures, which had been filed in court. They testified they neither signed the document nor authorized anyone to sign their names.
8. Counts 32-35: the Jill Boddie scam.
Attorney Anthony Tam represented Jill Boddie in her family law proceedings against Moon. Jill was awarded custody of their children and Moon was given monitored visitation rights. Moon was also ordered to pay child and spousal support in the amount of $4,400 a month. Moon filed a document in family court which purported to be a stipulation giving him sole custody of the children and voiding the support orders. Although Jill's name was on the document, the signature was not hers and she had never agreed to the stipulation. The judge did not sign an order Moon submitted that would have approved the stipulation. A second judge also refused to sign Moon's order.
9. Counts 36-38: the Session scam.
Glenn Session has known Moon for 20 years. Moon once worked for him when Moon first obtained his real estate license. Session had been involved in the litigation between Moon and Garbutt, but he settled out of court. Attorney Usher subsequently informed Session an appeal in his name had been filed in the case. The notice of appeal had purportedly been signed by Session as the appellant. In fact, Session did not sign the document and he was not a party to the appeal.
CONTENTIONS
1. Moon was improperly convicted of having committed two forgeries in a single document.
2. Moon was improperly sentenced on several counts in violation of section 654.
DISCUSSION
1. Moon was improperly convicted of two forgeries.
Moon contends, and the Attorney General properly concedes, that he was improperly convicted of forgery (§ 470, subd. (d)) in both counts 28 and 29. Moon should have been convicted only on one of these two forgery counts.
Section 470, subdivision (d), in pertinent part, provides that "[e]very person who, with the intent to defraud, falsely makes, alters, forges, or counterfeits, utters, publishes, passes or attempts or offers to pass, as true and genuine, any of the following items, knowing the same to be false, altered, forged, or counterfeited, is guilty of forgery."
Moon was convicted of violating section 470 for forging, in the same declaration, the signatures of Ruiz (count 28) and Miramontes (count 29). California courts have consistently held there can be only one forgery conviction per document, no matter how many signatures are forged on that one document. (People v. Kenefick (2009) 170 Cal.App.4th 114, 124 ["there cannot be multiple convictions based on any subdivision of Penal Code section 470 where only one document is involved"]; People v. Ryan (2006) 138 Cal.App.4th 360, 367 ["the doing of one or more of the [acts proscribed by section 470], with respect to the same instrument, constitutes but one offense"].)
Consequently, count 29 should be vacated.
2. The trial court violated section 654.
Moon contends the consecutive sentences he received on counts 2, 31, 34, 35 and 38 violated the prohibition on multiple punishment contained in section 654. This claim has merit.
a. Background.
At sentencing, the trial court explained how it applied section 654 to the disputed counts:
"In particular, I am governed by the following principles: Violations of Penal Code 115 [offering false or forged instrument] may be punished separately and consecutively despite the evidence of a single intent or purpose with regard to the same or similar victims. That is established by Penal Code 115, subsection (d), and cases such as [People v. Gangemi (1993) 13 Cal.App.4th 1790].
"I find that that is appropriate here because each of the Penal Code 115 convictions involved a separate recording and separate action and separate harm to each of the victims. . . .
"Beyond that, the law provides that violations of Penal Code 470(d) [forgery], Penal Code 115, and Penal Code 132 [offering false evidence], may be punished separately and consecutively despite the fact that a single document was involved and a single intent or purpose governed the action. That is established by cases such as [In re Horowitz (1949) 33 Cal.2d 534, and People v. Glab (1936) 13 Cal.App.2d 528]. Both of these cases involved a single forged instrument that was recorded and then used in court, and the violations were punished separately and consecutively.
"I find that approach is appropriate here because the defendant engaged in separate acts when he forged documents, recorded them, and used them in court.
"While apparently permitted by the Horwitz [sic] case, I will follow Penal Code 654 and stay the defendant's convictions for Penal Code 134. Under the circumstances of this case, I believe that preparing false evidence for use in court, which is punished by Penal Code 134, involved the same conduct as forgery, Penal Code 470, and offering false evidence in court, Penal Code 132.
"I will also follow Penal Code 654 and stay the defendant's convictions for attempted grand theft, Penal Code 664-487. Under the circumstances of this case, I believe that attempted grand theft involved the same conduct and intent as the other counts for each victim."
b. Legal principles.
