Opinion
A142895
10-23-2017
THE PEOPLE, Plaintiff and Respondent, v. RONALD VERNON CUPP, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Sonoma County Super. Ct. No. SCR628864)
Defendant Ronald Vernon Cupp appeals a judgment entered upon a jury verdict finding him guilty of ten violations of attempting to record a false or forged document (Pen. Code, § 115, subd. (a) (§ 115(a)) and five counts of forgery (§ 470, subd. (d) (§ 470(d)). He contends his conduct could be prosecuted exclusively under section 115(a) because it is more specific than section 470(d), and that his convictions for forgery should therefore be reversed. We shall affirm the judgment.
All undesignated statutory references are to the Penal Code.
I. BACKGROUND
Defendant operated a business, North Bay Trust Services, which purported to help people who were having difficulty paying their mortgage. A district attorney inspector with the County of Marin received a report from the county recorder's office that a fraudulent document might have been filed. She searched defendant's business and found substitutions of trustees and deeds of reconveyance, related to four different properties, which had been recorded with the recorder's offices in Marin, Sonoma, and San Mateo Counties.
The business's web address was "WeKillYourMortgage.com."
One of the properties was owned by Thomas and Melissa Hardiman. They were having trouble paying their mortgage, which was held by Wells Fargo Bank. Defendant told them he could help them try to "totally remove" their mortgage. They agreed to pay defendant $7,500 and to have him put a lien on the property for 30 percent of the amount he saved them, in return for which he would arrange to have the existing deed of trust in favor of Wells Fargo Bank removed and would record a deed of reconveyance to them. Defendant had told the Hardimans that, because their loan had been transferred from one bank to another multiple times, they could not be certain whether the loan had been properly assigned and whether Wells Fargo had a valid claim. He told them the process he proposed would force the bank to prove in court that it was the true holder of the mortgage, rather than proceed with nonjudicial foreclosure.
The Hardimans assisted in preparing a "Substitution of Trustee and Full Reconveyance" relating to their property, which purported to substitute defendant for the trustee in the original deed of trust and reconvey all interest in the property to the owners. The document was signed by defendant, notarized, and recorded with Marin County's recorder.
Defendant carried out similar actions with respect to three other properties. In connection with his mother's house, which was subject to a reverse mortgage, he signed two substitutions of trustee and two deeds of full reconveyance. One substitution of trustee was signed by "Ronald V Cupp as Attorney-in-fact for WELLS FARGO BANK N.A.," and one was signed by "Ronald V Cupp as Attorney-in-fact for SECRETARY of HOUSING and URBAN DEVELOPMENT." Each substituted defendant's company, North Bay Trust Services, as trustee under the original deed of trust. Each deed of full reconveyance recited that all sums secured by the original deed of trust had been paid and that North Bay Trust Services reconveyed all interest in the property to the owners. Each was signed by defendant "as Attorney-in-fact for the Trustee, NORTH BAY TRUST SERVICES." All four documents were notarized and recorded with the Marin County recorder's office.
In connection with a home owned by Elias and Kristi Stavrinides, defendant signed substitutions of trustee as "Attorney-in-fact" for Bell Home Loans, Inc., and Advance Mortgage Corporation, substituting North Bay Trust Services as trustee under the deed of trust. As "Attorney-in-fact for the Trustee, NORTH BAY TRUST SERVICES," he signed a deed of full reconveyance, reciting that all sums secured by the Advance Mortgage Corporation deed of trust had been fully paid and reconveying all interest in the property to Elias and Kristi Stavrinides. All three of these documents were notarized and recorded in the official records of Sonoma County.
In connection with a home owned by Kristina Lisper, defendant signed a substitution of trustee "as Attorney-in-fact for WELLS FARGO BANK N.A. and/or WELLS FARGO HOME MORTGAGE, INC." The substitution named North Bay Trust Services as trustee under the deed of trust. As "Attorney-in-fact for the Trustee, North Bay Trust Services," he signed a deed of full reconveyance reciting that all sums secured by the deed of trust had been paid and reconveying the property to the owner. Each of these documents was notarized and recorded in the official records of San Mateo County.
An employee of Marin County's recorder's office explained that a substitution of trustee must name the original trustee and the original beneficiary, and that the original beneficiary is the only person who can substitute a trustee. When a deed of trust is executed, the lender appoints the trustee to act in one of two cases: If the loan is paid off, the trustee reconveys the property to the person who took out the loan. If the borrower defaults on the loan, the trustee is the party who initiates foreclosure proceedings.
