Opinion
D068423
01-18-2017
THE PEOPLE, Plaintiff and Respondent, v. GREGORY S. EMERSON, Defendant and Appellant.
Heather L. Beugen, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., and Randall D. Einhorn, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCD257707) APPEAL from a judgment of the Superior Court of San Diego County, Joseph P. Brannigan, Judge. Affirmed. Heather L. Beugen, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., and Randall D. Einhorn, Deputy Attorneys General, for Plaintiff and Respondent.
Gregory S. Emerson was charged with 20 offenses, including burglary, grand theft from an elder, forgery, and attempting to dissuade a witness. A jury found Emerson guilty of 13 of the 20 counts. As pertinent here, the jury found him guilty of one count of first degree burglary (count 1: Pen. Code, §§ 459, 460) for burglarizing the home of Rufus Elton N. (Elton) and his wife Mary N. (Mary) (together the victims) on December 10, 2012; one count of theft in excess of $950 from an elderly person (Elton) between June 26, 2012 and January 21, 2014 (count 3: § 368, subd. (d) (hereafter § 368(d)); and a second count of theft in excess of $950 from an elderly person (Mary) between June 26, 2012 and January 21, 2014 (count 5: § 368(d)).
All further statutory references are to the Penal Code.
Because they share the same last name, we refer to Rufus Elton N. by his preferred first name, Elton, and to Mary N. by her first name. As of January 1, 2017, California Rules of Court, rule 8.90 became effective. Rule 8.90, subdivision (b) requires appellate courts to "consider referring to" certain individuals "by first name and last initial or, if the first name is unusual or other circumstances would defeat the objective of anonymity, by initials only," in order to protect those individuals' privacy. The list of people to whom this rule applies includes victims of crimes. (Rule 8.90, subd. (b)(4).) After consideration, we have decided to refer to the victims in this case by their first names and last initials, and thereafter by first names only, in order to try to provide them with some measure of anonymity.
On June 12, 2015, the trial court sentenced Emerson to an aggregate term of eight years in state prison, consisting of the midterm of four years for his count 1 burglary conviction, a consecutive one-year term for each of his two convictions of theft from an elderly person (counts 3 & 5), and two consecutive one-year terms for other convictions not pertinent to this appeal.
Emerson appeals, contending his sentence should be reversed and the case remanded for resentencing because his burglary offense and his two elder theft offenses "were committed by the same conduct and with the same objective" of "stealing money from Elton and Mary by false pretense," and, thus, section 654 barred imposition of punishment for both his burglary offense and his two elder theft offenses. We affirm the judgment.
FACTUAL BACKGROUND
At the time of trial in 2015, Elton was 88 years of age and Mary was 81. Beginning in 2004 or 2005 and continuing for the next four or five years, Elton, a retired real estate appraiser, acquired a total of 74,888 acres of undeveloped land in Riverside County. Elton knew there were problems with title to the property, but he took the risk because he believed that if he could clear the title, the land would be worth about $75 million.
After Elton was denied title insurance in conjunction with an attempt to sell two small portions of the land in 2007 or 2008, he hired Emerson, who was an attorney, to quiet title to the land Elton had purchased. Elton paid Emerson a $15,000 retainer.
In 2008 Emerson filed a complaint in federal court to quiet title to the land. The victims later learned the lawsuit was dismissed due to lack of prosecution and because Emerson failed to serve the necessary parties.
In 2009 Emerson filed a second complaint to quiet title to the land. After the victims learned this second action was dismissed because Emerson failed to serve the correct parties, they fired Emerson and hired a new attorney, Jae Kim, to quiet title to the land.
Kim was never able to obtain the case files from Emerson despite repeated efforts. In 2010 or 2011, after the victims learned the United States government had been awarded title to the land back in 1998, they dismissed their action. Thereafter, the victims filed a complaint with the State Bar of California against Emerson, which resulted in his suspension from the practice of law.
In 2012 Emerson sent Elton an e-mail apologizing for his past behavior, asking for forgiveness, and seeking another chance to clear title to the land. Elton and Emerson met at a restaurant and agreed that Emerson would file a third action to quiet title to the land. Emerson indicated he would not charge Elton for his work, but he would need help from another attorney he would find. Emerson later asked Elton to lend him $10,000 to pay attorney Thomas Russell, who had agreed to help. Emerson would do most of the work, and Russell would help with research, review and sign pleadings, and make necessary court appearances.
In late June 2012, a few days after the restaurant meeting, Russell met the victims at their home. The victims signed a retainer agreement with Russell and gave him a check for $10,000 as a "loan" to Emerson to allow Emerson to use Russell's ability to practice law. After the meeting, Emerson met with Russell and they went to a bank. Russell cashed the check and gave Emerson half of the money ($5,000).
Russell testified that an e-mail he received from Emerson in August 2012, which he inexplicably did not open, referenced the filing on July 18, 2012, of a complaint to quiet title to real property, a copy of which was attached to the e-mail and received in evidence. When he was shown a copy of the complaint at trial, Russell indicated he had not seen it before. Russell testified he did not participate in the preparation of that complaint, he never personally filed anything on behalf of the victims, and he never approved anything for filing on their behalf. Acknowledging there was a signature on the signature line on the complaint marked "Law Offices of Thomas O. Russell," Russell testified that the signature was not his.
