People v. Starski , 7 Cal. App. 5th 215 ( 2017 )

Filed 1/5/17
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
A145450
v.
EDWARD ROBERT STARSKI et al., (Mendocino County Super. Ct.
Nos. SCUK CRCR 14-79147-002,
Defendants and Appellants. SCUK CRCR 14-79147-003)
One of the more disconcerting things that can occur at a criminal trial is the
discovery that there is no CALCRIM instruction for the offense charged, thus requiring
the judge—hopefully with the assistance of counsel—to formulate appropriate
instructions from scratch. Here, an attempted shakedown by a person who now concedes
he held himself out as an attorney required Judge John Behnke to compose instructions
concerning the unlawful practice of law prohibited by Business and Professions Code
section 6126 (section 6126), the misdemeanor charge that was the cornerstone of felony
charges of attempted grand theft and two counts of conspiring to commit those offenses
that were leveled against defendant Edward Robert Starski and codefendant Larry
Charles Cornett. Judge Behnke conscientiously crafted instructions that correctly
recognized that violating section 6126 requires more than simply holding oneself out as
an attorney, that “practicing law” entails use of that purported status. As Judge Behnke
put it: “the fact that the documents that he drafted were used in a transaction or
attempted transaction with [another] party . . . is what makes the difference. . . . [¶] If
the jury finds that he held himself out to be a lawyer, but it didn’t involve a transaction or
dealing with somebody else, I don’t think we would care.” After receiving these
1
instructions, a jury found Starski and Cornett guilty as charged on all counts. Imposition
of sentence was suspended, and each was admitted to probation upon specified
conditions.
Starski contends he was the victim of instructional error, specifically that: (1) the
instructions on violating, and conspiring to violate, section 6126 were “overbroad”
because they allowed conviction for what a recent decision by the United States Supreme
Court made protected free speech; and (2) Judge Behnke erred by refusing to give
Starski’s special instruction on a “claim-of-right” defense to the charges of attempting
and conspiring to commit grand theft. Cornett contends the evidence is insufficient to
support his conviction for conspiring with Starski to commit the unauthorized practice of
law. We conclude that none of these contentions are meritorious, and therefore affirm the
orders of probation.
BACKGROUND
Cornett is married to Starski’s mother.
Michael Mayfield, the president of Mendo Mill and Lumber Company (Mendo
Mill), received a letter dated July 28, 2014 and addressed to him at the business address
of “Mendo Mill & Lumber Co.” The letterhead on the stationary was “EDWARD
STARSKI, ESQ.” The heading above the salutation was “NOTICE AND CLAIM FOR
LOSS; PERSONAL INJURY, PREMISES LIABILITY.” The body of the letter read as
follows:
“This letter is being provided as notice of a legal claim. You have legal
obligations beginning at the times provided herein that may require you to consult with
an attorney. My office has been hired to represent Larry Cornett in his claim for loss
which was initiated at your hardware store located at [address] on July 20, 2014. The
incident that gives rise to this claim occurred at approximately 3:30 pm on that date,
while Mr. Cornett was a customer in your store picking up his purchases. Your
‘Employee Doe 1’ operated a forklift as to cause a large stack of lumber to fall on my
client’s foot. It is Mr. Cornett’s assessment that the incident resulted from the negligence
2
and incompetence of your employee and has caused severe injury and pain. My client
has already suffered losses and anticipates further losses as a result of the injury.
“My client has expressed an interest in resolving this matter without the need for
formal litigation in court. Therefore, I present to you a settlement offer of his losses in
exchange for a release of further liability including any claims for punitive damages. It is
expected and advised that you hire legal counsel in addition to providing this notice to
your business liability insurance carrier. Please note that the following is a preliminary
schedule of monetary losses as a result of the claim aforementioned, is not indicative of
actual losses incurred, and may change as new information is obtained and/or further
losses are incurred.
“Loss of income/wages/earnings potential (utd): $165
“Out-of-pocket medical expenses (utd): $38
“Pain and suffering (utd): $2500
“Representation and legal costs (utd): $1631
“Other costs and fees (utd): $25
___________________________________________________________________
“Total (utd): $4359
“Courtesy notice is provided that the Lake County Superior Court of California
has jurisdiction in this matter, and my client contends is proper venue should this matter
not be resolved informally. Please feel free to contact me by phone at [number] if you
have any questions. A demand letter may be forthcoming if a resolution isn’t reached.
“Regards,
“[signature]
“Edward Starski, Esq.”
Mayfield commenced an internal investigation that led him to conclude no such
“incident” occurred on the date and place specified in the letter. Additional investigation
found “no evidence that Mr. Starski was an attorney.” An employee did recall seeing
Starski in Cornett’s truck on the day of the alleged accident. Mayfield contacted first the
Sheriff and then the District Attorney of Mendocino County. At the request of Kevin
3
Bailey, the District Attorney’s chief investigator, who suspected fraud, Mayfield made a
“pretext” call to Starski on August 18, 2014.1
At the start of the conversation, Mayfield asked Starski “so you’re the attorney for
Mr. Cornett? Is that right?” Starski answered: “our office is representing him.” A
moment later he told Mayfield: “I have to advise you that you do have the right
to . . . seek legal counsel and I advise you as an attorney myself that it might be a good
idea for you to do that.”
