Loeb & Loeb, Anthony Murray and Patrick Downes for Defendant and Appellant Leonis C. Malburg. Lightfoot Steingard & Sadowsky, Michael J. Lightfoot, Richard M. Steingard, Stephen B. Sadowsky and Naomi L. Svensson for Defendant and Appellant Dominica Leonie Malburg. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lance E. Winters and Michael Katz, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. BA327248)
APPEAL from a judgment of the Superior Court of Los Angeles County, Michael M. Johnson, Judge. Affirmed in part and reversed in part.
Loeb & Loeb, Anthony Murray and Patrick Downes for Defendant and Appellant Leonis C. Malburg.
Lightfoot Steingard & Sadowsky, Michael J. Lightfoot, Richard M. Steingard, Stephen B. Sadowsky and Naomi L. Svensson for Defendant and Appellant Dominica Leonie Malburg.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lance E. Winters and Michael Katz, Deputy Attorneys General, for Plaintiff and Respondent.
Defendants Leonis C. Malburg and Dominica Leonie Malburg appeal from judgments of conviction entered after a court trial. Defendants were convicted as follows:
+-----------------------------------------------------------------------------+ ¦Count¦Offense ¦Date of Commission ¦ +-----+-----------------------------------------------+-----------------------¦ ¦ ¦Conspiracy (Pen. Code, § 182, subd. (a)(1)) to ¦ ¦ ¦ ¦ ¦February 17, 2005 ¦ ¦ ¦commit voter registration fraud (Elec. Code, ¦through ¦ ¦ ¦ ¦ ¦ ¦1 ¦§ 18100, subd. (a)), fraudulent voting (id., ¦the commencement of ¦ ¦ ¦ ¦this ¦ ¦ ¦§ 18560, subd. (a)), and false candidacy ¦ ¦ ¦ ¦(id., ¦case ¦ ¦ ¦ ¦ ¦ ¦ ¦§ 18203) ¦ ¦ +-----+-----------------------------------------------+-----------------------¦ ¦7 ¦Fraudulent voting (id., § 18560, subd. (a)) ¦April 11, 2006 ¦ +-----+-----------------------------------------------+-----------------------¦ ¦11 ¦Voter registration fraud (id., § 18100, subd.¦August 27, 2006 ¦ ¦ ¦(a)) ¦ ¦ +-----------------------------------------------------------------------------+
+-----------------------------------------------------------------------------+ ¦Count¦Offense ¦Date of Commission ¦ +-----+-----------------------------------------------+-----------------------¦ ¦ ¦Aiding illegal voting by a public official ¦ ¦ ¦ ¦(Elec. ¦January 10 through ¦ ¦ ¦ ¦April ¦ ¦2 ¦Code, § 18501, subd. (a)) by knowingly ¦ ¦ ¦ ¦violating ¦11, 2006 ¦ ¦ ¦ ¦ ¦ ¦ ¦Elections Code section 18561, subdivision (a) ¦ ¦ +-----+-----------------------------------------------+-----------------------¦ ¦ ¦Making a false declaration of candidacy (id., ¦ ¦ ¦3 ¦ ¦January 10, 2006 ¦ ¦ ¦§ 18203) ¦ ¦ +-----+-----------------------------------------------+-----------------------¦ ¦4 ¦Voter registration fraud (id., § 18100, subd. ¦March 24, 2006 ¦ ¦ ¦(a)) ¦ ¦ +-----------------------------------------------------------------------------+
+-----------------------------------------------------------------------------+ ¦5 ¦Perjury (Pen. Code, § 118, subd. (a)) ¦March 24, 2006 ¦ +--+-------------------------------------------------+------------------------¦ ¦ ¦Fraudulent voting (Elec. Code, § 18560, ¦ ¦ ¦6 ¦ ¦April 11, 2006 ¦ ¦ ¦subd. (a)) ¦ ¦ +--+-------------------------------------------------+------------------------¦ ¦ ¦Assisting an unqualified voter, Dominica Malburg ¦January 10 through April¦ ¦8 ¦ ¦ ¦ ¦ ¦(id., 18561, subd. (a)) ¦11, 2006 ¦ +--+-------------------------------------------------+------------------------¦ ¦10¦Voter registration fraud (id., § 18100, subd. ¦August 25, 2006 ¦ ¦ ¦(a)) ¦ ¦ +-----------------------------------------------------------------------------+
The trial court placed Leonis Malburg on felony probation for a period of five years. The court imposed fines in the amount of $51,000 pursuant to the Elections Code. It imposed penalty assessments pursuant to the Penal and Government Codes in the amount of $132,600. It also required Leonis Malburg to repay the City of Vernon for compensation received during the term for which he was elected at the April 11, 2006 municipal election in the amount of $395,588.
The trial court placed Dominica Malburg on felony probation for a period of three years. The court imposed fines in the amount of $10,000 pursuant to the Elections Code. It imposed penalty assessments pursuant to the Penal and Government Codes in the amount of $26,000.
On appeal, defendants challenge the denial of their motion to suppress evidence obtained pursuant to search warrants on the ground the warrants were not supported by probable cause. They also challenge the sufficiency of the evidence to support their convictions. We agree that their convictions on counts 10 and 11 must be reversed. In all other respects, we affirm the judgments.
On April 4, 2005, Judge Michael E. Pastor signed a search warrant authorizing a search of 10 different locations for evidence of misappropriation of funds belonging to the City of Vernon (Vernon) and election fraud.
The April 4, 2005 search warrant was supported by a statement of probable cause by Carlos Villamayor (Villamayor), Senior Investigator for the Los Angeles County District Attorney's Office, Bureau of Investigation, Public Integrity Division. Villamayor stated that on December 9, 2004, a deputy district attorney received information from a citizen informant that the informant had seen a report prepared by Eduardo Olivo (Olivo), formerly legal counsel to Vernon, on misappropriation of funds through the misuse of petty cash and credit cards by the City Administrator, Bruce Malkenhorst, Sr. (Malkenhorst Sr.). The amount of the misappropriated funds was over $300,000. A copy of the report was presented to the City Council, and copies of the report were mailed to the residences of the councilmembers. On December 15, the matter was assigned to Villamayor for investigation.
On December 30, 2004, Villamayor interviewed Greg Tsujiuchi (Tsujiuchi), the former Vernon Assistant Administrator. Tsujiuchi had resigned his position three days earlier after finding documents showing suspicious petty cash transactions and what appeared to be attempts at covering them up. Tsujiuchi related that earlier, City Attorney Erick Fresch (Fresch) had instructed him to burn magnetic tapes from the Accounting Department containing financial data. Tsujiuchi had conveyed his suspicions to Olivo, who said he would produce a report documenting his findings. Tsujiuchi did not know if Olivo had done so and suggested that Villamayor contact former Deputy City Clerk Gloria Molleda (Molleda). Tsujiuchi added that Olivo had since been fired by the City Council, and Molleda had resigned due to sexual harassment by Malkenhorst Sr. Tsujiuchi informed Villamayor that Malkenhorst Sr. held several positions with the city in addition to that of City Administrator. Tsujiuchi also told Villamayor where financial documents were stored.
Villamayor interviewed Molleda on January 3, 2005. Molleda said that in July 2004, Fresch, who had been hired by Malkenhorst Sr., instructed her to stop taking minutes of closed city council sessions and not to take minutes of open sessions unless instructed to do so; she was not instructed to do so, and the sessions were not recorded. In December 2004, Molleda heard conversations suggesting that Bruce Malkenhorst, Jr. (Malkenhorst Jr.) had improperly destroyed "closed session items."
In early September 2004, Molleda had spoken to city councilmember William Davis, who mentioned that Olivo's report had been delivered to the homes of all five councilmembers—Davis; Leonis Malburg, who also served as the mayor; Thomas Ybarra; Hilario Gonzales; and William McCormick. Councilmember Davis came into the office later that day holding the report, which was about 1500 pages long. Molleda later learned from a series of faxed messages from Olivo addressed to Malkenhorst Sr. or the City Attorney, that Malkenhorst Sr. was the subject of the report. Molleda suspected something was wrong when Olivo was fired abruptly during an open city council meeting on September 15. Mayor Leonis Malburg read a prepared statement describing Olivo as a disgruntled employee and briefly referring to the report Olivo had prepared.
Villamayor showed Molleda copies of petty cash receipts that Tsujiuchi had given him. Molleda identified Malkenhorst Sr.'s handwriting on the receipts. She stated that he did not follow standard procedure in handling the petty cash, in that the amounts taken from petty cash were substantial, well in excess of the limit for petty cash payments.
Based on the foregoing, Villamayor sought to search Vernon City Hall, its offsite storage facility and Malkenhorst Sr.'s residence for evidence of theft and fraud. He also sought to search the residences of the five city councilmembers for copies of the Olivo report.
The city councilmembers had no offices at city hall.
As part of his investigation, Villamayor had Senior Investigator Greg Icamen (Icamen) check public records to obtain the residence addresses of the city councilmembers. The records showed a number of addresses for Leonis Malburg, including two residential addresses: 2833 Leonis Boulevard, suite 111, in Vernon; and 647 South Hudson Avenue in Los Angeles. On March 14, 2005, Villamayor and Icamen "conducted a ruse" at the Leonis Boulevard address to determine if Leonis Malburg lived there. The address belonged to a three-story office building. The directory showed Leonis Malburg in suite 111. The door of the suite had on it "Leonis C. Malburg Enterprises." Villamayor looked through the mail slot in the door and saw an office. He checked with another tenant who said suite 111 was an office and no one lived there.
A third residential address in Huntington Beach was identified as a vacant residence. Villamayor spoke to a neighbor who said he occasionally saw people there in June, but the rest of the time it was vacant. The other addresses were for businesses, including office buildings, a warehouse, a restaurant, an auto service shop and parking lots in Vernon.
Villamayor returned to the building on March 24 and again "conducted a ruse" to determine if Leonis Malburg lived there. He spoke to a tenant who said no one lived in the building but the owner; the tenant pointed out a residential suite on the third floor. Villamayor spoke to another tenant on the third floor, who said she knew all of the tenants in the building and as far as she knew, no one lived there. Villamayor checked the parking lot, and none of the vehicles registered to Leonis Malburg was in the lot. Villamayor returned to the building that evening at about 7:55 p.m. The third-floor suite was dark, and no vehicles registered to Leonis Malburg were in the parking lot. He repeated his surveillance at about 9:37 p.m. on March 30, with the same results.
Research revealed that Leonis Malburg and D. Leonie Malburg (Dominica Malburg) recorded a grant deed on the Hudson Avenue property as husband and wife in 1959. A check with the post office revealed that Leonis Malburg did not receive mail at that address. Nonetheless, on March 22 investigators "conducted a ruse" at the Hudson Avenue property. A woman opened the door and said, "'This is the Malburg's [sic] residence and I'm Mrs. Malburg.'"
On March 24, investigators conducted surveillance at the Hudson Avenue property. Dominica Malburg left the house and drove away. Then Leonis Malburg left the house and drove away. The surveillance team followed him to the office building on Leonis Boulevard, where he stayed most of the day. About 6:00 p.m., the surveillance team followed him as he left the office building and returned to the Hudson Avenue property, where he entered the house.
Villamayor expressed the opinion, "based upon my training and experience that many persons involved in criminal activities retain documentary evidence pertaining to their crimes. Due to the portability of these documents, more specifically; credit card statements, bank financial records, bank records showing reimbursements, purchase records, receipts, petty cash receipts, correspondence, notebooks, notes, personal telephone/address books, diaries, and letters, it is my experience that suspects frequently secrete these documents or items on computers, floppy disk, compact disk and vehicles. These records are not routinely destroyed and are maintained for many years after they are created."
Villamayor believed that a search of the councilmembers' residences and vehicles "may produce the report prepared by then City Attorney Olivo. [He believed] the above report may be found at their residences based on the fact that council members have no offices in the City Hall, coupled with the fact that Olivo mailed the report to their residences. Additionally, should the report have been destroyed, the absence may demonstrate a conspiracy to conceal this crime from law enforcement."
Villamayor added, "I do not believe the report has been forwarded to a law enforcement agency. I believe that Malburg[ and the other councilmembers] aided Malkenhorst Sr. by abruptly 'firing' Olivo for producing the report. It is my opinion that the 'firing' of Olivo was discussed in private among the City Council Members since no open debate or discussion was made in the open session of the City Council meeting, which would be a violation of the Ralph M. Brown Act."
Villamayor also believed based upon his training, experience and the investigation that Leonis Malburg may have violated the Elections Code by using a Vernon address for mail and for voting while actually residing at the Hudson Avenue address since 1959.
Based on the foregoing, Villamayor sought to search the office and residential suites at the Leonis Boulevard address and the Hudson Avenue home, as well as vehicles registered to Leonis Malburg, for evidence regarding the Olivo report and a possible conspiracy to cover up wrongdoing, and evidence that Leonis Malburg violated the Election Code by falsely representing that he resided in Vernon.
1. Antony Stately
Antony Stately (Stately) was in a romantic relationship with defendants' son, John Malburg (John), from 1993 to 1995. They lived together in John's house on Mansfield Avenue in Hancock Park. On occasion, they visited an apartment in Vernon that was in a building that Stately thought was owned by Leonis Malburg or the City of Vernon. Stately remembered "how old a lot of the items were in the medicine cabinet and in the kitchen." There was very little in the refrigerator. John told Stately that his father "was registered as living in the apartment and that he had to do that to be mayor of Vernon." John said that his father "technically" lived on Hudson Avenue in Hancock Park.
Stately went with John three or four times to a "mansion" on Hudson Avenue. John said his parents lived there. It appeared to Stately that the toiletries in the home were newer than those in the apartment and appeared to be in use.
2. Pablo Alonzo
Between 1995, when Pablo Alonzo (Alonzo) was about 10 years old, and 2000, Alonzo spent a lot of time with John at the Mansfield Avenue house. Alonzo slept in the same bed with John three or four days a week, two to three weeks each month.
John had been Alonzo's psychologist at Children's Hospital on Vermont Avenue. John told Alonzo that his parents lived on Hudson Avenue. He also said that his father wanted John to be mayor of Vernon. John was going to be a psychologist until his father was ready to step down, and then John would take over as mayor.
