People v. Halo CA3 ( 2022 )

Filed 8/9/22 P. v. Halo CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE, C092509
Plaintiff and Respondent, (Super. Ct. No. 17FE006817)
v.
PETER HALO et al.,
Defendants and Appellants.
Following a jury trial, codefendants Shaun Smith and Peter Halo were found
guilty of numerous counts of violating Penal Code sections 487 (grand theft) and 115
(offering false documents for recording).1 On appeal, Smith argues his entire judgment
of conviction must be reversed because (1) he was not brought to trial within 60 days, in
violation of section 1382, and (2) the court erroneously and prejudicially allowed the
1 Further undesignated statutory references are to the Penal Code.
1
People’s expert to offer an incorrect opinion on a question of law.2 Halo argues his
convictions on four counts of violating section 115 must be reversed because they are not
supported by substantial evidence.
As to Smith, we conclude he was not brought to trial within 60 days in violation of
section 1382, but reversal is not required because he fails to show prejudice. We thus
affirm Smith’s judgment of conviction. As to Halo, we conclude his conviction on two
counts of violating section 115 are not supported by substantial evidence, and we thus
reverse the convictions as to those counts; in all other respects, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The facts are complicated, and the following is a greatly abbreviated version.
Additional facts are provided in the relevant discussion sections, below.
This case arises from a series of transactions related to real property located at
9020 Bradshaw Road in Elk Grove, which we refer to simply as “the property.” The
property encompassed approximately five acres and had two houses on it. Monna Sue
Ayers owned the property and lived in one of the houses until her death in 2019.
Ayers held the property in her trust, and her son, Dewey Brazeal, Sr.3 was the
trustee. Dewey died in September 2011. Sometime before he died, Dewey transferred
the property from Ayers’ trust to himself, and then into his own trust.
After Dewey died, Carolyn Puschman, Ayers’ niece, became the successor trustee
of Ayers’ trust, and Karen Brazeal, Dewey’s ex-wife, became the successor trustee of
Dewey’s trust.
2 Smith also “joins in and adopts by reference any arguments made by co-appellant Halo
that may accrue to his benefit.” None do.
3We refer to Dewey by his first name to avoid confusing him with Karen Brazeal, whom
we refer to as Brazeal.
2
Puschman Petition
Sometime after Puschman became the trustee of Ayers’ trust, she learned that
Dewey had transferred the property to himself. Puschman believed the transfer was done
without Ayers’ knowledge or permission or was the result of coercion, undue influence,
or duress. She thus hired an attorney to file a petition in probate court to get the property
back. The petition named the following three persons known to claim an interest in the
property: Brazeal, as trustee of Dewey’s trust; Kari Pace, Dewey and Brazeal’s daughter;
and Dewey Brazeal, Jr., Dewey and Brazeal’s son. The petition asked the court (1) to
determine that Puschman, in her capacity as the trustee of Ayers’ trust, was the true
owner of the property; and (2) to order Brazeal, in her capacity as the trustee of Dewey’s
trust, to transfer the property to Puschman. The petition was filed on September 24,
2012, and was served on Brazeal. Brazeal hired an attorney to represent her, and Smith
was a paralegal who worked with the attorney on the case.
Halo Attempts to Sell the Property to Akash Lal (2012)
In the meantime, sometime in 2011, Halo met Brazeal and Pace. Halo was a real
estate broker and property manager, and he managed the rental property that Brazeal and
Pace were living in. Halo learned that Pace was going through a divorce, and he
recommended that she contact Smith to see if he could help. Halo had met Smith several
years before, and he knew Smith owned a legal services business called Quality Law For
Less and specialized in family disputes.
In late 2012, Halo showed the property to a real estate investor named Akash Lal.
Halo told Lal a tenant (presumably referring to Ayers) was living in one of the houses
and there was some type of dispute over it, but he did not elaborate. Lal agreed to
purchase the property for $215,000 and signed a standard purchase contract in December
2012. Halo was the listing agent and represented both the buyer and the seller (Brazeal).
Lal put down a $2,500 deposit with First American Title. Escrow was supposed to close
by March 15, 2013. When escrow did not close, Lal contacted the title company, who
3
told him there was a problem with title. Lal also contacted Halo who said the problem
with title involved a dispute between family members and he was working to resolve it.
Halo asked Lal to give him $15,000 to give the family an incentive to move out. Lal
found the request “very odd” and declined. He testified the deal ultimately “fizzled”
because of the title problem.
Brazeal Transfers the Property to Smith (2013)
In or around March 2013, Brazeal transferred the property to STS Integrity, LLC
(STS), Smith’s company, as payment for his services.4 A grant deed from Brazeal (as
trustee of Dewey’s trust) to STS was signed on March 15, 2013, and recorded on June 5,
2013.
Puschman Records a Lis Pendens (2013)
On July 19, 2013, and again on August 14, 2013, Puschman’s attorney recorded a
lis pendens regarding the Puschman petition, and both lis pendens were served on STS.5
Smith Sells Half of the Property to Linda Reyes (2013)
Around September or October 2013, Smith (through STS) sold half of the property
to Linda Reyes for $115,000 (and we note that Halo was not involved in it).6 Reyes was
recently retired and was looking to purchase a home. She had known Smith since he was
six years old when she was in a relationship with his father. Reyes had never purchased a
house before and “didn’t know the requirements of buying the home.” She “trusted”
Smith. Smith never told her there was litigation involving the property and he never
4 The nature of these services is unclear.
5 A lis pendens is a notice of the pendency of an action in which a “real property claim”
is alleged. (Code Civ. Proc., § 405.20.) A “real property claim” is a “cause or causes of
action in a pleading which would, if meritorious, affect . . . title to, or the right to
possession of, specific real property.” (Code Civ. Proc., § 405.4.)
6 The contract does not state which portion of the property was sold to Reyes.
4
mentioned a lis pendens. Reyes made three payments to Smith for a total of $108,450,
with the bulk of the money coming from her retirement account. After she made the last
payment, she thought she owned the house, and it was her intention to live there. On
October 9, 2013, Smith signed a grant deed transferring “an undivided 50% interest” in
the property from STS to Reyes. Smith then gave Reyes a copy of the deed and told her
to record it. When she tried to do so, however, the recorder’s office said they could not
accept it because it was a copy and not the original. After the recorder’s office rejected
the deed, Reyes tried to call Smith “[a]lmost every day” but he never answered. In May
2014, Reyes hired an attorney and sued Smith over the property. Reyes’s attorney
ultimately obtained a title report and concluded Smith never actually owned the property,
and thus had not conveyed title to Reyes. Reyes never got her money back.
Smith Sells Half of the Property to Majadi and Edley Scruggs (2013)
A few months after selling half of the property to Reyes, Smith (through STS) sold
the other half to Majadi and Edley Scruggs.7 A grant deed memorializing the transfer
was signed on December 4, 2013, and recorded on December 6, 2013.
Granting of Puschman’s Petition (2014)
At a probate hearing held in April 2014, the court granted Puschman’s petition,
and declared she was the true owner of the property.8
Halo Brokers a Sale of the North Half of the Property from the Scruggs to
Christian Reynoso (2014)
In the fall of 2014, Halo brokered a sale of the north half of the property from the
7 A copy of the contract evincing this sale was not produced at trial.
8 The order granting the petition was not entered until January 9, 2015.
5
Scruggs to his nephew, Christian Reynoso9 (and we note that Smith was not involved in
it). The deal was that Reynoso would own 75 percent of the north half of the property
and Halo would own 25 percent. Halo and Reynoso intended to fix the property up and
rent it out. The purchase price was $130,000, and the deal was financed by the Scruggs.
Interest only payments were due monthly, and a final balloon payment of $100,000 was
due on November 30, 2016. Reynoso wrote Halo a $37,500 check as a down payment,
and thereafter made monthly payments to Halo, with the understanding that Halo would
make all required payments to the Scruggs. In total, Reynoso paid Halo $73,000. Halo
obtained a grant deed and a quitclaim deed from the Scruggs granting the north half of
the property to Reynoso; both deeds are dated December 19, 2014.10 Halo testified the
plan was that he would hold on to the deeds until the purchase price “was paid in full.”11
At some point, Halo told Reynoso they had “lost” the house because “a stepmother or a
grandma had pulled an old will out, and had just taken the house from the person who
had owned” it. Halo never gave Reynoso either of the two deeds he was holding on to,
and they were never recorded.
Smith Sells Half of the Property to Eman and Eisar Askari (2015)
Finally, in mid-2015, Smith sold half of the property to brothers Eman and Eisar
Askari for $115,000.12 Halo brokered the deal. Halo did not tell the Askaris there was a
9 The sale was actually to Christian and Andrea Reynoso as husband and wife. Because
the parties refer to this simply as the Reynoso sale, we do too.
10 It is unclear why Halo obtained two deeds.
11 A handwritten “addendum” signed by Halo and Scruggs (but not Reynoso) states: “I
Peter Halo am acting as the 3rd party in this sale and will only hold the signed ‘grant
deed.’ The deed will not be recorded until the seller is paid in full $130,000. . . . The
quit claim deed also has the same guidelines.”
12 The contract for this sale states it is for the south side of the property.
6
lawsuit regarding the property, and he told them “there is no need for a title company.”
He also told them an old woman currently lived in the house, that she was “dying, and
she wants to die in the house,” and that she was not to be disturbed. The Askaris paid a
total of $122,500 for the property. A grant deed transferring “an undivided 50% interest”
in the property from STS to the Askaris was signed by Smith on June 9, 2015. The
Askaris tried to record the deed but it was rejected because it was not filled out correctly.
A second grant deed was prepared, signed by Smith on September 28, 2015, and recorded
on September 30, 2015. The Askaris thought the recording meant they owned the
property, so they left a note on the gate asking the tenant to call them. Puschman called
them, and when they told her they owned the property, she started crying and said,
“Don’t tell me again I have to do this with Mr. Halo and Mr. Smith all over again.”
Puschman eventually provided the Askaris with paperwork that convinced them the
purchase was not legitimate. The Askaris never got their money back.
