P. v. Prescod

Filed 2/9/06 P. v. Prescod CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Janet I. Kintner, Judge. Affirmed.

A jury convicted Adelaide Prescod of filing a false instrument (Pen. Code, ^[1] § 115, subd. (a); count 1), and forgery (Pen. Code, § 470, subd. (b); count 2).

The trial court sentenced Prescod to prison for one third of the middle term or eight months for the filing of a false document and a concurrent term of eight months for

the forgery offense. The court ordered the eight-month sentence to run consecutively with Prescod's three-year prison term imposed on a separate felony conviction for perjury.

Prescod appeals, contending: (1) the court erred by failing to accurately respond to a jury question; and (2) her conviction of forgery and filing of a false document must be reversed because the evidence was insufficient to establish she had the requisite intent to defraud. We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

In 1997, Clothilda Prescod, Adelaide Prescod's mother, bought an investment home in San Diego. Clothilda lived in Florida at the time the home was purchased and Prescod lived in San Diego. As a result, Clothilda executed a special power of attorney enabling Prescod to transact business concerning the management of the property. That same year, Prescod signed a deed of trust on behalf of Clothilda and Prescod produced her own signature on the document as attorney-in-fact. Clothilda eventually rented the home to the Choy family, and the Choy's regularly sent their monthly rent checks to Clothilda in Florida each month.

In 2000, Clothilda's health began to deteriorate and as a result Clothilda's son, Isaac, began to oversee her health care concerns. Clothilda executed a general power of attorney enabling Isaac to manage and care for all of Clothilda's financial matters. By late 2001, Clothilda was greatly suffering from Alzheimer's disease. She was no long able to live on her own and care for herself. Isaac went to Florida and moved Clothilda to Georgia to live with him and his family. Throughout this time, Isaac continued to manage Clothilda's affairs, including the San Diego property.

In August 2001, Prescod created a document asserting her position as the new special power of attorney over the San Diego property. The document was allegedly notarized by a notary public in a New Jersey county. However, the notary who supposedly signed the document had died six months before and the county wherein the document was to have been executed did not exist.

Two and a half years later in February 2004, Prescod sought to secure a loan using the San Diego property as collateral. However, Prescod was unable to secure the loan because she did not have title to the San Diego property.

In March 2004, Prescod contacted Isaac and expressed her desire to see Clothilda. Prescod went to Isaac's home in Georgia and took Clothilda out of Isaac's home for three days. Prescod asked if she could take Clothilda's driver's license to use for identification purposes at the hotel at which they would be staying. Prescod then left with Clothilda and went to Florida for three days. When Prescod returned Clothilda to Isaac's care, Prescod did not return the driver's license and instead gave Isaac a new identification card. The photograph of Clothilda on the identification card showed her wearing a wig that gave her a much younger appearance.

About one month later, Prescod created a transfer deed of title in which Clothilda was the grantor and Prescod the grantee. In addition to Prescod's signature, the document contained Clothilda's alleged signature. Prescod attempted to have Debra Cook, a notary public in San Diego, notarize the transfer deed. Cook refused stating she could not notarize Clothilda's signature unless Clothilda signed the transfer deed in Cook's presence. Later that same day, Prescod returned to Cook and presented a "without collection" document for notarization which contained only Prescod's signature. Cook notarized this document.

In April 2004, Prescod recorded the transfer deed of title in San Diego County. The deed included Prescod's signature, Clothilda's signature and the signature of two witnesses. The document also contained Cook's signature and her notary seal. At trial, Cook testified she never notarized or placed her notary seal on the transfer deed. She further testified she had never seen the witnesses or observed them signing the document in her presence.

After Prescod recorded the deed, Ms. Choy contacted Isaac to discuss the transfer deed of title. Choy faxed Isaac copies of the documents for his review. Choy also informed Isaac that Prescod had asserted herself as the new owner of the home and that all future rent checks were to be sent to Prescod. Isaac then contacted the San Diego police to further investigate the matter.

Forensic document examiner Dave Oleksow interviewed Prescod and attempted to collect handwriting exemplars from her. Prescod's writing appeared to be erratic and she resisted following directions. Oleksow believed the samples of handwriting he obtained from Prescod were probably disguised because the samples showed the writing to be very controlled and lacked the fluency normally seen in writing.

Sandra Homewood, the prosecution's forensics document examiner, testified as to the signatures appearing on the quitclaim deed filed in April 2004. Homewood had examined various samples of Prescod's writing and compared them to the document in question. Homewood opined that Prescod very probably wrote the questioned signature of Clothilda on the deed because there were strong similarities between Prescod's and Clothilda's signature. She also opined that the names of the witnesses were signed by Prescod. As relates to Debra Cook's signature on the quitclaim deed, Homewood stated Cook's actual signature had no resemblance or consistency with the signature in question. Instead, the signature in question was made up of scribbles and scratches. Homewood further testified that Prescod probably wrote Clothilda's signature for the 2001 special power of attorney and for Clothilda's Florida identification card generated during Prescod's visit with Clothilda in March 2004.

