Opinion
G052785
07-10-2017
THE PEOPLE, Plaintiff and Respondent, v. ERNESTO VARGAS, Defendant and Appellant.
Kendall Dawson Wasley, 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, Annie Featherman Fraser and A. Natasha Cortina, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 13WF3806) OPINION Appeal from a judgment of the Superior Court of Orange County, David A. Hoffer, Judge. Affirmed. Kendall Dawson Wasley, 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, Annie Featherman Fraser and A. Natasha Cortina, Deputy Attorneys General, for Plaintiff and Respondent.
Ernesto Vargas appeals from a judgment after a jury convicted him of two counts of grand theft, second degree commercial burglary, and forgery. Vargas argues the trial court erred by admitting photographic evidence and he should have been convicted of only one count of grand theft. Neither of his contentions have merit, and we affirm the judgment.
FACTS
I. Pedro C., Rodolfo, and Lurdes Torres
Pedro C. Torres and his wife lived at 2083 South Cedar in Santa Ana for 30 years and raised their children, Rodolfo and Lurdes Torres, there. When Pedro, a widower, passed away in 2012, Rodolfo, Lurdes, and her child moved into the home and made periodic mortgage payments. The lender began foreclosure proceedings. Pursuant to a mailer, the Torreses hired an attorney, who ultimately could not help and referred them to Vargas. The Torreses were led to believe Vargas was a real estate attorney.
We refer to the parties by their first names for clarity and ease of reference unless the context permits us to refer to Rodolfo and Lurdes as the Torreses.
In April 2013, the Torreses met with Vargas, who told them he was a real estate attorney who could save their home; Vargas was not an attorney. They paid Vargas about $14,000 to purportedly cover his fee and back mortgage payments. Not long after, the Torreses received a three-day notice to vacate the property, were ultimately evicted, and moved to a motel. Vargas told them not to worry and they would soon return home. They did not return to the home, which was apparently sold, and Vargas told them they had $135,000 of equity in the home. Initially, Vargas gave Lurdes money when she needed it, $25,000, and then produced a check from the lender in the amount of $135,000. Lurdes deposited the check, but it did not go through.
In May 2013, while the Torreses were still living in a motel, Vargas contacted Rodolfo and Lurdes and said their father owned other homes and a vintage car they did not know about. Vargas showed them pictures of homes and a car.
In June 2013, at Vargas's request, the Torreses signed "a bunch of title stuff" that was notarized to get possession of the properties. Vargas asked Lurdes to sign her father's name to a limited power of attorney giving Rodolfo authority to sell the family home and a property at 1333 South Iris Street in Anaheim (the Iris property). Vargas had Rodolfo sign numerous documents, including grant deeds for three properties owned by a man with the name Pedro C. Torres and a power of attorney to Vargas's company authorizing Vargas to sell the Iris property. The three properties were the Iris property, 4115 Brompton Avenue in Bell (the Brompton property), and 9347 Urbana Avenue in Los Angeles (the Urbana property). II. Sales of Properties
In September 2014, the Torreses pleaded guilty to misdemeanor forgery (Pen. Code, § 473); the same felonies Vargas faced were dismissed.
After obtaining the Torreses' signatures on various real estate documents, Vargas proceeded to fraudulently sell each property. We discuss each property below. A. The Iris Property
With Rodolfo's forged grant deed, Vargas purported to sell the Iris property, which was the home of Pedro Carranza Torres and his wife, Herendira Torres, to Amir Langroudi. Pedro and Herendira did not know Vargas and did not give anyone permission to sell their home.
Langroudi saw the Iris property listed for $240,000 and arranged with Vargas to purchase it for that amount. He went to Vargas's office with a cashier's check in that amount. When Langroudi arrived at the office, Vargas told him that he was now going to auction the Iris property. At auction, Langroudi "won" the Iris property for $250,000, and he paid Vargas, with the original cashier's check in the amount of $240,000, and a second cashier's check in the amount of $10,000.
Vargas provided Langroudi with numerous documents, including a grant of power of attorney from the Torres siblings to Vargas and a recorded grant deed for the Iris property. The grant deed for the Iris property that Vargas gave Langroudi shows it was recorded on June 10, 2013, at 3:47 p.m. (the Iris property grant deed) at the Orange County Recorder's Office (the Office).
As Langroudi reviewed documents, he questioned the legitimacy of the sale, and when Vargas avoided him, he decided to sell the Iris property, which he did at a loss for $204.000. To sell the Iris property, Langroudi unsuccessfully tried to obtain notarized forged documents and was arrested. B. The Urbana Property
Vargas fraudulently sold another home owned by a Torres family to an unwitting buyer. Pedro Cruz Torres and his wife, Maria Torres, owned the Urbana property, having lived there since 1993. Pedro and Maria did not know Vargas or authorize anyone to sell their home.