Alonzo acknowledged at trial that he hated John. In a pretrial interview, Alonzo said that after John left Children's Hospital, he had his own office in Vernon.
John was prosecuted with his parents for Elections Code violations and was granted use immunity for his testimony. John also was convicted of sexual offenses against a minor. He appealed from his convictions and our opinion in those appeals is being filed concurrently with this opinion. (People v. Malburg (Nov. 30, 2011, B215568 and B216381) [nonpub. opn.].)
John testified that until 2005, he spent one or two months a year in the Leonis Boulevard apartment. The rest of the time, he lived elsewhere, including in a house on Mansfield Avenue in Hancock Park. Sometimes he spent four or five consecutive days in the Leonis Boulevard apartment. In July 2005, he stopped staying in the Leonis Boulevard apartment because he wanted to live independently of his parents. He stayed at an apartment on 50th Street in Vernon or in one of his other homes.
After 2008, John sometimes stayed in the Leonis Boulevard apartment. Although he testified that he believed his parents may have stayed overnight in the apartment, he could not recall anything specific that led him to believe that.
In March 2006, John mailed in his voter registration form, listing the 50th Street apartment in Vernon as his address. He explained that this address was his "domicile" and "primary home," where he had the "strongest connection." He acknowledged that the apartment had no "working refrigerator." He claimed he kept his mattress there wrapped in plastic "to keep it clean" but could not recall whether he had sheets for the bed. He kept alcoholic beverages and clothing at the 50th Street apartment and his Mansfield Avenue house but acknowledged he had "a lot more clothing" at the Mansfield Avenue house.
Law enforcement photos of the 50th Street apartment showed empty cupboards and drawers. John explained that he frequently moved items back and forth between 50th Street and Mansfield Avenue.
When shown a utility bill for the 50th Street apartment in the amount of $2.43, John said he did not know if it was typical, but the utility bill for the apartment was always under $15. John did not know if his utility bills for the Mansfield Avenue house were as low, because he did not pay them. John was shown an electricity bill for the Mansfield Avenue home which was significantly higher. He acknowledged the bill was higher in part because he spent more time in the Mansfield Avenue house but explained that the home had central air conditioning, lights on a timer, a Jacuzzi, and "things" which used electricity even when he was not there.
John explained that when the police searched the 50th Street apartment in 2005, he had already removed many of his belongings from the apartment in preparation for a move to another location in Vernon. He had some clothing and toiletries in the Leonis Boulevard apartment at that time.
In the first half of 2006, he slept in the Mansfield Avenue house most nights because it was four blocks from Daniel Murphy High School, where he worked. He had started spending more time at that house in 1997 because it was closer to his work.
During the investigation, Villamayor asked John how long he had lived in the Mansfield Avenue house. He replied, "Uh, well, we, I don't live in this house." John explained, "I think my interpretation was he was asking me if this is your primary residence, how long have you been living in this house. And this is my way of letting him know that—well, that I don't consider that house—I have never considered that house my sole or primary residence." John gave a different answer to Villamayor because he was "kind of in a state of shock. [He]had a gun pointed in [his] face, and [he] had the door being pounded, and [he] had nothing but underwear on, and [he] was kind of . . . not thinking through as clearly as [he was at trial] trying to give the most complete answers."
John further explained that he "anticipated that . . . what [Villamayor] meant was what is my domicile, " "because he was serving a search warrant which I assumed was regarding the issue of domicile, for whatever reason." He thought "that if I had said that I live here, then what I meant by that could have been, for lack of a [better] term, twisted to communicate something that I didn't intend to communicate, but which someone wanted me to communicate."
On cross-examination, John shared his family's historical connection to Vernon and his own emotional attachment to the city. He said that he registered to vote in Vernon in 1987 when he was 18. He did not vote regularly but voted in presidential elections. He believed that his domicile was in Vernon and that he would have committed a crime if he had registered to vote using his Hancock Park address.
John stated that he received "[t]he vast majority" of his mail at the Leonis Boulevard apartment. He denied that Stately ever said anything to him about the age of the items in the medicine cabinets at the apartment. He explained that the clothes in the apartment belonged to his father and mother and they looked old because his father was in the habit of keeping things for a long time.
John also said that he had things of his at the 50th Street apartment, and he did not intend to suggest otherwise when he spoke to the police. Photographs of the kitchen which showed only "antique-type" glasses there did not properly reflect all of his kitchen items.
4. Dominica Malburg
Dominica Malburg was interviewed prior to trial. She stated that she had worked at the restaurant near the Leonis Boulevard apartment, La Villa Basque, for many years, although "not lately." She did not remember the last time she stayed overnight in that apartment, but she remembered staying at the apartment when someone shot a movie there. She said that Leonis had stayed there the last two nights.
Because defendants share the same last name, we sometimes refer to them by their first names in order to avoid confusion.
When asked who lived in the Hudson Avenue house, Dominica stated, "Well I do. We, uh, . . . the girl stays here."
When asked how often Leonis stayed at the Hudson Avenue house, Dominica said she did not "keep track," but he stayed there "[w]henever we need something or when I'm scared." She could not say how many days per week he stayed there because "sometimes he's up at the ranch for three days or more, or whatever and whenever he's in Vernon." When asked how many nights Leonis stayed in Vernon, Dominica first said "three," and then said it was "depending on need." She added that Leonis brought the mail from Vernon to the Hudson Avenue house.
Dominica insisted that she and Leonis always considered the Leonis Boulevard apartment their home and that she "love[d]" Vernon.
5. Defendants' Daughter, Linda Fletcher
Linda Fletcher (Linda) testified that when she was growing up, they stayed in different homes, including homes at the beach, their ranch and in Palm Springs. During the week, they would stay in the Hudson Avenue house, which was near her school. On Friday nights, they would have dinner in Vernon. She acknowledged that she slept more at the Hudson Avenue house than at the Leonis Boulevard apartment. However, Vernon was "just such an engrained part of . . . [her] family history." She remembered when she and John got twin beds at the Leonis Boulevard apartment when she was six or seven years old.
According to Linda, her father kept his old clothes and had them repaired if necessary. Her parents also kept old things in their medicine cabinets; she and her husband used to joke that there was "stuff from the 1800's in the medicine cabinet" at the ranch house. Linda indicated that she had not telephoned her mother at a Vernon number since 2002 or earlier.
Linda acknowledged sending postcards to John at the Mansfield Avenue house. She explained that she knew he stayed there some of the time. She did not send them to the Leonis Boulevard address in order to protect John's privacy. She had last been with John in the Mansfield Avenue house for his 25th birthday, thirteen years earlier.
6. Luis Escobar
Luis Escobar (Escobar) managed several of Leonis Malburg's residences, including the Leonis Boulevard apartment and the Hudson Avenue house. He believed the Malburgs occupied the Hudson Avenue house the most. He said the ranch house had caretakers, and the Malburgs used it mainly on weekends. They also used the beach house mainly on weekends.
Escobar went to the Leonis Boulevard apartment only during the daytime, "when there [was] work to be done" and he had to let workers in. Escobar believed Leonis Malburg stayed at the apartment overnight once or twice a week. He had seen Leonis's car in the parking lot there early in the morning and seen him with cartons of take-out food. Leonis said that he slept at the apartment. Escobar acknowledged that his belief Leonis stayed in the apartment overnight was based on seeing his car in the parking lot earlier than usual and the take-out food cartons. Escobar did not know if there were some weeks that Leonis did not sleep at the apartment.
Escobar did not know if Dominica or John Malburg ever slept at the apartment. He acknowledged that the Malburgs received their mail there.
7. The Housekeepers
Consuelo Marina Lopez (Lopez) was defendants' live-in housekeeper for 31 years. She worked five days a week, but since retiring in 1998 she had worked for them two days a week.
When Lopez first started working for defendants, Dominica Malburg lived in the Hudson Avenue house. There were times when Dominica did not sleep at the house, but most of the time she slept there. Defendants' children slept at the Hudson Avenue house most of the time, although they occasionally slept elsewhere. After 1998, Dominica spent more time at the Hudson Avenue house. Lopez was unaware of her spending the night in Vernon since them.
According to Lopez, prior to 1998 Leonis Malburg slept in Vernon two or three nights a week and worked in Vernon during the day. She stated that as recently as 2007, he still slept at the Leonis Boulevard apartment two or three times a week; she knew that because he would tell her he would not be home for dinner but would be spending the night in Vernon. When asked how she knew this when she only worked for defendants two days a week, she corrected herself and said, "That was before I retired, but now that I sleep there two days, I notice once in a while he doesn't get there to sleep." She said that he slept in Vernon one of the two nights she slept at the Hudson Avenue house.
Lopez cleaned the Leonis Boulevard apartment two or three times a year. It was dusty. Some things in the medicine cabinet never changed.
Paula Diaz (Diaz) had cooked and cleaned for defendants for the last 20 years. She worked and slept at the Hudson Avenue house five nights a week. During the first 15 years she worked for defendants, Leonis Malburg slept in the Leonis Boulevard apartment about three times a week. Dominica Malburg did not sleep there very often. From 2002 to 2007, Dominica spent more time at the Hudson Avenue house, and Diaz was unaware of her sleeping at the Leonis Boulevard apartment. Leonis still slept at the apartment about twice a week.
Diaz cleaned the Leonis Boulevard apartment about three times in 20 years. It was not dusty.
Lynne Slotsve was John's neighbor on Mansfield Avenue. She moved there in July 2002. She rarely saw John, because she left her house at 6:30 a.m. and did not get home until 7:30 or 8:30 p.m. She frequently heard a piano playing in the house, and there was a light on regularly. She also saw John's vehicle in the driveway on a regular basis.
Anastacia Schustack had lived next door to John since he moved in 20 years earlier. She saw him there regularly and saw his vehicle in the driveway almost every day. She remembered Stately living with John for a few years.
9. Business Associates
According to Malkenhorst Jr., Leonis Malburg had been wearing the same suits for 30 years.
Attorney Carlo Sima had provided Leonis Malburg with estate planning services since 1973; he also provided services for Dominica Malburg. They met primarily during business hours at Leonis Malburg's office on Leonis Boulevard. They had also met at the Hudson Avenue house when Leonis was recovering from heart surgery. He used the Leonis Boulevard address for both of them. As far as Sima was concerned, Leonis Malburg had always lived in Vernon. He acknowledged, however, that he never talked to Leonis about how he could live in Vernon when he had a "large, beautiful, lived-in home in Hancock Park."
Carlos Hernandez delivered the mail to the 50th Street apartment. John received mail at that address, but the amount had decreased recently. Hernandez also delivered mail to the Leonis Boulevard apartment. He had never seen Dominica Malburg there, although he saw her at the restaurant.
10. Law Enforcement
Mark Cenovich (Cenovich), an investigator with the district attorney's office, served a search warrant at the Hudson Avenue house in April 2005. It appeared that someone was living in the house. The bed in the master bedroom looked as though one person had slept in it; the bedding was disturbed on only one side of the bed. In the house, Cenovich found mail addressed to John in Vernon. He also found checks from a household account in the names of both defendants.
In June 2006, Cenovich served a search warrant at the Mansfield Avenue house. In the house, he found an application for utility services in Vernon. In a vehicle in the driveway, he found John's earnings statement from his employer.
John made a police report with the Vernon Police Department in 2005. He gave a home phone number with a 323 area code and a cell phone number with a 213 area code.
Icamen conducted surveillance at the Leonis Boulevard building for three days in May 2005 to see if anyone was staying there. He arrived between 6:00 and 6:30 a.m. There were no vehicles registered to anyone in the Malburg family in the parking lot and no lights on in the apartment.
Lieutenant Jack Gonterman was in charge of code enforcement for the district attorney's office. In 2005, he served a search warrant at the Leonis Boulevard apartment. Leonis Malburg was in the apartment and answered the knock on the door.
The apartment was "oddly right out of the 50's. It was extremely clean. Everything was in its place. It was kind of like a movie set, actually. [There] didn't appear to be anything even touched or moved in quite some time." The refrigerator and furnishings were an "older style." There were two cans of beer and a dried out bottle of wine in the refrigerator, and old packages of deer meat in the freezer. The dishes and glasses in the cupboards were all dusty.
In the master bedroom, there were prescription bottles, tax returns and letters from the 1950's. The medicine cabinet in the master bathroom was neat and clean and contained products in packaging that Lieutenant Gonterman had not seen in over 20 years. In the bathroom by the children's bedroom, there were few items. The toothbrushes were hard and brittle, the soap was dry and cracked, and the shower mat fell apart in his hands.
Lieutenant Gonterman saw "three or four jackets in each closet. [There] was nothing to indicate that somebody was living there on a daily basis."
James Cabral, an investigator with the district attorney's office, conducted about six surveillances of defendants' Hudson Avenue house in late 2005 and March 2006. He arrived at the house by 6:00 a.m. On five of the six days, Leonis Malburg left the house in his car and drove to a business in Vernon.
Investigator Joyce Tobe (Tobe) of the district attorney's office conducted surveillance at the Mansfield Avenue house for three days in June 2006. The first day, she saw John at the house. He got into a vehicle and drove away. The second day, she saw the vehicle's taillights go on and off. The third day, she saw the vehicle in the driveway but did not see John.
Tobe executed a search warrant at the Mansfield Avenue house on June 22, 2006. She saw a ballot for the Vernon election and a letter to John at the Mansfield Avenue address from Daniel Murphy High School. The house appeared to be "lived in"—there was an open bottle of medicine in John's name, a large amount of alcohol, a functioning refrigerator, kitchenware, bedding on the bed and clothes on top of it.
When Villamayor served the search warrant at the Mansfield Avenue house, he spoke to John. John said that before 2005, he lived at the Leonis Boulevard apartment. He then moved to 50th Street in Vernon. He grew up in Vernon and his family resided there. He said that his primary residence was in Vernon, and he wanted to live in Vernon to be near his father, who needed medical help. His father stayed in Vernon three or four times a week, and some weeks John was there three or four times. John said that he had several residences in Southern California and he did not live at the Mansfield Avenue house.
