Opinion
B157593.
7-9-2003
THE PEOPLE, Plaintiff and Respondent, v. DAVID MILLER, Defendant and Appellant.
I. Mark Bledstein for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Michael C. Keller and Analee J. Nations, Deputy Attorneys General, for Plaintiff and Respondent.
David Miller appeals from a judgment entered upon his conviction by jury of grand theft of real property (Pen. Code, § 487, subd. (a), count 1), grand theft of personal property (§ 487, subd. (a), count 2), forgery (§ 470, subd. (d), count 3), and theft from an elder person (§ 368, subd. (d), count 4). The jury also found the allegation that the loss suffered by the victims exceeded $ 150,000 (§ 12022.6, subd. (a)(2)) to be true as to counts 1 and 4. Appellant admitted a prior felony conviction within the meaning of sections 1170.12, subdivisions (a) through (d) and 667, subdivisions (b) through (i). The trial court sentenced him to 11 years four months in state prison. Appellant contends that (1) he was improperly convicted of real property theft because a forged deed does not convey title to the grantee, (2) he could not properly be convicted of both grand theft and theft from an elder person because grand theft is a lesser included offense of theft from an elder person, (3) the trial court erred in failing to instruct the jury sua sponte on the claim-of-right defense, (4) the evidence was insufficient to sustain the forgery conviction, and (5) the trial court denied him due process by requiring his newly substituted counsel to represent him at the sentencing hearing when she was unprepared to do so.
All further statutory references are to the Penal Code unless otherwise indicated.
We reverse appellants convictions of theft of real property and theft of personal property, strike the two-year enhancement under section 12022.6, subdivision (a)(2) and affirm the judgment in all other respects.
FACTS
The real estate purchase agreement.
We review the evidence in accordance with the usual rules on appeal. (People v. Autry (1995) 37 Cal.App.4th 351, 358.) In August 2000, James and Lillie Blakley owned a three-unit rental property, on North El Molino Street, in Pasadena, in Los Angeles County (Property), free and clear of all encumbrances. Rebecca Pena, Ernie Salcedo and Yvette Tobias were the tenants. The Blakleys held the Property in the Blakley Family Trust to facilitate distribution to their family upon their death. James was 92 years old and Lillie was 83.
We use the name of the trust as reflected on the trust letterhead, rather than the name, "The Blakley Family Revocable Living Trust," as used on the trust transfer deed which was not prepared by the Blakleys.
That summer, the Blakleys decided to sell the Property. Their son referred them to a newly licensed real estate broker, Jeff Montgomery, who was affiliated with ReMax Realtors. On or about August 6, 2000, the Blakleys signed and initialed a listing agreement with Montgomery for sale of the Property for $ 280,000. On October 10, 2000, James died.
On October 13, 2000, Montgomery received a written offer, in the form of an executed "Real Estate Purchase Contract and Receipt for Deposit" (Purchase Agreement), to purchase the Property for $ 270,000, executed and initialed by appellant and his wife, Phyllis Miller, with the purchaser identified as "Child Technology Institute, Inc." (CTI), an entity the Millers owned. Montgomery also received from the Millers a joint tenancy grant deed purporting to transfer the Property from the Blakleys, as joint tenants, to CTI.
The Purchase Agreement provided that the sole deposit was to be a "note secured by deed of trust, to be held uncashed until the next business day after acceptance, or upon refinance." Neither the note nor the deed of trust accompanied the offer. The Purchase Agreement listed the escrow holder as "Carlton Financial," provided for a "Lenders Escrow" and provided a 90-day escrow period. It also provided that, "Seller shall deliver possession and occupancy of the Property to Buyer upon acceptance. Property shall be vacant unless otherwise agreed in writing."
Montgomery, testifying at trial under a grant of immunity, testified that he understood the Purchase Agreement to mean that within 30 days Lillie would be paid the full purchase price. He never understood that the Property was to be a gift. He also understood that the provision for "possession upon acceptance" meant that the buyer would obtain possession of the property when funding took place. Lillie testified that she never intended appellant to own the Property until she received the purchase price.
Montgomery delayed presenting the offer and deed to Lillie in consideration of her husbands death. Finally, on November 2, 2000, he went to Lillies home with appellants offer and the joint tenancy grant deed. Lillie would not accept the 90-day escrow period, and Montgomery telephoned Phyllis Miller from Lillies home and testified that Phyllis Miller agreed to a 30-day escrow. With regard to the escrow period, Montgomery lined through the "90" and handwrote "30 or less," and, along with Lillie, initialed the change and signed the agreement.
Montgomery gave Lillie the joint tenancy grant deed, completely filled out except for Lillies notarized signature, and told her it was to be placed in escrow after she executed it. That same day, Lillie took it to the bank, signed it before a notary and returned it to Montgomery. The joint tenancy grant deed was the only deed she signed in connection with this transaction.