In June 2013, Pedro and Maria received a letter from the county recorder's office regarding a change in title for their home. Vargas had sold their home to Rosendo Miranda for $420,000, after telling him the owner passed away, the owners' son had power of attorney, and Vargas had limited power of attorney to sell the home.
After buying the property, Miranda had difficulty reaching Vargas so he contacted the title company for insurance and was declined. Miranda confronted Vargas, who told him he would take care of it. Miranda asked Vargas to call the title company in front of him, but he refused. When Vargas did not take care of it, Miranda hired an attorney and filed a police report. C. The Brompton Property
Pedro Cuevas Torres and Teresa Torres owned the Brompton property and lived there since 1987. In June 2013, they received a notice of change of title from the recorder's office. They did not give anyone permission to sell their house. Pedro did not know Vargas or Rodolfo, and they did not give Rodolfo a power of attorney.
When Pedro contacted the purported purchaser, Juna Sky Group, he received documents substantiating the sale, including a death certificate for Pedro C. Torres. Vargas, who claimed to be an attorney, "sold" the Brompton property to Jordon Fisher, the owner of June Sky Group, for $230,000. Like the other purchasers, Fisher encountered problems with the purchase and eventually got back $200,000. D. Investigation
Around the same time, Vargas's notary, Jessica Ramos, became suspicious of his activity because he presented her with many documents and rushed her. Ramos generally did not make copies of documents she notarized but she requested copies of documents she notarized for Vargas on June 10, 2013, because "something didn't feel right." Those documents included grant deeds for the Iris property.
Ramos took the documents and her notary journal to the Garden Grove Police Department where she met with Detective Steven Heine. Heine, who was investigating the Langroudi case, had already learned of the Torreses. Heine went to the Torreses' motel, and they agreed to speak with him and provide all documents Vargas gave them.
Officers executed a search warrant of Vargas's home and found 50 boxes containing about 50,000 pages of documents, including his fake law degree and forged notarized real estate documents. Those documents included copies of those used in the fraudulent sale of the Iris, Urbana, and Brompton properties, and a power of attorney to Vargas with a cut and pasted notary stamp. Heine also obtained a video from the Office that depicted Vargas entering the office on the same date and around the same time stamped on the forged deed for Iris Street that Vargas gave to Langroudi. E. Trial Proceedings
An information charged Vargas with the following: grand theft in the amount of $240,000 (Pen. Code, § 487, subd. (a), all further statutory references are to the Penal Code) (count 1); grand theft in the amount of $10,000 (§ 487, subd. (a)) (count 2); second degree commercial burglary of the Office (§§ 459, 460, subd. (b)) (count 3); and record false and forged instrument (§ 115, subd. (a)) (count 4). As to all the counts, the information alleged aggravated white collar crime over $100,000 (§ 186.11, subd. (a)(1), (3)), and property loss over $200,000 (§ 12022.6, subd. (a)(2)); later, on the prosecution's motion, the trial court dismissed the enhancements as to count 3 and 4.
At trial, as relevant here, the trial court admitted the Iris property grant deed into evidence. Heine testified concerning the investigation of Vargas. Heine went to the Office to look up the Iris property, using the address listed on the grant deed obtained from Langroudi. Heine determined the Office had a closed circuit television system that recorded people as they entered. When the prosecutor asked him whether the Office kept copies of the tape, defense counsel objected on foundation grounds. The court overruled the objection but instructed the jury that "what the . . . [O]ffice told him, that's to be used just to explain what the investigator did, not to be used for the truth of the matter asserted." Heine stated he examined video from the date and time indicated on the Iris property grant deed. Although he did not locate Langroudi, he eventually made a still shot of the video around the date and time the Iris property grant deed was recorded.
When the prosecutor attempted to question Heine about the photograph, exhibit No. 31 (the photograph), defense counsel objected again on foundation and hearsay grounds. The trial court conducted an Evidence Code section 402 hearing concerning the admissibility of the photograph.
Outside of the jury's presence, the prosecutor explained the photograph was taken from the video Heine obtained from the Office for the date and time period the Iris property grant deed was recorded and depicted Vargas entering the Office. Defense counsel responded the proffer did not address the photograph's foundation, i.e., someone to verify it was a recording from Office from that date and time, and it was testimonial.