Villamayor conducted about eight surveillances at the Leonis Boulevard apartment. Sometimes he arrived early in the morning; other times he arrived in the afternoon or evening. Only once did he see a car registered to any of the Malburgs at that address. He saw Leonis Malburg's Cadillac; at the time the apartment was dark and there was no sign of activity in it.
Investigator Pete Purmalis of the district attorney's office conducted surveillance at the Leonis Boulevard apartment about 77 times in 2005 and 2006. He saw Leonis Malburg's car there 11 times, but never three or four times during the same week. He never saw Dominica's car or John's car there.
Senior Investigator Mark Suhr helped execute a search warrant at the Leonis Boulevard apartment in April 2005. Leonis Malburg "was in his underwear when he answered the door." Leonis Malburg said he stayed at the apartment three or four times a week. He had "four or five different homes, and he stayed at different places at different times."
Senior Investigator Julie Silva searched the 50th Street apartment in January 2006. In the bathroom, there was a flat screen television that did not appear to have been used. There was no toilet paper, and the drawers were empty. There was a full bottle of shampoo, and the trash bag was full.
The kitchen was in disarray. There were boxes on the floor. There were filthy glasses on the counter. There was a cobweb and a coating of dust on one side of the sink, indicating it had not been used for awhile. There was no refrigerator, and the cabinets were empty.
The living room also was in disarray, with things on top of one another. In the bedroom, the mattress and box spring were on the floor and wrapped in plastic, as if they were new; there were a sleeping bag and a blanket on top of the bed. There were a few articles of clothing in one of the dresser drawers. There were a few receipts from 2005 and 2006, a sample ballot, a subpoena for John dated September 2005, and utility bills dated 2006.
11. Voting Records
In 1967, defendants filed affidavits of voter registration.
In January 2006, Leonis Malburg submitted a nomination paper as a candidate for city council and mayor. Both defendants voted in Vernon in the April 2006 elections.
Several new candidates ran for office in Vernon in 2006. Some claimed that the incumbents, including Leonis Malburg, did not reside in Vernon. The county registrar-recorder's office sent letters of inquiry to defendants. They responded with written statements that they were residents of Vernon. B. Defense
1. Leonis Malburg
Leonis has a strong connection to the City of Vernon. His grandfather was one of the city's founders. His mother was born there. He was baptized and received his first communion in the Catholic Church in Vernon. He established his residence there on East 38th Street and in 1950 first registered to vote. After serving in the military, he resumed full-time residence in Vernon and worked at the First National Bank of Vernon.
Leonis married Dominica in 1957, and they lived on East 38th Street. Both were registered to vote in Vernon and voted in Vernon. Leonis became president of the First National Bank of Vernon and continued to work in banking until 1996.
Leonis purchased a ranch house in the San Gabriel Mountains from his grandfather in 1952. He inherited property in Vernon from his grandfather in 1956. In 1957, he inherited the Hudson Avenue house from his grandmother. In 1964, he and Dominica built a beach house in Huntington Beach. Then in 1966, they built the three-story Malburg Building at 2833 Leonis Boulevard. The third floor contained an apartment with two bedrooms, two bathrooms, large family room and full kitchen. Leonis's office was on the first floor of the building. The Malburgs moved into the new apartment and registered to vote there in 1967.
Defendants adopted Linda in 1967 and John in 1969. Between 1967 and 1969, defendants spent most weeknights in Vernon while the children stayed in the Hudson Avenue house with a governess. After that, Dominica spent most weeknights at the Hudson Avenue house with the children. On weekends, they split their time among their various homes.
However, defendants continued to receive their mail at the Leonis Boulevard address. Their driver's licenses listed that address and they used that address for their income tax forms.
Leonis spent his weekdays at his office on Leonis Boulevard. Although he began spending time at the Hudson Avenue house in the 1960's, he spent time every week in the Leonis Boulevard apartment. He estimated that through the mid-2000's, he spent a majority of his weeknights in Vernon. When he spent the night there, he would order take-out food from La Villa Basque, the restaurant he and Dominica owned in Vernon.
In the mid-2000's, defendants experienced health problems. Leonis was unable to go to Vernon at times, including one time when he was unable to go for a period of six months.
In June 2005 and August 2006, when surveillance was conducted at the Leonis Boulevard address, defendants were fishing at Mammoth Lake. In September 2005, he was dove hunting in Bakersfield.
The ranch house, beach house, Hudson Avenue house and Leonis Malburg's office all had furnishings and household goods that were decades old. There were old toiletries and over the counter medications in these locations as well.
Leonis gave John the Mansfield Avenue house where he had grown up. In July 2005, John said he wanted to live in the apartment over La Villa Basque to be closer to his father, who was experiencing medical problems. Someone was already living in the apartment, so John asked about renting an apartment from the City of Vernon. Leonis told the city administrator, who brought the matter up before the city council, which voted to allow John to rent an apartment.
Leonis denied telling John that he would make him mayor of Vernon, and John had never expressed an interest in becoming mayor of Vernon. He never told John or Dominica where or how to vote. He voted in the April 2006 election but did not know whether Dominica had done so.
Leonis was aware that his grandfather had been prosecuted for fraudulent voting and perjury in 1943. The basis of the prosecution was the claim that his grandfather was domiciled at the Hudson Avenue house, not in Vernon. A demurrer was sustained and the case was dismissed.
In 1978, the same charges were brought against Leonis, alleging he was domiciled at the Hudson Avenue house, not the Leonis Boulevard apartment. The superior court granted Leonis's motion to dismiss the indictment under Penal Code section 995 on the ground the exculpatory testimony of his now-deceased housekeeper was not presented to the grand jury. Thereafter, the district attorney's office wrote to Leonis's counsel stating that, after reexamining the proceedings, "it is this office's intention, at this time, not to reinstitute criminal proceedings" against Leonis.
In 1979, the Attorney General was requested to grant leave to sue Leonis Malburg quo warranto on the ground Leonis was domiciled in Los Angeles, not in Vernon. The Attorney General denied the request, opining: "Which of these residences constitutes the proposed defendant's domicile depends on the proposed defendant's intention. On this point there is no evidence to contradict the proposed defendant's stated intention that 2833 Leonis Boulevard in the City of Vernon be his domicile. There is corroborative evidence in the physical existence of the 2833 Leonis Boulevard residence and long standing and significant contacts with the City of Vernon."
The following year, an unsuccessful Vernon City Council candidate contested the election on the ground defendants and another couple were not domiciled in Vernon. The superior court found that defendants "were domiciled and maintained their legal residence at 2833 Leonis Boulevard in the City of Vernon, intending that said residence be their residence and domicile."
After that time, Leonis believed that he was not committing a crime by voting in Vernon. One of his former lawyers told him that his domicile was in Vernon. He never heard anyone tell Dominica that she was not eligible to vote in Vernon. He agreed that in order to be domiciled in Vernon, he had to show that he stayed there "quite a bit."
2. Dominica Malburg
Dominica Malburg was born in the Basque region of Spain and immigrated to California in 1947. She met Leonis at a Basque picnic, and they were married in 1957 in the Catholic Church in Vernon. She then lived with him in his apartment in Vernon.
In 1960, defendants built and opened La Villa Basque. Dominica and her brother, Marcel Mocho, operated the restaurant. Dominica worked there daily. In the mid-1990's, the restaurant stopped serving dinner and Dominica began working there part-time. As she became older, her involvement in the operation of the restaurant consisted of overseeing the menu, ordering, and hiring and firing employees.
Over the years, many members of her extended family worked at the restaurant and lived in an apartment over the restaurant. The restaurant has become a fixture in the city.
In 1966, they built a three-story building in Vernon which had commercial office space and had a residential suite for them on the third floor. They moved into the building and Dominica registered to vote using that address.
Defendants raised their two adopted children in the Hudson Avenue house. Dominica, as the children's primary caretaker, lived there with the children, although she stayed intermittently in the Leonis Boulevard apartment. During this time, she received her mail in Vernon, was registered to vote in Vernon, used the Vernon address for her driver's license and vehicle registration, for her bank and credit card accounts, and for tax purposes.
Dominica was aware of the previous unsuccessful challenges to defendants' Vernon voter registration. She believed she was properly registered to vote in Vernon.
Escobar has worked for Leonis Malburg as his business manager since 2002. Leonis goes to his office four days a week. Escobar has lunch with him at La Villa Basque three or four days a week. Two to three times a week, Leonis orders a takeout dinner from the restaurant. He keeps the food in his office refrigerator during the afternoon then takes it up to his apartment. He brings the empty food containers back to his office and puts them in the wastebasket outside the door to his office.
4. Edward Lombardo
Edward Lombardo (Lombardo) was Leonis Malburg's business manager from 1994 to 2002. Lombardo worked Tuesday through Thursday, 9:00 a.m. to 3:00 p.m. Leonis was in his office every day, usually arriving at 10:00 a.m. He was still there when Lombardo left. He knew that Leonis often stayed in the third floor apartment, although he did not know how often. When Lombardo arrived at work, he sometimes saw Leonis's car in the garage, suggesting that Leonis had spent the night in the apartment.
Lombardo saw Dominica Malburg when she managed the restaurant. She occasionally came into the office. Lombardo could not recall whether he ever saw her car in the parking lot with Leonis's car. Lombard saw John in Vernon just a few times.
4. Malburg Building Tenants and Cleaning Staff
Michael Martin had a third floor office across from defendants' apartment from 2003 to 2005. He saw Leonis Malburg in the third floor hall three to four times a week, usually in the late afternoon or evening when he left work. He usually saw lights in the apartment five days a month and frequently saw Leonis's car in the building's parking lot at night. However, he never saw Dominica or John Malburg in the building.
Timothy Smith shared Michael Martin's office space. Three to four mornings a week, he would see Leonis's car in the parking lot when he arrived for work at 4:00 to 4:30 a.m. He never saw Dominica.
Robert Montgomery worked in the Malburg Building in the mid-1980's and again beginning in 2003. He would see Leonis's car in the parking lot two or three times a week when he arrived for work at 6:30 a.m. He never saw Dominica in the building.
Marva Pandy worked on the third floor of the Malburg Building for 19 years. About 10 times a month, she saw Leonis's car in the parking lot when she left work at 8:00 p.m.
Julia and Mark Lucero run a cleaning business and have cleaned the Malburg Building for about six years. Julia works from 5:00 to 10:00 p.m. When she cleans Leonis's office, she sometimes finds a Styrofoam food container tied in a plastic bag in one of the wastebaskets. Two to three times a week, Leonis would take the elevator up to the third floor, carrying a bag of food. Occasionally, he would come out of his apartment to give her his trash. Mark joined his wife at about 7:30 p.m. Three to four times a week, he saw Leonis's car in the parking lot when he arrived. He also saw Leonis carrying a bag of food into his apartment on occasion. Neither Julia nor Mark ever saw Dominica in the building.
Elease Thomas and her husband cleaned the Malburg Building until about 1990. They worked from 9:00 p.m. to about 2:00 a.m. She frequently saw defendants coming from La Villa Basque and going to the apartment on the third floor. She found food containers outside of Leonis's office almost every night, and she saw him about three to four times a week.
5. La Villa Basque Staff
Pierre Erro (Pierre) is Dominica Malburg's cousin. He worked at La Villa Basque and lived in the apartment above it in the 1970's. He lived in the Los Angeles Area and visited the restaurant regularly from 1979 to 2003. When Pierre was working at the restaurant, Leonis ate lunch there every day and sometimes ate dinner there. Leonis stayed in the Leonis Boulevard apartment "a lot of times," and Pierre occasionally stayed there with him. The children stayed in the Hudson Avenue house with a governess. Pierre could not say if Dominica stayed in the Leonis Boulevard apartment every week, but he did see her walk to the apartment from the restaurant. Additionally, in the last six years, Pierre saw lights on in the Leonis Boulevard apartment once or twice a week and saw Leonis's car in the parking lot three to five days a week.
Dorita Erro is married to Dominica Malburg's nephew. She has worked at La Valla Basque since 1973. She saw Leonis eat lunch at the restaurant almost every day and order take-out food two to three times a week.
Jesus Bermudez has worked at La Villa Basque for 29 years. When he arrived at work at 8:00 a.m., he would see Leonis's car in the parking lot three or four times a week. Leonis ate lunch at the restaurant almost every day and ordered take-out food two to three times a week. He saw Dominica only four or five times in the last five years.
Isidoro Bermudez has worked at La Villa Basque for 41 years. He would see Leonis's car in the parking lot about four times a week when he arrived for work at 7:30 a.m. Leonis ate lunch at the restaurant almost every day and ordered take-out food three to four times a week. He had not seen Dominica in the restaurant very often for quite some time.
Jean Rupinski has been a hostess at La Villa Basque for the last eight years. Leonis came to the restaurant for lunch four or five days a week. He came from a building across the street and returned to that building after lunch. He ordered take-out food three or four times a week. During the past year, she had seen Dominica in the restaurant about five to ten times.
A. Standard of Review
Defendants moved to quash the April 4, 2005 search warrant and to suppress the evidence seized pursuant to the warrant. The trial court denied their motion, explaining in a lengthy ruling that the warrant did not lack probable cause, the supporting affidavit did not contain material misstatements or omissions, and it was not overbroad.
On appeal, defendants first contend that, with regard to the Olivo report, the supporting affidavit for the search warrant did not provide probable cause that a crime had been committed. Specifically, they claim the affidavit contained "mere conclusions," not facts necessary to a finding of probable cause.
In ruling on a suppression motion under Penal Code section 1538.5, the trial court "'"(1) finds the historical facts, (2) selects the applicable rule of law, and (3) applies the latter to the former to determine whether the rule of law as applied to the established facts is or is not violated."'" (People v. Ayala (2000) 23 Cal.4th 225, 255.) On appeal, we review the trial court's factual findings under the deferential substantial evidence standard. (Ibid.) We review de novo the trial court's selection of the applicable law and application of the law to the facts. (Ibid.)