Montgomery telephoned Phyllis Miller and told her he was taking the signed and notarized joint tenancy grant deed and signed Purchase Agreement to escrow. She insisted on picking up the documents and personally delivering them because she said she was going to the escrow company anyway. She said appellant would pick up the documents. Montgomery left them at the front desk. When he did, the Purchase Agreement did not contain Jamess signature or initials. However, when the original of the Purchase Agreement was subsequently obtained from the vehicle driven by appellant, it also purported to contain Jamess signature and initials. Lillie testified that the signature and initials were not her husbands, and could not be, as he had died before the Millers offer was presented. Montgomery later spoke with Mary Perkins at Carlton Financial, who told him escrow had not been opened. When he telephoned Phyllis Miller to inquire why, she told him to speak with appellant, and abruptly hung up.
The Property walk-through.
On November 9, 2000, Lillie participated in a walk-through of the Property with appellant, during which she told him her age and of the recent death of her husband. This was her only direct contact with appellant, as all of her communications regarding the transaction were with Montgomery.
Appellants collection of rents.
In December 2000, appellant began exercising ownership rights in the Property, sending tenants a letter advising them that CTI was the new owner. Later that month, when Lillie sought to collect Salcedos rent, she told him the sale to appellant had not yet been consummated. On December 15, 2000, Lillie sent the tenants a letter instructing them to pay their rent to her. Salcedo gave her a rent check for December. When appellant came to collect the rent, he told Salcedo he had been "snookered" by Lillie and that Salcedo owed appellant the rent. Salcedo requested a few days to determine to whom he owed the rent. The Fair Housing Council advised him to have appellant provide documentation of his ownership. On December 23, 2000, appellant showed Salcedo Salcedos rental agreement and a copy of a "Trust Transfer Deed," which purported to convey the Property from the Blakley Family Trust to CTI, and purported to be signed by the Blakleys and notarized by Pamela Freeman on August 1, 2000. Appellant subsequently sent a copy of that deed to Salcedo, with the wording that the "conveyance [was] given for no value" redacted. Salcedo paid appellant cash for the December rent and asked Lillie not to cash the check he had given her.
Pena also paid December 2000 and January 2001 rent to appellant. Tobias paid her December rent to Lillie and told appellant so when he attempted to collect it. Appellant changed the locks on her door and bagged her clothes, claiming she had abandoned the premises. The total rents collected by appellant from the tenants exceeded $ 1,500.
The forged deeds.
Janae Robertson, employed by appellant and his wife, testified that on December 12, 2000, appellant gave her the trust transfer deed and a "Corporate Grant Deed," purporting to be signed by the Millers on September 1, 2000, and to transfer the Property from CTI to Phyllis Miller, with instructions to take the trust transfer deed to Lillie for signature. The trust transfer deed was completely filled out but did not contain the Blakleys signatures. The corporate grant deed contained the Millers unnotarized signatures. On December 13, 2000, Robertson and her boyfriend went to a building on Crenshaw Boulevard where her boyfriend took the deeds into a room without her. When he returned, they proceeded to the County Recorders office where Robertson noticed that the trust transfer deed contained what purported to be the Blakleys signatures and the notary seal and signature of Freeman, and the corporate grant deed also purported to be notarized by Freeman. Robertson testified that she recorded the deeds using appellants name which appeared on a receipt she received from the County Recorder.
Neither of the Blakleys signed the trust transfer deed because they did not intend to transfer the Property for no value and because on August 1, 2000, the date it was purportedly signed, they had not yet even listed the Property for sale or received appellants offer. Lillie never saw Freeman, the notary whose seal was on the deed, or gave anyone permission to sign her husbands name. Freeman, who purportedly notarized the trust transfer deed and corporate grant deed, testified that the signature on those deeds was not hers and that she had no record of those notarizations in her logbook. Her notary seal was stolen in 1998 and reported to the police.
On February 13, 2001, Pasadena Police Detective John Mercado and other officers executed a search warrant at a home at 42565 Glass Drive, Indio. Appellant answered the door. Phyllis Miller, Robert Logan, who identified himself as appellants attorney, and Jason Glasgow, who also identified himself as an attorney, were present. A black Cadillac Esplanade, which the officers had seen appellant driving alone during surveillance, was parked in the driveway. The officers confiscated the joint tenancy grant deed from a table in one of the bedrooms. The Purchase Agreement with the purported initials and signatures of both Lillie and James was found in a box in the back of the Esplanade, as were the original trust transfer deed and corporate grant deed and receipts for the cost of recording of the deeds and obtaining certified copies, one receipt containing appellants name. The officers arrested appellant.