After some discussion about Mayfield’s position, and Starski’s recent lack of
contact with Cornett, Mayfield inquired: “so you as an attorney can still talk to me,
right?” Starski replied, “Yes.” There followed discussion about identifying the
employee tortfeasor, and whether Cornett had incurred any additional expenses to those
listed in the letter. Concerning such information, Starski stated that “the staff puts it in
my computer here.” Starski told Mayfield “I will get a letter out to you by tomorrow
afternoon.” Mayfield inquired whether “Edward Starski, Esquire Attorney at Law would
be who one of the checks would go to and then you’d get the other part to Mr. Cornett?”
Starski responded, “[t]hat would be correct.”
The next communication was a letter dated August 19, 2014, again on stationary
with the letterhead “EDWARD STARSKI ESQ.” It was headed “Follow up to telephone
conversation on August 18, 2014 Claim of Larry Cornett, Incident Date: July 20, 2014”
and was addressed to Mayfield. And it read as follows:
“I am writing in continuation of our telephone conversation this afternoon. You
offered, as the authorized representative of Mendo Mill & Lumber Co., to oblige Mr.
Cornett’s claim for $4359.00, dated July 28, 2014 in consideration of a release of
liability. You also expressed an interest in some additional details regarding the incident,
i.e., description/identification of ‘Employee Doe 1’ as presented in our Notice of Claim,
and purchase receipt for the date at issue. Please find the receipt attached as
ATTACHMENT A.
1
The call was recorded, and the recording was played for the jury.
4
“I have since discussed the matter with Mr. Cornett and he is willing to release any
and all additional claims to consideration of your proposed settlement offer. He has also
provided the following description of the employee to help you identify him:
“White. Early to mid 20 year old male. About 6 feet tall with an
athletic build and stubble facial hair. He worked out in the yard
and drove a forklift around 3pm on July 20, 2014.
“If you would like Mr. Cornett to positively identify the employee he is willing to
do so. It is also important to note that Mr. Cornett was accompanied by his son, who is
also able to identify the employee.
“Please find attached a proposed Mutual Release and Settlement Agreement for
your review. Again, you are encouraged to seek legal advice from an attorney but are
under no obligation to do so. If you have questions please feel free to give me a call.
“Regards,
“[signature]
“Edward Starski, Esq.”
The letter included a four-page “Mutual Release and Settlement Agreement”
signed by Cornett, as “Claimant,” and by Starski, who was identified as “Claimant’s
Representative.”
In early September 2014, a warrant was obtained for a search of Starski’s Lake
County house. While the search was being conducted, Chief Investigator Bailey spoke
with Starski on the telephone. Starski admitted he was not an attorney, but told Bailey he
had a power of attorney for his mother and Cornett. In Starski’s office in the house, a file
was found with a business card for Mendo Mill stapled on the front, with a copy of the
claim letter inside. Starski arrived while the search was still being conducted, and was
arrested.
Bailey then went and spoke with Cornett at his house. Cornett initially stuck to
the story of being injured at Mendo Mill, but, when pressed by Bailey, switched to a very
different version. According to Bailey: “What he said is his foot had been injured. He
couldn’t recall how it had been injured, but it was not injured at Mendo Mill.” Trying to
5
get money from Mendo Mill was not Cornett’s idea, and at first he “didn’t want any part
of it.” However, because “they were having financial hard times,” and because “Starski
had initiated other lawsuits, that he had won those lawsuits . . . that’s why he [Cornett]
looked at it as easy money.” Cornett admitted signing the release Starski had sent to
Mendo Mill. Four days later, Cornett recanted, and went back to his original story that
the accident did occur at Mendo Mill.
Four computers seized during the search of Starski’s home were examined,
pursuant to a second warrant. A number of e-mails extracted from the hard drives
showed Starski stating he was an attorney; others had him stating that he was not an
attorney; and others that were ambiguous. A number of documents were headed “The
Law Office of Edward Starski.” Also recovered were two “complaints” for filing in the
Lake County Superior Court with one or both Cornetts as plaintiffs, but both ending with
a space for the signature of “Edward Starski, Esq. Plaintiff in Pro Per.”
At trial, the jury was told the parties stipulated that Starski “is not [an] . . . attorney
licensed to practice law in the State of California.”