A search warrant cannot be issued but upon probable cause, supported by an affidavit. (Pen. Code, § 1525.) A defendant seeking to quash a search warrant bears the burden of establishing its invalidity. (Theodor v. Superior Court (1972) 8 Cal.3d 77, 101.) A magistrate's determination as to the existence of probable cause is given "'"great deference"'" and will not be overturned unless the affidavit fails as matter of law to establish probable cause. (Fenwick & West v. Superior Court (1996) 43 Cal.App.4th 1272, 1277, 1278; accord, Illinois v. Gates (1983) 462 U.S. 213, 236 [103 S.Ct. 2317, 76 L.Ed.2d 527]; People v. Kraft (2000) 23 Cal.4th 978, 1041.) Because of the law's preference for warrants, doubtful or marginal cases should be resolved in favor of upholding the warrant. (People v. Superior Court (Corona) (1981) 30 Cal.3d 193, 203; People v. Garcia (2003) 111 Cal.App.4th 715, 720.)
The magistrate's duty "is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the 'veracity' and 'basis of knowledge' of persons supplying hearsay information," probable cause exists. (Illinois v. Gates, supra, 462 U.S. at p. 238.) Our duty "is simply to ensure that the magistrate had a 'substantial basis for . . . conclud[ing]' that probable cause existed." (Id. at pp. 238-239.)
Probable cause to issue a search warrant exists when, based on the totality of circumstances described in the affidavit, "there is a fair probability that contraband or evidence of a crime will be found in a particular place." (Illinois v. Gates, supra, 462 U.S. at p. 238; People v. Kraft, supra, 23 Cal.4th at p. 1041.) However, "[p]robable cause 'is a fluid concept—turning on the assessment of probabilities in particular factual contexts—not readily, or even usefully, reduced to a neat set of legal rules.' (Illinois v. Gates[, supra, at p.] 232 . . . .) It is less than proof beyond a reasonable doubt (id. at p. 235 . . .); less than a preponderance of the evidence (ibid.); and less than a prima facie showing (ibid.).
"Probable cause is a 'particularized suspicion' [citation]; it is 'facts that would lead a man of ordinary caution . . . to entertain . . . a strong suspicion that the object of the search is in the particular place to be searched' [citation]; 'probable cause requires only a . . . substantial chance.' (Illinois v. Gates, supra, 462 U.S. at p. 243, fn. 13 . . . .)" (People v. Tuadles (1992) 7 Cal.App.4th 1777, 1783, italics omitted.)
In determining the existence of probable cause, "'[r]easonable suspicion' may be based not only upon the circumstances and conduct recited in the affidavit but also upon the affiant's interpretation of and opinion about those circumstances and conduct." (People v. Tuadles, supra, 7 Cal.App.4th at p. 1784.) Nevertheless, there are "limits beyond which a magistrate may not venture in issuing a warrant. A sworn statement of an affiant that 'he has cause to suspect and does believe' that [a crime was committed and evidence of the crime] is located on certain premises will not do. [Citation.] An affidavit must provide the magistrate with a substantial basis for determining the existence of probable cause, and [a] wholly conclusory statement . . . fail[s] to meet this requirement. An officer's statement that '[a]ffiants have received reliable information from a credible person and do believe' that [evidence is located in a particular location], is likewise inadequate. [Citation.] [Again], this is a mere conclusory statement that gives the magistrate virtually no basis at all for making a judgment regarding probable cause. Sufficient information must be presented to the magistrate to allow that official to determine probable cause; his action cannot be a mere ratification of the bare conclusions of others. In order to ensure that such an abdication of the magistrate's duty does not occur, courts must continue to conscientiously review the sufficiency of affidavits on which warrants are issued." (Illinois v. Gates, supra, 462 U.S. at p. 239.)
B. Olivo Report
With the foregoing principles in mind, we turn to the facts of the instant case. Defendants argue that Villamayor did not know what was in the Olivo report and whether it concluded that Malkenhorst Sr. was guilty of misconduct, and Villamayor did not know whether the city council had taken action against Malkenhorst Sr. Defendants further argue that even if the report concluded that Malkenhorst Sr. had misappropriated funds and the city council had not taken action against him, there was still no crime on the part of the councilmembers, as being an accessory to a crime requires an affirmative act, not merely a failure to act.
Villamayor's affidavit indicated that a citizen informant saw the Olivo report on misappropriation of city funds by Malkenhorst Sr. Tsujiuchi told Villamayor that he had seen evidence of suspicious transactions and an attempt to cover them up. Tsujiuchi had conveyed this information to Olivo, who said he would produce a report documenting his findings on the matter. Molleda saw the Olivo report in September 2004 and heard that it had been delivered to the councilmembers. Prior to that time, she was instructed to stop taking minutes of closed city council sessions, and she heard conversations suggesting that closed session items had been destroyed. On September 15, Olivo was fired during an open city council meeting and Leonis Malburg read a prepared statement describing Olivo as a disgruntled employee and briefly referring to the report Olivo had prepared.
Villamayor's affidavit contained more than a "wholly conclusory statement" that he believed a crime had been committed. (Illinois v. Gates, supra, 462 U.S. at p. 239.) It contained the facts upon which he based his conclusions: his conversations with people who knew about the Olivo report and the misappropriation of city funds. It also contained facts which would lead a reasonable person to entertain a strong suspicion that a crime had been committed, i.e., that the city councilmembers were accessories after the fact to Malkenhorst Sr.'s misappropriation of city funds.
As defendants point out, being an accessory after the fact requires more than a failure to act, i.e., more than the city council's failure to act on the Olivo report. Penal Code section 32 provides that an accessory after the fact is one "who, after a felony has been committed, harbors, conceals or aids a principal in such felony, with the intent that said principal may avoid or escape from arrest, trial, conviction or punishment . . . ." However, after Olivo wrote his report and sent copies to the city councilmembers, the city council fired him. Combined with the evidence of closed session city council meetings and the destruction of evidence of Malkenhorst Sr.'s misfeasance, the evidence was sufficient to raise a strong suspicion that the councilmembers took action to conceal the misfeasance. Concealing evidence of another's crimes constitutes being an accessory after the fact. (People v. Wilson (1993) 17 Cal.App.4th 271, 275.)
There thus were enough facts in Villamayor's affidavit to find probable cause that a crime had been committed. (Illinois v. Gates, supra, 462 U.S. at p. 243, fn. 13; People v. Tuadles, supra, 7 Cal.App.4th at p. 1783.) Defendants contend, however, that there was no probable cause to believe that a search of their residences would reveal evidence of the crime. They argue that "the affidavit fails to explain why a report mailed in September, 2004, would still be at the residences seven months later." Additionally, since the Malburgs did not receive mail at the Hudson Avenue address, Villamayor "not only failed to show that the report was delivered to the Hancock Park home, but . . . showed that the report would not have been delivered there."
It is true that "[i]nformation that is remote in time may be deemed stale and thus unworthy of consideration in determining whether an affidavit for a search warrant is supported by probable cause." (People v. Hulland (2003) 110 Cal.App.4th 1646, 1652.) However, "[t]he question of staleness turns on the facts of each particular case." (Ibid.) A longer delay may be justified by the nature of the activity being investigated and the evidence sought to be found. (Ibid.)
This is not a case like those involving drug transactions, where the evidence will likely be gone in a short period of time. (See, e.g., People v.Hulland, supra, 110 Cal.App.4th at pp. 1652-1653.) This case involved a report on a crime that took place over an extended period of time. There appeared to have been a cover-up by the city council thereafter. Villamayor believed, based on his training and experience, that the people involved would have retained documentary and/or digital evidence of what had transpired. Under the circumstances, any reasonable person would entertain a strong suspicion that Leonis Malburg and the other city councilmembers would have in their possession evidence of Malkenhorst Sr.'s malfeasance and the city council's attempt to cover it up.
Defendants also claim there was no probable cause to believe the report would be found at their residences for two reasons. First, they argue that "the affidavit fails to explain why a report mailed in September, 2004 would still be at the residences seven months later. . . . Indeed, the affidavit's only evidence about the current likely whereabouts of the copies of the report was that Ms. Molleda, a Vernon city employee, had seen one councilmember with the report in the office, suggesting that if a councilmember had received a report at a residence, it would have been soon removed to his office."
According to Villamayor's affidavit, city councilmembers had no offices at city hall, and the copies of Olivo's report were mailed to them at their residences. That one of the councilmembers brought his copy of the Olivo report to city hall, where he did not have an office, does not suggest that the councilmembers took their copies of the report to their offices after receiving them. Inasmuch as the councilmembers did not have offices at city hall which they used for their work on the city council, there was no reason to believe they had moved their copies of the report to their offices. Hence, there was a "fair probability" that the report would be found at the councilmembers' residences. (Illinois v. Gates, supra, 462 U.S. at p. 238; People v. Kraft, supra, 23 Cal.4th at p. 1041.)
Second, defendants argue that since they did not have mail delivered to their Hudson Avenue residence, there was no probability that the Olivo report would be found there. Villamayor's affidavit suggested that the Malburgs actually resided at the Hudson Avenue residence, despite receiving their mail elsewhere. If Leonis Malburg actually resided at the Hudson Avenue residence but received his mail elsewhere, there was a "fair probability" he would have brought his mail to his residence, and the report would be found there. (Illinois v. Gates, supra, 462 U.S. at p. 238; People v. Kraft, supra, 23 Cal.4th at p. 1041.)
In determining whether there was probable cause to search defendants' residences for the Olivo report and related documentary and digital evidence, all that was required was a "fair probability" or a "'substantial chance'" that evidence of a crime would be found in those locations. (Illinois v. Gates, supra, 462 U.S. at pp. 238, 243, fn. 13; People v. Kraft, supra, 23 Cal.4th at p. 1041; People v. Tuadles, supra, 7 Cal.App.4th at p. 1783.) Under the facts of this case, we conclude the magistrate had "a 'substantial basis for . . . conclud[ing]' that probable cause existed." (Illinois v. Gates, supra, at pp. 238-239.)
C. Voter Fraud
Villamayor stated in his affidavit that he believed Leonis Malburg may have violated Elections Code section 18203, by falsely stating on his declaration of candidacy that he resided in the City of Vernon. Leonis Malburg's February 3, 1967 voter registration form listed his address at 2833 Leonis Boulevard; his voting record showed that he had used that address as his residence for purposes of voting from March 2000 through November 2004. While Leonis had owned the Hudson Avenue property since 1959, he did not receive mail there. Villamayor had visited the other properties Leonis owned, and it did not appear that he lived at any of those properties. Villamayor believed that Leonis was hiding the fact that his true residence was the Hudson Avenue property so that he could continue to hold public office in Vernon.
Defendants assert that "the affidavit was completely devoid of facts to support an inference that Mr. Malburg had filed a false Declaration of Candidacy," in that Villamayor did not review any election documents or the relevant statutes. Defendants go on to point out that a declaration of candidacy is not required for municipal elections; rather, an affidavit of nominee was required, and it does not require that a residence address be listed. Thus, defendants conclude, Villamayor's affidavit provided no factual basis for a finding of probable cause.
Defendants' assertion rests on the principle that the magistrate "was not authorized to review the affidavit to see if any crime was committed, but rather whether there was probable cause for the crimes alleged in the affidavit." We disagree.
Defendants cite in support of their assertion Johnson v. United States (1948) 333 U.S. 10, 14 [68 S.Ct. 367, 92 L.Ed.2d 436], which states that the protection afforded by the Fourth Amendment is the requirement that the inferences to be drawn from the evidence presented are those of "a neutral and detached magistrate instead of . . . the officer engaged in the often competitive enterprise of ferreting out crime." That the magistrate is neutral and detached does not mean the magistrate may not determine whether the affidavit provides probable cause that evidence of any crime, as opposed to a specified crime, would be found at the listed locations.
U. S. v. Abboud (6th Cir. 2006) 438 F.3d 554, involved an application for a search warrant which stated that the applicant had reason to believe that there would be at the specified location specified property which was evidence of a violation of section 1344 of title 18 of the United States Code. In his affidavit, he listed other crimes of which he believed the search would recover evidence. The question the court addressed was whether the warrant was valid for a search for evidence of all the crimes or just for the section 1344 violation. (Abboud, supra, at p. 568.)
The court found the incorporation clause in the search warrant was "insufficient to incorporate the additional violations into the search warrant." (U. S. v. Abboud, supra, 438 F.3d at p. 568.) It explained that "[t]he Court's jurisprudence with respect to incorporation of an affidavit into a search warrant almost exclusively addresses the particularity or probable cause requirement of a search warrant. [Citations.] This Court has not addressed whether an affidavit incorporated for the purpose of supporting probable cause of a single violation may also be incorporated to establish probable cause for additional violations not listed on the face of the warrant but for which the affiant professes probable cause. Despite the lack of directly controlling case law, several factors militate in favor of disallowing such a broad incorporation of the affidavit." (Id. at pp. 568-569, fn. omitted.)
Most important of these factors was that the court could not "determine whether the magistrate in this case found probable cause for all of the violations listed in the affidavit or for only the violation listed on the face of the warrant. The government bears the burden of showing probable cause in connection with a search warrant. [Citations.] Only if the magistrate finds probable cause can she issue a search warrant. [Citations.] In this case, the only certainty is that the magistrate found probable cause with respect to the violation of [section] 1344." (U. S. v. Abboud, supra, 438 F.3d at p. 569.) Thus, the court could "only speculate as to whether the magistrate found probable cause with respect to the additional violations listed in the affidavit. This Court will not uphold a search warrant based on such tenuous ground." (Id. at p. 570.)
The court recognized that the purpose of the exclusionary rule was to deter police misconduct, not punish the errors of a magistrate. (U. S. v. Abboud, supra, 438 F.3d at p. 570.) It added, "The government may argue that the magistrate erred when she did not clearly state for which violations she had found probable cause. We are more inclined to view the case as one of applicant error; the applicant simply forgot or otherwise failed to list the additional violations on the face of the warrant. As the party seeking the search warrant, the applicant maintains the responsibility of clearly setting out the violations for which he is searching for evidence. Specifically listing the additional violations on the face of the warrant would have required a minimal effort, and the resulting clarity would have made such effort worthwhile." (Ibid.) Therefore, "[a] better rule would be to require the applicant to list the violations on the face of the search warrant or, if incorporating an affidavit, to require the applicant to make clear with the incorporation clause on the face of the application that the affidavit contains the relevant violations." (Ibid.)