Shortly after appellants arrest, pursuant to a court order requiring him to provide Detective Mercado with exemplars of his signature, Detective Mercado told appellant he needed "numerous signatures as well as numerous different signatures and printing." Appellant refused to provide more than three signatures and three printed versions of his name. These were far fewer than the optimum number required for comparison.
Barbara Torres, a forensic document examiner with the Los Angeles County Sheriffs Department, compared the exemplar of appellants signatures obtained by Detective Mercado with the purported signature of appellant on the Purchase Agreement and rent receipts. She concluded that the person who wrote the exemplars was the same person who signed appellants name on the agreement and was probably the person who signed appellants name on the corporation grant deed. She did not opine as to whether appellant had forged any of Jamess signatures or initials.
Mary Perkins, the owner of Carlton Financial, testified that in November 2000, Phyllis Miller called her and said that the Property had been gifted to her, and she wanted to obtain a loan on it. Perkins received some newly recorded deeds and told Phyllis Miller that she needed affidavits from the people deeding the Property. Perkins never received the affidavits.
The prosecutions expert testimony.
Ralph Weiss, the prosecutions real estate expert, opined that the purchase transaction was fraudulent from the outset, based upon "red flags" intrinsic to the structure of the transaction as well as to numerous extrinsic circumstances. Among the questionable aspects of the transaction were that: (1) The deposit on the purchase price was a promissory note secured by a deed of trust on the Property. The secured promissory note gave the sellers little additional benefit beyond the Purchase Agreement because both were merely promises to pay. (2) The deed of trust securing the note with the Property provided the Blakleys with less security than they already had. Instead of having full title to the Property, a deed of trust only provided a lien on the Property. (3) The deposit was illusory because the Purchase Agreement provided that the sellers could not resort to the note until appellant refinanced the Property. But once the Property was refinanced, there would be no need for the note as the sellers were to be repaid from the proceeds of the refinance. (4) The term used in the Purchase Agreement, "construction term for refinance," was meaningless. (5) The Purchase Agreement provided for an escrow and escrow instructions within five days, which were never provided. (6) The provision that the buyer was to have "possession and occupancy . . . upon acceptance" was inconsistent with the facts. The Purchase Agreement also provided that the Property was to remain vacant unless otherwise agreed to in writing, but the parties knew that the Property was occupied by tenants. Thus, they could not be put into possession on acceptance. (7) The contract was silent on appellants right to collect rents during escrow. (8) Nothing in the Purchase Agreement contemplated a change in ownership or transfer of title before close of escrow.
Weiss also based his conclusion the transaction was fraudulent on other facts including that: (1) James Blakley died before he purportedly signed the Purchase Agreement. His initials and signature on that agreement were therefore obviously forged. (2)
The trust transfer deed from the Blakleys to CTI was dated August 1, 2000. Had CTI owned the Property then, it would have had no reason to offer to purchase it over two months later. (3) The corporate grant deed was dated September 1, 2000, also before the offer was presented. (4) The Purchase Agreement did not contemplate a gift, yet the trust transfer deed stated that it was given for no value. (5) The copy of the trust transfer deed given by appellant to Salcedo, to convince him to pay his rent to appellant, redacted language indicating that the conveyance was for no value. Weiss opined that there would be no reason to redact anything unless appellant was trying to obtain rents to which he was not entitled. (6) CTI filed a bankruptcy petition on October 30, 2000, and supplemental schedules a few weeks later, making no reference to the Blakley transaction or to any right or interest of CTI in the Property. Bankruptcy filers must disclose all assets under penalty of perjury. If CTI owned the Property, owed money on the Property or had a right to collect rents, each of these items would have to be disclosed on the bankruptcy schedules. Additionally, the CTI bankruptcy while appellant was negotiating the purchase of the Property would make it difficult, if not impossible, to obtain a loan, calling into question appellants ability, if not his intent, to obtain a loan. Perkins testified that had she known CTI had filed bankruptcy, she would not have made the loan. (7) CTI was a suspended corporation unable to do business in California as of August 1, 2000. As a result, CTI was not permitted to engage in any contractual activities.
The defense case.
Appellants defense was that he believed he was entitled to possession of the Property when the Purchase Agreement was signed by Lillie by virtue of the provision providing for "possession upon acceptance." He intended to obtain a loan to pay Lillie within the time provided in the Purchase Agreement and was unaware that any of the documents were forged, as he instructed Robertson to obtain Lillies signature on the trust transfer deed. He attempted to procure the loan to complete the transaction, but a recorded lis pendens on the property prevented him from doing so.