Halo and Smith were charged with three counts of grand theft by false pretenses in
violation of section 487, subdivision (a) (counts one, three & six), and five counts of
procuring or offering a false instrument to be recorded in violation of section 115,
subdivision (a) (counts two, four, five, seven & eight). As to the grand theft counts, the
prosecution’s theory was that Halo and Smith defrauded Reyes, Reynoso and the Askaris
out of the money they paid for the property. As to the section 115, subdivision (a)
counts, the prosecution’s theory was that the various deeds to the property were false
instruments that were recorded or offered for recording.
The jury found Halo and Smith guilty on all counts. Both defendants timely, and
separately, appealed.13
13 This case was fully briefed and assigned to this panel on April 29, 2022.
7
DISCUSSION
I
Smith’s Appeal
A. Section 1382 and the Right to a Speedy Trial
1. Additional Relevant Facts
After Smith was arraigned, he initially consented to various continuances of his
trial date beyond the 60-day deadline because he was out on bail. On April 15, 2019,
however, Smith’s bail was increased, and he was taken into custody. From that point
forward, he refused to consent to additional continuances of the deadline.
When Smith was taken into custody, trial had already been set for May 6, 2019,
and Smith acknowledges he consented to that date. At that point in time, Smith was
representing himself.
On February 6, 2019, two months prior to being taken into custody, Smith had
filed a petition for writ of mandate in this court with a request for a stay.14 On April 30,
2019, this court issued an order staying the trial, and on August 14, 2019, it vacated the
stay. The parties agree that August 14, 2019, is the date the 60-day clock started running,
and we do too. (See, e.g., Matthews v. Superior Court (1973) 35 Cal.App.3d 589, 596
[“where proceedings in prohibition are instituted by an accused and during the pendency
of such proceedings the appellate court issues an order staying the trial, the accused, upon
the denial of such petition for prohibition and the concomitant termination of the stay,
must be brought to trial within 60 days from the date of the order denying the petition”].)
Pursuant to section 1382, Smith thus had to be brought to trial by October 13, 2019.
At a hearing held on August 23, 2019, the trial court set the trial for October 10,
which was within the 60-day period.
14 The petition is unrelated to the current appeal.
8
At a hearing held one month later, on September 26, Halo’s attorney asked to
continue the trial date because his client had recently been diagnosed with leukemia and
was scheduled to undergo chemotherapy on October 8 through 11, November 1 through
3, and December 10 through 12. He asked that the trial be continued to January 8, 2020.
Smith’s recently appointed attorney, Russell Miller, stated Smith did not agree to waive
time. Miller also stated he was still in the process of reviewing discovery, and he had
received “somewhere around 8,000” pages out of “roughly some 13,000 pages of
discovery.” Miller clarified, however, that he was not requesting a continuance “at this
time . . . because I don’t have enough information to do so.” The trial court found Halo’s
medical condition constituted good cause to continue the trial, but stated it was not “quite
yet” prepared to continue the trial to 2020 because “we don’t know at this point how Mr.
Halo is going to feel in November or even December.” The court thus continued the trial
for 30 days, to October 31, 2019. It also scheduled a status conference for October 25,
2019, and stated if either defendant wanted to request another continuance, it would be
heard on that date.
Neither Smith nor Miller were present at the status conference on October 25,
although Halo’s attorney specially appeared on behalf of Miller. The court trailed the
trial to November 7, 2019.
On November 1, 2019, Miller filed a motion to continue the trial. In support of
the motion, Miller stated he was currently involved in a complex homicide trial (People
v. Chiles (Super. Ct Sacramento County, No. 15F02436)) that was “pre-assigned” to
Department 15 on or about October 1, and he was scheduled to start another homicide
trial (People v. Nunally (Super. Ct. Sacramento County, No. 12F07000)) immediately
thereafter. As a result, he stated, he had not had time to review Smith’s case. The motion
was heard that same day. Smith was present and objected to the continuance. The trial
court granted the motion, noting Miller was “currently in a murder trial. He’s been
assigned to a department to do two consecutive trials, which will mean he’s unavailable
9
until at least the beginning or middle of December . . . . [¶] . . . [¶] . . . That is good
cause to continue a trial.” The court also noted Halo was still recovering from cancer
treatments and “we need to give some consideration to [Halo’s counsel] being able to
work with his client.” Finally, the court stated there would “be no further motion to
continue for Mr. Miller.” The court continued the trial to January 8, 2020.
On January 7, 2020, Miller filed a second motion to continue the trial. In support
of this motion, he stated he was currently involved in a complex trial (People v. Denton
(Super. Ct. Sacramento County, No. 12F03149)) that had been “pre-assigned” several
months ago, and he was thereafter scheduled to start another complex trial (People v.
Nunally, supra, 12F07000) that had also been “pre-assigned” several months ago.15 He
asked that trial be continued to the middle of February. A hearing on the motion was
held on January 8, 2020, (the date the trial was scheduled to start). At the hearing, Miller
told the court his next available date was February 19. Over Smith’s objection, the trial
court granted the motion, stating, “I have reviewed your motion, Mr. Miller. I’m well
aware that you’re pre-assigned to two matters that are much older than this case and that
need to get tried. [¶] I know they’ve been pre-assigned so I’m going to find good cause
to continue this matter.” The court reiterated, “I will find good cause due to Mr. Miller’s
pre-assigned trial schedule on cases that are unfortunately, Mr. Smith, older than yours
and need to get out.” The court continued the trial to February 19, 2020.
On February 19, Halo’s attorney specially appeared for Miller and informed the
court Miller “is in trial . . . and his first available date . . . is March 4. We’re asking the
Court to find good cause until March 4th.” Smith objected, noting that when Miller’s
first motion to continue was granted back in November, the judge had stated there would
be no more continuances. The trial court found good cause to continue the trial, noting
15We note that Miller also cited the People v. Nunally case when he filed his first
motion to continue.
10
“the alternative is if I . . . appoint a new attorney, that attorney is not going to be ready.”
The court continued the trial to March 4, 2020, and stated “that will be a date certain.”
March 4 did not turn out to be a date certain. Instead, on March 2, Miller filed
another motion to continue the trial to April 13 because he was presently in a jury trial
(People v. Rejon (Super. Ct. Sacramento County, No. 17F020466)) that had been pre-
assigned several months ago. We note this was Miller’s fourth request to continue the
trial, all of which were primarily due to Miller’s unavailability. At a hearing on March 4,
Smith again objected to the continuance, citing his right to a speedy trial. The trial court
asked Smith if he was requesting a new attorney because his current attorney was not
prepared to go to trial until April. When Smith responded that he was merely “objecting
to my constitutional rights,” the court stated, “Then it’s the Court’s decision because I’m
wondering if I appoint another counsel whether that counsel would be prepared to go
prior to April 13th.” The prosecutor stated discovery exceeded 13,000 pages, and the
court responded, “just based on that information I do not believe if I appointed another
counsel, it doesn’t seem realistic that counsel, who will also have his or her other
caseload, would be prepared to go on this case that involves 13,000 pages by April 13th.
I have reviewed Mr. Miller’s written motion. I will find good cause to continue the
matter to April 13th.”
Trial did not go forward on April 13, although this time the delay was not caused
by Miller’s trial schedule. Instead, it was caused by the COVID-19 pandemic. On
March 23, the Chief Justice of the California Supreme Court issued an order suspending
and continuing all jury trials for 60 days, and also extending by 60 days, section 1382’s
time period for holding criminal trials. This order was later extended for an additional 30
days. Criminal jury trials were thus on hold, and section 1382’s time limits were
suspended, from March 23 until on or about June 21. During this period, in or around
April, a new attorney (Jesse Ortiz) was retained to represent Smith.
On June 15, Smith filed a motion to dismiss pursuant to section 1382. It was
11
denied, with the court ruling as follows: “[G]iven the nature and justification for the
delays, and the nature of the prosecution, this is not a case in which the state ‘realistically
bears responsibility for counsel’s unavailability because of its chronic failure to provide a
number of public defenders or appointed counsel sufficient to enable indigent defendants
to come to trial within the prescribed statutory period.’ (People v. Sutton, supra at
p. 552.) The delays involving trial counsel were unforeseen, and constituted good cause
to continue the trial date.”
On June 29, Smith, acting in pro. per., filed a handwritten petition for writ of
mandate challenging the order denying his motion to dismiss. The petition was denied on
July 1. On July 9, Smith filed a petition for review in the California Supreme Court,
which was denied on July 15.
In the meantime, Smith’s trial began on July 6, 2020. By the time his trial began,
328 days had passed since section 1382’s 60-day clock started ticking, and Smith was
incarcerated throughout.
2. Analysis
Section 1382 implements a criminal defendant’s right to a speedy trial.16 “The
statute provides that, in a felony case, the court shall dismiss the action when a defendant
is not brought to trial within 60 days of his or her arraignment on an indictment or
information, unless (1) the defendant enters a general waiver of the 60-day trial
requirement, (2) the defendant requests or consents (expressly or impliedly) to the setting
of a trial date beyond the 60-day period (in which case the defendant shall be brought to
trial on the date set for trial or within 10 days thereafter), or (3) ‘good cause’ is shown.”
(People v. Sutton (2010) 48 Cal.4th 533, 545 (Sutton).)
16 The federal and state Constitutions also guarantee criminal defendants the right to a
speedy trial (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15, cl. 1), but Smith does not
raise a constitutional claim. Instead, he argues only that section 1382 was violated.
12
It is undisputed that Smith was not brought to trial within 60 days of August 14,
2019, as required by section 1382. The first question we must determine is whether good
cause existed for the delay. If the answer is yes, our analysis ends. If the answer is no,
we must then consider Smith’s argument that prejudice need not be shown in the
circumstances of this case.
a. Good Cause
The trial court “ ‘ “has broad discretion to determine whether good cause exists to
grant a continuance of the trial” ’ ” (People v. Riggs (2008) 44 Cal.4th 248, 296), and
“we review a trial court’s decision to grant a continuance for good cause for abuse of
discretion” (Burgos v. Superior Court (2012) 206 Cal.App.4th 817, 824).