To the extent Abboud can be read as holding that a magistrate is not authorized to review the affidavit to see if it supplies probable cause to believe that any crime was committed, we are unconvinced the holding is correct. Article 1, section 13 "of the California Constitution, using language similar to that in the Fourth Amendment to the federal Constitution, states that 'a warrant may not issue except on probable cause, supported by oath or affirmation, particularly describing the place to be searched and the persons and things to be seized.'" (4 Witkin, Cal. Criminal Law (3d ed. 2000) Illegally Obtained Evidence, § 88, p. 711.) Penal Code section 1524, setting forth the grounds on which a search warrant may be issued, allows a warrant to issue "[w]hen the property or things to be seized consist of any item or constitute any evidence that tends to show a felony has been committed, or tends to show that a particular person has committed a felony." (Id., subd. (a)(4).) Penal Code section 1525 provides that "[a] search warrant cannot be issued but upon probable cause, supported by affidavit, naming or describing the person to be searched or searched for, and particularly describing the property, thing, or things and the place to be searched." Nowhere in the foregoing is a requirement that the warrant and/or supporting affidavit specify with particularity the crime which the evidence will show was committed.
At least one court has questioned Abboud. In U. S. v. Kaechele (E.D. Mich. 2006) 466 F.Supp.2d 868, the court felt "compelled to express its concern with the ruling in Abboud, which seemingly rests upon a questionable application of a distinct body of case law addressing a wholly separate issue—namely, the incorporation of affidavits into search warrants." (Id. at p. 877.) It explained that "[t]he incorporation decisions, then, are directed at the question whether a warrant and any accompanying, properly incorporated documents, viewed together, sufficiently 'describ[e] the place to be searched, and the persons or things to be seized,' U.S. Const. amend. IV, thereby channeling the activities of the officer executing the warrant and 'assur[ing] the individual whose property is searched or seized of the lawful authority of the executing officer, his need to search, and the limits of his power to search.' [Citation.] This case and Abboud, in contrast, do not involve challenges to the particularity of a warrant's description of the items to be seized. Rather, the 'incorporation' at issue occurred when the magistrate reviewed the warrant application and incorporated affidavit to determine whether these materials established probable cause to search for and seize the items identified by the affiant as evidence or fruits of criminal activity." (Kaechele, supra, at p. 878, fn. omitted.)
The court found it unclear "why this latter sort of 'incorporation' should be a matter of particular concern to a reviewing court. The magistrate's task upon reviewing the warrant application and accompanying, incorporated affidavit in this case was 'to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, . . . there [wa]s a fair probability that contraband or evidence of a crime w[ould] be found in a particular place.' Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983). Moreover, in recognition that 'affidavits are normally drafted by nonlawyers in the midst and haste of a criminal investigation,' the magistrate had no ground to insist that the materials submitted to him met any '[t]echnical requirements of elaborate specificity." Gates, 462 U.S. at 235, 103 S.Ct. at 2330 (internal quotation marks and citation omitted)." (U. S. v. Kaechele, supra, 466 F.Supp.2d at pp. 878-879.)
Thus, the court recognized, "the relevant question in reviewing a magistrate's probable cause determination is not whether the magistrate had a substantial basis for concluding that the application and accompanying affidavit established probable cause to believe that one or another specific 'violation' had been committed." (U. S. v. Kaechele, supra, 466 F.Supp.2d at p. 879.) Rather, "the question actually confronted by the magistrate . . . [is] whether the application and affidavit established a 'fair probability that contraband or evidence of a crime w[ould] be found in a particular place.' [Illinois v. ] Gates, 462 U.S. at 238, 103 S.Ct. at 2332 (emphasis added). So long as each item authorized to be seized under a warrant satisfies this standard, it would appear unnecessary for a reviewing court to ascertain precisely which 'violation' the magistrate identified as supplying the basis for the seizure of each particular item." (Kaechele, supra, at pp. 879-880.)
We agree with Kaechele. The focus of the probable cause inquiry is whether there is a fair probability that evidence of a crime will be found at the specified location. (Illinois v. Gates, supra, 462 U.S. at p. 238; People v. Kraft, supra, 23 Cal.4th at p. 1041.) The affiant's identification of the suspected crime does not limit the magistrate's inquiry. The search warrant here is therefore not lacking probable cause based on Villamayor's identification of the crime he believed to have been committed as filing a false declaration of candidacy in violation of Elections Code section 18203.
A. The Trial Court's Rulings
In denying defendants' motion to dismiss the indictment pursuant to Penal Code section 995, the trial court explained that "[t]he concept of domicile is a necessary element of all crimes charged in the indictment. The Elections Code provisions hinge on the location of Defendants' 'residence' as it relates to their eligibility to register, declare candidacy, and vote in the City of Vernon. Elections Code [section 349, subdivision (a),] states that 'residence' for voting purposes means a person's 'domicile.' And [subdivision (b) of that section] defines 'domicile' as follows: [¶] 'The domicile of a person is that place in which his or her habitation is fixed, wherein the person has the intention of remaining, and to which, whenever he or she is absent, the person has the intention of returning. At a given time a person may have only one domicile.'"
The trial court noted defendants claimed that the prior proceedings in which they prevailed against claims of Elections Code violations "'authoritatively' established their voting residence to be within the City of Vernon, and their domicile remains in that city because they have never expressed their intent to establish domicile elsewhere. This argument has no merit.
"These earlier legal proceedings did not determine any issues involved in our case. They were based upon facts that existed in the 1970s and 1980s, not the present day . . . . In addition, two of the proceedings simply involved discretionary decisions by the Attorney General and District Attorney [citations], and the third involved findings in a civil lawsuit that can have no collateral effect in a criminal case [citation]. Therefore, the earlier legal proceedings are not relevant."
The trial court ruled that defendants were "simply wrong in claiming that their domicile has been established 'as a matter of law.' It is well settled that 'the question of residence or domicile is a mixed question of law and fact.' [Estate of Peters] (1932) 124 Cal.App. 75, 77; accord[, Fenton v. Board of Directors] (1984) 156 Cal.App.3d 1107, 1117; [Estate of Phillips] (1969) 269 Cal.App.2d 656, 659-60. As the Court of Appeal held in the early case of [Gray v. O'Banion] (1913) 23 Cal.App. 468, 477-78: [¶] '["']It (domicile) depends not upon proving particular facts but whether all the facts and circumstances taken together, tending to show that a man has his home or domicile in one place, overbalance all the like proofs, tending to establish it in another.['"]' . . . ."
The court noted that in the cases cited by the parties, "[s]ome cases found the party's expression of intent to be persuasive, while others found behavior and circumstantial evidence more persuasive than words. [Citations.]" However, "[u]nder the correct legal standard, there is more than ample evidence to support the Grand Jury's determination of probable cause that Defendants' domicile was not in the City of Vernon during recent years."
Following trial and conviction, the trial court explained: "These are general verdicts based on all the evidence presented, and I suppose I could stop here, but I will make some brief comments about my reasoning. [¶] These comments are by no means intended to be findings of fact or any kind of a comprehensive or exclusive description of the conclusions that I have drawn from the evidence. I am simply providing a general indication of why I ruled as I did. And in making these comments, I am not going to address or cite the law. I have done so in my earlier ruling and I also do state that I have followed the applicable law in reaching these verdicts.
"The first issue I will address is domicile. [¶] Domicile is the central issue for all the charges and the People have proven that the defendants were not domiciled in Vernon and were not eligible to register as voters in Vernon, vote in Vernon, or hold office in Vernon.
"[There] probably was a time when Leonis and Dominica Malburg were domiciled in Vernon, but by the time period covered by this action, 2005 through 2006, that was not the case, Leonis, Dominica and John were not domiciled in Vernon. The evidence has shown the following for each of them during the period covered by the charges.
"For Dominica, the evidence has shown that her physical presence within the City of Vernon was extraordinarily rare. She did not use the family apartment on Leonis Boulevard for any kind of living activities. She was no longer involved in the operation of the La Villa Basque restaurant, and her life was focused on her home and family activities in Hancock Park.
"The family's housekeepers, Lopez and Diaz, said that Dominica had not stayed in the Leonis Boulevard apartment in more than five years. John said he had not seen his mother sleep in the Leonis Boulevard apartment in years. Aside from an occasional lunch, restaurant workers, building tenants, and others in Vernon said they had not seen Dominica much or in some cases at all since her health prevented her from working in the La Villa Basque restaurant. And when she was interviewed by the district attorney investigators in April 2005, Dominica could not clearly describe the last time she had stayed in the apartment or even visited the city.
"For John, the evidence has shown that his physical presence in Vernon was extraordinarily rare. His life was focused on his home in Hancock Park and his work and other activities in Los Angeles. His interest in Vernon and attachment to the city were nonexistent. His parents' apartment on Leonis Boulevard and his own apartment on 50th Street in Vernon were not used by him for living or life activities in any sense of the word.
"John's sister Linda said she never saw or heard of him going to Vernon with any regularity. Leonis' testimony on that subject was vague and deliberately evasive.
"People in Vernon who should have had contact with John said that they had not seen him. The postal carrier at his apartment and his neighbor . . . , for example. Even family members and workers at the La Villa Basque restaurant said nothing about John appearing in Vernon or even eating at the restaurant. Leonis' assistant Escobar said he had only seen John a few times in five years.
"For Leonis, the evidence has shown that his presence in Vernon was purely related to business, his personal business and his role with city government. He was in the city on a regular basis during the daytime to conduct business, and he ate lunches at the La Villa Basque restaurant. But his use [of] the apartment was purely for business in carrying out his business activities. The apartment was a temporary place to stay a short time while attending to business. It was not a place with any family presence or any meaningful life activity.
"Leonis, Dominica and John all said or testified that they intended for Vernon to be their permanent home and domicile, but I do not believe any of them at all. The People have proven that Leonis, Dominica and John were not domiciled in Vernon during the period covered by the action."
The court then turned to the issue of mental state, noting that "[t]he crimes in this case are not . . . general intent crimes. All of the crimes in the case require proof of specific intent and a mental state of knowing, willful and essentially fraudulent conduct."
On this issue, the court stated, "I think it's important to begin with the fact that the defendants knew the rules. The Malburg family had been involved over and over in litigation and other legal challenges to their right to vote and hold office in Vernon, and the defendants had received legal advice on the subject. The defendants knew from their family history that there were specific requirements for maintaining a domicile and voting eligibility within the City of Vernon. . . .
"The defendant[s'] corrupt intent is supported by a great deal of evidence, but the evidence concerning John's 50th Street apartment in Vernon is especially revealing of their fraudulent mental state. By 2005, it was obvious that John had no connection with the City of Vernon and he had no presence or living involvement in the family's Leonis Boulevard apartment. . . .
"It must have been painfully obvious to the defendants when the district attorney investigators searched the Leonis Boulevard apartment in April 2005 that no one would believe for a moment that John was domiciled in that apartment. So shortly after the search, Leonis went to the effort of setting up John in his own place in Vernon. He arranged for the city to rent John the 50th Street apartment, and by August 1, 2005, John had taken occupancy and turned on the utilities. . . .
"Although John took occupancy of the apartment, he did not use or live in the apartment in any way, and this was completely obvious. The 50th Street apartment had no refrigerator. The bedding remained wrapped in its original plastic packaging. There were no dishes or cooking utensils. . . . The utilities were not used. There were some boxes and supplies dropped off, but they were untouched and in disarray. The 50th Street apartment was not used at all, it simply gathered dust and cobwebs, and Leonis knew this.
"He testified that he went to the apartment a few times . . . in part to check on whether John had in fact moved in. The visual appearance of the apartment made it strikingly clear to anyone that it was not being used. . . . [¶] Nevertheless, in March 2006, Leonis helped John register to vote at the 50th Street apartment which required John to make false statements under penalty of perjury, and later Leonis provided John with a[n absentee] ballot for the April 11, 2006, contested city election. But consistent with his disinterest in the city, John never bothered to return the ballot.
"Leonis has testified that he did not have any involvement in these things, that they were John's doings alone. I do not believe him one bit. Among other things, Leonis was the gatekeeper and distributor of the family's mail, and letters from the registrar and the city are plainly marked. [¶] John's testimony and other evidence left me with the distinct conclusion that John's few activities in Vernon were done at the behest of his family and not because of any initiative of his own. And everyone has said that Leonis took an active and hands-on interest in all things related to the city which undoubtedly included the activities of his own family and matters related to the city's first contested election in more than a quarter century.
"This evidence concerning the 50th Street apartment speaks volumes of the defendants' corrupt mental state. . . . It . . . shows how dishonest the defendants were willing to be in order to create the false façade of domicile that was necessary to maintain the family's political position in the city. [¶] . . . Even under a scrutiny of a pending investigation by the district attorney's office, the defendants went through the elaborate charade of establishing phony voting residence for John. This dishonesty and arrogance is hard for me to fathom.
"I will say I have reviewed the grand jury evidence and ruled on many motions before the trial and [am] certainly familiar with this case. It was not until I heard and saw the witnesses testify, particularly the incredible testimony by John and Leonis, that I truly appreciated the importance of this evidence and how strongly and negatively it reflects on all of the defendants and all of the issues." B. "Business Residence" as Domicile
Leonis Malburg contends that "[t]he court's position that the owner of multiple residences may not select as his domicile a residence where he stays for 'business' reasons is legally unsupported and constitutes reversible error." The contention is flawed, both because the court did not take that position and because the court correctly considered all relevant factors in making its determination.
As did the trial court, we begin our analysis with Elections Code section 349, subdivision (a), which states that a person's "residence" for voting purposes is that person's "domicile." Subdivision (b) of section 349 provides that: "The domicile of a person is that place in which his or her habitation is fixed, wherein the person has the intention of remaining, and to which, whenever he or she is absent, the person has the intention of returning. At a given time, a person may have only one domicile."