Neil Katzman, a real estate loan officer, testified that he received an appraisal and preliminary title report and began processing a loan on the Property for appellant. He was asked to obtain a "fix-up" loan for $ 30,000, secured by a second trust deed on the Property, and was told that the seller had a $ 270,000 first trust deed on the Property. He was also told that he had 90 days to refinance the sellers loan. Katzman testified that he could have made the loans in the required time, "assuming [he] had legal and equitable title," except for a lis pendens on the property. He had previously handled transactions involving a note rather than cash used as a down payment. He understood the terminology in the Purchase Agreement and could conceive of a situation where a buyer could obtain title prior to the close of escrow. Katzman conceded, however, that nothing in the Purchase Agreement allowed the buyer to take title before escrow closed and that "possession on acceptance" meant upon closing of escrow.
DISCUSSION
I. Grand theft of real property cannot be based on a forged deed.
The jury convicted appellant of one count of grand theft of real property. Appellant contends that he could not be convicted of that offense because recording the forged trust transfer deed did not convey title from the Blakley Family Trust to CTI. He did not steal anything because Lillie did not have anything taken and appellant did not receive anything. He argues that, as a result, the trial court erred in failing to instruct the jury that recording a forged deed does not convey title. Since that instruction pertained to an element of the charged offense, the failure to so instruct violated his Sixth Amendment right to a jury trial. He also argues that the relevant crime was theft of real property by false pretenses ( § 484, subd. (a)) which requires that the defendant obtain the property by false pretense or misrepresentation. Because appellant had virtually no direct communication with Lillie, he argues there was no evidence he made such a representation or pretense. Appellants contention has merit.
Theft of real property occurs when a person "knowingly and designedly, by any false or fraudulent representation or pretense, defrauds any other person of . . . real . . . property . . . ." ( § 484, subd. (a).) Theft of real property requires proof of (1) the making of a false pretense or representation by the defendant, (2) an intention by the defendant to defraud the owner of the real property, and (3) actual reliance of the owner on the false pretense or representation in parting with the property. (People v. Gentry (1991) 234 Cal. App. 3d 131, 138, 285 Cal. Rptr. 591; see also People v. Sanders (1998) 67 Cal.App.4th 1403, 1411 (Sanders).) "Grand theft is theft committed . . . [P] (a) When the . . . real . . . property taken is of a value exceeding four hundred dollars ($ 400) . . . ." ( § 487, subd. (a).)
But a forged deed does not convey title to its immediate grantee. (Sanders, supra, 67 Cal.App.4th at p. 1413, citing Firato v. Tuttle (1957) 48 Cal.2d 136, 139, 308 P.2d 333; Fallon v. Triangle Management Services, Inc. (1985) 169 Cal. App. 3d 1103, 1105, 215 Cal. Rptr. 748.) Neither uttering nor recording forged deeds is theft for the reason that nothing is taken. (Sanders, supra, 67 Cal.App.4th at p. 1409, fn. 9.) Appellants involvement in causing a forged deed to be recorded did not deprive the Blakleys of ownership of the Property. It cannot, therefore, be said that the Blakleys parted with the Property as required for theft of real property.
Respondent argues that appellant was guilty of theft of real property because he made numerous misrepresentations to Lillie, including among them, a representation that CTI would pay $ 270,000 for the Property, and that he would open escrow within five days, which he did not, inducing her to execute the Purchase Agreement and joint tenancy grant deed.
Respondent misconceives the nature of the misrepresentations required for theft of real property. Those misrepresentations must induce the property owner to transfer title to the real property. Neither the Purchase Agreement nor the joint tenancy grant deed operated in that fashion. The Purchase Agreement was merely a promise to transfer the Property upon appellants performance (which never occurred), and the joint tenancy grant deed could not transfer the Property because the Blakleys did not own the Property in joint tenancy. In any event, the joint tenancy grant deed was never recorded. Appellant did not induce Lillie to sign a deed to the Property sufficient to transfer it. Instead, he sought to obtain the Property by recording a forged trust transfer deed which Lillie had never seen. While there were several uncharged offenses for which appellants conduct might have subjected him to prosecution, theft of real property was not one of them.
See sections 115 (attempt to record false or forged instrument), 531 (conveyance to defraud creditors and others) and 531a (making or recording deed without title).
Sanders, involving facts similar to those presented here, is instructive. There, the defendant was responsible for the recordation of 10 forged deeds naming him as the sole grantee. The grantors on six of the deeds were dead prior to the date each purportedly executed the deed, and other grantors testified that their signatures were forged. The notaries public, whose purported signatures and seals appeared on the deeds, denied notarizing them. The defendant was charged with grand theft of real property. He argued, as does appellant here, that he was charged with the wrong offense because his conduct did not constitute grand theft of real property.
The Court of Appeal in Sanders reviewed the common law of theft and larceny offenses and legislative history of section 484, subdivision (a). It concluded that "the legislative history of section 484, subdivision (a) confirms that only those takings of real property effected by false pretense or representation can be theft." (Sanders, supra, 67 Cal.App.4th at p. 1417.)