Defendant was convicted of attempting to file or record a false or forged document (§ 115(a)) with respect to all of the substitutions of trustee and deeds of reconveyance at issue. (Counts 3, 4, 5, 7, 9, 10, 11, 12, 14, and 15.) As to each of the substitutions of trustee that defendant signed as attorney-in-fact for an entity other than his own company (i.e., Wells Fargo Bank, the Secretary of Housing and Urban Development, Bell Home Loans, Inc., and Advance Mortgage Corporation), he was also convicted of forgery. (§ 470(d).) (Counts 1, 2, 6, 8, and 13.)
The trial court suspended imposition of sentence and placed defendant on probation for five years.
II. DISCUSSION
Defendant contends that his five forgery convictions (§ 470(d)) should be reversed because the conduct upon which they were based could be prosecuted only under section 115(a). His challenge is based on the Williamson rule. (In re Williamson (1954) 43 Cal.2d 651, 654.) "Under the Williamson rule, if a general statute includes the same conduct as a special statute, the court infers that the Legislature intended that conduct to be prosecuted exclusively under the special statute. In effect, the special statute is interpreted as creating an exception to the general statute for conduct that otherwise could be prosecuted under either statute. [Citation.] 'The rule is not one of constitutional or statutory mandate, but serves as an aid to judicial interpretation when two statutes conflict.' [Citation.]" (People v. Murphy (2011) 52 Cal.4th 81, 86 (Murphy).)
"Absent some indication of legislative intent to the contrary, the Williamson rule applies when (1) 'each element of the general statute corresponds to an element on the face of the special statute' or (2) when 'it appears from the statutory context that a violation of the special statute will necessarily or commonly result in a violation of the general statute.' [Citation.] In its clearest application, the rule is triggered when a violation of a provision of the special statute would inevitably constitute a violation of the general statute. . . . [¶] On the other hand, if the more general statute contains an element that is not contained in the special statute and that element would not commonly occur in the context of a violation of the special statute, we do not assume that the Legislature intended to preclude prosecution under the general statute. In such situations, because the general statute contemplates more culpable conduct, it is reasonable to infer that the Legislature intended to punish such conduct more severely." (Murphy, supra, 52 Cal.4th at pp. 86-87.)
Our high court has explained, however, that the fact "that the general statute contains an element not within the special statute does not necessarily mean that the Williamson rule does not apply. 'It is not correct to assume that the [Williamson] rule is inapplicable whenever the general statute contains an element not found within the four corners of the "special" law. Rather, the courts must consider the context in which the statutes are placed. If it appears from the entire context that a violation of the "special" statute will necessarily or commonly result in a violation of the "general" statute, the Williamson rule may apply even though the elements of the general statute are not mirrored on the face of the special statute.' [Citation.]" (Murphy, supra, 52 Cal.4th at p. 87.)
With these principles in mind, we examine the statutes in question. Section 115(a), which defendant contends is the special statute, 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."
Section 470(d), which defendant claims is the more general statute, provides in pertinent part: "Every person who, with the intent to defraud, falsely makes, alters, forges, or counterfeits, utters, publishes, passes or attempts or offers to pass, as true and genuine, [certain enumerated items], knowing the same to be false, altered, forged, or counterfeited, is guilty of forgery."
Defendant asks us to reverse his convictions for violations of section 470(d). He contends section 115(a) is the more specific statute because offering a false document for recording under section 115(a) is necessarily a forgery for purposes of section 470(d), which applies to one who "passes or attempts or offers to pass" certain documents as true and genuine. We are unpersuaded. First, unlike false filing under section 115(a), forgery under section 470(d) requires the intent to defraud. (See People v. Geibel (1949) 93 Cal.App.2d 147, 168 [§ 115 does not require intent to defraud]; accord People v. Bell (1996) 45 Cal.App.4th 1030, 1061.)