In order to comply with section 1382, Smith had to be brought to trial by
October 13, 2019. He was not brought to trial until July 6, 2020, which, as he accurately
notes, is almost nine months after the 60-day deadline had passed. It is clear, however,
that Smith does not challenge all nine months of the delay.
Smith’s first trial date—October 10, 2019, which was within the statutory
deadline—was continued based entirely on Halo’s medical condition. It is well
established that illness constitutes good cause within the meaning of section 1382—and
Smith does not suggest otherwise.17 (See Sutton, supra, 48 Cal.4th at p. 549; People v.
Johnson (1980) 26 Cal.3d 557, 570 (Johnson).) It is also well established that if one
defendant establishes good cause to continue the trial, “the state’s strong interests in
conducting a single joint trial provides good cause . . . to also continue the trial of a
codefendant’s case to maintain joinder”—and, again, Smith does not suggest otherwise.
17 In a footnote, Smith notes that Halo failed to provide supporting “documentation”
regarding his medical condition and treatment. To the extent Smith contends the lack of
documentation demonstrates a lack of good cause for the first continuance, we disagree
because “[f]ootnotes are not the appropriate vehicle for stating contentions on appeal.”
(Sabi v. Sterling (2010) 183 Cal.App.4th 916, 947.)
13
(Smith v. Superior Court (2012) 54 Cal.4th 592, 602.) The trial court initially continued
the trial to October 31, based on Halo’s medical condition. The October 31 trial date was
trailed within the 10-day trail period, to November 7. On November 1, Miller moved to
continue the trial, and the court granted the motion and continued the trial to January 8,
2020. Although Halo’s attorney did not expressly renew his motion to continue, it is
clear to us that Halo’s illness was a major reason the court continued the trial to
January 8. At the November 1 hearing, the court stated it was “inclined to set this case
for trial on January 8th,” and immediately noted, “We need to give some consideration to
[Halo’s attorney] being able to work with his client and make sure that his client is able
to work with counsel.” We thus find Halo’s illness constituted good cause to continue
the trial to January 8, 2020.
From March 23, 2020, to approximately June 21, 2020, Smith’s trial was delayed
due to the Chief Justice’s orders continuing all jury trials and extending section 1382’s
deadlines for 90 days due to the COVID-19 pandemic. We find the Chief’s Justice’s
order constituted good cause to continue Smith’s trial. (See, e.g., Hernandez-Valenzuela
v. Superior Court (2022) 75 Cal.App.5th 1108, 1134 [“exceptional circumstances arising
from the COVID-19 pandemic” constituted good cause for delaying trials beyond
§ 1382’s limits].) Smith’s trial started on July 6, 2020, shortly after the Chief Justice’s
order expired.
The primary focus of Smith’s argument is on the period between January 8 and
March 23, and on the continuances that were granted based on his attorney’s “chronically
jammed trial schedule.” His argument is based almost entirely on a comparison of two
California Supreme Court cases: (1) Johnson, supra, 26 Cal.3d 557, in which the court
held good cause did not exist to grant three requests by the public defender to continue
the defendant’s trial 55 days beyond the 60-day deadline; and (2) Sutton, supra,48 Cal.4th 533, where the court held good cause did exist to continue the trial six days
beyond the 60-day deadline. Smith argues this case is more like Johnson than Sutton.
14
Because they are so central to Smith’s argument, we begin by describing Johnson and
Sutton in some detail.
The defendant in Johnson was arraigned on February 2 and trial was set for
March 23. On that date, the public defender stated he was currently in trial, he had two
other trials scheduled in cases that were older than the defendant’s, and he was not
available until May 6. Over the defendant’s objection, the court found good cause to
continue the trial. On May 6, the public defender requested another continuance on the
ground he had three other trials to complete. Over the defendant’s objection, the court
again found good cause to continue the trial to June 14. On June 14, the case was called
for trial, and the court “excused” counsel until June 23. A June 23 minute order noted the
case was trailed by the court to June 27 “ ‘due to congested calendar,’ ” and trial actually
began on that date. (Johnson, supra, 26 Cal.3d at pp. 563-565 & fns. 2, 3 & 4.) The
defendant remained incarcerated pending trial.
The Johnson court began its analysis of the good cause issue by noting the
continuances “were not sought nor granted to serve the best interest of the defendant;
they stem from calendar conflicts of the public defender, and the decision of the public
defender and the court to resolve these conflicts by trying other cases in advance of that
of defendant.” (Johnson, supra, 26 Cal.3d at p. 566.) It then noted that a defendant’s
right to a speedy trial may be “denied by failure [of the state] to provide enough public
defenders or appointed counsel, so that an indigent must choose between the right to a
speedy trial and the right to representation by competent counsel.” (Id. at p. 571.)
The Johnson court also quoted approvingly from the American Bar Association’s
Standards for Speedy Trial: “ ‘[D]elay arising out of the chronic congestion of the trial
docket should not be excused . . . . [¶] But, while delay because of a failure to provide
sufficient resources to dispose of the usual number of cases within the speedy trial time
limits is not excused, the standard does recognize congestion as justifying added delay
when “attributable to exceptional circumstances.” Although it is fair to expect the state
15
to provide the machinery needed to dispose of the usual business of the courts promptly,
it does not appear feasible to impose the same requirements when certain unique,
nonrecurring events have produced an inordinate number of cases for court disposition.’ ”
(Johnson, supra, 26 Cal.3d at p. 571.) The Johnson court then held, “The same
reasoning, distinguishing between chronic conditions and exceptional circumstances,
applies to the delay caused by the crowded calendars of public defenders. The state
cannot reasonably provide against all contingencies which may create a calendar conflict
for public defenders and compel postponement of some of their cases. On the other hand,
routine assignment of heavy caseloads to understaffed offices, when such practice
foreseeably will result in the delay of trials beyond the 60-day period without defendant’s
consent, can and must be avoided. A defendant deserves not only capable counsel, but
counsel who, barring exceptional circumstances, can defend him without infringing upon
his right to a speedy trial. Thus the state cannot rely upon the obligations which an
appointed counsel owes to other clients to excuse its denial of a speedy trial to the instant
defendant.” (Id. at p. 572, italics added.)
Applying these standards to the facts before it, the Johnson court found there was
not good cause for the first or second continuance (and it never discussed the third
continuance). As to the first continuance, the court noted, “When the public defender
moved for a continuance on March 23, he clearly posited his request not upon a benefit to
Johnson but upon commitment to clients other than Johnson. He revealed that his
representation of other clients created a conflict which he proposed to resolve to
Johnson’s detriment. Under these circumstances we think the court should inquire
whether the assigned deputy could be replaced by another deputy or appointed counsel
who would be able to bring the case to trial within the statutory period. In some
instances, appointment of new counsel will serve to protect defendant’s right to a speedy
trial. If, on the other hand, the court cannot ascertain a feasible method to protect
defendant’s right, the court will have no alternative but to grant a continuance; upon a
16
subsequent motion to dismiss, however, the court must inquire into whether the delay is
attributable to the fault or neglect of the state; if the court so finds, the court must
dismiss.” (Johnson, supra, 26 Cal.3d at pp. 572-573.) The court in Johnson found,
however, that the trial court “did not inquire into any available means of protecting
defendant’s right to a speedy trial” and instead simply “accepted the public defender’s
recital of conflicting obligations without inquiring whether the conflict arose from
exceptional circumstances or resulted from a failure of the state to provide defendant with
counsel able to protect his right.” (Id. at p. 573.) The court also held, “The same
reasoning applies to the [second] continuance.” (Ibid.)
Our Supreme Court again addressed the speedy trial issue and “clarified” some of
Johnson’s language in Sutton, supra, 48 Cal.4th 533. The defendant in Sutton was
arraigned on July 21, and trial was scheduled for September 11 (which was day 52 for
purposes of § 1382). The case was transferred to the trial assignment department on
September 15 (day 56). On September 15 (a Friday), all parties appeared, and the
defendant’s counsel stated he was engaged in another trial that he anticipated would be
done on Monday. The court asked the defendant whether he would waive the 60-day
deadline, and he said no. The court ordered the parties to appear on Monday,
September 18 (day 59). On September 18, the defendant’s counsel was still in trial, and
the court stated it was “ ‘trailing this day to day.’ ” Indeed, the court brought the
defendant and counsel into court every day, and when counsel advised that he was still
engaged in trial, the court each time noted the defendant did not waive time, and it found
good cause to continue the trial because counsel was in trial. Finally, on Monday,
September 25, the trial began—66 days after the defendant was arraigned. The defendant
was convicted on all charges. (See generally Sutton, supra, at pp. 540-544.)
Before turning to the issue of whether good cause existed for the six-day delay,
our Supreme Court reviewed Johnson in some detail, and clarified the following broadly-
worded sentence found in the introduction: “[T]he asserted inability of the public
17
defender to try such a defendant’s case within the statutory period because of conflicting
obligations to other clients does not constitute good cause to avoid dismissal of the
charges.” (Johnson, supra, 26 Cal.3d at p. 561.) Based on this one sentence, the
defendant in Sutton argued the public defender’s conflicting obligations to other clients
could never constitute good cause to continue the defendant’s trial. The court disagreed:
“Although this introductory passage from Johnson, supra, 26 Cal.3d 557, relied upon by
defendants—viewed in isolation—reasonably can be read as supporting defendants’
claim, when we consider the opinion in Johnson in its entirety it is evident that the
language in that passage is imprecise and overstates the decision’s actual holding on the
good-cause issue. As the foregoing review of the opinion in Johnson reveals, the focus
of the court’s concern in Johnson with respect to the good-cause issue involved the
impropriety of justifying a delay in trial upon appointed counsel’s inability or
unavailability to try the case when it is the state that realistically bears responsibility for
counsel’s unavailability because of its chronic failure to provide a number of public
defenders or appointed counsel sufficient to enable indigent defendants to come to trial
within the prescribed statutory period. [Citations.] [¶] As demonstrated by the
circumstances of the present case, there are some (indeed, undoubtedly many) instances
in which an appointed counsel’s unavailability to try one client’s case on a particular date
because of a calendar conflict arising from counsel’s obligations to another client cannot
fairly be attributed to the fault or neglect of the state. Here, [defendant’s] counsel was
unavailable on the 60th day after [defendant’s] arraignment because another trial in
which counsel was engaged ran longer than anticipated. It is often difficult to predict
how long a trial will take, and unexpected events that prolong another trial in which
appointed counsel is engaged cannot fairly or reasonably be laid at the feet of the state.
