People v. Abrahamian

• Decision Date: 18 February 2020
• Docket Number: 2d Crim. No. B289162
• Citation: 45 Cal.App.5th 314,258 Cal.Rptr.3d 670
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Michelle ABRAHAMIAN, Defendant and Appellant.

45 Cal.App.5th 314

258 Cal.Rptr.3d 670

The PEOPLE, Plaintiff and Respondent,

v.Michelle ABRAHAMIAN, Defendant and Appellant.

2d Crim. No. B289162

Court of Appeal, Second District, Division 6, California.

Filed February 18, 2020

Kelly C. Martin, Los Angeles, under appointment by the Court of Appeal for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Assistant Attorney General, Michael R. Johnsen, Supervising Deputy Attorney General, Theresa A. Patterson, Deputy Attorney General, for Plaintiff and Respondent.

YEGAN, Acting P. J. Michelle Abrahamian appeals from the judgment entered after a jury convicted her of knowingly procuring or offering a forged quitclaim deed for recordation in a public office (count 1 - Pen. Code, § 115, subd. (a) )¹ and knowingly possessing a false completed notary public’s acknowledgment (notary acknowledgment) with intent to defraud (count 4 - §§ 475, subd. (a), 470, subd. (d)). The jury found true an enhancement allegation that the victim’s loss exceeded $200,000. (Former § 12022.6, subd. (a)(2).) The jury also found true an "aggravated white collar crime enhancement" allegation that a "pattern of related felony conduct" had resulted in a loss of more than $500,000. (§ 186.11, subds. (a)(1), (a)(2).) Appellant was sentenced to prison for an aggregate term of seven years, eight months - the two-year middle term on count 1, plus a consecutive eight-month term on count 4, plus two years for the former section 12022.6, subdivision (a)(2) enhancement, plus three years for the aggravated white collar crime enhancement. Pursuant to section 186.11, subdivision (c), the trial court ordered appellant to pay a fine of $500,000. Pursuant to section 1202.4, subdivision (f), it ordered her to pay restitution of $189,382 to the victim.

Appellant contends: (1) the court erroneously admitted evidence of uncharged acts, (2) the evidence is insufficient to support her conviction for possession of a false completed notary acknowledgment with intent to defraud, (3) the court failed to instruct the jury sua sponte on an element of this offense - the false notary acknowledgment must be completed, (4) the evidence is insufficient to support the aggravated white collar crime enhancement, (5) the court erroneously imposed a two-year consecutive term for the former section 12022.6, subdivision (a)(2) enhancement because the statute was repealed before she was sentenced, and (6) the matter must be remanded so that the trial court may conduct a hearing on appellant’s ability to pay the $500,000 fine and victim restitution of $189,382.

Because the evidence is insufficient to prove that appellant possessed a completed notary acknowledgment, we reverse her conviction on count 4 for possession of a false completed notary acknowledgment with intent to defraud. (§ 475, subd. (a).) We also reverse the true finding on the aggravated white collar crime enhancement allegation. We strike the $500,000 fine imposed pursuant to section 186.11, subdivision (c), and remand the matter to the trial court for resentencing. In all other respects, we affirm.

Charged Offenses²

Appellant, together with her husband, Patrick Abrahamian (Patrick), and her sister, Taline Indra, were charged in count 1 with procuring or offering for recordation a forged instrument, i.e., a quitclaim deed conveying Thomas Cotton’s residence to appellant. ( § 115, subd. (a).) In count 4, appellant alone was charged with possessing false completed notary acknowledgements executed by Indra, a California notary public. (§§ 475, subd. (a), 470, subd. (d).) The notary acknowledgements purported to authenticate Cotton’s signature.

Cotton was "having trouble meeting [his] financial obligations." He was behind on the mortgage payments for his residence on Mustang Lane in Bell Canyon (the Mustang residence). He had unsuccessfully sought a loan modification.

Cotton met Patrick through a friend. Patrick said that "he could get [Cotton] a loan modification."

By a lease dated October 1, 2012, Cotton rented the Mustang residence to appellant and Patrick for one year at a monthly rent of $5,000. Patrick agreed that he would work on obtaining a loan modification. Patrick helped Cotton find another place to live while appellant and Patrick were staying at the Mustang residence.

Patrick did not obtain a loan modification for Cotton. After their one-year lease had expired on October 1, 2013, appellant and Patrick stopped paying rent. They continued to occupy the Mustang residence despite Cotton’s demand that they move out.