The trial courts instruction to the jury here, in accordance with CALJIC No. 14.10, was consistent with the requirements of section 484, subdivision (a). It instructed that one element of the offense of theft of real property is that the victim "parted with the real property intending to transfer ownership thereof" by virtue of misrepresentation or pretense by appellant.
CALJIC No. 14.10, as given, stated: "Every person who knowingly and designedly by any false or fraudulent representation or pretense, defrauds another person of real property, is guilty of the crime of theft of real property by false pretense. [P] In order to prove this crime, each of the following elements must be proved: [P] 1. A person made or caused to be made to the alleged victim by word or conduct, either (a) a promise without intent to perform it, or (b) a false pretense or representation of an existing or past fact known to the person to be false or made recklessly and without information which would justify a reasonable belief in its truth; [P] 2. The person made the pretense, representation or promise with the specific intent to defraud; [P] 3. The pretense, representation or promise was believed and relied upon by the alleged victim and was material in inducing the victim to part with the real property even though the false pretense, representation or promise was not the sole cause; and [P] 4. The theft was accomplished in that the alleged victim parted with the real property intending to transfer ownership thereof."
Appellant did not obtain title to the Property by false pretenses. In fact, he did not obtain title to the Property at all because a forged deed could not convey such title. The prosecution failed to introduce any evidence Lillie parted with the Property as the result of misrepresentations or pretenses. Appellants conviction of that crime must therefore be reversed. Additionally, without the theft of real property conviction, there was no evidence that the victims losses exceeded $ 150,000, and hence the enhancement under section 12022.6, subdivision (a)(2) must be stricken.
II. Grand theft is a lesser included offense of theft from an elder person.
The jury convicted appellant of grand theft of real property and grand theft of personal property, as well as theft from an elder person. The trial court sentenced him to the high term of four years for theft from an elder person, doubled as a result of appellants prior conviction. Pursuant to section 12022.6, subdivision (a)(2), it imposed an additional two years because the victims suffered a loss in excess of $ 150,000, and a consecutive term of one-third of the midterm of two years on the forgery count, doubled for his prior conviction, for a total sentence of 11 years four months in state prison. The trial court stayed sentence on the grand theft counts pursuant to section 654. Appellant contends that the trial court could not properly convict him of both grand theft and theft from an elder person, the former being a lesser included offense of the latter. Respondent agrees, as do we.
A defendant cannot be convicted of both a greater and lesser included offense. (People v. Pearson (1986) 42 Cal.3d 351, 355, 228 Cal. Rptr. 509, 721 P.2d 595; People v. Moran (1970) 1 Cal.3d 755, 763, 83 Cal. Rptr. 411, 463 P.2d 763.) A lesser offense is necessarily included in the charged offense only if it meets either the "elements test" or the "accusatory pleading test." (People v. Lopez (1998) 19 Cal.4th 282, 288, 965 P.2d 713.) The elements test is satisfied when all of the legal ingredients of the corpus delicti of the lesser offense are included in the elements of the greater offense. (Ibid.) The accusatory pleading test is satisfied ""if the charging allegations of the accusatory pleading include language describing the offense in such a way that if committed as specified the lesser offense is necessarily committed."" (Id. at pp. 288-289.) Here, grand theft of personal property is a lesser included offense of theft from an elder person under the "elements test."
Section 368, subdivision (d) provides: "Any person who is not a caretaker who violates any provision of law proscribing theft or embezzlement, with respect to the property of an elder or dependent adult, and who knows or reasonably should know that the victim is an elder or dependent adult, is punishable by imprisonment in a county jail not exceeding one year, or in the state prison for two, three, or four years, when the money, labor, or real or personal property taken is of a value exceeding four hundred dollars ($ 400) . . . ."
Because theft from an elder person expressly incorporates as an element of that offense the violation of any law proscribing theft, all of the elements of grand theft are incorporated into the offense of theft from an elder person making grand theft a lesser included offense. As a consequence, appellant could not be convicted of both, and his conviction of the lesser offense of grand theft of personal property must be reversed.
We need not determine the unbriefed issue as to which grand theft conviction should be reversed because we have concluded that the grand theft of real property conviction was otherwise improper.
Here, the evidence failed to support a claim-of-right defense because appellant was aware of facts that made his belief that he had the right to collect rents unreasonable. The trial court was therefore not required to instruct on that defense. When appellant sought rent payments from the tenants at the Property, there was no evidence
III. The trial court did not err in failing to instruct sua sponte on the defense of claim— of-right.
Appellant contends that he was authorized to collect rent from tenants at the Property because the Purchase Agreement gave him "possession upon acceptance" and that the trial court, therefore, had a duty to instruct the jury sua sponte on the claim-of-right defense. He argues that a bona fide belief in the right or claim to property, even an unreasonable belief, negates the element of felonious intent and thereby precludes conviction of theft of the rent monies. There was substantial evidence, he argues, that he relied on the term of the Purchase Agreement that possession of the property would transfer upon Lillies acceptance. This contention lacks merit.