The trial court confirmed the photograph indicated Vargas entered the Office on June 10, 2013, at 3:44 p.m., and the Iris property grant deed was recorded on June 10, 2013, at 3:47 p.m. The court observed, "So they link up that way." The court concluded the photograph was not hearsay and Heine could authenticate it by testifying he obtained the film from the Office and the photograph was taken from that film. The court disagreed with defense counsel it was necessary to have someone from the Office authenticate the photograph and characterized the issue as one of weight not admissibility. The court explained it was a closer question concerning the photograph's date and time stamp. The court opined that although it was not hearsay, it accepted the prosecution's offer to redact it.
When proceedings resumed, Heine testified he went to the Office to determine who recorded the Iris property grant deed and to obtain closed-circuit television footage. Heine obtained a compact disc (CD) of the footage on June 10, 2013, around 3:47 p.m., from a supervisor at the Office. Later at the police station, he watched the CD, but he did not see Langroudi; he booked it into evidence. After Heine learned of Vargas's identity, he watched the CD again and saw Vargas entering the Office around the same date and time as the Iris property grant deed was recorded.
After the close of evidence, the trial court reviewed the exhibits with counsel. The court inquired of the prosecutor whether he wanted to keep the date and time stamp on the photograph. The prosecutor said he did and invited the court to review the Evidence Code sections regarding rebuttable presumptions. Relying on section 1118.1, Vargas moved for acquittal on counts 3 and 4 because the photograph lacked foundation and was hearsay. After additional argument, the court ruled the photograph was admissible without redacting the date and time stamp.
The jury convicted Vargas of all counts and found true the enhancements alleged as to counts 1 and 2. The trial court sentenced Vargas to three years on count 1 plus two years on the aggravated white collar crime enhancement for a total of five years in prison. The court imposed a concurrent sentence on count 4, and imposed and stayed, or struck, the sentences on the remaining counts and enhancements.
DISCUSSION
I. Exhibit No. 31
Vargas argues the trial court erred by admitting exhibit No. 31 because it was not properly authenticated. We disagree.
On appeal, Vargas does not raise hearsay or confrontation clause arguments. --------
Evidence Code section 1401, subdivision (a), requires a writing be authenticated before it may be received into evidence. A photograph is a writing as defined by Evidence Code section 250. (People v. Goldsmith (2014) 59 Cal.4th 258, 266 (Goldsmith).) To authenticate a writing, the proponent must establish the writing is what "the proponent of the evidence claims it is." (Evid. Code, § 1400, subd. (a).) Thus, the proponent must present "sufficient evidence for a trier of fact to find that the writing is what it purports to be." (Goldsmith, supra, 59 Cal.4th at p. 267].) Conflicting reasonable inferences regarding authenticity bear on the document's weight as evidence, not its admissibility. (Ibid.) A photograph is usually authenticated by showing it is an accurate and fair representation of the scene depicted. (Ibid.) It may be authenticated by the person taking the photograph, by a witness to the event, circumstantial evidence, content, location, or any other means provided by law. (Id. at p. 268.) We review a trial court's ruling regarding the admissibility of evidence for an abuse of discretion. (Goldsmith, supra, 59 Cal.4th at p. 266.)
Here, the trial court did not act unreasonably by admitting exhibit No. 31 because circumstantial evidence supported its authenticity. Heine testified he investigated whether Langroudi forged any documents by going to the Office to research the Iris property. Over defense counsel's hearsay objection, Heine said he went to the Office to determine whether a grant deed was filed against that property. The Iris property grant deed was recorded at the Office on June 10, 2013, at 3:47 p.m. After confirming the recording, Heine inquired whether the Office maintained a closed-circuit television system. Evidence Heine went to the Office to research the Iris property and learned a grant deed was recorded for that address on June 10, 2013, at 3:47 p.m., authenticates the photograph showing Vargas entering the Office three minutes earlier on the same day. Thus, the court did not abuse its discretion by admitting the photograph.
Assuming for the sake of argument, the trial court did abuse its discretion, Vargas was not prejudiced because it was not reasonably probable he would have received a better result had the date and time been redacted. (People v. Breverman (1998) 19 Cal.4th 142, 177-178.) The evidence established Vargas created the fraudulent Iris property grant deed, had Rodolfo sign it, and had Ramos notarize it. Contrary to Vargas's claim otherwise, the photograph was relevant even without the date and time stamp. Langroudi testified Vargas provided him with the Iris property grant deed that was recorded on June 10, 2013, at 3:47 p.m., at the Office. The photograph showing Vargas in the Office, even without a date and time stamp, was evidence Vargas had been to the Office where real estate documents were recorded. Based on the entire record, this was sufficient evidence Vargas committed commercial burglary, count 3, and recorded a forged document, count 4. II. Counts 1 and 2
Vargas contends he could not be convicted of counts 1 and 2 because they were part of the same act. Not so.