After the court concluded hearing testimony from the witnesses, the jury began its deliberations. During deliberations, the jury submitted a question to the court asking whether "a more current general power of attorney supercede[s] an earlier special power of attorney." The court discussed the matter with all counsel. After detailed discussions, the prosecution and defense counsel agreed upon the answer to be provided to the jury which stated that "[e]ffect should be given to the most recent power of attorney that was validly executed. A more recent validly executed power of attorney supersedes an earlier power of attorney."

DISCUSSION

I

RESPONSE TO JURY QUESTION

Prescod challenges the answer given to a question submitted by the jury during deliberations concerning powers of attorney. Prescod asserts the court erred by not providing an accurate or complete response to the question and that such error is both prejudicial and not waived by trial counsel's express agreement to the court's response. We disagree.

A

Defendant Has Waived Her Argument

To the extent Prescod is challenging the court's response to the jury's question, she has waived this issue. When a deliberating jury seeks assistance from the court on issues of law, the trial court is required to make reasonable efforts to assist the jury. (§ 1138; People v. Rodrigues (1994) 8 Cal.4th 1060, 1193.) However, the waiver doctrine applies to judicial responses to jury questions where defense counsel does not object to the trial court's response to the jury. (See, ibid.; see also People v. Thoi (1989) 213 Cal.App.3d 689, 698; People v. Garcia (1984) 160 Cal.App.3d 82, 89.)

During deliberations, the jury submitted a written question to the court asking whether, "a more current general power of attorney supercede[s] an earlier special power of attorney." The court read the question to both counsel and suggested reviewing the law and providing the jurors with an answer. The prosecution argued the question had nothing to do with the charged offenses and that the jurors should be directed to follow the law with regards to the charged offenses and make their decision accordingly. However, the court preferred to answer the question because the concepts surrounding powers of attorney were discussed at trial.

The court proceeded to closely review the jury note with both counsel and sought their input. The prosecution proposed an answer based on Probate Code sections 1810 and 4126, subdivision (b).^[2] Defense counsel agreed with the proposed answer. The prosecution then proposed additional clarifying language and defense counsel again agreed. With the agreement of counsel as to the proper answer of the request, the court provided the jurors with an answer stating "[e]ffect should be given to the most recent power of attorney that was validly executed. A more recent validly executed power of attorney supersedes an earlier power of attorney." As summarized above, defense counsel did not object to the trial court's response and instead, assisted with reaching an answer to the inquiry and agreed with it. Therefore, Prescod's complaint is barred by the doctrine of waiver and cannot be challenged on appeal. (People v. Rodrigues, supra, 8 Cal.4th at 1193; People v. Cooper (1991) 53 Cal.3d 771, 847.)

B

The Trial Court Properly Responded to the Jury's Inquiry

Even if this argument has not been waived, Prescod's contention also fails on the merits. Section 1138 provides: "After the jury have retired for deliberation, if there be any disagreement between them as to the testimony, or if they desire to be informed on any point of law arising in the case, they must require the officer to conduct them into court. Upon being brought into court, the information required must be given in the presence of, or after notice to, the prosecuting attorney, and the defendant or his counsel, or after they have been called."

Under section 1138, when jurors indicate they are confused or inform the court they are having difficulty reaching a decision, a court may clarify points of law. (People v. Cleveland (2004) 32 Cal.4th 704, 755.) The court also has a duty to clarify any instructional confusion. (People v. Gonzalez (1990) 51 Cal.3d 1179, 1212, overruled on another ground in In re Steele (2004) 32 Cal.4th 682, 691.) A court's decision as to what additional explanations or clarifications are required to satisfy the jury's request for information is a discretionary one which will only be reversed for manifest abuse. (Gonzalez, supra, 51 Cal.3d at p. 1213.) The court should directly answer the jurors' questions in an effort not to leave the jury floundering. (People v. Gonzales (1999) 74 Cal.App.4th 382, 391.)

Prescod claims the court erred by relying upon the provisions of Probate Code section 4126. She asserts the section is inapplicable to the extent that her authority as attorney-in-fact under the 1997 special power of attorney was "coupled with an interest in the subject of the power of attorney." (Prob. Code, § 4050, subd. (b)(1).) When there is an interest in the subject of the power of attorney, the power of an agent cannot be terminated. (Civ. Code, § 2356.)^[3] She contends she has an interest in the San Diego property because (1) her income was used to enable Clothilda to receive approval for the loan to purchase the property; and (2) she lived in the home for a few years before the property was rented.

Prescod's arguments are unsubstantiated, other than by statements she made to authorities during the investigation. More importantly, Prescod had not lived in the San Diego house for more than four years and thus, she had no outstanding residential interest in the property at the time this matter came under investigation. Even assuming Prescod had a valid special power of attorney to transfer title of the property, this would not have provided her with a defense to the elements of the crimes of forgery and filing of a false instrument. A valid power of attorney would not have empowered her to sign a notary's signature, sign witness signatures, and use a notary's seal on the quitclaim deed.

Therefore, the court did not err by relying on Probate Code section 4126 in structuring its response to the jury.