In criminal cases, "`"even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citations.] The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jurys understanding of the case."" (People v. Breverman (1998) 19 Cal.4th 142, 154, 960 P.2d 1094.) "The duty to instruct, sua sponte, on general principles closely and openly connected with the facts before the court also encompasses an obligation to instruct on defenses . . ." (People v. Lopez (1992) 11 Cal.App.4th 1115, 1120) that are "supported by substantial evidence [and] that are not inconsistent with the defendants theory of the case" (People v. Montoya (1994) 7 Cal.4th 1027, 1047, 874 P.2d 903). Even an accurate instruction may be properly refused if there is no evidence to which it relates. (See People v. Ortiz (1923) 63 Cal.App. 662, 667, 219 P. 1024.)
"Where a defendant . . . relies on a defense of claim-of-right, which is supported by the evidence, the trial court must instruct sua sponte on the defense. [Citation.]" (People v. Creath (1995) 31 Cal.App.4th 312, 319.) "[A] trial court is not required to instruct on a claim-of-right defense unless there is evidence to support an inference that appellant acted with a subjective belief he or she had a lawful claim on the property." (People v. Romo (1990) 220 Cal. App. 3d 514, 519, 269 Cal. Rptr. 440.)
Section 511 creates a defense to the crime of embezzlement where "the property was appropriated openly and avowedly, and under a claim of title preferred in good faith, even though such claim is untenable." It may be read as providing a claim-of-right defense to all theft-related charges, as broadened from embezzlement through the provisions of section 490a. (People v. Tufunga (1999) 21 Cal.4th 935, 952, fn. 4, 987 P.2d 168.) To succeed on a claim-of-right defense, the evidence would have to show that appellant honestly and in good faith believed he was entitled to collect rent from the Property. (People v. Lucero (1988) 203 Cal. App. 3d 1011, 1018, 250 Cal. Rptr. 354.) The claim-of-right defense provides that if a defendant takes property in the good faith belief that it belongs to him, the defendant lacks the intent necessary to commit theft. (People v. Stewart (1976) 16 Cal.3d 133, 139, 127 Cal. Rptr. 117, 544 P.2d 1317.) The defense does not apply where, "although defendant may have `believed he acted lawfully, he was aware of contrary facts which rendered such a belief wholly unreasonable, and hence in bad faith." (Id. at p. 140.) he relied on the language in the Purchase Agreement that he now claims supported his actions. In any event, to say appellant was entitled to "possession," is not equivalent to saying he was entitled to collect rents, a subject on which the Purchase Agreement was silent. Furthermore, appellant sought to convince Salcedo to pay him the rent by showing him a copy of the forged trust transfer deed redacting the statement "conveyance given for no value." Appellant knew that that statement was untrue as he signed the Purchase Agreement offering to buy the Property for $ 270,000. Appellant knew, or should have known, from the face of the trust transfer deed that it was dated prior to his offer to purchase the Property, and was therefore not bona fide. Robertson testified that on December 12, 2000, she was given the trust transfer deed by appellant to obtain Lillies signature. The deed, however, was purportedly signed by both Lillie and her husband, although appellant was aware as early as his November 2000 walk-through of the Property that James had died two months earlier. Appellants knowledge of these facts made any purported belief that he owned the Property and had a right to collect rents unreasonable.
Section 490a provides: "Whenever any law or statute of this state refers to or mentions larceny, embezzlement, or stealing, said law or statute shall hereafter be read and interpreted as if the word `theft were substituted therefor."
IV. The evidence was sufficient to sustain appellants forgery conviction.
Appellant was convicted of forgery for uttering or publishing the trust transfer deed to obtain title to the Property. He contends that in order to prove his guilt of that offense, it must be established that he knew the deed was forged. He argues that there was insufficient evidence he possessed such knowledge because (1) the Peoples handwriting expert failed to identify appellants handwriting on the trust transfer deed, (2) there was no forgery involved in his 30 other real estate transactions, (3) he had no reason to believe Lillie would not sign the trust transfer deed as she had already signed the joint tenancy grant deed, and (4) he instructed Robertson to have Lillie sign and notarize the trust transfer deed, and did not know she failed to follow directions. This contention is without merit.
"In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.]" (People v. Bolin (1998) 18 Cal.4th 297, 331, 956 P.2d 374.) We resolve all conflicts in the evidence and questions of credibility in favor of the verdict, and indulge every reasonable inference the jury could draw from the evidence. (People v. Autry, supra, 37 Cal.App.4th at p. 358.) Reversal on this ground is unwarranted unless" upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]." (People v. Bolin, supra, 18 Cal.4th at p. 331.)