Defendant Starski, who was representing himself, called the wife and two children
of Cornett (who were also his mother and half-siblings) to testify that Cornett did suffer
an injury at Mendo Mill. Cornett’s wife testified that she did provide her son with a
power of attorney (also characterized by Starski as “attorney in fact” and “a general
durable power of attorney”) because there were situations when he could act for her when
she could not, such as negotiating with her “mortgage holder.” This was also the reason
for Starski having a power of attorney from Cornett.2
Starski testified in narrative form that he went to the Cornett house on the evening
of July 21 in response to an e-mail from his mother. Cornett had “an injury to his foot.”
“And based on my discussion with both my stepfather and my sister [i.e., Charlene
Cornett] . . . I was led to believe that there was an injury at Mendo Mill.” His use of the
2
A power of attorney is statutorily required to be in writing and executed by the
party granting it. (Prob. Code, §§ 4401–4402.) No such writing was produced at trial.
6
abbreviation “Esq.” for “Esquire” is of long standing and has, in part, a religious
derivation.3
Under cross-examination by co-defendant Cornett’s counsel, Starski testified he
was “not licensed to practice law in California” or any state. He did go to law school,
which he identified as the “University of Colorado, Sturm College of Law,”4 but he
attended for only one year and did not graduate. He had filed “a significant amount” of
lawsuits, but fewer than fifty. He supports himself doing “freelance paralegal work.” He
is a licensed paralegal in Colorado.
Starski further testified that when he was told of Cornett’s accident at Mendo Mill,
he went to their home, took photographs of the injury, and told Cornett: “You can’t file a
lawsuit against somebody if you don’t have any damages.” He did prepare the demand
letter—before he spoke to Mayfield—that was sent to Mayfield at Mendo Mill. Starski
also prepared the settlement agreement. Cornett was not with Starski when he spoke with
Mayfield on the monitored “pretext” call, when Starski did identify himself as Cornett’s
attorney, by which he meant that he was acting pursuant to a power of attorney given him
by Cornett. Starski testified that even armed with a power of attorney, “which labels me
attorney in fact,” “I’m not an attorney at law.” Indeed, “I’m very careful never to refer to
myself as an attorney at law.” Nevertheless, immediately thereafter he testified: “It is
my belief that that under statute I’m authorized as a layperson to act as the attorney for
3
“I’ve used the title esquire for several years. Actually, I started using it when I
was a member of the Knights of Columbus within the Catholic Church. I have recently
adopted a new organization that I participate with called New Universal Spirit. We’re
Christian druids. . . . We’re basically Christians that practice the Christian faith. What
we rely a lot on is Genesis, being stewards of the earth. [¶] [In my] family, Christian
druids, esquire is a title that’s bestowed upon me through that organization, as it was
when I was part of the Knights of Columbus at the Catholic Church. [¶] I have used that
name [sic] every time I sign personal letters, professional letters. It’s on all my
letterheads. It’s on my checkbook. . . . Every time that you see my name on anything,
that has the title esquire on it.” At a later point in his testimony, Starski stated:
“ ‘Esquire’ is a title of nobility that’s not allowed to be regulated by any law.”
4
This was not correct: Sturm College of Law is a part of the University of
Denver, not the University of Colorado.
7
someone I hold the power of attorney for.” As for Cornett, “He knew that I was
representing him,” but only to the extent of writing letters, not filing anything.
Starski testified he makes approximately $2,000 per month from his freelance
paralegal work, and “in excess of $50,000” annually for the lawsuits he has filed,
commencing in 2012. “I would say I succeed in more than 90 percent of the lawsuits I
file.” Asked by the prosecutor whether he believed by reason of the power of attorney
from Cornett “you’re authorized to draft legal documents for him,” Starski responded
“no.” Starski did not see how his references to being “an attorney myself” to Mayfield
and others could be construed as holding himself out as an attorney at law.
DISCUSSION
There Is Substantial Evidence to Support Cornett’s
Conviction for Conspiracy to Commit the
Unauthorized Practice of Law
We first address Cornett’s contention that his conviction for conspiring with
Starski to commit the unauthorized practice of law is not supported by substantial
evidence. The nature of the crime of conspiracy significantly impacts our substantial
evidence analysis.
“As a general rule, a conspiracy can only be established by circumstantial
evidence ‘for, as the courts have said, it is not often that the direct fact of an unlawful
design which is the essence of a conspiracy can be proved otherwise than by the
establishment of independent facts, bearing more or less closely or remotely upon the
common design [citation]; and it is not necessary to show that the parties met and
actually agreed to undertake the performance of the unlawful acts (citing authority), nor
that they had previously arranged a detailed plan . . . for the execution of the conspiracy
(citing authority).’ [Citation.]” (People v. Steccone, (1950) 36 Cal. 2d 234, 237–238.)
The trier of fact “may consider the events that occurred ‘at or before’ or ‘subsequent’ to
the formation of the agreement. From the proof of the occurrences beforehand and at the
time of the agreement linked with evidence of the overt acts.” (People v. Kobey (1951)
105 Cal. App. 2d 548, 562.)
8
And “[w]hile it is true that mere association with the perpetrator of a crime does
not prove criminal conspiracy, it is a starting place for examination.” (People v. Manson
(1976) 61 Cal. App. 3d 102, 126.) “[T]he entire conduct of the parties, their relationship,
acts, and conduct . . . may be taken into consideration by the jury in determining the
nature of the conspiracy.” (People v. Lewis (1963) 222 Cal. App. 2d 136, 144.)