This type of calendar conflict, although arising from appointed counsel’s obligation to
another client, clearly is distinguishable from the circumstances that were before the
court in Johnson, supra, 26 Cal.3d 557.” (Sutton, supra, 48 Cal.4th at pp. 552-553.)
18
After clarifying Johnson, the Sutton court found there was good cause to continue
the defendant’s trial six days beyond section 1382’s 60-day deadline. Unlike the
situation in Johnson, the Sutton court found that this delay could not “reasonably be
attributed to the fault or neglect of the state.” (Sutton, supra, 48 Cal.4th at p. 553.) In so
finding, the court noted that the trial court in Johnson “followed a practice of routinely
finding good cause to continue a trial date . . . solely to accommodate the public
defender’s chronic heavy backload of cases,” and then granted lengthy continuances. (Id.
at p. 554.) In Sutton, however, the trial court made a concerted effort to meet the 60-day
deadline, and once that deadline approached, met with the parties “daily” and “on a day-
to-day basis” in order “to ensure that the trial would not be unduly delayed.” (Ibid.)
Moreover, “as soon as counsel’s other trial was completed, the trial of the present matter
commenced.” (Ibid.) The court thus concluded, “Unlike the situation in Johnson, the
cause of the instant delay—an unanticipated extended duration of another trial in which a
defendant’s appointed counsel was engaged—was the type of contingency that may occur
even in a reasonably funded and efficiently administered trial court system that handles a
large volume of criminal cases.” (Ibid.)
Smith argues this case is similar to, and even more egregious than, Johnson and
nothing like Sutton. We agree.
As in Johnson, Miller was chronically unavailable for months due to a busy trial
schedule. He requested—and was granted—four separate continuances, on November 1,
2019, January 7, 2020, February 19, 2020, and March 2, 2020.
As noted above, we find there was good cause to grant the first continuance (from
November 7, 2019, to January 8, 2020) based on Halo’s medical condition. We also find
it relevant that on November 1, 2019, when Miller made his first request for a
continuance, he had not been representing Smith for long. Miller first appeared on behalf
of Smith at a hearing on August 23, 2019, and the court noted Miller had only “recently”
been appointed. At the September 26 hearing on Halo’s motion to continue, Miller noted
19
he was still in the process of reviewing the case and obtaining information from previous
investigators, he had received 8,000 pages of discovery, he believed there were around
5,000 additional pages of discovery he had not yet received, and he had recently been
informed by the prosecutor there was a corollary case. In his November 1st motion to
continue, Miller stated he was currently involved in a complex homicide trial (People v.
Chiles, supra, 15F02436) and was scheduled to start another homicide trial (People v.
Nunally, supra, 12F07000) immediately thereafter. He also stated he was still
completing his review of Smith’s case; he had not yet had an adequate opportunity to
review all the facts; and a continuance was necessary in order to ensure he could provide
Smith with an adequate defense. Miller thus did not request a continuance solely because
he was in trial, but also because he needed additional time to prepare for Smith’s trial.
This is a complex and document-intensive case that involves the intersection of
real property law and criminal law. Due to this complexity, we find it was not
unreasonable to provide Miller with additional time to get up to speed on the case so that
he could provide competent representation. (See People v. Lomax (2010) 49 Cal.4th 530,
556 [“If counsel seeks reasonable time to prepare a defendant’s case, and the delay is for
defendant’s benefit, a continuance over the defendant’s objection is justified”].) “When a
defense attorney requests more time to prepare for trial, the trial court must balance a
defendant’s right to a speedy trial with his right to competent counsel.” (People v.
Williams (2013) 58 Cal.4th 197, 250.) At this early stage of the proceedings, we find
there was good cause to continue Smith’s trial in order to provide Miller additional time
to prepare an adequate defense, particularly when combined with Halo’s medical
condition. We note, however, that, when it granted Miller’s first request for a
continuance, the trial court stated there would be “no further motion to continue for Mr.
Miller.” We also note that at a hearing on an unrelated motion held on November 22, the
court asked Miller whether he would be ready to try the case on January 8, and he
answered “yes.” Unfortunately, Miller was not ready to try the case on January 8 and the
20
trial court granted three further motions to continue.
Based on the evidence before us, it appears that the trial court allowed Miller to
prioritize his caseload, to the detriment of Smith. The trial court “routinely [found] good
cause to continue [the] trial date . . . solely to accommodate [appointed counsel’s] chronic
heavy backload of cases” (Sutton, supra, 48 Cal.4th at p. 554), and “accepted [appointed
counsel’s] recital of conflicting obligations without inquiring whether the conflict arose
from exceptional circumstances or resulted from a failure of the state to provide
defendant with counsel able to protect his right” to a speedy trial. (Johnson, supra,
26 Cal.3d at p. 573.) In these circumstances, “the court should inquire whether
[appointed counsel] could be replaced by another . . . appointed counsel who would be
able to bring the case to trial within the statutory period.” (Id. at p. 572.) It does not
appear the court made such an inquiry when it granted the second continuance. When it
granted the third and fourth continuances, however, the court appears to have concluded,
without any evidence of such, that appointing new counsel would not protect Smith’s
right to a speedy trial, because new counsel would need time to prepare for trial. In this
situation, Johnson teaches that “a” continuance may be granted, but upon a subsequent
motion to dismiss, the court “must” dismiss the case if the delay “is attributable to the
fault or neglect of the state.” (Id. at pp. 572-573, italics and bold added.)
Delay is attributable to the fault or neglect of the state if it is caused by “chronic
conditions” or the “routine assignment of heavy caseloads,” rather than by “exceptional
circumstances” or “unique nonrecurrent events.” (Johnson, supra, 26 Cal.3d at pp. 571-
572.) Here, there is no indication that the delay was caused by anything other than
Miller’s chronically congested trial calendar. Throughout the course of his numerous
requests for a continuance, Miller stated he was unavailable because he was engaged in at
least four other trials. There was nothing “exceptional,” “unique,” or “nonrecurring”
about the fact that Miller was engaged in a different trial on all four of Smith’s trial dates.
(Ibid.) Instead, it appears Miller’s calendar was simply chronically congested, which can
21
fairly be attributed to the fault or neglect of the state. (Sutton, supra, 48 Cal.4th at
pp. 552-554.)
We also note that when the trial court granted Miller’s second request for a
continuance, it stated, “I will find good cause due to Mr. Miller’s pre-assigned trial
schedule on cases that are unfortunately, Mr. Smith, older than yours and need to get
out.” Although we certainly empathize with the trial court’s reasoning that older cases
must be tried before newer ones, Johnson teaches that “ ‘delay in run-of-the-mill criminal
cases cannot be justified by simply asserting that . . . each case must await its turn.’ ”
(Johnson, supra, 26 Cal.3d at p. 571, quoting Barker v. Wingo (1972) 407 U.S. 514, 538,
(conc. opn. of White, J.).)
Finally, we note that this case is not like Sutton, where defense counsel was
engaged in one trial that took longer than anticipated, and where the court made a
concerted effort to meet the 60-day deadline by continuing the defendant’s trial for just
six days, on a day-to-day basis, until that one trial ended. (Sutton, supra, 48 Cal.4th at
p. 554.) In contrast, Miller was engaged in a different trial on each of the three different
dates that Smith’s trial was scheduled to start, and rather than continuing Smith’s trial on
a day-to-day basis until Miller’s trial ended, the court granted continuances of up to a
month and a half. Sutton characterized continuances of 45 days, 40 days, and 13 days as
“lengthy.” (Ibid.) Here, the trial court granted similarly lengthy continuances (43 days,
15 days, and 41 days).
We recognize that trial courts faced with repeat motions to continue are placed in
the difficult position of balancing a defendant’s right to be brought to trial within 60 days,
with appointed counsel’s commitments to other clients, and with the need to try all
criminal cases in a timely and fair manner. In this case, however, by the time the trial
court granted Miller’s fourth request for a continuance, the balance had tipped in favor of
Smith’s right to be tried within 60 days. We thus find Smith was denied his right to a
speedy trial in violation of section 1382.
22
b. Prejudice
We now come to the question of prejudice and whether Smith is required to show
it. Smith argues he is not required to show prejudice. We disagree.
It is well established that, before trial, no showing of prejudice is required, and
“ ‘an unexcused delay beyond the time fixed in section 1382 of the Penal Code without
defendant’s consent entitles the defendant to a dismissal.’ ”18 (People v. Martinez (2000)
22 Cal.4th 750, 766; see also Burgos v. Superior Court, supra, 206 Cal.App.4th at p. 824
[“To obtain pretrial relief, petitioner is not required to affirmatively show prejudice from
any delay in violation of section 1382”].) After trial, however, the rule changes, and a
defendant raising a section 1382 violation on appeal from a felony conviction must show
prejudice. (See Johnson, supra, 26 Cal.3d at p. 574 [“Upon appellate review following
conviction, . . . a defendant who seeks to predicate reversal of a conviction upon denial of
his right to speedy trial must show that the delay caused prejudice”]: People v. Wilson
(1963) 60 Cal.2d 139, 151-152 (Wilson) [defendant raising violation of § 1382 on appeal
“must show that the error was a prejudicial one”]; Avila v. Municipal Court, supra,
148 Cal.App.3d at p. 812 [“Reversal of a felony conviction on appeal because of a speedy
trial error requires a showing of prejudice”].)