Section 470, subdivision (d) provides in part: "Every person who, with the intent to defraud, falsely makes, alters, forges, or counterfeits, utters, publishes, passes or attempts or offers to pass, as true and genuine, any of the following items, knowing the same to be false, altered, forged, or counterfeited, is guilty of forgery . . . ." (Italics added.) The elements of forgery are: (1) intent to defraud, (2) making a false instrument by signing anothers name without authority or the name of a fictitious person, or knowingly uttering same, and (3) the instrument on its face is capable of defrauding someone who might act upon it as genuine. (Wutzke v. Bill Reid Painting Service, Inc. (1984) 151 Cal. App. 3d 36, 41, 198 Cal. Rptr. 418.)
While there was no direct evidence appellant forged the Blakleys signatures on the trust transfer deed, or knew that they were forged, there was substantial, if not compelling, circumstantial evidence from which the jury could reasonably infer such knowledge. That deed was dated August 1, 2000, nearly a month and a half before appellant even tendered the Purchase Agreement. Since appellant signed the Purchase Agreement, he could see from the face of the trust transfer deed that it could not have been signed on August 1, 2000. Further, on December 12, 2000, appellant gave the unsigned trust transfer deed to Robertson to obtain Lillies notarized signature. This was two months after Jamess death, of which appellant was aware. When appellant received the trust transfer deed back from Robertson, it contained the purported signature of James, which appellant had to have known was forged. Additionally, to convince the tenants of the Property to pay him their rent, appellant provided Salcedo with a copy of the trust transfer deed with the wording indicating that the conveyance was without value redacted. Having signed the Purchase Agreement, appellant knew the Property was not being conveyed without value. These facts are sufficient to sustain the jurys finding that appellant knew the deed was forged.
V. The trial court did not abuse its discretion in denying appellants request to continue the sentencing hearing.
Appellant was convicted on January 23, 2002. At his request, the trial court delayed his sentencing hearing until February 25, 2002, to allow him to obtain the trial transcripts. He failed, however, to order them before the hearing, and appeared at that hearing to advise the trial court that he wanted to replace trial counsel with new counsel, both of whom were present. New counsel stated, "Our office has been retained to handle all post-conviction matters." When asked if new counsel was ready to proceed with sentencing, [new counsel] stated: "No, Your Honor. Actually if the court is not inclined to allow a continuance, we would not be representing Mr. Miller for that matter. However he has hired us to analyze the transcripts for a motion for new trial. [P] THE COURT: There arent any transcripts. [P] [NEW COUNSEL]: Not yet. [P] THE COURT: Is he going to pay for the transcripts? [P] [NEW COUNSEL]: Yes. [P] THE COURT: Well, I put the matter over for a month already for sentencing. I didnt get a 1050 from anybody. [P] [NEW COUNSEL]: He was making an attempt to hire our office and he just concluded that last week. [P] [PROSECUTOR]: May I be heard, Judge? [P] THE COURT: Yes. [P] [PROSECUTOR]: I would like the court to reconsider accepting the substitution because [trial counsel] indicates to me hes ready. [P] I too have not received any notice of motion to substitute nor did I receive a 1050 from counsel . . . . [P] At the time of sentencing Mr. Miller said we11 need about a month and its been my understanding that some inquiry was made not by [new counsel] but some inquiry was made by someone on the defendants behalf about a transcript and none was ordered. I have real concerns about this going over again."
The trial court then inquired as to whether appellant was going to pay for the transcript that day, and new counsel indicated that it would be paid for "out of our retainer." Although concerned that appellants tactics were merely for delay, the trial court nonetheless continued the sentencing hearing until March 25, 2002, on the condition that the transcript was ordered by the following day. It further ordered that if the transcript was not ordered by that time, the sentencing hearing would resume on the day after.
Arrangements to obtain the transcripts were not made the following day, and, on the day after, the sentencing hearing resumed. New counsel explained that the transcripts had not been ordered because she had erroneously advised the trial court that the entire retainer had been received from the appellant by her law firm. In fact, a portion of the retainer was still owing on February 26, 2002, and the balance was not brought to her law firm until late that day when there was inadequate time to order the transcripts.
The court responded: "Its too late. So this is the date, time and place for sentencing." New counsel protested that she was "not competent to handle [appellants] sentencing today" and did not know the case. When the court rejected new counsels efforts to obtain a further continuance, new counsel asked to be relieved. The trial court denied the request, stating: "You must know something about the case. So this is just a delay, another delay and we are not going to take any more delays in this case. . . . [P] . . . [P] [New counsel] informed this court, represented to this court on February 25th that she had been retained, that her office had been retained and said she received the money is what she said, and she knew that had she not said that, I would not allow her firm to substitute in knowing they had not been retained. That was a misrepresentation to the court and the court has found that there will be no further delays in the sentencing of [appellant]."