The overt acts alleged were drafting and sending the demand letter from Starski to
Mayfield, and the “pretext” telephone conversation between Starski and Mayfield.
Cornett notes that he never communicated directly with Mendo Mill, did not live with
Starski, and was never expressly told by Starski that “he [Starski] identified himself to
Mayfield as an attorney.” And thus Cornett concludes, “the prosecution presented no
evidence demonstrating [he] agreed with Starski to commit the unauthorized practice of
law, or intended that Starski do so.”
The legal standards quoted above show that Cornett is setting up an evidentiary
burden the law does not impose. And thus we do not agree with his ultimate conclusion.
Despite their living at separate addresses, the association between Starski and
Cornett was hardly fleeting. The connecting bond is Starski’s mother, who has also been
Cornett’s wife since 2007. Viewing the evidence and possible inferences most favorably
to the jury’s verdict (see, e.g., People v. Jennings (2010) 50 Cal. 4th 616, 638–639),
several scenarios are possible. Under one, the predicate is that the jury concluded there
was no accident at Mendo Mill on July 20, 2014. At some point before the demand letter
was dispatched, Starski and Cornett decided to use the fictitious accident to get money
from Mayfield. Another scenario is that Cornett did suffer injury to his foot at Mendo
Mill on July 20, 2014, but it was nowhere as severe as made out in the demand letter.
Depending on how the jury chose to interpret Bailey’s unrecorded interview with
Cornett, his claimed injury was either nonexistent or grossly inflated in magnitude.
Whether agreement to seek unjustified money from Mendo Mill originated before
Cornett’s trip to Mendo Mill on July 20, 2014 is irrelevant. Equally immaterial is
whether the idea was the brainchild of Cornett, a third party, or—as seems more
9
likely—Starski. All that the jury was required to find, and which we must assume it did
find, was that such agreement existed prior to the overt act of sending the July 28 demand
letter to Mayfield.
The mailing of that letter can be assumed to have had Cornett’s assent. Stronger
evidence of his participation in the scheme may be readily inferred from his signature on
the “Mutual Release and Settlement Agreement.”
We must also accept that the jury credited Bailey’s version of his unrecorded
conversation with Cornett. From that version, with Cornett’s knowledge of Starski’s
having “initiated” and “won” a number of lawsuits, the jury could conclude that Cornett
knew that Starski had a history of successfully posing as an attorney at law in dealings
with third parties. By agreeing to become the latest of Starski’s “clients,” and by
agreeing to let Starski “represent” him and speak in his name to Mayfield, the jury could
ultimately conclude that Cornett was a knowing participant in Starski’s unauthorized
practice of law.
The Instructions on Violating Section 6126 and Conspiracy
to Violate Section 6126 Were Not Overbroad and Did Not
Infringe Starski’s Right of Free Speech
The jury was instructed as follows:
“Defendant Starski is charged in Count 4 with the unauthorized practice of law in
violation of Business and Professions Code section 6126. To prove that the defendant
Starski is guilty of this crime, the People must prove that:
“Defendant Starski in a transaction or attempted transaction with a third party or
business entity held himself out as practicing law or entitled to practice law or engaged in
the practice of law; and
“Defendant Starski did so while not an active member in good standing with the
California State Bar.
“The fact that a person uses the term ‘Esquire’ after his name is not sufficient to
show that the person held himself out to be entitled to practice law.”
10
Judge Behnke also instructed the jury with a modified version of CALCRIM Nos.
3406, 3407, and 3411 on mistake of fact and law5, and with a special instruction on
Starski’s status under a power of attorney.6
5
“A defendant is not guilty of unauthorized practice of law if he did not have the
intent or mental state required to commit the crime because he reasonably did not know a
fact or reasonably and mistakenly believed a fact. [¶] If the defendant Starski’s conduct
would have been lawful under the facts as he reasonably believed them to be, he did not
commit the crime of unauthorized practice of law. [¶] If you find that the defendant
believed that he was authorized to represent to Mike Mayfield, in connection with Mr.
Cornett’s claim that he was an attorney and if you find that his belief was reasonable, he
did not have the mental state required for the crime of the unauthorized practice of law.
[¶] If you have a reasonable doubt as to whether Mr. Starski had the mental state
required for the crime of unauthorized practice of law, you must find him not guilty of
that crime.” (CALCRIM. No. 3406 Mistake of Fact (Modified).)
“It is not a defense to the crimes charged that a defendant did not know he was
breaking the law or that he believed his conduct was lawful.” (CALCRIM No. 3407
(Mistake of Law).)