The main test for determining domicile is "physical presence plus an intention to make that place his permanent home." (Fenton v. Board of Directors, supra, 156 Cal.App.3d at p. 1116.) Courts generally use a range of factors in applying this test, including the location of safe deposit boxes, banking accounts, membership in clubs and social activities, automobile registrations, driver's licenses, where bills and invoices are mailed, and where the majority of business and personal contacts are. (Noble v. Franchise Tax Bd. (2004) 118 Cal.App.4th 560, 563-566). Additionally, "voting registration is one of the important acts to be considered" in the determination of a domicile. (In re Marriage of Leff (1972) 25 Cal.App.3d 630, 642.)
Intent is especially critical when a person has more than one home. "Where a person has two dwellings in different places and resides a part of his time in one place and a part of the time in another alternatively, the question which of the two places is his legal residence is almost altogether a question of his intent." (Chambers v. Hathaway (1921) 187 Cal. 104, 105) Intent can be determined from a person's acts, declarations or direct testimony. (Fenton v. Board of Directors, supra, 156 Cal.App.3d at p. 1117; Johnston v. Benton (1925) 73 Cal.App. 565, 569.) "The defendant himself knows better than any other person whether he has established a legal residence in a particular city or a county. He knows or must be assumed to know what his intention is with respect to becoming or not becoming a resident, in the legal sense, of a place to which he 'moves.'" (O'Brien v. O'Brien (1911) 16 Cal.App. 103, 111.) Nonetheless, the courts must also examine intention as "manifested by the purpose that impelled [defendant] in taking up a new place of abode." (Johnston, supra, at p. 569.)
If one home is acquired after another, the law presumes that the first home continues as the domicile until it is shown that a new domicile has been established. (DeMiglio v. Mashore (1992) 4 Cal.App.4th 1260, 1268.) To determine a change in domicile, there must be proof of both actual residence in a new locality and intent to remain there. (Ibid.)
As a result, "'a person could be domiciled in one town all his or her life and have many residences,'" depending on that person's intent. (DeMiglio v. Mashore, supra, 4 Cal.App.4th at pp. 1269-1270.) Similarly, "a person may 'live' at a place and still not be a resident thereof in the legal sense of that term [citations]." (Johnston v. Benton, supra, 73 Cal.App. at pp. 569-570; O'Brien v. O'Brien, supra 16 Cal. App. at p. 108.) If a person has more than one home, the one considered to be the domicile will be the one "'which he himself selects or deems to be his home, or which appears to be the center of his affairs, or where he votes or exercises the rights and duties of a citizen.' [Citation.]" (Chambers v. Hathaway, supra, 187 Cal. at p. 105.)
The place where a person has his or her principal place of business is a factor in determining domicile. In Chambers v. Hathaway, supra, 187 Cal. 104, on which Leonis Malburg relies, the decedent was a resident of Milwaukee, Wisconsin who purchased a house in California and spent a substantial amount of time in California every year. In determining in which of the two states he was domiciled, the court focused on his intent. It held "that upon all the facts in the case his intent, so far as it is to be deduced from his acts and conduct, shows that the Milwaukee residence was his real home. It was a large establishment; he had built and kept it for a permanent home, he requested his son and wife to live in it and keep it for his use, and he had paid the expenses of maintaining it, even purchasing a farm near the city, on which a tenant lived, who produced milk and vegetables for the family use. His business headquarters were in Milwaukee. He kept safe deposit boxes there in which he stored all his stocks and bonds and other valuable papers. His son or his secretary had access thereto and in his absence they cut off the coupons from the bonds, received the dividends on his stocks, and deposited the same to his bank account in Milwaukee banks. He kept in a California bank only such funds as were required for his expenses while living there. All of his investments were made from Milwaukee and during his absences the business was carried on by his son and secretary. He had a safe deposit box in California, but kept there only such papers as he desired to have with him while he remained away from his main place of business. Under the circumstances of the case the fact that he lived in California during the greater portion of each year is of no substantial significance with respect to the question of his intent. [Citation.] The evidence shows that in 1907 he decided to spend the winters in California because the severity of the winters in Wisconsin was detrimental to his health and comfort in his declining years. It was for this reason he came and for this reason that he continued to come yearly thereafter. The fact that he rented houses in California and that he brought and kept there during his stay his two driving horses and that he also had an automobile there was of small significance, considering his wealth and station. He was a man who was given to travel, even in his later years. In the year 1912, being then of the age of eighty, he spent two months traveling in Europe. His last illness occurred while he and his daughter were on a trip to Honolulu, and he died in San Francisco shortly after his return therefrom. All these circumstances go to indicate that his sojourn in California was not in pursuance of a design to change his former residence." (Id. at pp. 106-107.)
Leonis focuses on the business aspect of the court's analysis, and clearly that was one factor the court considered. It was by no means a decisive factor, however. In our view, Chambers leads to a conclusion opposite from the one Leonis would have us draw.
In Chambers, not only was the decedent's business in Milwaukee, but that was where he had constructed a large, permanent home for his family. It was where he kept his valuables. His time in California was for the purpose of escaping the winters in Wisconsin. (Chambers v. Hathaway, supra, 187 Cal. at p. 107.) Similarly here, after Leonis inherited the Hudson Avenue house from his grandmother, it was there that he made a home for his wife and children. His children lived there full-time and went to school nearby. His wife stayed there the majority of the time with the children. It was there he made his home.
He stayed at the Leonis Boulevard apartment several nights a week because it was convenient for his business, but there was no evidence that it was his home. His family did not live there with him. The things in the apartment remained virtually unchanged from the time when he and his family had lived there, before they moved to the Hudson Avenue house.
Leonis's own testimony supports this conclusion. He testified as to health problems he suffered in the mid-2000's—diabetes-related problems, heart problems and a knee implant. There were times when he "did not come into Vernon because of [his] physical problems." It is readily inferable from this testimony that his home was in Hancock Park, but he came into Vernon for business.
The other cases Leonis cites lead to similar conclusions. In Murphy v. Travelers Ins. Co. (1949) 92 Cal.App.2d 582, the decedent grew up in Pennsylvania. He joined the military and was eventually stationed in California, where he met the woman who would become his wife. They decided to build a house in California where they would live when he retired. He registered to vote in California, claimed to be a resident of San Diego County when applying for a veteran's exemption from taxes and when executing his will. While the family lived in various places during his military service, including Pennsylvania, they eventually returned to California where they resided until his death. (Id. at pp. 584-586.)
In determining whether the decedent's domicile was Pennsylvania or California, the court observed that "[t]he question whether a person has changed his residence from one place to another must depend largely upon his intention. [Citation.] A domicile once acquired is presumed to continue until it is shown to have been changed, and to constitute the new domicile two things are indispensable: First, residence in the new locality; and second, the intention to remain there. [Citations.] The term 'domicile' has been defined as the place whence a person goes for labor or other temporary purpose and whither he returns in seasons of repose. It is the place where a person has his home, or his principal home, or where he has his family residence and principal place of business; that residence from which there is no present intention to remove, or to which there is a general intention to return. [Citations.]" (Murphy v. Travelers Ins. Co., supra, 92 Cal.App.2d at p. 587.)
In concluding that the decedent was domiciled in California, the court focused mainly on his stated intention to remain and retire in California, as well as his acts and statements showing he considered himself to be a resident of San Diego County. (Murphy v. Travelers Ins. Co., supra, 92 Cal.App.2d at pp. 587-588.) Principal place of business was not a critical factor.
Using Murphy's definition of domicile, it is again clear that Leonis's domicile was the Hudson Avenue house. It was the place from which he went for work and to which he returned "in seasons of repose," and the place of his family residence. (Murphy v. Travelers Ins. Co., supra, 92 Cal.App.2d at p. 587.) There was no evidence that he and his family were residing temporarily in the Hudson Avenue house and intended to return to the Leonis Boulevard apartment. Indeed, the children, who were raised in the house, had long since grown and moved out on their own, but Leonis and Dominica remained in the house.
Similarly, in Smith v. Smith (1955) 45 Cal.2d 235, that the defendant's business office was in California was one of many factors indicating he was domiciled in this state. More important was the fact that the defendant was living only temporarily in New York and intended to return to California. (Id. at pp. 237-238, 243-244.)
In Noble v. Franchise Tax Bd., supra, 118 Cal.App.4th 560, "[t]he parties agreed that appellants' business and personal contacts were 'substantially greater' in California than in Colorado" during the relevant time period, although they thereafter moved to Colorado. (Id. at p. 565.) The key factor in the court's determination that the appellants were domiciled in California as a matter of law was not their business contacts with California. Rather, it was that "[t]he uncontradicted facts establish[ed] that no matter what their intention for the future, [during the relevant time period], appellants had not relinquished either their residence in California, . . . or California domicile . . . . They may have intended to move to Colorado, but they continued to reside in California . . . until they actually moved to Colorado and had 'actual residence' there. [Citation.]" (Id. at p. 569.)
None of the foregoing cases stands for the proposition that a person may select a place as his domicile merely because it is his principal place of business. Rather, they stand for the proposition that a person's principal place of business is but one factor to be considered in determining that person's place of residence or domicile. The trial court did not err in doing so. C. Whether Leonis Malburg was Domiciled in Vernon as a Matter of Law
Leonis Malburg next contends that he was domiciled in Vernon as a matter of law, because it was the place he chose as his domicile and he intended that it remain his domicile. Again, his contention is flawed.
In Fenton v. Board of Directors, supra, 156 Cal.App.3d 1107, on which Leonis relies, the plaintiff and her husband moved to Big Oak Flat in 1949. They filed and maintained a veteran's tax exemption on the property, and in 1950 the plaintiff registered to vote using the Big Oak Flat address. Her driver's license and vehicle registration also listed the Big Oak Flat address. In 1959, the plaintiff and her husband purchased a property in Ferndale, and they began living there part-time in 1960. In 1968, the plaintiff began living almost exclusively in Ferndale. She applied for a homeowner's property tax exemption for the Ferndale property, declaring under penalty of perjury that Ferndale was her principal place of residence. In 1979, she listed her telephone number in the Ferndale directory, with the Ferndale address. She acted as the caretaker of the Ferndale property and considered it to be her business address. She visited the Big Oak Flat property on a regular basis. The trial court found that although the plaintiff was physically residing in Ferndale, her domicile was in Big Oak Flat. (Id. at pp. 1111-1112.)
On appeal, the court observed that "the test for determining a person's domicile is physical presence plus an intention to make that place his permanent home." (Fenton v. Board of Directors, supra, 156 Cal.App.3d at p. 1116.) "One's intent can be determined by one's acts. [Citation.] It is also clear, however, that the declarations of the party involved must be taken into consideration when the issue of domicile is involved. [Citations.] It is also established that the application of these factors in determining '"[t]he question of residence or domicile is a mixed question of law and fact, and the determination of the trial court, upon conflicting evidence, is conclusive upon [the appellate] court. [Citations.]" [Citations.]' [Citation.]" (Id. at p. 1117.)
The appellate court found substantial evidence to support the trial court's finding that the plaintiff's domicile remained in Big Oak Flat. Specifically, the plaintiff's intent, "which was manifested by her declarations at trial, and her actions as manifested by her consistent listing of the Big Oak Flat address as her residence, and the fact that she consistently returned to the property to check on its welfare all support the trial court's conclusion that [the plaintiff's] domicile was in fact her Big Oak Flat residence." (Fenton v. Board of Directors, supra, 156 Cal.App.3d at pp. 1117-1118.)
Had the trial court in this case found that Leonis Malburg was domiciled in Vernon, Fenton would support the trial court's finding. However, there is nothing in Fenton to support Malburg's claim that he was domiciled in Vernon as a matter of law. Indeed, Fenton makes it clear that, on conflicting evidence, we apply the substantial evidence test in reviewing the correctness of the trial court's factual findings.
Estate of Brady (1918) 177 Cal. 537 again makes it clear that there is no single fact, such as a party's statement as to intent, which establishes domicile as a matter of law. Rather it is a question of substantial evidence. In Brady, the decedent had two residences. The court stated, "The outward evidences as to [the decedent's] residence were the same with respect to each place. He had the absolute right to fix the place of his residence at either place as he chose. The evidence that he did change the place of his residence from San Francisco to Ross is positive, clear, and convincing, and it comprises all the substantial evidence on the subject. A court is not at liberty to overrule the determination of the decedent, or to disregard such evidence, in the absence of any substantial evidence to the contrary." (Id. at p. 539.)
Consistent with the foregoing, In re Marriage of Leff, supra, 25 Cal.App.3d 630 states that "[w]here a person maintains two residences, determination of the issue of domicile depends to a great extent upon the person's intention as manifested by his acts and declarations on the subject. [Citations.]" (Id. at p. 642.) The appellate court examines the evidence presented to determine whether substantial evidence supports the trial court's finding on the issue. (Ibid.)
Leonis Malburg cites many more cases on the issue, but none holds that, as a matter of law, a person's stated intention with respect to domicile is dispositive of the matter. Neither are we persuaded by opinions of the Attorney General reiterating the principles stated above and applying them to various factual situations, voter advice by the Secretary of State, or decisions from other jurisdictions, cited by Leonis to persuade us of the importance of a person's intent in determining domicile. While intent is an important factor, it is determined from both a person's statements as to intent and his acts demonstrating intent. (Fenton v. Board of Directors, supra, 156 Cal.App.3d at p. 1117; In re Marriage of Leff, supra, 25 Cal.App.3d at p. 642.) D. Sufficiency of the Evidence to Support Leonis Malburg's Convictions
We reject Leonis Malburg's claim that his conviction implicated his fundamental rights to vote and hold public office (U.S. Const., 1st & 14th Amends.; Cal. Const., art. II), and therefore we apply "independent, de novo" review. In In re George T. (2004) 33 Cal.4th 620, on which Leonis relies, the court held that independent review is required when the defendant raises a plausible First Amendment defense to a charge of making criminal threats. (Id. at p. 632.) As explained in People v. Lindberg (2008) 45 Cal.4th 1, independent review applies when the prosecution is "directed at" the defendant's exercise of his constitutional rights. (Id. at p. 37.)