Smith makes no attempt to show prejudice, and we deem his silence on the issue a
tacit acknowledgment that no prejudice exists.19 (See Johnson, supra, 26 Cal.3d at
p. 574 [“defendant by his silence on this issue tacitly concedes the absence of
prejudice”].) Smith argues, however, that prejudice should not be required where, as
18 This rule is subject to the caveat that “[w]hen a felony is dismissed pursuant to section
1382, the prosecution may refile the same charge.” (Avila v. Municipal Court (1983)
148 Cal.App.3d 807, 812.)
19 Prejudice generally requires a showing that “the statute of limitations would have been
a bar to a new prosecution if the motion to dismiss had been granted.” (Wilson, supra,
60 Cal.2d at p. 152.)
23
here, the defendant sought pretrial relief and exhausted all pretrial remedies, including
seeking review in the Supreme Court. Although he admits that no case expressly so
holds, he supports his argument by citing implications, dissents and dicta. We are not
convinced.
Smith begins his argument by discussing our Supreme Court’s decision in Wilson,
supra, 60 Cal.2d 139. When the trial in that case was continued beyond the 60-day
deadline, the defendant filed a motion to dismiss followed by a petition for writ of
mandate. Both were denied. Trial proceeded, and the defendant was convicted of
murder. (Id. at pp. 142-144.) On appeal, our Supreme Court held there was not good
cause for the delay. It also held, however, that “the denial of [the] right to a speedy trial
. . . is no more significant than any other error in procedure before trial. It follows that as
one who seeks to predicate thereon a reversal of his judgments of conviction, defendant
like any other appellant must show that the error was a prejudicial one. (Cal. Const., art.
VI, sec. 4 1/2)”20 (Wilson, at pp. 151-152.) Because the defendant could not show
prejudice, his conviction was affirmed.
Despite this clear holding that prejudice is required, Smith points to the Wilson
court’s comment that, after the defendant’s motion to dismiss and petition for writ of
mandate were denied, “defendant failed to petition this court for a hearing.” (Wilson,
supra, 60 Cal.2d at p. 150.) From this one comment, Smith perceives an implied rule that
prejudice is not required if the defendant did everything possible to obtain pretrial relief,
including seeking review in the Supreme Court; and because Smith sought review in the
Supreme Court after his motion to dismiss and petition for writ of mandate were denied,
20 Article VI, section 4 1/2, of the California Constitution, now section 13, provides, “No
judgment shall be set aside . . . . for any error as to any matter of procedure, unless, after
an examination of the entire cause, including the evidence, the court shall be of the
opinion that the error complained of has resulted in a miscarriage of justice.”
24
he argues he need not show prejudice. He acknowledges, however, that Wilson does not
actually hold this, and we perceive no such rule in that case.
Smith also notes the dissent in Wilson found prejudice was not required, at least
where the defendant attempted to obtain pretrial relief, and such relief was “erroneously”
or “incorrectly” denied by the trial and appellate courts. (Wilson, supra, 60 Cal.2d at
pp. 157-158 & fn. 1 (dis. opn. of Peters, J.).) Dissents, however, are not the law.
Smith argues the rule he urges us to apply can also be implied from Johnson. As
discussed above, the Johnson court found there was not good cause to continue the trial
beyond the 60-day deadline. Because the defendant raised the issue on appeal, however,
his conviction was affirmed because he failed to show prejudice. (Johnson, supra,
26 Cal.3d at pp. 574-575.) In holding prejudice was required, the Johnson court followed
Wilson, and noted “[t]hat decision represents a considered policy judgement that
defendants should seek review of speedy trial claims before trial.” (Id. at pp. 574-575.)
Because Smith did seek pretrial review, he argues requiring prejudice “would be
inconsistent with the logic of Johnson.” Smith reads far too much into this one sentence
in Johnson, and he ignores its actual holding that “once a defendant has been tried and
convicted, the state Constitution in article VI, section 13, forbids reversal for
nonprejudicial error.” (Johnson, at p. 575.)
Finally, Smith cites the following footnote from People v. Addison (1967)
256 Cal.App.2d 18: “It is possible to read People v. Wilson, supra, as standing for the
proposition that even if the trial and appellate courts erroneously fail to order a dismissal
before trial, to which dismissal the defendant is entitled and the issue of a violation of
section 1382 is thereafter raised on appeal from a judgment of conviction, prejudice is not
presumed and must be affirmatively shown. We do not so read the case. It would be
most uncharacteristic of our Supreme Court to award a bonus for error.” (Id. at p. 26,
fn. 8.) Like Smith does here, the Addison court then noted that the Wilson opinion
“carefully points out” that the defendant did not ask for a hearing in the Supreme Court.
25
(Ibid.) This entire discussion, however, is dicta because Addison did not involve denial
of the defendant’s right to a speedy trial; it involved the denial of the defendant’s right to
represent himself. We are not bound by dicta in a footnote from a sister appellate court.
Because Smith has not established prejudice, his speedy trial contention does not
merit reversal.
B. Expert Testimony Regarding the Effect of a Lis Pendens
1. Additional Relevant Facts
The People presented expert testimony from Joseph Scalia, an attorney with
extensive experience in real estate law. At an Evidence Code section 402 hearing prior to
trial,21 Scalia testified that a property transfer made after a lis pendens has been recorded
is legally void or invalid. Smith objected that this was “incorrect” and “not an accurate
statement of the law.” He acknowledged that such a transfer is risky and that the buyer
“should be very careful about purchasing that property because of all these dangers that
could exist.” He also agreed Scalia could testify that “[i]f we see a lis pendens, we warn
to be careful, because you never know what’s going to happen down the road. You may
end up losing your property and getting nothing for it if that lawsuit prevails, so be
careful about buying that. [¶] That, he can say.” (Italics added.) Smith argued,
however, that a transfer of property subject to a lis pendens is not necessarily void or
invalid.22 He also argued that testimony about the effect of a lis pendens on a property
21 Evidence Code section 402, subdivision (b): “The court may hear and determine the
question of the admissibility of evidence out of the presence or hearing of the jury; but in
a criminal action, the court shall hear and determine the question of the admissibility of a
confession or admission of the defendant out of the presence and hearing of the jury if
any party so requests.”
22 Smith appears to be right about the law. According to a leading treatise on California
real estate: “A recorded lis pendens effectively clouds the title to the property described
in the notice. As a practical matter, it may impede or prevent a sale . . . of the property
until the litigation is resolved or the lis pendens is expunged. It does not legally restrain
26
transfer is “a legal conclusion” which an expert cannot offer.
The judge agreed, at least in part, stating “I don’t think he can give legal
conclusions that go to the heart of this case,” and that it was thus “proper to limit some of
his conclusionary statements.” The judge also agreed, “you can’t have him tell the jury
that based on the law, he is guilty. That’s essentially what he did here today, and I think
that’s too far. [¶] I don’t think he can just flat-out say . . . a transaction out of escrow is
void, period. I don’t think he can do that. Maybe I’m wrong. You can educate me on
that if you think I am wrong, but it seems to like it’s going to far.” A few minutes later,
however, the judge stated, “I think the People can say that if there is a lis pendens, that
you can’t have . . . a transaction, I think is what he said. [¶] If that’s the law, I think he
can generally say that.” The judge then stated, “nobody has presented me with any
black-letter law that that’s the case.” Halo noted the jury was going to be presented with
evidence that there were lis pendens filed on the property, and “[t]hey are going to ask,
what is the effect?” The judge replied, “if a jury asks me a question, I try to answer it.
And if the answer is it’s void, I would tell the jury most likely what the law is.” Smith
agreed, “that’s okay. That’s the appropriate way to do so,” and the judge then stated,
“But I need to know what the law is.”
The issue was ultimately resolved when the prosecutor stated, “I am not going to
ask him the question of whether the deed is void after they recorded a lis pendens.” He
stated he intended to argue only that Smith’s awareness of the lis pendens was
circumstantial evidence of a fraudulent state of mind. He also stated he would not elicit
the owner from conveying . . . the property, however; it merely puts subsequent
purchasers . . . on notice of the adverse claim.” (4 Miller & Starr, Cal. Real Estate (4th
ed. 2022) § 10.151, first italics added, fn. omitted; see also Ward v. Superior Court
(1997) 55 Cal.App.4th 60, 65 [“property subject to a lis pendens remains freely
transferrable as a legal matter”]; Stagen v. Stewart-West Coast Title Co. (1983)
149 Cal.App.3d 114, 122 [“[t]he buyer could decide to purchase the property regardless
of the lis pendens”].)
27
testimony from Scalia to the effect that a transfer after the filing of a lis pendens is
necessarily void or invalid: “He cannot testify . . . that the legal effect [of a lis pendens]
is you cannot transfer property.” The court ordered the prosecutor to limit Scalia’s
testimony accordingly.
At trial, Scalia testified that a deed conveys title to property and contains implied
warranties, including a warranty that the seller owns the property and has clear title to
convey. He also testified about the importance of using a title company to buy and sell
property. Title companies provide title insurance to the buyer based on their
confirmation that title is clean (i.e., the seller has clear title to convey, there are no
encumbrances on the property, etc.). If it turns out the seller did not have clear title to the
property, title insurance will pay the buyer for any loss suffered as a result. In order to
determine whether the buyer has clear title, the title company will prepare a title report; if
the title report shows title is not clear, the title company will not issue title insurance.
Scalia testified that real estate transactions that do not involve title companies are
unheard of. Smith does not challenge any of this testimony on appeal.
Scalia also explained that pending litigation that could affect title to property is
material information that the seller and broker must disclose to the buyer. A lis pendens
is a document that is recorded in the county recorder’s office that provides constructive
notice to the world that there is pending litigation about title to a particular piece of
property. The existence of a lis pendens is material information about the property and
would be “a huge red flag that there is somebody who is fighting over title and possession
of the property.” A seller who knows about a lis pendens must disclose it to the buyer
and cannot guarantee clear title. Moreover, a broker is obligated to investigate and
determine if a lis pendens exist. A broker does so by ordering a preliminary title report,
which shows who owns the property and discloses “any problems” that might exist with
title. Scalia testified he has been involved in more than a thousand cases over 44 years
and has never seen a situation where a title report was not obtained. He testified it was
28
“totally reckless” and “irresponsible” not to obtain a title report. Again, Smith does not
challenge any of this testimony on appeal.