“As I’ve already explained, it is not a defense to the crime of unauthorized
practice of law that the defendant did not know he was breaking the law or that he
believed his act was lawful. But when you consider the crime of conspiracy, a different
rule applies. [¶] Conspiracy requires that a defendant act with a specific intent. The act
and specific intent is explained in the conspiracy instructions. [¶] A defendant is not
guilty of conspiracy to commit the unauthorized practice of law if he made an honest and
good faith mistake about the law, if that mistake shows that he did not have the specific
intent required for the crime of conspiracy. [¶] If you have a reasonable doubt whether
defendant had the specific intent required for this crime, you must find him not guilty.”
(CALCRIM No. 3411 (Mistake of Law as a Defense (Modified).)
6
“Powers of attorney are discussed in California Probate Code beginning at
Section 4000. [¶] Probate Code section 4014 describes an attorney in fact as a person
that is granted authority to act for the principal. [¶] Probate Code section 4022 defines
power of attorney as a written instrument that is executed by a natural person having the
capacity to contract and that grants authority to an attorney in fact. [¶] Probate Code
section 4121 sets forth a number of technical requirements for the sufficiency of a power
of attorney, including a requirement that it be acknowledged before a notary public or
signed by at least two witnesses. [¶] An attorney in fact may act for the principal
consistent with the terms of the power of attorney. Under Probate Code section 4204, an
attorney in fact acting pursuant to a power of attorney is entitled to reasonable
compensation for his services and to reasonable expenses incurred as a result of acting as
attorney in fact. [¶] Probate Code section 4459 provides in part that a statutory form
11
As previously mentioned, Starski represented himself, and thus was present during
discussions regarding the instructions the jury would be given. The prosecutor requested
a special instruction, but that request was withdrawn when Judge Behnke explained the
special instructions he drafted that were ultimately used.7 Starski also proposed a special
instruction.8 Starski expressly approved of Judge Behnke adding the language
concerning the word “esquire,” which amounted to a pinpoint instruction for the defense.
Starski, joined by Cornett, now contends the special instructions were “overbroad”
because “What is missing . . . is any definition [of] what constitutes the practice of
law. . . . [S]imply letting someone else believe one is licensed to ‘practice law’ is
insufficient absent some evidence of a fraudulent claim or representation that one is
power of attorney, the language with respect to claims and litigation empowers the
agent/attorney in fact to submit to arbitration, settle and propose or accept a compromise
with respect to a claim or litigation. [¶] By executing a statutory form power of attorney,
a principal, pursuant to section 4450(a) of the Probate Code empowers an attorney in fact
to demand, receive and obtain by litigation or otherwise money to which the principal is
entitled. [¶] Nothing in the Probate Code authorizes an attorney in fact who is not a
licensed attorney at law to hold himself out to be an attorney, to practice law or to charge
for the provision of legal services by the attorney in fact.”
7
The prosecutor’s proposed instruction read: “It is unlawful to practice law in
California unless one is an active member in good standing of the California State
Bar. . . . [¶] A person is guilty of committing the unauthorized practice of law if that
person: [¶] (1) Is not a member in good standing of the state bar; and [¶] (2) Either:
[¶] (a) Holds himself or herself out as being entitled to practice law in the course of
conducting business related to the practice of law; [¶] or [¶] (b) Actually practices law.
[¶] The practice of law includes ‘the doing and performing [of] services in a court of
justice in any matter depending therein throughout its various stages and in conformity
with the adopted rules of procedure[,]’ rendering ‘legal advice and legal instrument and
contract preparation, whether or not these subjects were rendered in the course of
litigation.’ ” [incorporating quotes from Birbrower, Montalbano, Condon & Frank v.
Superior Court (1998) 17 Cal. 4th 119, 128 (Birbrower)].
8
“ ‘The Defendant is charged in Count ___ with the unauthorized practice of law.
To prove that the Defendant is guilty of this crime, the People must prove that: [¶] 1.
Defendant knowingly and intentionally engaged in the practice of law; [¶] AND [¶] 2.
Defendant did so while not a member in good standing of the California State Bar.’ ”
12
authorized to perform services in a court of law, and that was not explained in these
instructions.”9
Starski also detects a constitutional defect. Although he now “freely admit[s] to
creating an illusion he was a licensed attorney when he clearly is not, the United States
Supreme Court has made it clear that such false or misleading speech still falls within the
protection of the First Amendment.”10 As Starski sees, it, United States v. Alvarez (2012)
___ U.S. ___ [132 S. Ct. 2537] (Alvarez), wrought a fundamental shift in what could be
criminalized by section 6126. In his words: “The older case law holding that the
unauthorized practice of law ‘includes the mere holding out by a layman or a suspended
attorney that he is practicing or is entitled to practice law’ (e.g. In re Cadwell (1975)
15 Cal. 3d 762, 771) must be reexamined in light of Alvarez, supra. There would be no
constitutional infirmity in this statute if the definition of the practice of law were limited
to ‘ “the doing and performing services in a court of justice in any matter depending
therein throughout its various stages and in conformity with the adopted rules of
procedure.” ’ (People v. Merchants Protective Corp. (1922) 189 Cal. 531, 535.) But
Merchants and the cases that have followed included in its definition legal advice and
legal instrument and contract preparation, whether or not these subjects were rendered in
the course of litigation. [¶] This definition of the unauthorized practice of law to include
any legal advice or counsel, and the mere preparation of legal instruments, is no longer
viable in modern day society with the advent of the Internet.”