Cotton learned that on October 8, 2013, a quitclaim deed had been recorded conveying the Mustang residence to appellant. The deed states that the conveyance is a gift so no documentary transfer tax is due. Indra authenticated the grantor’s signature on the deed as the signature of Cotton. She declared under penalty of perjury that, on October 3, 2013, Cotton had personally appeared before her and had "proved ... on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument." Cotton denied signing the deed.

In her notary journal, Indra was required to document the notarization of Cotton’s signature. Information was missing from the journal entry for Cotton’s signature, including his thumbprint. Heather Tallent, a district attorney investigator who specializes in the investigation of real estate fraud, testified that the notarization of a signature "that affects real property ... requires a thumbprint."³ Tallent opined "that a missing thumbprint [in a notary journal] for a real estate document is one indicator of fraud."

Cotton gave appellant and Patrick a three-day notice to pay rent or quit. Appellant filed a verified complaint against Cotton seeking to quiet title to the Mustang residence. She asserted that, pursuant to the quitclaim deed, she was "the fee simple title owner of the ... property." She claimed that on October 1, 2013, she and Cotton had "entered into an oral agreement whereby [Cotton] would convey title to [her] in exchange for payments totaling $175,000." She "provided [Cotton] with the sum of $175,000 ... in return for fee simple title to the ... property."

On December 3, 2014, investigators from the Ventura County District Attorney’s Office searched the Mustang residence and a Ford Raptor pickup truck pursuant to a search warrant. The Raptor was registered in Patrick’s name. Investigators stopped the Raptor while appellant was driving it. A manila envelope was on the dashboard. Inside the envelope were seven notary acknowledgments bearing Indra’s signature and official notary seal. These acknowledgments are the basis of appellant’s conviction for possessing false notary acknowledgments with intent to defraud (count 4). Each acknowledgment purported to authenticate the signature of Thomas Cotton.

In a downstairs office of the Mustang residence, investigators found statements of Cotton’s earnings from a company named SCV Construction. Cotton never worked for this company. Investigators also found Bank of America statements in his name. Cotton did not have an account with Bank of America. Cotton’s account number was the same as a Bank of America account that Patrick had opened in his own name.

Uncharged Acts

Stephen Danel

Danel owned a home in Northridge. In 2012 he started missing mortgage payments, and the lender began foreclosure proceedings. A friend introduced him to Patrick, who identified himself as "Rick Black." Patrick and Danel orally agreed that Patrick would purchase the home for $60,000. Patrick made a down payment of $15,000 and said that he would pay the remaining $45,000 when Danel vacated the property. After Danel moved out, he did not receive the promised $45,000 and was unable to contact Patrick.

Danel never signed any paperwork for the sale of his home. After he had vacated the property, he learned that on June 1, 2012, a quitclaim deed had been recorded conveying the property to Gabriel Abrahamian (Gabriel), Patrick’s father. The person who requested the recording asked that the recorded deed be mailed to Gabriel at Patrick’s home address. Rita Medvedev, a notary public, verified that the grantor’s signature on the deed was the signature of Danel. But Danel neither signed the deed nor appeared before Medvedev. The deed stated that the conveyance "is a bonafide gift."

When district attorney investigators searched appellant’s and Patrick’s Mustang residence on December 3, 2014, in the master bedroom they seized a desktop computer that contained Bank of America statements in Danel’s name. Danel did not have an account with this bank. Danel’s account number was the same as a Bank of America account that Patrick had opened in his own name. The computer also contained an earnings statement in Danel’s name from SCV Construction. Danel never worked for this company.

It is reasonable to infer that the computer belonged to appellant. The "name of the user account for the ... computer" was "Michelle," appellant’s first name. The "registered owner of the ... computer" was also "Michelle." The computer contained "an Apple iPhone backup file." The iPhone was named "M. Abrahamian." Kristina Bertilson, a district attorney investigator and expert in conducting examinations of computer files, opined that the desktop computer had "one user." The computer is hereafter referred to as "appellant’s computer."

Gabriel Munoz

Gabriel Munoz owned a home on Bahama Street in North Hills (the Bahama residence). At the time of trial in February 2018, he was 84 years old. He testified through a Spanish interpreter. He was able to read "a little bit" of English.

On October 11, 2013, a quitclaim deed was recorded conveying the Bahama residence to Mikael Puskulian. The deed stated that the conveyance was a gift. Indra notarized Munoz’s signature on October 3, 2013, the same date that she notarized Cotton’s signature. Indra’s notary journal entry for the transaction did not include Munoz’s...