As we said in People v. Jones (2002) 103 Cal.App.4th 1139, 1142-1143: "Section 654, subdivision (a), provides in pertinent part, '[a]n act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.' Section 654 therefore ' "precludes multiple punishment for a single act or for a course of conduct comprising indivisible acts. 'Whether a course of criminal conduct is divisible . . . depends on the intent and objective of the actor.' [Citations.] '[I]f all the offenses were merely incidental to, or were the means of accomplishing or facilitating one objective, defendant may be found to have harbored a single intent and therefore may be punished only once.' [Citation.]" [Citation.]' [Citations.] However, if the defendant harbored 'multiple or simultaneous objectives, independent of and not merely incidental to each other, the defendant may be punished for each violation committed in pursuit of each objective even though the violations share common acts or were parts of an otherwise indivisible course of conduct. [Citation.]' [Citations.] [¶] Whether section 654 applies in a given case is a question of fact for the trial court, which is vested with broad latitude in making its determination. [Citations.] Its findings will not be reversed on appeal if there is any substantial evidence to support them. [Citations.] We review the trial court's determination in the light most favorable to the respondent and presume the existence of every fact the trial court could reasonably deduce from the evidence. [Citation.]"
c. Discussion.
We agree with the trial court's reliance on Gangemi to impose multiple sentences for each section 115 conviction, even where the particular offense was part of an indivisible transaction. As Gangemi explained: "[T]he language of section 115, which provides: '(d) For purposes of prosecution under this section, each act of procurement or of offering a false or forged instrument to be filed, registered, or recorded shall be considered a separately punishable offense.' This language demonstrates an express legislative intent to exclude section 115 from the penalty limitations of section 654. Thus, the Legislature has unmistakably authorized the imposition of separate penalties for each prohibited act even though they may be part of a continuous course of conduct and have the same objective. [Citation.] We conclude that each false filing is separately punishable." (People v. Gangemi, supra, 13 Cal.App.4th at p. 1800.)
However, because Gangemi's analysis only applies to Moon's section 115 violations, it says nothing about the propriety of multiple sentencing where the section 115 violations arose from a transaction in which forgery (§ 470) or offering false evidence (§ 132) was also committed, or where the transactions did not involve any section 115 violations. Other case law, however, indicates section 654 does apply to such situations.
Gangemi involved the defendant's convictions for a series of section 115 and section 115.5 violations. Section 115.5 concerns the filing of false or forged documents relating to single-family residences and "is but a more specific application of the general statute (§ 115) and the purposes behind both statutes are the same - namely, to preserve the integrity and reliability of public documents." (People v. Gangemi, supra, 13 Cal.App.4th at pp. 1795-1796.)
In People v. Curtin (1994) 22 Cal.App.4th 528, Curtin walked into a bank and cashed a check made out to a customer whom Curtin was impersonating. The check was drawn on the account of a third person whose signature Curtin had forged. The Court of Appeal held Curtin had been improperly sentenced for both forgery and burglary because the offenses "were part of the same indivisible transaction, both committed for a single criminal objective, to cash the check." (Id. at p. 532.)
In People v. Kenefick, supra, 170 Cal.App.4th 114, the defendant used a scheme involving a fake promissory note and a forged deed of trust in order to steal the victim's money. The Court of Appeal held Kenefick had been improperly sentenced on two forgery counts "because the forgeries were part and parcel of the theft, securities fraud, and burglary. She had a single criminal intent - to take [the victim's] money." (Id. at p. 124.)
The scam in Kenefick was similar to some of the crimes Moon committed here: "In June 2001, when Howard was 64 years old, he invested $60,000 in Kenefick Investments. He believed he was entering a partnership with defendant, who was also investing $60,000. In return Kenefick Investments received a promissory note for $120,000, secured by a first deed of trust on property on Spy Glass Court in Woodbridge, owned by Dennis and Susan Cunningham. Defendant told Howard it was not necessary for him to go to the title company; she would handle everything and bring him the papers to sign. [¶] The Cunninghams did not borrow the money; their signatures on the note and deed of trust were forged." (People v. Kenefick, supra, 170 Cal.App.4th at p. 117.)