9
Starski states he “does not contend the statute [section 6126] itself is overbroad
but simply that the trial court’s instructions on this offense were an overbroad
interpretation of the law.” This attempted distinction is not tenable. If, as Starski
believes, conviction requires “evidence of a fraudulent claim or representation that one is
authorized to perform services in a court of law,” such a requirement is valid only if it
reflects statutory language. If the instructions are overbroad because they do not state
that requirement, so is section 6126.
10
Starski thus abandons his trial claim that he was not holding himself out as an
attorney. He also abandons defending his actions as legitimate exercise of his authority
under the power of attorney from Cornett.
13
“Thus, the issue becomes whether appellant’s creation of an illusion that he held a
license to practice law, to a third party when presenting a claim for damages with the
obvious hope the personal injury claim would receive greater weight, was sufficient
under this statute [i.e., section 6126]. Appellant contends it is not absent proof that he
had knowledge the claim was false . . . .”
Starski is wrong: neither of his arguments is persuasive.
“Although trial courts, generally, have a duty to define technical terms that have
meanings peculiar to the law, there is no duty to clarify, amplify, or otherwise instruct on
commonly understood words or terms used in statutes or jury instructions. ‘When a word
or phrase “ ‘is commonly understood by those familiar with the English language and is
not used in a technical sense peculiar to the law, the court is not required to give an
instruction as to its meaning in the absence of a request.’ ” ’ ” (People v. Griffin (2004)
33 Cal. 4th 1015, 1022–1023.)
As Starski concedes, almost a century has passed since our Supreme Court said
this: “The phrase ‘practicing law,’ or its equivalent, ‘the practice of law,’ has long had a
sufficiently definite meaning throughout this country to be given a place in both
constitutional and statutory law without further definition.” (People v. Merchants
Protective Corp., supra, 189 Cal. 531, 534.) “ ‘[A]s the term is generally understood, the
practice of the law is the doing and performing services in a court of justice in any matter
depending therein throughout its various stages and in conformity with the adopted rules
of procedure. But in a larger sense it includes legal advice and counsel and the
preparation of legal instruments and contracts by which legal rights are secured although
such matter may or may not be depending in a court.’ ” (Id. at p. 535.)
Our Supreme Court has also repeatedly held that purporting to represent someone,
even if only impliedly, while negotiating a settlement is likewise included within the
practice of law. (Birbrower, supra, 17 Cal. 4th 119, 131; Morgan v. State Bar (1990)
51 Cal. 3d 598, 603–604; In re Cadwell, supra, 15 Cal. 3d 762, 770 [“Although during the
conversation and in the letter Cadwell did not expressly represent himself to be Rocha’s
attorney, in neither the conversation nor the letter did Cadwell inform Crowley that
14
Cadwell was not Rocha’s attorney . . . , and the contents of the conversation and letter
impliedly represented that Cadwell was an attorney representing Rocha.”].) We have no
doubt that modern day jurors are just as knowledgeable as to the scope and concept of the
practice of law as they were 90 years ago. Thus, Judge Behnke had no duty to amplify or
clarify the nontechnical term “unauthorized practice of law” without a request by Starski,
which he did not make. (People v. Griffin, supra, 33 Cal. 4th 1015, 1022–1023.)
As for Starski’s argument that “simply letting someone else believe one is licensed
to ‘practice law’ is insufficient absent some evidence of a fraudulent claim or
representation that one is authorized to perform services in a court of law,” it is refuted
by the same Supreme Court decision that explained “unauthorized practice of law.” And
sensibly so. Starski’s argument would exempt persons who never enter a courtroom or
act without a fraudulent purpose. (See Morgan v. State Bar, supra, 51 Cal. 3d 598, 603
[“ ‘[t]he cases uniformly hold that the character of the act, and not the place where it is
performed, is the decisive element’ ”].) Unlicensed persons who negligently drafted
wills, trust instruments, or partnership agreements would never face prosecution. And
the person who acted in the sincere belief that he or she was protecting or promoting the
client’s best interests would be immune from criminal consequence.
“The prohibition against unauthorized law practice . . . is designed to ensure that
those performing legal services do so competently.” (Birbrower, supra, 17 Cal. 4th 119,
127; cf. Gerhard v. Stephens (1968) 68 Cal. 2d 864, 918 [“California prohibits the
unlawful practice of law . . . to afford protection against persons who are not qualified to
practice the profession”].) But competency plays no part in how Starski’s defining the
unauthorized practice of law solely in terms of intent or locale.