At some point, the prosecutor asked Scalia, “Can a seller deliver a deed when
there is a lis pendens active?” Smith objected, and the judge ordered the prosecutor to
reword the question. The prosecutor then asked, “If there is a lis pendens on a property,
would there be any problems with a seller conveying that property to the buyer?” Smith
objected again, stating, “This is an in limine issue.” The judge then excused the jury in
order to discuss the issue with the lawyers and Scalia.
During that discussion, the prosecutor stated he intended to ask Scalia the
following question: “If a seller knows about a pendency of action . . . , can he convey
clear title from another buyer to the new buyer?” Scalia then said his answer would be
“No. There is a cloud on title.” Smith agreed such testimony would be admissible: “[I]f
the answer simply is there is a cloud on title, that’s fine, but it cannot be any more than
that.” (Italics added.) The court admonished Scalia that, when explaining the effect of a
lis pendens, “don’t go so far as to say, then therefore nothing can be conveyed. I think
it’s okay to let everybody know there is an issue on title so we can just leave it like that.”
After the jury was brought back in, the prosecutor asked Scalia the following
question: “A seller who knows there is a pendency of action on [the] property, can that
seller guarantee to the buyer clear title?” Scalia answered, “No.” Smith did not (and
does not) object to this testimony.
Finally, Scalia testified that when a lis pendens is filed, the court takes jurisdiction
over the property involved in the litigation. On cross-examination by Halo, Scalia
testified that a lis pendens can only be removed with court approval because “the court
assumes jurisdiction over the property, the parties and the property.” The prosecutor then
asked a followup question: “[I]if you are not a named defendant or a plaintiff in the
lawsuit, the property is still in the jurisdiction of the court?” Scalia responded, “It’s
called ‘in rem jurisdiction,’ which is just a fancy word for -- it’s as if the property is
29
taken in the court and deposited with the court. [¶] The court has complete discretion as
to what happens with that property.” (Italics added.) Smith objected to Scalia’s
response, and the court stated, “I’ll allow that response at that point, and we’ll stop it
there.” Smith subsequently moved to strike Scalia’s statement, arguing it “was a
violation of the in limine order.” The judge denied the motion, stating, “it doesn’t really
at all affect what you ultimately want to argue in this case. [¶] The court does have
discretion, and did ultimately decide that it belonged to Ayers.” The judge also stated,
“This was a little bit on the line, I suppose, but I don’t think it ultimately prejudices the
argument that you ultimately want to make here at all.”
2. Legal Standard
The opinion of an expert is admissible when it is “[r]elated to a subject that is
sufficiently beyond common experience that the opinion of an expert would assist the
trier of fact.” (Evid. Code, § 801, subd. (a).) However, an expert is not permitted to give
an opinion on questions of law or legal conclusions. (Palmieri v. State Personnel Bd.
(2018) 28 Cal.App.5th 845, 860 [“the effect of California statutes presents purely legal
questions outside the province of expert witnesses”]; People v. Jo (2017) 15 Cal.App.5th
1128, 1176 [expert’s opinion on a question of law is inadmissible]; Downer v. Bramet
(1984) 152 Cal.App.3d 837, 841 [expert may not “testify to legal conclusions in the guise
of expert opinion”].) “Thus, even lawyers may not testify as to legal conclusions, or
‘ “state interpretations of the law.” ’ ” (WRI Opportunity Loans II, LLC v. Cooper (2007)
154 Cal.App.4th 525, 532, fn. 3.) This is because it is the judge’s job to instruct the jury
on the law and to decide purely legal issues. (Summers v. A. L. Gilbert Co. (1999)
69 Cal.App.4th 1155, 1178-1182 (Summers); see also Downer, supra, at p. 842 [“the
calling of lawyers as ‘expert witnesses’ to give opinions as to the application of the law to
particular facts usurps the duty of the trial court to instruct the jury on the law as
applicable to the facts”].)
“We review the trial court’s ruling on the admissibility of expert opinion evidence
30
for abuse of discretion.” (King v. State of California (2015) 242 Cal.App.4th 265, 293.)
If we conclude the court erred in allowing the challenged expert testimony, reversal is
required only if we find it is reasonably probable that Smith would have obtained a more
favorable result but for the error. (Summers, supra, 69 Cal.App.4th at pp. 1186-1187;
People v. Watson (1956) 46 Cal.2d 818, 836-837 (Watson).)
3. Analysis
Smith argues Scalia’s testimony should not have been admitted or should have
been stricken because it is both (1) an opinion on a question of law, which is inadmissible
in and of itself, and (2) incorrect. He also argues the error is prejudicial and requires
reversal because it obliterated what was otherwise a plausible defense.
We agree that Scalia should not have been permitted to testify about the legal
effect of a lis pendens. Such testimony is inadmissible because it is an opinion on a
question of law, and such opinions are never admissible. (See Palmieri v. State
Personnel Bd., supra, 28 Cal.App.5th at p. 860; People v. Jo, supra, 15 Cal.App.5th at
p. 1176; Downer v. Bramet, supra, 152 Cal.App.3d at p. 841.) Moreover, legal opinions
are inadmissible whether or not they are correct. Normally, if an expert offers an opinion
that one party believes is wrong, the remedy would be for that party to obtain its own
expert. When the expert is an attorney offering an opinion on a legal question, however,
this is not a practical option. As courts have noted, “ ‘testimony on ultimate issues of law
by the legal expert is inadmissible because it is detrimental to the trial process. If one
side is allowed the right to call an attorney to define and apply the law, one can
reasonably expect the other side to do the same. Given the proclivity of our brothers and
sisters at the bar, it can be expected that both legal experts will differ over the principles
applicable to the case. The potential is great that jurors will be confused by these
differing opinions, and that confusion may be compounded by different instructions given
by the court.’ ” (Summers, supra, 69 Cal.App.4th at p. 1182, quoting Specht v. Jensen
(10th Cir. 1988) 853 F.2d 805, 808-809.) Indeed, this potential for confusion is one of
31
the reasons we do not allow attorney expert witnesses to offer opinions on questions of
law. (See Downer, supra, at p. 842 [“the calling of lawyers as ‘expert witnesses’ . . .
results in no more than a modern day ‘trial by oath’ in which the side producing the
greater number of lawyers able to opine in their favor wins”].)
Even if the trial court abused its discretion in admitting Scalia’s testimony,
however, reversal is not required unless Smith can show prejudice—i.e., that it is
reasonably probable he would have received a more favorable result absent the error.
(Watson, supra, 46 Cal.2d at p. 836.) We find that he fails to do so.
The precise testimony that Smith complains of is Scalia’s answer to the following
question: “So if you are not a named defendant or a plaintiff in the lawsuit [i.e., that is
the subject of the lis pendens], the property is still in the jurisdiction of the court?” Scalia
responded: “It’s called ‘in rem jurisdiction,’ which is just a fancy word for -- it’s as if the
property is taken in the court and deposited with the court. [¶] The court has complete
discretion as to what happens with that property.” From this, Smith posits that the jury
was effectively forced to find (1) that property subject to a lis pendens cannot be sold
without the court’s permission, (2) that Smith must have been aware of this because he
was a paralegal, and (3) that Smith thus sold the property knowing it could not be sold.
We do not agree that Scalia’s testimony supports Smith’s theory in this regard. Scalia did
not testify that property subject to a lis pendens cannot be sold. He testified that when a
lawsuit affecting title to property is filed, the court obtains jurisdiction over the property
and has complete discretion over what happens to it. These are two very different
concepts.
Moreover, and more importantly, we do not agree with Smith that this was a close
case, and we are not convinced it is reasonably probable he would have obtained a more
favorable result had Scalia’s testimony been stricken.
Smith acknowledges there is evidence he was aware of the title dispute between
Puschman and Brazeal at the time he sold the property to Reyes and the Askaris. He
32
contends, however, that he may still have believed he could and would be able to deliver
clear title to the buyers. For example, he contends he “may well have believed” that
Brazeal’s claim to the property was sound and that she was going to prevail in the title
dispute. Alternatively, he contends he “might” have believed that even if Brazeal did not
prevail, he nonetheless had clear title to the property because he recorded his deed before
the lis pendens was filed and he was not named in the Puschman petition. Smith argues
that Scalia’s testimony effectively eliminated the otherwise “plausible possibility” that he
believed he would be able to deliver clear title.
The jury, however, was clearly instructed that if Smith mistakenly believed he
could deliver clear title, he could not be found guilty of any of the crimes with which he
was charged. The jury was given CALCRIM No. 3406, “Mistake of Fact,” which
instructs as follows: “A defendant is not guilty of any of the crimes charged if he did not
have the intent or mental state required to commit the crime because he did not know a
fact, or mistakenly believed a fact.” And: “If the defendant’s conduct would have been
lawful under the facts as he believed them to be, he did not commit any of the crimes
charged against him.” And: “If you find that defendant Shaun Smith believed that he
had clear legal title to 9020 Bradshaw Road, he did not have a specific intent or mental
state required for any of the crimes charged.” And finally: “If you have reasonable
doubt about whether the defendant had the specific intent or mental state required for the
crimes charged against him in this case, you must find him not guilty of those crimes.”
Given these jury instructions, Smith fails to convince us that Scalia’s testimony
effectively precluded the jury from finding Smith lacked the required intent or mental
state to commit the crimes charged.
Moreover, with regard to the theft charges, the jury was given CALCRIM
No. 1804, which instructs that a defendant is guilty of theft by false pretenses if (1) he or
she knowingly and intentionally deceived a property owner by false pretense or
fraudulent representation; (2) he or she did so intending to persuade the owner to let him
33
or her take possession and ownership of the property; and (3) the owner let him or her
take possession and ownership of the property because the owner relied on the pretense
or representation. CALCRIM No. 1804 also instructs that someone makes a false
pretense if he or she (1) gives information he or she knows is false; or (2) makes a
misrepresentation recklessly without information that justifies a reasonable belief in its
truth; or (3) does not give information when he or she has an obligation to do so; or (4)
makes a promise not intending to do what he or she promises.