Here, the prosecution was not directed at Leonis's exercise of his rights to vote and hold office, but rather at his claim that he was domiciled in Vernon for the purpose of exercising those rights. Since his rights were only indirectly affected by the prosecution, the substantial evidence test, rather than independent review, applies. (People v. Lindberg, supra, 45 Cal.4th at p. 37; Fenton v. Board of Directors, supra, 156 Cal.App.3d at p. 1117.)
It is well established that, in addressing a claim that the evidence is insufficient to support a judgment, "'"a reviewing court starts with the presumption that the record contains evidence to sustain every finding of fact." [Citations.] Defendant['s] contention herein "requires defendant to demonstrate that there is no substantial evidence to support the challenged findings." (Italics added.) [Citations.] A recitation of only defendant['s] evidence is not the "demonstration" contemplated under the above rule. [Citation.] Accordingly, if, as defendant here contend[s], "some particular issue of fact is not sustained [he is] required to set forth in [his] brief all of the material evidence on the point and not merely [his] own evidence. Unless this is done the error is deemed to be [forfeited]."'" (People v. Dougherty (1982) 138 Cal.App.3d 278, 282.)
Leonis sets forth in detail the evidence he claims supports his position, but he ignores the contrary evidence presented by the prosecution on which the trial court relied. His failure to set forth a statement of facts based on the evidence presented at trial forfeits any challenge to the sufficiency of the evidence to support the trial court's findings. "[A]n attack on the evidence without a fair statement of the evidence is entitled to no consideration when it is apparent that a substantial amount of evidence was received on behalf of the respondent." (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246.)
We note as well that, the test to determine sufficiency of evidence is whether, on the entire record, there is substantial evidence from which a rational trier of fact could find defendant guilty beyond a reasonable doubt. On appeal, we must view the evidence in the light most favorable to the prevailing party and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. (People v. Smith (2005) 37 Cal.4th 733, 738-739.) Leonis, to the contrary, sets forth the evidence in the light most favorable to himself and asks us to presume in his support every inference reasonably deducible from the evidence. This in no way meets his burden of demonstrating insufficiency of the evidence to support the judgment.
Leonis's assertion that his conviction and sentencing on counts 7 and 8 violated the proscriptions against multiple convictions (Pen. Code, § 954) and sentences (id., § 654) is likewise forfeited. "We discuss those arguments that are sufficiently developed to be cognizable. To the extent defendant perfunctorily asserts other claims, without development and, indeed, without a clear indication that they are intended to be discrete contentions, they are not properly made, and are rejected on that basis." (People v. Turner (1994) 8 Cal.4th 137, 214, fn. 19, disapproved on another ground in People v. Griffin (2004) 33 Cal.4th 536, 555, fn. 5.) E. Delay in Prosecuting Leonis Malburg
Leonis Malburg claims that "[t]he People inexplicably delayed 27 years before renewing their prosecution of Mr. Malburg after it was dismissed in 1979. Mr. Malburg shows that this delay was intentional, without justification, prejudicial and that the delay denied him a fair trial in violation of his right to due process under the Fourteenth Amendment to the U.S. Constitution and Article I, Section 7(a) of the California Constitution . . . ." We disagree.
The due process clauses in the federal and California Constitutions "protect a defendant from the prejudicial effects of lengthy, unjustified delay between the commission of a crime and the defendant's arrest and charging." (People v. Cowan (2010) 50 Cal.4th 401, 430; Scherling v. Superior Court (1978) 22 Cal.3d 493, 505.) Defendants moved to dismiss under Penal Code section 995 based on a prejudicial delay in prosecution violating due process. The trial court granted the motion as to count 1, in which defendants were charged with a conspiracy which began in 1967. It found "merit to Defendants' unrebutted showing of prejudice from the loss of witnesses, documents and recollection during the 1960s, 1970s, 1980s and 1990s." It found no prejudicial delay as to charges based on conduct occurring in 2006 in the remaining counts.
Following the dismissal, Leonis was not being charged with crimes committed in 1979. The People did not renew the prosecution which was dismissed in 1979. Rather, Leonis was being prosecuted for new crimes, committed in 2005 and 2006. There was no delay in prosecution in violation of due process. F. Entrapment by Estoppel
The defense of entrapment by estoppel is based on principles of due process. It "rest[s] on the premise that the government may not actively provide assurances that conduct is lawful, then prosecute those who act in reasonable reliance on those assurances." (People v. Chacon (2007) 40 Cal.4th 558, 568.) Our Supreme Court has recognized that "[c]ourts have cautioned that the defense is narrowly circumscribed," and is to be applied with caution. (Id. at p. 569.) It is applied where (1) the government has stated that the charged criminal act was legal; (2) the defendant relied on this statement; (3) the defendant's reliance was reasonable; and (4) prosecution for the charged criminal act would be unfair. (Ibid., fn. 10.)
Defendants raised the defense of entrapment by estoppel in their motion to dismiss. The trial court rejected it, in part on the ground the "decades-old legal proceedings in the 1940s, 1970s and 1980s, which could not have possibly addressed Defendants' conduct in recent years." It found these proceedings did not "entitle them to immunity from all future criminal charges."
In looking at the documents on which defendants attempt to rely in asserting the defense of entrapment by estoppel, it is clear that they are based on facts as they existed at the time, but which no longer existed at the time the instant case was prosecuted. For example, the 1979 letter from the Attorney General refusing to permit the institution of a quo warranto proceeding quotes at length from Leonis Malburg's declaration, in which he explains that he inherited the Hudson Avenue house from his grandmother. He used it as a "temporary residence for the children, who attend private schools in the Hancock Park area," since there are no junior or senior high schools in Vernon. Clearly, that set of facts no longer existed in 2005 and 2006, so defendants could not reasonably rely on the 1979 letter to support their claim that their domicile was in Vernon.
The Attorney General found "that the relator ha[d] not submitted facts sufficient to raise a substantial issue as to the right of the proposed defendant to hold office." His application therefore "fail[ed] to set forth a situation which merits the institution of a proceeding in quo warranto and that it would not be in the public interest to grant leave to sue." Nothing in the letter supports a conclusion that Leonis Malburg would always be domiciled in Vernon, no matter how the circumstances changed.
The 1980 superior court case also was based on facts no longer in existence in 2005 and 2006. At that time, defendants spent "some time with their family at each of [their three] residences"—Hancock Park, the ranch and the beach house. Additionally, at that time Dominica Malburg was still working at La Villa Basque and she and Leonis "spent a substantial amount of time in the City of Vernon attending to their business and family activities there."
The advice of defendants' counsel in 1980, the District Attorney's decision not to prosecute Leonis in 1979, and form postcards from the registrar of voters stating that Leonis was eligible to vote in Vernon do not constitute active assurance by the government that defendants remained domiciled in Vernon for voting purposes in 2005 and 2006 despite changes in their circumstances since 1979 and 1980. In short, the trial court did not err in refusing to apply the defense of entrapment by estoppel. (People v. Chacon, supra, 40 Cal.4th at p. 568.) G. Whether the "Live Test" Renders the Controlling Statutes Void for Vagueness
Defendants assert that "the People have argued that Mr. Malburg was not domiciled in Vernon because he did not 'live' there. . . . Defendants have repeatedly argued that this 'test' is fallacious, unsupported as a standard by statutory or decisional authority, and unconstitutionally vague in the multiple-residence context. The trial court rejected all such challenges. Indeed, the court apparently adopted the People's 'live test' in finding defendants guilty."
As defendants correctly point out, "[a] person may 'live' at a place and still not be a resident thereof in the legal sense of that term [citations]." (Johnston v. Benton, supra, 73 Cal.App. at pp. 569-570; see, e.g., Fenton v. Board of Directors, supra, 156 Cal.App.3d at pp. 1117-1118.) "[T]he test for determining a person's domicile is physical presence plus an intention to make that place his permanent home." (Fenton, supra, at p. 1116.)
However, defendants are incorrect in their assertion that the trial court employed a "live test" to determine domicile. It considered not only where they lived, but also where they intended to make their permanent home, as evidenced by their actions. That their family and life activities were centered in Hancock Park is evidence of an intent to make Hancock Park their permanent home, especially when combined with evidence that Leonis went to and stayed in Vernon for business purposes, and Dominica rarely went to Vernon for any purpose.
Inasmuch as the court did not adopt a "live test," we need not decide whether such a test would render the controlling statutes unconstitutionally vague. H. Whether Elections Code Section 18100, Subdivision (a), is Unconstitutionally Vague
Elections Code section 18100, subdivision (a), punishes "[e]very person who willfully causes, procures, or allows himself or herself or any other person to be registered as a voter, knowing that he or she or that other person is not entitled to registration, is punishable by imprisonment in the state prison." Leonis Malburg was charged in counts 4 and 11 of violating this statute by willfully causing, procuring or allowing John and Dominica to be registered to vote in Vernon. He was convicted as an aider and abettor and coconspirator.
Leonis argues that there is no evidence he aided John and Dominica in their submission of fraudulent voter registration forms, therefore he cannot be guilty of causing or procuring their registration. That leaves as the only basis for his conviction "allowing" them to submit fraudulent voter registration forms. To the extent the statute criminalizes "allowing" someone to submit a fraudulent voter registration form, Leonis submits, it is unconstitutionally vague.
As discussed above, however, Leonis failed to set forth all the evidence presented on the matter. He only set forth his own evidence which, he claims, does not show he actively caused or procured the fraudulent voter registrations. Thus, he cannot show that his convictions were affected by the claimed "constitutionally offensive portion of the statute" (People v. Heitzman (1994) 9 Cal.4th 189, 209).
In any event, we note that in order to support a conviction as an aider and abettor, the evidence must show that the defendant encouraged, aided or abetted the commission of a crime with the intent to commit, facilitate or encourage the commission of the crime. (Pen. Code, § 31; People v. Mendoza (1998) 18 Cal.4th 1114, 1123.) The trial court found that Leonis "arranged for the city to rent John the 50th Street apartment" and "helped John register to vote at the 50th Street apartment." This indicates that Leonis did more than "allow" John to submit fraudulent voter registration. At a minimum, he facilitated John's submission of the fraudulent registration, rendering him liable as an aider and abettor.
As to Leonis's liability for fraudulent voter registration by Dominica, we conclude that neither Leonis's nor Dominica's conviction on that count may stand. The discussion of this issue is contained in part J.4 below.
I. Defense of Mistake of Law and Fact
Leonis Malburg argues that the trial court erroneously rejected his defense of good faith mistake of law and fact which negated any guilty mental state. (Stark v. Superior Court (2011) 52 Cal.4th 368, 400; People v. Meneses (2008) 165 Cal.App.4th 1648, 1661-1663.) This is simply a reworking of his contentions that the evidence is insufficient to support the judgment and he was domiciled in Vernon as a matter of law, and it is without merit.
The trial court did not make an error of law in finding that the defense was not applicable here. It made a factual finding that Leonis did not make a good faith mistake of law and fact. It did not believe Leonis's testimony that he intended "for Vernon to be [his] permanent home and domicile." Rather, the court found that Leonis "knew the rules," he "had received legal advice on the subject," but with "corrupt intent" he violated those rules. There was no good faith mistake of law and fact. J. Sufficiency of the Evidence to Support Dominica Malburg's Convictions
Dominica first claims that the prosecution's failure to prove she was not domiciled in Vernon is fatal to her convictions. As discussed in parts B and C above, the trial court correctly rejected Leonis's claim that he was domiciled in Vernon as a matter of law. Inasmuch as Dominica's connections with Vernon were even less than her husband's, her claim fails as well.
Dominica next claims that the prosecution failed to prove she entered into a conspiracy to commit election fraud. Specifically, she argues that "the prosecution showed no more than that the family members associated with each other; there was no showing that they acted in concert to accomplish an unlawful purpose."
We note that Dominica's opening brief begins with a five-and-a-half page introduction, unsupported by any references to the record. It then contains a six-page statement of facts, which recites only the defense evidence favorable to her. In support of her claim, she cites the prosecution's closing brief, which she identifies as "the totality of evidence identified by the prosecution as proof of its case-in-chief." She then refutes that "evidence" with citations to defense evidence in the record which, she claims, demonstrates that the prosecution "grossly mischaracterized" the evidence. She also points to the lack of evidence "of a meeting or a conversation between her and others that could fairly provide even an inference of an agreement to commit fraud."
As previously stated, "'if, as defendant here contend[s], "some particular issue of fact is not sustained [she is] required to set forth in [her] brief all of the material evidence on the point and not merely [her] own evidence. Unless this is done the error is deemed to be [forfeited]."'" (People v. Dougherty, supra, 138 Cal.App.3d at p. 282.)
Additionally, in order to support a conviction of conspiracy, the evidence must show that defendants "had the specific intent to agree or conspire to commit an offense, as well as the specific intent to commit the elements of that offense, together with proof of the commission of an overt act 'by one or more of the parties to such agreement' in furtherance of the conspiracy. [Citations.]" (People v. Morante (1999) 20 Cal.4th 403, 416; People v. Swain (1996) 12 Cal.4th 593, 600.) Due to the secrecy usually involved in a conspiracy, the People need not provide direct evidence that the conspirators met and came to an express or formal agreement to commit the target crime. (People v. Austin (1994) 23 Cal.App.4th 1596, 1606, disapproved on another ground in People v. Palmer (2001) 24 Cal.4th 856.) "The evidence is sufficient if it supports an inference that the parties positively or tacitly came to a mutual understanding to commit a crime. Therefore, conspiracy may be proved through circumstantial evidence inferred from the conduct, relationship, interests, and activities of the alleged conspirators before and during the alleged conspiracy." (People v. Prevost (1998) 60 Cal.App.4th 1382, 1399.) While defendants' "'mere association' cannot establish a conspiracy, '[w]here there is some evidence of participation or interest in the commission of the offense, it, when taken with evidence of association, may support an inference of a conspiracy to commit the offense.' [Citation.]" (Id. at p. 1400; accord, People v. Consuegra (1994) 26 Cal.App.4th 1726, 1734.)