Starski also argues that a simple statement of erroneous fact (i.e., “I am a lawyer”)
enjoys First Amendment protection, and cannot be criminally actionable unless tied to “a
fraudulent claim or representation that one is authorized to perform services in a court of
law.” Unfortunately, this argument did not evoke a response by the Attorney General,
which is regretted. But Starski’s constitutional argument is easily defeated.
15
It appears that until now the issue was treated as settled because of a single,
somewhat peremptory sentence in 1975: “The constitutional protection for free speech
does not extend to the delivery of legal . . . advice by persons not licensed to give such
advice.” (Howard v. Superior Court (1975) 52 Cal. App. 3d 722, 726.) Perhaps, like one
of Newton’s laws, the principle was deemed so obvious that it only had to be stated once
to command universal acceptance. Starski thinks Alvarez now threatens that consensus.
We do not.
In Alvarez, a majority of the United States Supreme Court invalidated a federal
statute that made it a crime to falsely claim to be a recipient of the Medal of Honor. In
what the dissenters excoriated as “ ‘self-aggrandizing fabrications’ ” (Alvarez, supra,
[132 S. Ct. 2537, 2563] (dis. opn. of Alito, J.)), Alvarez stated at a public meeting of his
local water board: “ ‘I’m a retired marine of 25 years. I retired in the year 2001. Back in
1987, I was awarded the Congressional Medal of Honor. I got wounded many times by
the same guy.’ ” Justice Kennedy, writing the plurality opinion, noted that “None of this
was true” and that “[l]ying was his [Alvarez’s] habit.” Alvarez’s statements “were but a
pathetic attempt to gain respect that eluded him. The statements do not seem to have
been made to secure employment or financial benefits or admission to privileges reserved
for those who had earned the Medal.” (Id. [132 S.Ct. at p. 2542] (plur. opn. of
Kennedy, J.).) The Stolen Valor Act (18 U.S.C.S. § 704) was struck down as an
overbroad “content-based suppression of pure speech, speech not falling within any of
the few categories of expression where content-based regulation is permissible.”
(Alvarez, supra, [132 S.Ct. at pp. 2543, 2551].) The plurality of four was joined by two
other justices employing a different approach. (Id. [132 S.Ct. at p. 2551] (conc. opn. of
Breyer, J.).)
Justice Kennedy for the plurality noted that “content-based restrictions on speech
have been permitted, as a general matter, only when confined to the few ‘ “historic and
traditional categories [of expression] long familiar to the bar,” ’ ” one of which was
“speech integral to criminal conduct, see, e.g., Giboney v. Empire Storage & Ice Co.,
336 U.S. 490 (1949).” (Alvarez, supra, [132 S. Ct. 2537, 1544].) The citation of Giboney
16
is doubly significant. First, because it was there that a unanimous Supreme Court stated:
“[I]t has never been deemed an abridgement of freedom of speech or press to make a
course of conduct illegal merely because the conduct was in part initiated, evidenced, or
carried out by means of language, either spoken, written, or printed.” (Giboney v. Empire
Storage & Ice Co., supra, at p. 502.) And second, because this quote from Giboney was
used, in a landmark decision concerning state regulatory power over the practice of law,
as support for the conclusion that “the State does not lose its power to regulate
commercial activity deemed harmful to the public whenever speech is a component of
that activity.”11 (Ohralik v. Ohio State Bar Assn. (1978) 436 U.S. 447, 456.) Elsewhere
in that decision the court referred to “ ‘[t]he interest of the States in regulating lawyers is
especially great,’ ” particularly when joined with “the need for prophylactic regulation in
furtherance of the State’s interest in protecting the lay public.” (Id. at pp. 460, 468.)
The United States Supreme Court has repeatedly, and fairly recently, emphasized
that “ ‘States have a compelling interest in the practice of professions within their
boundaries, and . . . as part of their power to protect the public health, safety, and other
valid interests they have broad power to establish standards for licensing practitioners and
regulating the practice of professions.’ ” (Florida Bar v. Went For It, Inc. (1995)
515 U.S. 618, 625 and decisions cited.) Starski’s reading of the First Amendment would
turn Alvarez on its head, for it would immunize the very situation Justice Kennedy
described as beyond the pale of the First Amendment, speech that was “integral to
criminal conduct”—which is a perfect thumbnail description of Starski’s scheme to
obtain money from Mendo Mill. We think there is absolutely no doubt the six members
11
Because it was never shown that Starski asked for, or received, money from
Cornett, and because money was not involved in Alvarez, he does not claim he was
exercising his right to “commercial speech.” But even if dollars were sought or received
by Starski, that would have no impact on California’s regulatory power. (See Zauderer v.