Russell testified he contacted Emerson numerous times during the following year, asking him to set up a meeting with the victims so he (Russell) and Emerson could provide an update to the victims, but Emerson made multiple excuses and a meeting never occurred. Emerson told Russell that the victims were his (Emerson's) clients and friends, he would be their contact, and Russell should not contact them. --------
The Honorable David Bristow, a magistrate judge with the United States District Court for the Central Division of California, testified that the quiet title complaint was never filed in that court.
In November and December 2012 Emerson assured the victims that he had filed the action to quiet title to real property and it would be successful.
In early December 2012 Emerson e-mailed the victims and asked them for a $10,000 loan. The victims told Emerson they would lend him the money if he produced proof that quiet title to the land had been achieved. A week later, Emerson met the victims at their home and gave Elton a document that purported to be a valid court order quieting title to the land. Believing that the document was a valid court order and that he now had quiet title to the land, Elton gave Emerson the $10,000 he had requested. Emerson repeatedly stressed to the victims that they needed to maintain confidentiality and not discuss the document with others.
The order was purportedly signed by Judge Bristow by means of a signature stamp. However, Judge Bristow testified the stamped signature was not his. The judge also explained that the case number listed on the document was not "not an accurate case number" because it was missing the assigned judge's initials.
Emerson later told Elton that Chevron Oil Company was interested in buying the land for $125 million in cash. Emerson repeatedly asked the victims for, and received, money for certain costs he claimed were related to the land sale and for Emerson's personal expenses. For example, Emerson asked for, and Elton paid him, $18,500 for a land survey that Emerson said Chevron required. The payment was in the form of a cashier's check payable to Emerson. In January 2013 Emerson asked the victims for an advance in the amount of $9,200 to fix a boat he owned so that he could reimburse the victims for the money he owed them from the proceeds of the sale of the boat. Mary testified she and Elton later learned from Emerson's former spouse that Emerson did not own the boat. In April 2013 Emerson told the victims that the buyer of the land had hired a broker to look at the deeds to the land because some use restrictions had to be removed before the sale could be finalized. Emerson told Mary it would cost $11,624, and she paid him that amount with a check payable to him.
Elton testified he eventually came to the conclusion that Emerson was a "total phony." In March 2014 the victims stopped giving money to him. Emerson agreed to repay the victims the $256,000 he had received from them, but he never did. Mary testified that Elton was "financially wiped out" as a result, and they were forced to live on Mary's money and their social security checks.
DISCUSSION
Emerson contends his sentence should be reversed and the case remanded for resentencing because section 654 barred the court's imposition of a consecutive one-year prison term for each of his two convictions of theft in excess of $950 from an elderly person (counts 3 & 5: § 368(d)). We reject this contention.
A. Section 654
Section 654, subdivision (a) provides in part: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision."
Section 654 "precludes multiple punishment for a single act or omission, or an indivisible course of conduct" (People v. Deloza (1998) 18 Cal.4th 585, 591), and its "purpose . . . is to ensure that a defendant's punishment will be commensurate with his culpability" (People v. Correa (2012) 54 Cal.4th 331, 341 (Correa). If a defendant suffers two convictions and punishment for one is barred by section 654, "that section requires that the sentence for one conviction be imposed and the other be imposed and then stayed." (Deloza, at pp. 591-592.)
Whether a course of conduct is indivisible for purposes of section 654 generally depends on the defendant's intent and objective, not the temporal proximity of the offenses. (People v. Hicks (1993) 6 Cal.4th 784, 789.) Thus, if all the criminal acts were incident to one objective, section 654 generally does not apply and punishment may be imposed only as to one of the offenses committed. (People v. Rodriguez (2009) 47 Cal.4th 501, 507; People v. Garcia (1995) 32 Cal.App.4th 1756, 1781.) If the defendant entertained multiple criminal objectives which were independent of and not merely incidental to each other, section 654 does not apply and "he may be punished for independent violations committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct." (People v. Beamon (1973) 8 Cal.3d 625, 639 (Beamon).) The question of whether a defendant harbored multiple criminal objectives is a question of fact for the trial court to decide. (People v. Coleman (1989) 48 Cal.3d 112, 162.)
However, "[a] person who commits separate, factually distinct, crimes, even with only one ultimate intent and objective, is more culpable than the person who commits only one crime in pursuit of the same intent and objective." (People v. Latimer (1993) 5 Cal.4th 1203, 1211.) "[S]ection 654 is not applicable to a course of conduct divisible in time, although the course of conduct is directed toward one intent or objective." (People v. Ratcliffe (1981) 124 Cal.App.3d 808, 817 (Ratcliffe), citing Beamon, supra, 8 Cal.3d at p. 639, original italics.) Thus, under section 654 "a course of conduct divisible in time, although directed to one objective, may give rise to multiple violations and punishment." (Beamon, at p. 639, fn. 11.)
