People v. Feinberg, A069766

• Decision Date: 10 January 1997
• Docket Number: No. A069766,A069766
• Citation: 51 Cal.App.4th 1566,60 Cal.Rptr.2d 323
• Court: California Court of Appeals Court of Appeals
• Parties: , 97 Cal. Daily Op. Serv. 320, 97 Daily Journal D.A.R. 489 The PEOPLE, Plaintiff and Respondent, v. Jeffrey J. FEINBERG, Defendant and Appellant.

Page 323

60 Cal.Rptr.2d 323

51 Cal.App.4th 1566, 97 Cal. Daily Op. Serv. 320,

97 Daily Journal D.A.R. 489

The PEOPLE, Plaintiff and Respondent, v. Jeffrey J. FEINBERG, Defendant and Appellant.

No. A069766.

Court of Appeal, First District, Division 2, California.

Jan. 10, 1997.

Certified for Partial Publication. ^*

As Modified Feb. 5, 1997.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Ronald A. Bass, Senior Assistant Attorney General, Stan M. Helfman, Supervising Deputy Attorney General, Christopher J. Wei, Deputy Attorney General, for Plaintiff and Respondent.

Stephen Matchett, San Francisco, for Defendant and Appellant.

KLINE, Presiding Justice.

Jeffrey J. Feinberg appeals from convictions of offering a false or forged instrument for recordation and perjury in connection with the filing of a mechanic's lien on residential property. He contends the trial court erred in admitting evidence of his financial condition, uncharged acts of fraud and prior evictions; the prosecutor committed misconduct in urging consideration of such evidence for purposes other than those for which it had been admitted; the court erred in refusing a requested pinpoint jury instruction; and the trial court erred in failing to instruct the jury on materiality as an element of the convictions.

STATEMENT OF THE CASE

Appellant was charged by information filed February 17, 1994, with one count each of offering a false or forged instrument for recordation (Pen.Code, § 115, subd. (a)) ¹ and perjury (§ 118). After a jury trial, he was found guilty of both counts. On April 19, 1995, appellant was placed on probation for four years, with conditions including service of one year in county jail and payment of restitution in the amount of $14,000. Appellant filed a timely notice of appeal on April 21, 1995.

STATEMENT OF FACTS

In 1993, Dr. Steven Sierra and his wife, Jacqueline Speier, owned a home at 3005 Canyon Drive in Burlingame that they were trying to sell. Appellant was the proprietor of an art gallery in Burlingame, which opened in late 1992 and closed in the spring of 1993. Sierra was interested in some of the paintings in appellant's gallery. Appellant told his friend Matthew Carlin that appellant and Sierra had agreed to have appellant and his family live in the Canyon Drive home for six months in exchange for the paintings. As part of the agreement, appellant was to make the house attractive to potential buyers and available to real estate agents wanting to show the house. Sierra also traded an older Mercedes Benz for additional artwork, with the understanding that appellant would sell the car and keep the proceeds. Appellant told Carlin, "I am going to get as much as I can out of this guy[;]" said he was going to stay in the house as long as he could, characterizing the arrangement as a "free ride[;]" and told Carlin, with respect to finding places to stay without paying, "I have tricks up my sleeve."

Appellant moved into the Canyon Drive house in April 1993. The "For Sale" sign in front of the house was removed shortly thereafter. Appellant arranged with a Burlingame antique dealer to place items of furniture in the home; these were subsequently returned when appellant told the dealer the home had sold and the buyer did not want the pieces.

In mid-April, real estate broker Carol Bullock showed the Canyon Drive house to Gary and Faye Roper. Bullock had difficulty contacting appellant to arrange for the showing, and when she did show the house to the Ropers, appellant and his wife accompanied them throughout the house. A contract for sale of the house was concluded on June 25. When the buyers' inspections were performed, appellant was present and pointed out a number of defects.

Under the sales agreement, the Ropers were to move into the house on August 15; this date was later extended because appellant had not found another place to live. At Sierra's request, Bullock showed appellant approximately eight rental properties; when appellant eventually agreed to one of them, in the $2,800 to $3,000 price range appellant had specified, the landlord would not rent it to appellant because of his financial status. Sierra offered to help appellant pay the first month's rent and security deposit and to co-sign the lease.