Office of Disciplinary Counsel of Supreme Court (1985) 471 U.S. 626, 638 [“The
States . . . are free to prevent the dissemination of commercial speech that is false,
deceptive, or misleading”]; Central Hudson Gas & Elec. Corp. v. Public Serv. Comm’n
(1980) 447 U.S. 557, 563–564 [“The government may ban . . . commercial speech related
to illegal activity”].)
17
of the Alvarez majority had any intention of eviscerating so significant an aspect of a
state’s traditional power. Indeed, the Alvarez plurality might have foreseen Starski’s
claim when it stated: “Where false claims are made to effect a fraud or secure moneys
. . . , it is well established that the Government may restrict speech without affronting the
First Amendment.” (Alvarez, supra, [132 S. Ct. 2537, 2547].)
The Trial Court Did Not Err in Refusing to
Give Starski’s “Claim Of Right” Special Instruction
Judge Behnke refused to instruct the jury with this special instruction requested by
Starski: “ ‘If you have reasonable doubt about the prosecution’s claim that an injury did
not occur at Mendo Mill, you must find the Defendants not guilty of attempted grand
theft and not guilty of any conspiracy to commit grand theft.’ ” Characterizing this as a
“claim of right instruction,” Starski, again joined by Cornett, contends it was erroneously
denied.
Starski’s characterization is puzzling, if not inaccurate. “The claim-of-right
defense is generally limited ‘to the perpetrator who merely seeks to effect what he
believes in good faith to be the recovery of specific items of his own personal property.’ ”
(People v. Anderson (2015) 235 Cal. App. 4th 93, 100.) The proposed instruction as
submitted made no mention of, and gave no obvious indication of being tied to, the
“claim-of-right” concept. (Cf. CALCRIM No. 1863 [claim of right applies to obtaining
“specific property” and “does not apply to . . . claims . . . of an undetermined or disputed
amount”].) Moreover, our Supreme Court has indicated the claim-of-right defense does
not apply to situations involving sums representing an “unliquidated tort claim for
personal injuries” or “a rough estimate of a disputed debt.” (People v. Barnett (1998)
17 Cal. 4th 1044, 1144, 1146, citing People v. Poindexter (1967) 255 Cal. App. 2d 566,
570.) That certainly seems to describe the situation here, where the parties were still
ostensibly negotiating about the amount of “compensation” Mendo Mill was willing to
pay Cornett. Thus, there was no actual retaking of property, or even an attempted
retaking, given that negotiations were still ongoing. So neither defendant could say his
property had been wrongfully taken.
18
Starski thinks he had a property interest, personal to him and independent of
Cornett, in recovering his “costs” incurred in prosecuting Cornett’s claim against Mendo
Mill. But this derivative interest of Starski as agent cannot be untethered from the
interest of Cornett as principal. So, just as with the amount of Cornett’s “damages,” the
amount of “costs” had not been agreed but was still being negotiated. Starski’s belief that
he possessed an independent property interest fails because the claim-of-right defense
does not apply to efforts “to satisfy, settle, or otherwise collect on a debt, liquidated or
unliquidated,” the theory being “ ‘The law does not contemplate the use of criminal
process as a means of collecting a debt. To invoke such process for the purpose named
is, as held by all authorities, contrary to public policy. Hence, good faith, or the fact that
the end accomplished by such means is rightful, cannot avail one as a defense in such
prosecution, any more than such facts would constitute a defense where one compels
payment of a just debt by the threat to do an unlawful injury to the person of his
debtor.’ ” (People v. Tufunga (1999) 21 Cal. 4th 935, 956.) Moreover, the claim-of-right
defense is withheld from arising from “ ‘notoriously illegal’ transaction,” which, given its
long existence, would cover the unlawful practice of law. (See id. at p. 953, fn. 5.)
Finally, “[a] trial court . . . has a duty to instruct on . . . a particular defense only if
it appears the defendant is relying on such a defense, or substantial evidence supports the
defense and it is consistent with the defendant’s theory of the case.” (People v. Booker
(2011) 51 Cal. 4th 141, 179.) Starski’s testimony can be read from beginning to end
without a hint that he was relying on a claim-of-right defense, which is no surprise,
because such a defense would have been completely inconsistent with his theory that he
did absolutely nothing wrong.
For each and all of the above reasons, refusing this special instruction was not
error.
DISPOSITION
The orders of probation are affirmed.
19
_________________________
Richman, Acting P.J.
We concur:
_________________________
Stewart, J.
_________________________
Miller, J.
A145450; P. v. Starski
20
Trial Court: Mendocino County Superior Court
Trial Judge: Hon. John Behnke
Counsel:
Marylou Hillberg, under appointment by the Court of Appeal for Defendant and
Appellant Edward Robert Starski.
Jeffrey S. Kross, under appointment by the Court of Appeal for Defendant and Appellant
Larry Charles Cornett.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Jeffrey M. Laurence, Senior Assistant Attorney General, Catherine A. Rivlin,
Supervising Deputy Attorney General, Sara Turner, Deputy Attorney General
for Plaintiff and Respondent.
21