Thus, that there was no evidence "of a meeting or a conversation between her and others" in which they came to an agreement that they would commit voter fraud is not fatal to proof of a conspiracy. However, evidence that Dominica and Leonis made their home in Hancock Park yet continued to receive their mail, register their vehicles, and vote in Vernon, where Leonis was the mayor, supports an inference that they "positively or tacitly came to a mutual understanding to commit" election fraud. (People v. Prevost, supra, 60 Cal.App.4th at pp. 1399, 1400.)
3. Fraudulent Voting
Dominica Malburg further contends that the fact she voted in the April 2006 election was not established by admissible evidence. We disagree.
Manuela Giron (Giron), the Vernon City Clerk, identified Exhibit No. 18 as a document which told her office who returned ballots. It contained a list of names and a notation as to when the ballots were returned. She explained that some of the return dates were handwritten and others computer generated because of problems with the computer. The consultant who had been hired to help with the election was making the manual entries. The dates written by Leonis and Dominica Malburg's names reflected the date that they returned their ballots.
There were fewer than 100 registered voters in Vernon, and voting was done by mail.
Giron acknowledged that she was unsure when the list was actually printed. She did not know why there were handwritten notations for ballots returned on April 4 and 5 when the list purportedly was printed on April 11 at 7:57 p.m. and had printed on it in some cases the date of April 11 as the date the ballots were returned. All she could say was that "there was a glitch."
Giron also acknowledged that Exhibit No. 18 was not a document she had "pulled" from the city's files but one which had been shown to her at the hearing before the grand jury. It appeared to be a copy, not an original. Additionally, she explained that the reason the list indicated 63 ballots had been returned, and the final count was 68, was that "three ballots were inadvertently included in the final vote count."
However, despite the inconsistencies, Giron testified that Exhibit No. 18 accurately reflected the dates that ballots were returned by registered voters. She also testified that both defendants returned their ballots.
The court asked whether Giron could produce "a certified copy of whatever is in your files, along with these handwritten notations." Giron said she would do so.
The following day, Giron provided the court with Exhibit No. 511, a certified copy of the "Alpha Listing—Voters who have applied for Absentee Ballot—All Voters" which had been retained in the City Clerk's office. This list was dated April 11, 2006 at 2:50 p.m. Like Exhibit No. 18, it contained handwritten notations indicating that defendants had returned their ballots on April 4. There were some discrepancies between the two documents; as Dominica points out, the earlier document, Exhibit No. 511, indicated that two voters had returned provisional ballots while the later document, Exhibit No. 18, did not.
Judy Whitehurst, an attorney for the county counsel's office, then testified that she received Exhibit No. 18 from Albert Robles, an attorney representing one of the plaintiffs in a case that was filed against Leonis Malburg and others prior to the April 2006 election. She then sent it to the prosecutor who was handling the proceedings before the grand jury.
Defendants objected to the admission of the two exhibits as untrustworthy. The trial court overruled the objections and admitted both. It stated, "Certainly as to [Exhibit No.] 511, it meets all of the requirements of Evidence Code section 1280, the public record exception. Also the business record exception.
"I am satisfied from Ms. Giron's testimony about the manner in which the document was prepared and the time . . . at which it was prepared. I'm satisfied as to the content being an accurate city record when the ballots were received and particularly the handwritten notations for Dominica and Leonis Malburg, as well as the other individuals whose date returned is entered in hand rather than printing.
"As for Exhibit [No.] 18, I'm admitting it I suppose on the same basis, or at the very least I'm taking judicial notice that this is a document which was used before the grand jury. It's a clone of the printout which is Exhibit [No.] 511 prepared at a different time, but the content is the same as it relates to the issues in this case, which is the names and the dates—the date the ballots were returned.
"There is handwritten notations on the left with various numbers. There is a handwritten comment at the top which at least looks to me like provisional, but . . . I can't read the writing precisely. And some other notations, all on the left side, which I'm ignoring. It has nothing to do with the issues in this case. But I am satisfied that it is a copy of the official record and again has the same content as to the date received."
Evidence Code section 1280 provides that "[e]vidence of a writing made as a record of an act, condition, or event is not made inadmissible by the hearsay rule when offered in any civil or criminal proceeding to prove the act, condition, or event if all of the following applies: [¶] (a) The writing was made by and within the scope of duty of a public employee. [¶] (b) The writing was made at or near the time of the act, condition, or event. [¶] (c) The sources of information and method and time of preparation were such as to indicate its trustworthiness."
This section "'permits the court to admit an official record or report without necessarily requiring a witness to testify as to its identity and mode of preparation if the court takes judicial notice or if sufficient independent evidence shows that the record or report was prepared in such a manner as to assure its trustworthiness.' [Citations.] 'In addition to taking judicial notice, a court may rely on the rebuttable presumption that official duty has been regularly performed (Evid. Code, § 664) as a basis for finding that the foundational requirements of Evidence Code section 1280 are met.' [Citation.]" (People v. George (1994) 30 Cal.App.4th 262, 274.) "'This presumption shifts the burden of proving the foundational issue of trustworthiness of the method of preparing the official writing to the party objecting to the admission of the official writing. [Citation.]' [Citation.]" (People v. Martinez (2000) 22 Cal.4th 106, 130.)
We agree with the trial court that Exhibit No. 511 was admissible under Evidence Code section 1280 as a public record. Giron testified as to how the list was created, and she attested to the fact that Exhibit No. 511 was an official public record, under her control as City Clerk. (See In re Shannon C. (1986) 179 Cal.App.3d 334, 342-343.) Although there were discrepancies between Exhibit No. 511 and Exhibit No. 18, the former was the official record on file with the city, and the two documents agreed as to the facts critical to this case—that defendants voted in the April 2006 election. In addition, Giron testified that both defendants voted. Inasmuch as Exhibit No. 511 properly was admitted to show that defendants voted in the April 2006 election, an error in admitting Exhibit No. 18 was harmless. (Cf. People v. Brown (2003) 31 Cal.4th 518, 546.)
Dominica also contends that the admission of the exhibits violated the confrontation clause. Again, we disagree.
In Crawford v. Washington (2004) 541 U.S. 36 [124 S.Ct. 1354, 158 L.Ed.2d 177], the United States Supreme Court held that the Confrontation Clause applies where testimonial hearsay is involved; where nontestimonial hearsay is at issue, state hearsay laws apply. (Id. at p. 68; People v. Cooper (2007) 148 Cal.App.4th 731, 740-741.) While not defining testimonial hearsay, the court noted, "Various formulations of this core class of 'testimonial' statements exist: 'ex parte in-court testimony or its functional equivalent—that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially,' [citation]; 'extrajudicial statements . . . contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions,' [citation]; 'statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial [citation]." (Crawford, supra, at pp. 51-52.)
Our Supreme Court has interpreted Crawford to mean "that a statement is testimonial if (1) it is made to a law enforcement officer or by or to a law enforcement agent and (2) describes a past fact related to criminal activity for (3) possible use at a later trial. Conversely, a statement that does not meet all three criteria is not testimonial." (People v. Geier (2007) 41 Cal.4th 555, 605, cert. den. Geier v. California (2009) 557 U.S. _____ [129 S.Ct. 2856, 174 L.Ed.2d 600].)
A statement is not testimonial merely because there is a reasonable chance it may be used later in a criminal trial. (People v. Geier, supra, 41 Cal.4th at p. 605.) Evidence "memorialized in routine . . . reports" which "involve the contemporaneous recordation of observable events" is not testimonial. (Id. at p. 606.)
Defendants contend Exhibit No. 511 was testimonial because, at the time it was generated, there was litigation over voter registration in Vernon and the court in which the litigation was proceeding ordered that the ballots be held in the envelopes sealed by the voters until further order of the court. Giron testified that the consultants who assisted her were there "because of the contested election." She explained "[t]hat there was more legal problems that needed to be solved other than just my consultant helping me with in-house tasks, assignments, duties. So it was more like a legal advice that they retain the services."
There is nothing in the foregoing to suggest that Exhibit No. 511 was prepared for use in a criminal trial. That there was litigation over voter registration and the ballots themselves were ordered by the court to be held in sealed envelopes does not demonstrate that the list of registered voters indicating who returned a ballot was anything more than a routine report which contemporaneously recorded observable events, i.e., the receipt of the ballots. Hence, admission of the exhibit did not violate the confrontation clause. (People v. Geier, supra, 41 Cal.4th at p. 606.)
4. Fraudulent Registration
On August 22, 2006, the county registrar's office sent Dominica Malburg a letter stating : "It has come to our attention that you may not be residing at the office building located at: 2833 Leonis Blvd., Los Angeles, CA 90058. [¶] This information, if correct, conflicts with your status as a registered voter in Los Angeles County. [¶] Section 349 of the California Elections Code defines residence and domicile for voting as that place in which you reside. If you do not reside at your registration address and you have established residency elsewhere, you should reregister at your new address. [¶] I am requesting that you confirm whether you reside at the above address by completing and returning to this office immediately the information requested below, in the self-addressed envelope. Enclosed is a voter registration form should you need to reregister." At the bottom of the letter in the space provided, Dominica listed her residence address as "2833 Leonis Boulevard Apt 3rd Floor," and her mailing address as "2833 Leonis Blvd Suite 111." She also checked "yes" in answer to the question: "Have you ever resided at 2833 Leonis Blvd., Los Angeles, CA 90058?" although she crossed out "Los Angeles" and wrote in "Vernon."
Dominica contends the foregoing was insufficient to sustain her conviction for fraudulent registration under Elections Code section 18100, subdivision (a) (section 18100(a)) which applies to "[e]very person who willfully causes, procures, or allows himself or herself or any other person to be registered as a voter, knowing that he or she or that other person is not entitled to registration." Specifically, she claims that her response to the letter did not constitute voter registration.
The People argue that defendants interpret section 18100(a) too narrowly. They claim, in essence, that the section prohibits not only the act of registering fraudulently but also the act of allowing oneself to remain registered fraudulently. "Registration" is used in both senses in the Elections Code. We conclude, however, that for purposes of section 18100(a), a narrow interpretation of the word is correct. The statute punishes the act of fraudulent registration by affidavit of registration or voter registration card, not allowing oneself to remain registered when no longer entitled to registration.
In the construction of statutes, our primary goal is to ascertain and give effect to the intent of the Legislature. (Code Civ. Proc., § 1859; Troppman v. Valverde (2007) 40 Cal.4th 1121, 1135.) Our role "is simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted, or to omit what has been inserted; and where there are several provisions or particulars, such a construction is, if possible, to be adopted as will give effect to all." (Code Civ. Proc., § 1858; California Fed. Savings & Loan Assn. v. City of Los Angeles (1995) 11 Cal.4th 342, 349.)
We look first to the language of the statute; if clear and unambiguous, we will give effect to its plain meaning. (Prachasaisoradej v. Ralphs Grocery Co., Inc. (2007) 42 Cal.4th 217, 227.) Where we must construe the statute, we turn first to the words themselves, giving them their usual, ordinary meanings. (People v. Allegheny Casualty Co. (2007) 41 Cal.4th 704, 709.) If possible, each word and phrase should be given significance. (People v. Mays (2007) 148 Cal.App.4th 13, 29.) The words used "must be construed in context, and statutes must be harmonized, both internally and with each other, to the extent possible." (California Mfrs. Assn. v. Public Utilities Com. (1979) 24 Cal.3d 836, 844; accord, Troppman v. Valverde, supra, 40 Cal.4th at p. 1135, fn. 10.) We must give the statute a reasonable interpretation, avoiding, if possible, a literal interpretation which will lead to an absurd result. (Armenta ex rel. City of Burbank v. Mueller Co. (2006) 142 Cal.App.4th 636, 649.)
Section 18100 is part of Chapter 2 of Division 18 of the Elections Code, which contains penal provisions applicable to voter registration. Section 18101 makes it a crime to "knowingly and willfully complete, or cause or procure the completion of, in whole or in part, an affidavit of registration or a voter registration card, with the intent to cause the registration or reregistration as a voter of a fictitious person or of any person who has not requested registration or reregistration." Section 18108 makes it a crime to "receive money or other valuable consideration to assist another to register to vote by receiving the completed affidavit of registration from the elector." In both instances, the proscribed conduct involves the act of registering to vote.
Chapter 2 of Division 2 of the code addresses voter registration. Section 2102, subdivision (a), provides that "[a] person may not be registered as a voter except by affidavit of registration." Section 2103 expresses the intent of the Legislature "to promote and encourage voter registrations" by establishing "a sufficient number of registration places throughout the county . . . for the convenience of persons desiring to register, to the end that registration may be maintained at a high level."
The foregoing sections demonstrate that the term "registration" refers to both the act of registering to vote and the general condition of having registered to vote. We note that while Division 0.5, Chapter 4 of the Elections Code contains definitions of words used in the code, "registration" is not defined.
What convinces us that the meaning of "registration" in section 18100(a) is the act of registering to vote is use of the phrase "to be registered" in reference to the prohibited act, as contrasted with the phrase "not entitled to registration." The former refers to an act, while the latter refers to a condition. Section 2102 of the Elections Code specifies that the way to "be registered" is by completion of an affidavit of registration.
Consistent with this interpretation, subdivision (b) of section 18100 also addresses to the act of registering. It applies to one who "knowingly and willfully signs, or causes or procures the signing of, an affidavit of registration of a nonexistent person, and who mails or delivers, or causes or procures the mailing or delivery of, that affidavit to a county elections official."
The letter which Dominica Malburg signed was not an affidavit of registration or a voter registration form. Consequently, we conclude that the act of returning the letter to the county registrar with the incorrect residence address on it did not constitute fraudulent registration within the meaning of section 18100. It follows that Dominica's conviction on count 11 must be reversed.
Leonis Malburg was convicted on count 11 based upon his causing, procuring or allowing Dominica to be fraudulently registered. Since her conviction must be reversed, his conviction on count 11 must be reversed as well.
Leonis Malburg's conviction on count 10 of fraudulent registration was based on his filling out and returning a letter identical to Dominica's. Thus, this conviction must be reversed as well.
Leonis Malburg's convictions of fraudulent registration on counts 10 and 11, and Dominica Malburg's conviction of fraudulent registration on count 11, are reversed. In all other respects, the judgments are affirmed.
JACKSON, J. We concur:
WOODS, Acting P. J.