II

SUFFICIENCY OF THE EVIDENCE

Prescod contends the evidence was insufficient to establish she had the requisite intent to defraud and therefore her convictions for forgery and for filing a false instrument must be reversed. She asserts her 1997 special power of attorney was valid and thus gave her the authority to convey Clothilda's San Diego property to herself.

A

Standard of Review

In determining the sufficiency of the evidence to support a conviction, we "must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence - that is, evidence which is reasonable, credible, and of solid value - such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Johnson (1980) 26 Cal.3d 557, 578.) We do not re-examine the facts of the case but instead we determine whether the evidence presented at trial sufficiently supports the conviction. (Id. at p. 576). In assessing the sufficiency of evidence to support a criminal conviction, "we need not determine that the evidence was strong, and indeed it may be viewed as not strong." (People v. Hughes (2002) 27 Cal.4th 287, 365.) Unless the record on appeal shows sufficient evidence fails to support the jury's findings on any hypothesis, we will not reverse. (People v. Hicks (1982) 128 Cal.App.3d 423, 429.)

The same deferential standard of review applies in cases in which the prosecution relies primarily on circumstantial evidence. (People v. Maury ( 2003) 30 Cal.4th 342, 396.) "Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court which must be convinced of the defendant's guilt beyond a reasonable doubt. ' "If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment." ' [Citations.]" (People v. Bean (1988) 46 Cal.3d 919, 932-933.) " 'Circumstantial evidence may be sufficient to connect a defendant with the crime and to prove his guilt beyond a reasonable doubt.' " (Id. at p. 933, quoting People v. Pierce (1979) 24 Cal.3d 199, 210.)

B

Intent to Defraud

Under section 470, subdivision (d), the crime of forgery is committed when a person who, "with the intent to defraud, falsely makes, alters, forges, or counterfeits, utters, publishes, passes or attempts or offers to pass, as true and genuine, any of the following items, knowing the same to be false, altered, forged, or counterfeited, is guilty of forgery . . . ." For the filing of a false instrument, section 115, subdivision (a) 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 . . . is guilty of a felony."

The intent to defraud as it relates to these crimes is defined as: "an intent to deceive another person for the purpose of gaining some material advantage over that person or to induce that person to part with property or to alter that person's position to [his][her][its] injury or risk, and to accomplish that purpose by some false statement, false representation of fact, wrongful concealment or suppression of truth, or by any other artifice or act designed to deceive." (See CALJIC No. 15.26.) In the absence of a statement of intent by the defendant, the element of intent in these crimes may be proved by the circumstantial evidence surrounding the possession of the forged document. (See People v. Rodriguez (1969) 272 Cal.App.2d 80, 86.) Mere possession of false documents, without more, is insufficient to establish the intent to defraud required by statute. (See People v. Norwood (1972) 26 Cal.App.3d 148, 157-160.)

The facts presented at trial, taken together, show the jury could reasonably infer that Prescod possessed the intent to defraud. Prescod contends it was impossible for her to defraud anyone because she had a valid, special power of attorney. Even if Prescod had a valid power of attorney, the evidence is sufficient to establish her intent to defraud.

After Clothilda gave Isaac a general power of attorney in 2000, Prescod obtained a power of attorney in 2001 signed by a notary who had been dead for six months and the document was executed in a nonexistent New Jersey county. After her attempts of securing a loan on the San Diego property failed, Prescod attempted to secure a transfer deed by inappropriate methods. Prescod asked Debra Cook to notarize Clothilda's signature on the transfer deed in the absence of Clothilda. After Cook refused, Prescod asked to Cook to notarize a separate "without collection" document. Cook testified she had never notarized a transfer deed or witnessed the signing of the two witnesses' signatures on the document. Sandra Homewood compared signatures and stated the alleged signatures on the transfer deed were very probably signed by Prescod and that Cook's alleged signature had no resemblance to her actual signature. A jury could reasonably infer that Prescod used the "without collection" document to transfer Cook's signature and notary seal to the quitclaim deed. Furthermore, the evidence showed Prescod filed the improper quitclaim deed in the San Diego County Recorder's office in April 2004. Substantial evidence supports Prescod's convictions.

DISPOSITION

The judgment is affirmed.

HUFFMAN, Acting P. J.

WE CONCUR:

McDONALD, J.

McINTYRE, J.

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^[1] All statutory references are to the Penal Code unless otherwise specified.

^[2] Probate Code section 1810 provides: "If the proposed conservatee has sufficient capacity at the time to form an intelligent preference, the proposed conservatee may nominate a conservator in the petition or in a writing signed either before or after the petition is filed. The court shall appoint the nominee as conservator unless the court finds that the appointment of the nominee is not in the best interests of the proposed conservatee."

Probate Code Section 4126, subdivision (b) provides: "If the protective proceedings are conservatorship proceedings in this state, the nomination has the effect provided in Section 1810 and the court shall give effect to the most recent writing executed in accordance with Section 1810, whether or not the writing is a durable power of attorney."

^[3] Civil Code section 2356, subdivision (a) provides: "Unless the power of attorney is coupled with an interest in the subject of the agency, it is terminated by any of the following: [¶] (1) its revocation by the principal; [¶] (2) the death of the principal; [¶] (3) the incapacity of the principal to contract."