Appellant contends that the denial of a continuance to permit new counsel to prepare for the sentencing hearing violated his constitutional rights to counsel and due process under the United States and California Constitutions. He argues that the trial court abused its discretion in rejecting the requested further continuance. This contention is without merit.
While a defendants right to adequate representation at all critical stages in the proceeding, including sentencing, is constitutionally guaranteed (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15), and a reasonable opportunity to prepare is the cornerstone of that right, nonetheless, a defendant cannot use changes of counsel as a tactic for delaying court proceedings.
A continuance is to be granted only upon a showing of good cause. (§ 1050, subd. (b)) and is reviewed on appeal under the abuse of discretion standard. (People v. Mickey (1991) 54 Cal.3d 612, 660, 286 Cal. Rptr. 801, 818 P.2d 84.) There can be no good cause where the party and his counsel have failed to use due diligence in their preparations. (Ibid .) We must look to the circumstances in each case to determine if the denial of a request was an abuse of discretion. (People v. Howard (1992) 1 Cal.4th 1132, 1171-1172, 824 P.2d 1315.)
Here, contrary to appellants characterization, the trial court did not deny his request for a continuance. It granted it, but subject to the condition that the trial transcripts be ordered by the next day in order to insure that the request was not made for purposes of further delay. New counsel represented she would, and could, comply with that condition. When new counsel failed to do so, she suffered the penalty of which she was warned; the sentencing hearing immediately resumed.
We cannot say that the trial court abused its discretion in refusing an unconditional continuance, imposing the condition that it did, proceeding with sentencing when the condition was not satisfied and refusing a further continuance. After his conviction, appellant was given 30 days to obtain the reporters transcripts before his sentencing hearing. He failed to do so and appeared at the hearing seeking to substitute new counsel, discharge trial counsel and obtain a continuance with no advance notice of these motions. Based on new counsels representation that her firm had been retained, the trial court permitted the substitution, although defendants trial counsel was prepared at that time to proceed with sentencing. The trial court ordered a months continuance on the sole condition that appellant arrange to obtain the transcripts by the following day, as new counsel represented she would do. The trial court did not receive any telephone call or any indication that appellant experienced difficulty obtaining the transcript. Appellant, nonetheless, failed to arrange for the transcripts on the designated day, and, the trial court reconvened the sentencing hearing on February 27, 2002, as it warned that it would.
Appellants reliance on People v. Trapps (1984) 158 Cal. App. 3d 265, 271, 204 Cal. Rptr. 541 (Trapps) is unavailing. There, stating that trial counsel had provided the defendant with excellent representation, the trial court denied the defendants request to continue his sentencing hearing to obtain new counsel. As a result, the defendant was sentenced while represented by counsel with whom he claimed to have a conflict. The Court of Appeal concluded that the trial court abused its discretion in denying the continuance, emphasizing that the trial courts action deprived the defendant of counsel of his choice for no good reason.
Here, unlike in Trapps, the trial court permitted appellant to substitute new counsel, even though the request was first made at the sentencing hearing with no advance notice, trial counsel was present and ready to proceed with sentencing and appellant failed to obtain the trial transcripts that he claimed he needed during the previous monthlong delay in sentencing accorded at his request to permit him to do so. Further, the trial court granted the continuance, simply conditioning it on appellants immediate ordering of the transcripts in order to assure that there would be no further delay.
Even if the trial court erred in failing to accord appellant a continuance, that error was harmless by even the most stringent beyond a reasonable doubt standard. (Chapman v. California (1967) 368 U.S. 18, 24.) In arguing that there was prejudice, appellant contends that the trial court "used a number of inappropriate factors in sentencing appellant to the high term for [the theft from an elder person count]." He refers to only a couple of such examples. However, the trial court articulated at least a half dozen aggravating factors, any one of which would justify a high term sentence. (People v. Castorena (1996) 51 Cal.App.4th 558, 562, fn. 10.) The trial court found no mitigating factors. The trial courts evaluation of the aggravating and mitigating factors was consistent with the probation report. We have reviewed the trial courts explanation for selecting the high term and conclude that the numerous aggravating factors articulated would justify the high term even if appellant could establish some mitigating factors, and his sentence was otherwise appropriate.
DISPOSITION
Appellants convictions of theft of real property and theft of personal property are reversed, the two-year enhancement because the victims losses exceeded $ 150,000 is stricken, and the judgment is affirmed in all other respects.
We concur: TBOREN, P.J., and ASHMANN-GERST, J.