A few days before August 23, when the Ropers were due to move into the Canyon Drive house, appellant called Bullock and said he was "sick and tired of being pressured on moving out of his home" and that he was very upset and close to a "breakdown." On August 23, appellant filed a mechanic's lien on the Canyon Drive property with the county recorder and delivered copies to Bullock's office. The lien was in the amount of $18,400 and stated it was for "exstensive [sic] improvements to procure sale and services rendered." The lien was never served on Sierra or Speier. After learning of the lien, on August 24 or 25, the Ropers decided not to go through with purchase of the property.

Speier made a complaint to the district attorney's office about the mechanic's lien. Inspector Randy Curtis was assigned to the case. Curtis met with Sierra on August 27 and arranged for Sierra to tape record telephone conversations with appellant.

In a telephone conversation on August 30, Sierra told appellant the lien was a fabrication and had upset the prospective buyer and said it was imperative that the lien be removed. Asked if he had found a place to live, appellant said he had two "on the line" and was "getting [his] act together." Sierra told appellant to let him know if there was anything Sierra could do to assist him, reminded him the Ropers were expecting to move in on September 7, and told him to expect a letter from Sierra's lawyer demanding removal of the lien. Appellant complained that the prospective buyers had had his utilities turned off.

In another telephone conversation on September 7, appellant said he had not yet found a place to live and Sierra told him their original agreement had called for appellant to have vacated the property the day before. Sierra asked what appellant had done about the lien and appellant said he wanted to meet with Sierra to discuss it, but denied being "under any perjury whatsoever." Sierra asked how appellant had "come up with" the $18,400 amount, and appellant again said he wanted to meet in person to discuss this. Sierra told appellant there had been no agreement for appellant to do anything, and appellant had not done anything, to which appellant responded that he had helped sell the house. Sierra said "your agreement was to, to make the house look nice as part of your rental thing like you normally do for your own house to make it marketable, that was part of the agreement, and that's why you were allowed to move in with, uh, you know, no, no deposit, no nothing else, and just uh, uh, so, sort of what we both perceived as a win-win for both of us. I mean, you getting out of paying $3,100 dollars a month for five months, and then me getting that equivalent in art work. And then, but your agreement was to be out by the 6th." Appellant said he understood this and Sierra said, "there was absolutely no uh, basis, no agreement between you or me to do a single thing with regard to the house, and nothing has been done. It was a new house." Appellant replied, "I understand all that."

Also on September 7, Curtis accompanied Sierra to a meeting with appellant at the Bistro Cafe in Burlingame. Curtis testified that appellant arrived with a man named Spencer Sutton. Initially, Sierra gave appellant a check for $200 he owed for the purchase of paintings separate from the house deal. Sierra then asked appellant about the mechanic's lien. Sutton responded that he was a landlord and told Sierra to be careful when accusing someone of trespassing; he said he knew from personal experience it could take five or six months to evict someone. Sutton read to Sierra a definition of a mechanic's lien, which referred to improvements to the property, and Sierra responded that no improvements had been made to the Canyon Drive property. Sierra reiterated his agreement with appellant: In exchange for nine paintings, appellant was to move into the house until September 6, 1993, make it attractive to potential buyers and available to real estate agents, and receive a credit for the fair market value of $3,100 per month. Sierra said this was the complete agreement and the mechanic's lien was therefore perjurious.

Appellant responded in strident tones that he made his living from living in people's houses and decorating them with his furniture and art, substantially increasing the value of the homes, and that he had been instrumental in the sale of over three million dollars worth of real estate. Appellant said he should be compensated for moving his own furnishings and art into the house. With respect to the amount of $18,400 claimed on the lien, Sutton said the check Sierra had just given appellant for $200 would be applied toward the lien amount, $5,900 was for "lost opportunity," $6,000 was for a deal appellant had lost because the telephone service had been turned off, and $7,000 was for appellant's moving his furniture and art into the house. When Sierra said he had never turned off the telephone service, Sutton told him courts would view him as a principal and hold him responsible. Sierra accused appellant of hindering the sale of the house, which appellant denied. Several times during the meeting Sierra reiterated the terms of his agreement with appellant; appellant never denied this being the agreement. Appellant indicated the deal had been bad for him financially, complaining that the City of Burlingame had told him he could not sell paintings out of Sierra's house. Appellant said he had delivered the lien to Bullock's office because he "felt it was the right thing to do." Appellant claimed he did not know the buyers were backing out of the contract because...