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In Burris v. Superior Court (1974) 43 Cal.App.3d 530, Burris hoodwinked the Visalia Municipal Court into appointing him to represent an indigent criminal defendant even though Burris was not actually an attorney. Burris's motion to dismiss an information charging him with grand theft, perjury and practicing law without a license was denied by the trial court. His ensuing writ of prohibition was denied by the Court of Appeal, which concluded Burris was not being subjected to improper multiple prosecution because the alleged crimes were part of an indivisible course of conduct, and therefore constituted only one punishable act under section 654: "Examining petitioner's conduct, it is readily apparent that his principal objective either was to unlawfully obtain money from the county (grand theft), with the unlawful practice of law and perjury being incidental to and in furtherance of this objective, or his principal objective was to engage in the practice of law for compensation, with the perjury and grand theft acts being incidental to and in furtherance of that objective. Thus, whether appellant's ultimate objective was to steal money from the county or to unlawfully engage in the practice of law for money, the three criminal acts were part of an indivisible course of criminal conduct." (Burris v. Superior Court, supra, at p. 535.)
Moon argues each of the disputed convictions was part of a single, indivisible course of conduct. Forging John Boddie's signature on the promissory note (count 2) was merely part of Moon's entire scheme (counts 1-5) to defraud Boddie. Forging the signatures of Miramontes and Ruiz (counts 28 and 29) was only done for the purpose of preparing a false document (count 30) to be filed in court (count 31). Count 32 was the forgery of Jill Boddie's signature in order to create false evidence, which was then submitted to two different judges (counts 34 and 35). Finally, Moon was sentenced on count 36 for forging Session's signature on a notice of appeal, the same document he offered as false evidence (count 38).
The Attorney General does not dispute Moon's analysis showing these four separate schemes involved indivisible transactions or courses of conduct. Instead, the Attorney General argues the trial court properly imposed multiple sentences under the reasoning of two cases: In re Horowitz, supra, 33 Cal.2d 534 (offering forged will for probate warranted multiple sentencing for violating sections 470, 115, 132 and 134), and People v. Glab, supra, 13 Cal.App.2d 528 (offering forged will for probate warranted multiple sentencing for violating sections 470 and 134).
However, as Moon rightly points out, these two cases pre-dated Neal v. State of California (1960) 55 Cal.2d 11, the seminal case establishing the modern interpretation of section 654's prohibition of multiple punishment.
As Neal explained: "Few if any crimes . . . are the result of a single physical act. 'Section 654 has been applied not only where there was but one "act" in the ordinary sense . . . but also where a course of conduct violated more than one statute and the problem was whether it comprised a divisible transaction which could be punished under more than one statute within the meaning of section 654.' [Citation.] [¶] Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one. [¶] Thus in People v. Logan [(1953]) 41 Cal.2d 279, 290 . . . , defendant, who chose to commit robbery by first knocking out his victim with a baseball bat and then taking his valuables was convicted of both robbery and assault. We reversed the assault conviction on the ground that the double punishment violated section 654." (Neal v. State of California, supra, 55 Cal.2d at pp. 19-20.)
Our Supreme Court has continued to apply this expanded reading of section 654: "In Neal . . . this court construed the statute broadly," and "[w]ith respect to punishment imposed under statutes that define a criminal offense, it is well settled that '[s]ection 654 bars multiple punishments for separate offenses arising out of a single occurrence where all of the offenses were incident to one objective.' [Citation.]" (People v. Rodriguez (2009) 47 Cal.4th 501, 507.)
Horowitz and Glab predated Neal and do not survive Neal's broad reading of section 654. As was pointed out in People v. Neder (1971) 16 Cal.App.3d 846, 854: "It is suggested in Justice Schauer's dissent in Neal . . . and in 2 Witkin, California Crimes (1963) Punishment for Crime, section 960, page 913, that Neal would have precluded multiple punishment in . . . In re Horowitz . . . ." (Justice Schauer was the author of Horowitz.) Here, the trial court's comments indicate it would have stayed Moon's sentencing on the disputed counts had it not been led astray by the Horowitz and Glab opinions.
The sentences on counts 2, 31, 34, 35 and 38 should be stayed.
DISPOSITION
The conviction on count 29 is vacated, and the sentences on counts 2, 31, 34, 35 and 38 are stayed. In all other respects, the judgment is affirmed. The trial court is directed to prepare and forward to the Department of Corrections and Rehabilitation an amended abstract of judgment.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KLEIN, P. J. We concur:
CROSKEY, J.
ALDRICH, J.