In this case, the property owners are Reyes and the Askaris, the property is the
money they paid Smith to purchase the property, and the false pretense is that Smith
owned the property and thus could sell it to them. Even if Smith did not know at the time
that he did not own the property (i.e., because he believed Brazeal was going to prevail in
the Puschman petition or because he believed he nevertheless had clear title to the
property), the jury could well have found that his failure to let Reyes and the Askaris
know there was a legal dispute over ownership of the property was itself a false pretense.
Scalia testified that a seller has an obligation to give potential buyers material
information about the property, including the fact that there is pending litigation that
could affect title—and Smith did not challenge this testimony at trial, nor does he do so
here. The jury could reasonably and easily have found that Smith’s failure to at least
advise Reyes and the Askaris of the existence of a dispute over ownership of the property
was a false pretense and was circumstantial evidence of fraud.
Finally, we note that Smith’s theory of prejudice does not explain how he could
have believed he could sell the same piece of property twice—first to Reyes and then to
the Askaris. In his closing argument, Smith’s attorney argued Smith sold one half of the
property to Reyes, and the other half to the Askaris. The evidence is overwhelming that
this is not true. There were two houses on the property: the one that Ayers lived in, and
another that was unoccupied. Reyes testified she bought the half of the property with the
house that somebody was living in, and that Smith told her he was trying to evict that
34
person, but it was going to take some time. The Askaris testified they also bought the
half of the property with that house that somebody was living in, and according to the
purchase agreement, the Askaris purchased the south half. The sale to Reyes occurred
around October 2013, and the sale to the Askaris occurred in 2015. In the meantime, in
December 2013, Smith sold half of the property to the Scruggs, who sold it to Reynoso in
December 2014 via a purchase agreement that identified the north half. When Reynoso
purchased the property, the plan was that he and Halo would fix the house up and rent it
out. Halo was in charge of getting the house in rentable condition, and he testified he
began renovating the house immediately and he “[p]ractically lived there,” which clearly
could not have happened if Reynoso had purchased the half with the house that Ayers
lived in. This evidence clearly establishes that Smith sold the south half of the property
(or the half with the house that Ayers lived in) to Reyes, and then turned around and sold
that same half to the Askaris; and that he sold the north half (or the half with the empty
house) to the Scruggs, who sold it to Reynoso. Selling the same piece of property to two
different buyers is all the evidence of fraud the jury needed in order to find Smith guilty
of theft by false pretenses.
Reversal is required “only when the court, ‘after an examination of the entire
cause, including the evidence,’ is of the ‘opinion’ that it is reasonably probable that a
result more favorable to the appealing party would have been reached in the absence of
the error.” (Watson, supra, 46 Cal.2d at p. 836.) Upon an examination of the entire
cause, including the evidence, we are of the opinion that it is not reasonably probable
Smith would have achieved a more favorable result if Scalia’s testimony had been
stricken. Accordingly, even if the trial court abused its discretion in allowing the
challenged testimony, reversal is not required.
II
Halo’s Appeal
Halo was convicted of four counts of violating section 115, subdivision (a), which
35
provides, “Every person who knowingly procures or offers any false or forged instrument
to be filed, registered, or recorded in any public office within this state, which instrument,
if genuine, might be filed, registered, or recorded under any law of this state or of the
United States, is guilty of a felony.” Here, the false instruments are the various deeds to
the property,23 and the recorder’s office is the public office in which they were recorded
or offered to be recorded. “California courts have long held deeds to be among the class
of instruments coming within the purview of . . . section 115.” (Generes v. Justice Court
(1980) 106 Cal.App.3d 678, 683.) California courts have also held that a deed that
purports to convey an interest in land that the grantor does not own or in which the
grantor has no interest is “false” within the meaning of section 115. (Generes, at p. 682;
see also People v. Denman (2013) 218 Cal.App.4th 800, 809 [defendant filed quitclaim
deeds to himself on property in which he had no title or interest; deeds could reasonably
be considered false instruments within the meaning of § 115 because “they transferred an
interest that [defendant] did not have”].)
Halo does not contend that the deeds are not false instruments or that the
recorder’s office is not a public office within the meaning of section 115. He also does
not dispute that the deeds “if genuine, might be filed, registered, or recorded under any
law of this state.” (§ 115.) Instead, his argument focuses solely on what it means to
procure or offer a deed to be filed or recorded.
Each of the four counts on which Halo was convicted relates to a different deed.
Count four involved the grant deed dated June 9, 2015, relating to the Askari
transaction. Halo gave the deed to the Askaris, and the Askaris tried to record it, but it
was rejected, and was never recorded.
Count five involved the grant deed dated September 28, 2015, relating to the
23 There is no suggestion the deeds are forged instruments.
36
Askari transaction. This deed was recorded on September 30, 2015, by someone who
worked for Smith after the deed involved in count four was rejected.
Count seven involved the quitclaim deed and count eight involved the grant deed,
both dated December 19, 2014, and both relating to the Reynoso transaction. Halo had
both deeds in his possession, and his plan was to give them to Reynoso once the final
payment was made. However, Halo never gave the deeds to Reynoso, and they were
never taken to the recorder’s office and were never recorded.
Halo argues that a conviction under section 115 requires proof that (1) the deeds
were actually recorded, or (2) the deeds were offered or presented to the recorder’s office
by the defendant himself. As to counts four, seven, and eight, Halo argues substantial
evidence does not support his conviction because the deeds were not actually recorded,
and/or he did not present the deed to the recorder’s office, and/or the deeds were never
offered or presented to the recorder’s office by anybody. As to count five, he argues
substantial evidence does not support his conviction because he had nothing to do with
the recording of that deed.
A. Counts four, seven and eight
Again, section 115 provides, “Every person who knowingly procures or offers any
false . . . instrument to be filed . . . or recorded in any public office . . . is guilty of a
felony.” (Italics added.) As Halo notes, there are two ways to violate section 115: (1) by
procuring a false instrument to be recorded; or (2) by offering a false instrument to be
recorded. Halo he argues he did not procure or offer the deeds to be recorded within the
meaning of section 115.
Halo’s first argument is that, at the time section 115 was enacted in 1872, the word
“procure” was understood solely to mean “cause,” and that liability under the procure
prong thus requires proof the defendant “cause[d] a false or forged instrument to be
recorded,” which would also, by definition, require that the instrument actually be
recorded. Here, the jury was instructed with CALCRIM No. 1945, as follows:
37
“To prove that a defendant is guilty of [violating section 115], the People must
prove that: [¶] 1. The defendant offered a false document for recording in a public
office in California. [¶] OR [¶] 2. The defendant caused a false document to be
recorded in a public office in California.”24
The jury was thus instructed precisely as Halo contends it should have been.
Halo argues there is insufficient evidence to support a finding that he “caused a
false document to be recorded” as to counts four, seven and eight, because those counts
involve deeds that were never recorded. We agree, particularly where, as here, no one
challenges the jury instructions, and the People state they “will . . . address the issues in
the context of the wording of the instructions presented to the jury,” and then focus solely
on whether the evidence supports the jury’s finding that Halo “offered a false document
for recording.”
Section 115 makes it a felony to “offer[]” a false document “to be filed . . . or
recorded in any public office,” and the jury was instructed that one element of the crime
is that “defendant offered a false document for recording in a public office.” Halo argues
the word offer means to present or tender a document for recording, and the People do
not suggest otherwise.25 Halo argues there is insufficient evidence to support a finding
24 The jury was instructed on two other elements (knowledge of falsity and document
legally entitled to be recorded), but Halo does not challenge them.
25 Although Halo asked us to judicially notice a definition of the word “offer” from the
1910 edition of Black’s Law Dictionary, there is no evidence that the definition has
changed over time. Indeed, the Sixth Edition of Black’s Law Dictionary, published in
1990, defines offer the same way as the 1910 edition that Halo asks us to judicially
notice. (Black’s Law Dict. (6th ed. 1990) p. 1081, col. 2.) In common usage today, the
word “offer” means “to present for acceptance or rejection,” “proffer,” or “tender.”
(Merriam-Webster Dict. Online (2022) [as of Aug. 3, 2022], archived at ;
Dictionary.com (2022) [as of Aug. 3, 2022],
archived at < https://perma.cc/4C5E-NBDC>.)
38
that he offered the deeds to be filed or recorded. We analyze count four differently than
counts seven and eight, and we find the evidence supports Halo’s conviction on count
four, but not on counts seven and eight.
As to count four, and as characterized by Halo himself, the evidence shows that
Halo gave the deed to the Askaris and told them to wait approximately 60 to 90 days
before recording it, and that when the Askaris tried to record it, it was rejected. Halo
argues he cannot be liable under the offer prong because “Askari, and not Halo, presented
the deed to the recorder’s office.” He acknowledges that, under the offer prong, the
document need not actually be recorded, and need only be presented for recording, and
we agree. He argues, however, that a defendant cannot be liable under the offer prong
unless he or she personally presented the document to someone in the recorder’s office
who was capable of accepting or rejecting it. We disagree.
We find that the crime is committed where, as here, Halo gave the document to the
Askaris with the understanding that the Askaris would offer the document to be filed. In
People v. Geibel (1949) 93 Cal.App.2d 147, the defendant was convicted of offering a
forged document to be recorded, in violation of section 115. The forged document in
question was a will. In upholding the conviction, the court noted the will “was filed for
probate in the office of the county clerk on October 14, 1946.” (Geibel, at p 169.) The
court also noted, “Whether the document was actually filed with the county clerk by
appellant himself or at his behest is immaterial. In either event, the offense is complete.”
(Ibid., italics added; see also People v. Horowitz (1945) 70 Cal.App.2d 675 [§ 115
conviction upheld where evidence showed defendant hired an attorney to file will for
probate and it was attorney who filed the will].)
Similarly, in State v. Edgar (1979) 124 Ariz. 472 [605 P.2d 450], the court upheld
the defendant’s conviction for violating an Arizona statute that is identical to section
39
115.26 In upholding the conviction, the court, relying on People v. Geibel, held as
follows: “Defendant argues that he cannot be guilty because he did not file the
instruments himself. We do not agree. Defendant’s actions caused an instrument which
he knew contained false information to be placed in a situation whereby the instrument
would ultimately be recorded. ‘Whether the document was actually filed with the County
Clerk by appellant himself or at his behest is immaterial. In either event, the offense is
complete.’ People v. Geibel, 93 Cal.App.2d 147, 169 (1949). The opposite result would
shield from liability those who arrange to have others actually record the false
instrument.” (Edgar, at p. 453.)