1. Standard of review
"On appeal, we review factual determinations under the deferential substantial evidence test, viewing the evidence in the light most favorable to the People." (People v. Valli (2010) 187 Cal.App.4th 786, 794.) "We review de novo the legal question of whether section 654 applies." (Ibid.) A trial court's determination that a defendant held multiple criminal objectives will be upheld on appeal if it is supported by substantial evidence. (People v. Osband (1996) 13 Cal.4th 622, 730-731.)
B. Analysis
In support of his contention that section 654 barred the court's imposition of a consecutive one-year prison term for each of his two convictions of theft in excess of $950 from an elderly person, Emerson asserts his burglary offense and those two elder theft offenses "were committed by the same conduct and with the same objective" of "stealing money from Elton and Mary by false pretense." Specifically, he asserts he committed all three crimes pursuant to the "single objective" of "steal[ing] money from [Elton and Mary] by presenting them with a forged order which purported to quiet title to the land Elton had purchased . . . in Riverside County." Emerson also asserts, "the operative objective and conduct was that of stealing money from Elton and Mary by false pretense" because his "giving to [them] the forged quiet title order on December 10, 2012 was a necessary component of the thefts which followed." Thus, by suggesting his three crimes constituted an indivisible course of conduct, Emerson maintains the court erred under section 654 when, in addition to punishing him for his burglary conviction by imposing a four-year prison term, it also punished him by imposing a consecutive one-year term for each his two convictions of theft from an elderly person.
We conclude the court did not violate section 654 by separately punishing Emerson for his two elder theft offenses because (1) although those crimes and his burglary offense arguably were all directed toward one intent or objective (stealing from his victims by means of false pretenses), his elder theft crimes were divisible in time from the burglary for purposes of section 654; and (2) separate punishment for his elder theft crimes properly ensures his punishment is commensurate with his increased criminal culpability. As already discussed, under section 654 "a course of conduct divisible in time, although directed to one objective, may give rise to multiple violations and punishment." (Beamon, supra, 8 Cal.3d at p. 639, fn. 11, italics added; Ratcliffe, supra, 124 Cal.App.3d at p. 817 ["section 654 is not applicable to a course of conduct divisible in time, although the course of conduct is directed toward one intent or objective"].)
Here, the evidence shows Emerson e-mailed the victims in early December 2012 and asked them for a $10,000 "loan." The victims told Emerson they would lend him the money if he produced proof that quiet title to the land had been achieved. As discussed more fully in the factual background, ante, Emerson met the victims a few days later, on December 10, 2012, at their home and gave Elton a forged document that purported to be a valid court order quieting title to the land. Believing that the document was a valid court order and that he now had quiet title to the land he had purchased, Elton gave Emerson the $10,000 he had requested. Emerson's crime of burglarizing the victims' home was completed on that date—December 10, 2012—when he entered their home with the intent to steal by false pretenses the $10,000 he had requested, which Elton gave him during that meeting after he gave Elton the forged document thereby tricking him into believing the document was a valid court order.
The record also shows that for purposes of section 654 Emerson's count 3 and count 5 convictions of theft in excess of $950 from an elderly person were based on a "course of conduct divisible in time" (Beamon, supra, 8 Cal.3d at p. 639, fn. 11, italics added) from Emerson's criminal act of burglarizing the victims' home on December 10, 2012, with the intent of stealing $10,000. Whereas the information charged Emerson in count 1 with committing the burglary on December 10, 2012, it charged him in counts 3 and 5 with committing the two thefts in excess of $950 from an elderly person "[o]n or about and between June 26, 2012 and January 21, 2014." As we also have discussed more fully in the Factual Background, ante, the prosecution presented evidence showing that Emerson committed numerous separate acts of theft in excess of $950 from Elton and Mary by means of false pretenses both before and after the burglary Emerson committed on December 10, 2012.
Thus, section 654 does not apply because Emerson's count 3 and count 5 convictions of theft in excess of $950 from an elderly person were based on a course of conduct that was divisible in time from his count 1 crime of burglarizing the victims' home on December 10, 2012, even though the three offenses arguably were all directed toward one intent or objective (stealing from his victims by means of false pretenses). (See Beamon, supra, 8 Cal.3d at p. 639, fn. 11; Ratcliffe, supra, 124 Cal.App.3d at p. 817.)
Furthermore, the application of section 654 to bar punishment for Emerson's two elder theft crimes would violate the purpose of that statute, which is to "ensure that [his] punishment will be commensurate with his culpability" (Correa, supra, 54 Cal.4th at p. 341). Here, on numerous occasions, Emerson continued stealing money from the victims by false pretenses, based on various pretexts, for more than a year after he committed the burglary. Thus, Emerson's criminal culpability for the three crimes at issue here exceeds his culpability for the burglary, and the purpose of section 654 is served by upholding the court's imposition of punishment for his two convictions of theft in excess of $950 from an elderly person. The additional punishment, a consecutive prison term of two years, ensures that Emerson's punishment is commensurate with his criminal culpability.
DISPOSITION
The judgment is affirmed.
NARES, J. WE CONCUR: McCONNELL, P. J. IRION, J.