Second, although the same conduct—offering a false document for filing—might support culpability under both sections 115(a) and 470(d), section 470(d) also encompasses behavior that is not prohibited by section 115(a), including falsely making or forging a document. (See People v. Geibel, supra, 93 Cal.App.2d at p. 164 ["When one either makes or passes a false instrument with intent on his part to defraud the crime of forgery is complete"].) Here, there was evidence to support a conclusion that not only did defendant record documents he knew to be false, but that he did so after making or forging the documents. In fact, the only documents as to which defendant was convicted of violating section 470(d) were those he signed on behalf of another entity without authorization. We bear in mind that the Williamson rule is intended to serve as an aid to statutory interpretation. (Murphy, supra, 52 Cal.4th at p. 86.) The practical effect of defendant's argument would be to shield someone who recorded a false document from liability for the separate act of forging it with intent to defraud. We see no basis to conclude the Legislature intended this result.
Third, the two statutes have distinct purposes. The purpose of section 470 is to "protect society against the fabrication, falsification and the uttering of instruments which might be acted upon as being genuine." (People v. Jones (1962) 210 Cal.App.2d 805, 808-809.) The Legislature had a separate purpose in enacting section 115(a): not only to protect individuals from fraud, but " ' "to protect the integrity and reliability of public records." [Citations.]' " (People v. Denman (2013) 218 Cal.App.4th 800, 808.) While not conclusive, this factor militates against application of the Williamson rule.
An issue connected to that before us arose in In re Horowitz (1949) 33 Cal.2d 534. The defendant there was convicted of violating section 470 by forging a will with intent to defraud, and of violating section 115 by filing the will for probate, in addition to two related crimes. (Id. at pp. 543-544.) The trial court imposed consecutive sentences, which the defendant contended violated section 654's prohibition on multiple punishment. (Id. at p. 541.) Our high court rejected this contention, concluding the evidence was sufficient to show the convictions were based on separate acts on separate occasions. (Id. at p. 543.) Although the application of the Williamson rule did not arise in Horowitz, the court made clear that, at least in the circumstances of that case, sections 115 and 470 described different offenses.
We express no view on section 654's applicability in the circumstances of the case before us now.
We are not persuaded otherwise by the cases upon which defendant relies. Our high court in People v. Ruster (1976) 16 Cal.3d 690, 698-699, disapproved on other grounds in People v. Jenkins (1980) 28 Cal.3d 494, 503, fn. 9, concluded that section 2101 of the Unemployment Insurance Code, which made it a misdemeanor to willfully make a false statement or representation to obtain any benefit, was a special statute that precluded a defendant from being prosecuted under section 470. The court explained that, although forgery was not expressly made an element of section 2101 of the Unemployment Insurance Code, "the Legislature unquestionably contemplated that the special statute might be violated by means of forgery. Indeed, applying for aid under a false identity, which entails signing eligibility questionnaires and pay certification cards with a false name, is apparently one of the most common forms of unemployment insurance fraud." (Id. at p. 699.) Similarly, in People v. Woods (1986) 177 Cal.App.3d 327, 333, the defendant was not properly convicted of forgery because his behavior—committing forgery by co-indorsing county benefit checks made payable to fictitious persons—was something he would "commonly or necessarily" do in order to violate a more specific statute, which prohibited obtaining "aid for a child not in fact entitled thereto" by means of a false statement or representation or impersonation. (Welf. & Inst. Code, § 11483.) And in Murphy, the court concluded that the filing of a false vehicle theft report in violation of Vehicle Code section 10501, a misdemeanor, would commonly result in a violation of section 115, and that by enacting it, the Legislature intended to create an exception to the felony punishment specified in section 115, the more general statute. (Murphy, supra, 52 Cal.4th at pp. 94-95.)
In each of these cases, a violation of the more general statute was, in effect, a method of carrying out the more specific offense. The same cannot be said here. Forging a substitution of trustee can be a separate act from recording a false document, rather than merely a method of carrying out that offense. In the circumstances, we conclude defendant could properly be convicted of forgery under section 470(d).
We also note that the Williamson rule is generally applied either where the special statute provides for a lesser penalty or where some other aspect of the general statute is more onerous than the special statute. (In re Fernando C. (2014) 227 Cal.App.4th 499, 508.) Defendant does not point out any way in which the assertedly general statute, section 470(d), provides a more onerous penalty than the assertedly special statute, section 115(a). In fact, the opposite appears to be true: false filing is a felony (§ 115(a)), and forgery is a "wobbler," which may be punished either as a misdemeanor or as a felony. (§ 473, subd. (a).)
III. DISPOSITION
The judgment is affirmed.
/s/_________
Rivera, Acting P.J. We concur: /s/_________
Streeter, J. /s/_________
Kennedy, J.
Judge of the Superior Court of California, County of Contra Costa, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.