The seminal case is People v. Bailey (1961) 55 Cal.2d 514 (Bailey). In that case, the issue was whether defendant "was guilty of grand theft or of a series of petty thefts since it appears that she obtained a number of payments, each less than $200 but aggregating more than that sum." (Id. at p. 518.) The California Supreme Court applied the following test: "Whether a series of wrongful acts constitutes a single offense or multiple offenses depends upon the facts of each case, and a defendant may be properly convicted upon separate counts charging grand theft from the same person if the evidence shows that the offenses are separate and distinct and were not committed pursuant to one intention, one general impulse, and one plan." (Id. at p. 519.) It concluded defendant, who had fraudulently received a series of welfare payments, was properly convicted of a single count of grand theft. (Id. at pp. 515, 520.)
In People v. Whitmer (2014) 59 Cal.4th 733 (Whitmer), the California Supreme Court revisited the Bailey rule in a case concerning the manager of a motorcycle dealership who fraudulently sold 20 different vehicles, costing the dealership more than $250,000. (Whitmer, supra, 59 Cal.4th at p. 735.) The jury convicted defendant of 20 counts of grand theft, one for each vehicle, and he appealed, claiming he should have been convicted of only one count of grand theft under the Bailey doctrine. (Whitmer, supra, 59 Cal.4th at p. 736.) The Whitmer court concluded "a defendant may be convicted of multiple counts of grand theft based on separate and distinct acts of theft, even if committed pursuant to a single overarching scheme." (Id. at p. 741.) However, given the long line of Court of Appeal cases "consistently [holding] that multiple acts of grand theft pursuant to a single scheme cannot support more than one count of grand theft," the court concluded that its holding was "an unforeseeable judicial enlargement of criminal liability for multiple grand thefts." (Id. at p. 742.) As a result, the Bailey rule as clarified by Whitmer could not constitutionally apply retroactively to defendant in Whitmer. (Whitmer, supra, 59 Cal.4th at p. 742.)
Here, the crimes occurred in 2013, before the Whitmer court clarified Bailey. Thus, as the Attorney General concedes, we must apply the Bailey rule because the Whitmer court held its ruling did not apply retroactively.
"Whether multiple takings are committed pursuant to one intention, one general impulse, and one plan is a question of fact for the jury based on the particular circumstances of each case. [Citations.] As with all factual questions, on appeal we must review the record to determine whether there is substantial evidence to support a finding that the defendant harbored multiple objectives. [Citations.] The Bailey doctrine applies as a matter of law only in the absence of any evidence from which the jury could have reasonably inferred that the defendant acted pursuant to more than one intention, one general impulse, or one plan. [Citation.]" (People v. Jaska (2011) 194 Cal.App.4th 971, 983-984 (Jaska).)
Here, the Bailey doctrine does not apply because the jury could reasonably conclude Vargas acted pursuant to more than one intention, impulse, or plan even though Vargas used the same bait. The evidence demonstrated Vargas initially agreed to sell the Iris property for $240,000. Days later when Langroudi arrived at the office with a check in that amount, Vargas reneged on the deal and told him that he was auctioning the property. When the property when to auction, Langroudi won and had to pay an additional $10,000. From this evidence the jury could reasonably conclude Vargas intended to sell the Iris property for $240,000, and then later concocted a separate plan to auction the property for an increased amount. Contrary to Vargas's claim, the parties did not agree on a $250,000 purchase price, and Langroudi made two installment payments. Vargas's first ruse was to sell the Iris property for the stated sum, and his second ruse was to sell the same property for an increased sum. This was evidence Vargas acted pursuant to more than one intention, impulse, or plan.
In Jaska, defendant was convicted of five counts of grand theft after she stole almost $500,000 from her employer. The Jaska court concluded Bailey did not prohibit the multiple convictions because "there was no evidence . . . that [the defendant] acted pursuant to a plan or scheme to steal a defined set of [her employer's] assets. Rather, the evidence suggests that [defendant] stole various sums of money in an opportunistic manner, essentially whenever the need and/or occasion arose." (Jaska, supra, 194 Cal.App.4th at p. 985.) Defendant in Jaska also "committed numerous fraudulent acts over a four-year period[,]" and she "employed a variety of distinct methods," to steal from her employer. (Ibid.) Because the defendant did not accomplish her thefts using the same conduct and in the same manner, "although on multiple occasions[,]" the thefts could be punished separately. (Ibid.)
Like in Jaska, here Vargas stole various sums of money in an opportunistic manner when the occasion arose. Based on the entire record, we conclude Vargas possessed multiple intentions and employed a variety of distinct methods to steal from Langroudi.
DISPOSITION
The judgment is affirmed.
O'LEARY, P. J. WE CONCUR: FYBEL, J. IKOLA, J.