Geibel and Edgar are factually distinguishable because in those cases the
documents were actually filed or recorded. However, we find the reasoning of those
cases also applies where, as here, the document is offered for recording but is rejected.
We will not interpret section 115 to shield Halo from liability simply because he gave the
deed to the Askaris to record.
As to counts seven and eight, Halo argues he cannot be liable because there is no
evidence the deeds were ever offered to be recorded by anyone. Instead, the evidence
showed he had the deeds in his possession at all times, and he planned to keep them in his
possession until the final payment was made, at which time he would give them to
Reynoso to be recorded. Because the final payment was never made, Halo never gave
the deeds to Reynoso, and no attempt was made to record them. Halo thus argues there is
insufficient evidence to find that he offered (or caused) a false document to be recorded.
26 The statute in question is Arizona Revised Statute section 39-161, and at the time it
read: “ ‘A person who knowingly procures or offers a false or forged instrument to be
filed, registered or recorded in a public office in this state, which, if genuine, could be
filed, registered or recorded under any law of this state or the United States, is guilty of a
felony.’ ” (State v. Edgar, supra, 605 P.2d at p. 453 [quoting statute].) The court noted
Arizona Revised Statute section 39-161 was adopted from section 115, and it thus relied
on California cases when interpreting the Arizona statute. (Edgar, at p. 453.)
40
We agree.
During closing arguments, the prosecutor argued, “He [i.e., Halo] said he got it
[i.e., the deeds] from Mr. Scruggs and he has it in his possession. These are false. He
told Mr. Reynoso he has the deeds. So he is liable for these two deeds because they are
false. [¶] . . . He’s had it in his possession the whole time.” The prosecutor also argued,
“the statute doesn’t say when you are going to record it. It’s just that you are offering it
to be recorded, right? And what is the purpose of a deed? The purpose of a deed is to
record it, to show ownership. [¶] So eventually it will be recorded. So when he called
his nephew and said I got the deeds, he is liable, because he has no deeds [i.e., no deeds
that actually transfer clear title], and he is going to record it sometime.” In other words,
the prosecutor argued that mere possession of the deeds is sufficient if the evidence
shows the intent was that they would ultimately be recorded.
Halo argues that mere possession of the deeds is not enough. Again, he argues the
word offer means to present or tender, and the People do not suggest otherwise. Here,
the deeds were never actually presented or tendered to the recorder’s office. Merely
possessing a deed is not equivalent to offering it, or presenting it, or tendering it to be
recorded the recorder’s office.
Halo notes that the Legislature knows how to criminalize mere possession of
something, but that it did not do so when it enacted section 115. Section 115 was enacted
in 1872. That same year, the Legislature enacted section 432, which provided, “Every
person who has in his possession, with intent to circulate or sell, any blank licenses or
poll-tax receipts other than those furnished by the controller of state or county auditor, is
guilty of a felony.” (Italics added.) It also enacted section 466, which provided, “Every
person having upon him, or in his possession, a picklock, crow key, bit, other instrument
or tool, with intent feloniously to break or enter into any building . . . is guilty of
misdemeanor.” (Italics added.) Finally, it enacted section 472, which provided, “Every
person who, with intent to defraud another, forges, or counterfeits, the seal of this state
41
[or specified other seals], or who falsely makes, forges or counterfeits any impression
purporting to be an impression of any such seal, or who has in his possession any such
counterfeit seal or impression thereof, knowing it to be counterfeited, and willfully
conceals the same is guilty of a forgery.” (Italics added.) Halo argues this shows the
Legislature knows how to criminalize possession, but that it did not do so when it enacted
section 115. Section 115 makes it a felony to offer a false document to be filed or
recorded; it does not make it a felony to possess a false document with intent to be filed
or recorded. “ ‘ “[W]e presume the Legislature meant what it said” ’ ” when it enacted
section 115, and that it intended to criminalize offering a false instrument to be recorded,
not merely possessing a false instrument with intent to record it. (Pineda v. Bank of
America, N.A. (2010) 50 Cal.4th 1389, 1394.)
The People disagree. They argue, “the only offer required under the plain wording
of the statute is that at some point the buyer would receive a deed that could be recorded,
thereby transferring ownership to the buyer. . . . Here, Halo was in possession of the two
deeds, but would only provide them once all the money was paid. That is a sufficient
offer for purposes of section 115.” We disagree. Again, if the Legislature wanted to
criminalize possession of the deeds, it would have said so. Instead, it criminalized the act
of “offer[ing]” the deeds “to be filed . . . or recorded in any public office.” Both a
century ago and today, “offer” means “to present for acceptance or rejection.” (Black’s
Law Dict. (2nd ed. 1910) p. 848, col 1; Black’s Law Dict. (6th ed. 1990) p. 1081, col. 2;
Merriam-Webster Dict. Online (2022) [as of Aug. 3, 2022], archived at .) The two
deeds at issue in counts seven and eight remained in Halo’s possession at all relevant
times, and were never presented to the recorder’s office for acceptance or rejection.
Thus, we find that Halo’s conviction on counts seven and eight must be reversed.
B. Count five
Count five involves a grant deed dated September 28, 2015, relating to the Askari
42
transaction.27 According to the Askaris, after the first deed was rejected by the recorder’s
office, he contacted Halo for help, but Halo did not respond. The Askaris then contacted
Smith, who ultimately prepared a new deed and arranged to have it recorded on
September 30, 2015. We refer to this deed as the September 30 deed.
Unlike the three deeds discussed above, the September 30 deed was recorded, and
the issue is whether substantial evidence supports the finding that Halo caused or offered
the September 30 deed to be recorded. Halo argues the answer is no because Smith
arranged for this deed to be recorded, and he did nothing to assist Smith in recording it.
According to Halo, the prosecution’s theory was that Halo aided and abetted
Smith’s violation of section 115—and the People do not suggest otherwise. The jury was
given CALCRIM Nos. 400 and 401 regarding aiding and abetting, and was instructed, “A
person may be guilty of a crime in two ways. One, he or she may have directly
committed the crime. I will call that person the perpetrator. Two, he or she may have
aided and abetted a perpetrator, who directly committed the crime. A person is guilty of
a crime whether he or she committed it personally or aided and abetted the perpetrator.”
(CALCRIM No. 400.) The jury was also instructed that to prove a defendant is guilty of
a crime based on aiding and abetting that crime, the People must prove: (1) the
perpetrator committed the crime; (2) the defendant knew the perpetrator intended to
commit the crime; (3) before or during the commission of the crime, the defendant
intended to aid and abet the perpetrator in committing the crime; and (4) the defendant’s
words or conduct did in fact aid and abet the perpetrator’s commission of the crime; and,
“Someone aids and abets a crime if he or she knows of the perpetrator’s unlawful purpose
and he or she specifically intends to, and does in fact, aid, facilitate, promote, encourage,
or instigate the perpetrator’s commission of that crime.” (CALCRIM No. 401.) We find
27 The deed grants “an undivided 50% interest” in the property from STS to the Askaris,
and is signed by Smith as CEO of STS.
43
there is sufficient evidence to support a finding that Halo aided and abetted Smith in
recording the September 30 deed.
According to Halo, the only thing he did that had any relation to Smith’s recording
of the September 30 deed was to give Smith’s phone number to Askari. Halo argues this
is insufficient to support the prosecutor’s aiding and abetting theory because Askari
already had Smith’s phone number by June 2015, which was months before the deed was
actually filed.
Halo views his involvement in the recording of the September 30 deed far too
narrowly. The evidence shows Halo’s involvement extended far beyond providing
Askari with Smith’s phone number.
Halo had known the Askaris for some time because he was the property manager
for a rental unit they occupied. The Askaris owned a restaurant, and Halo would come by
to collect rent checks or have a meal, and the Askaris and Halo became friendly. Halo
repeatedly told the Askaris they should own their own home.
In early 2015, Halo recommended that the Askaris purchase the half of the
property with the main house on it. He told the Askaris an old woman lived in the house
and she should not be disturbed. He said he would represent both sides of the transaction,
there was no need for a title company or escrow, and he would save them money by
handling the transaction. The Askaris were not familiar with real estate and did not know
what a title company did. Halo gave the Askaris a schedule for installment payments,
instructed them to pay the money directly to him, and explained that he would pay the
seller. The Askaris had trouble obtaining some of their money that was in Iran, so they
borrowed approximately $40,000 from a friend named Jason Johnson. Halo met Johnson
at a Starbucks and drew up a loan contract between Johnson and the Askaris.
By June of 2015, the Askaris were concerned about why they could not see the
property and asked to talk to the seller (i.e., Smith). Halo told them Smith was very busy
and could not meet them, and that if they did not make the last payment, Smith would be
44
angry and could keep all their money. Because he had become suspicious of Halo, the
Askaris made a final payment of $40,666 directly to STS on June 8. The Askaris also
texted Smith on June 15 and asked Smith to contact him about the property.
Halo then gave the Askaris the grant deed dated June 9, 2015, and told them to
wait 60 or 90 days before recording it. The Askaris tried to record it but it was rejected.
The Askaris were concerned and tried to contact Halo, but Halo stopped responding to
their messages. The Askaris then contacted Smith, who ultimately arranged to record a
new grant deed on September 30, 2015. This evidence shows Halo’s responsibility in
brokering and arranging the sale of the property from Smith’s company to the Askaris.
That it was Smith who ultimately arranged for the deed to be recorded does not relieve
Halo of liability for violating section 115 on an aiding and abetting theory.
DISPOSITION
Smith’s judgment of conviction is affirmed. Halo’s conviction on counts seven
and eight is reversed; in all other respects the judgment is affirmed. The clerk of the trial
court is directed to modify its records, prepare an amended abstract of judgment and
forward it to the Department of Corrections and Rehabilitation.
/s/
EARL, J.
We concur:
/s/
MAURO, Acting P. J.
/s/
KRAUSE, J.
45