People v. Lucero

• Citation: 41 Cal.App.5th 370,254 Cal.Rptr.3d 233
• Decision Date: 25 October 2019
• Docket Number: C077666
• Court: California Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Dolores Maria LUCERO, Defendant and Appellant.

41 Cal.App.5th 370

254 Cal.Rptr.3d 233

The PEOPLE, Plaintiff and Respondent,

v.Dolores Maria LUCERO, Defendant and Appellant.

C077666

Court of Appeal, Third District, California.

Filed October 25, 2019

Certified for Partial Publication.^*

Scott Concklin, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez, Supervising Deputy Attorney General, and Marcia A. Fay, Deputy Attorney General, for Respondent.

MURRAY, J.

This case of first impression involves the application of Penal Code section 134,¹ preparing false evidence. At issue are declarations containing false information collected by defendant, Dolores Maria Lucero, to be used in court to support of her request for injunctive relief to halt a petition drive to recall her from her position as a city council member for the City of Shasta Lake (Shasta Lake). Defendant also submitted the declarations to law enforcement, and an investigation against a person involved in the recall effort was initiated as a result. Defendant duped several people who had signed the recall petition into signing these declarations. A jury convicted defendant of violating section 134 for this conduct. She was thereafter placed on probation for three years with various terms and conditions including that she serve 30 days in jail. Two years into her probation, defendant petitioned for early termination of probation and the court granted it.

On appeal, defendant contends that: (1) section 134 was inapplicable to the circumstances of this case and that section 118, perjury, is a more specific statute that covers her conduct; (2) there was insufficient evidence to support the conviction; (3) the trial court committed prejudicial instructional error related to the instructions on the charged offense; (4) the testimony of one of the declarants, Charles Lukens, was coerced and that the trial court erred in excluding evidence offered to show that Lukens had a motive to conform his testimony to the prosecution’s theory of the case; and (5) certain probation conditions must be struck because they are unreasonable.

We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Prosecution’s Evidence

Circulation of the Recall Petition

Kay Kobe was one of the leaders of the recall effort and served as treasurer of the recall committee. Pamelyn Morgan, a Shasta Lake city council person and mayor of the city, testified that she was also involved with the petition to recall defendant. Morgan knew Kobe as a friend and worked with Kobe on the recall effort. Morgan circulated petitions for the recall effort. On some occasions, Kobe would be with her.

Defendant Reports Alleged Elections Code Violations to Law Enforcement

Defendant reported alleged Elections Code violations to Tom Bosenko, Sheriff of Shasta County, claiming that a petition was being solicited illegally by Kobe who did not live in Shasta Lake. Although defendant was with an attorney, defendant did "close to ... 95 percent" of the talking. Sergeant Eric Magrini was assigned to investigate and defendant gave him five signed declarations. Magrini did not ask who prepared the typed declarations. Copies of the five declarations were introduced into evidence as People’s exhibits 2-A through 2-E. Defendant told Magrini that she had filed a lawsuit seeking an injunction to prevent the recall from appearing on the ballot and had obtained the declarations to invalidate some of the signatures.²

Defendant repeated to Magrini that Kobe had circulated the recall petitions and had gathered signatures for the recall. Magrini could not recall whether defendant told him that Kobe had been circulating the petitions while alone, but this allegation appeared in each of the declarations. Magrini testified at the preliminary hearing that defendant asserted during this first interview that Kobe "was participating in collecting the signatures which, according to the Elections Code, ... she is not allowed to because it only allows residents of ... Shasta Lake who are registered voters to collect the signatures that go on the recall petitions...."

Magrini ran Kobe’s DMV record and determined that she did not live in Shasta Lake. Based on Magrini’s understanding of Elections Code section 11045 at that time, he believed that Kobe was not allowed to circulate recall petitions in Shasta Lake. As we discuss post , after further investigation, he arrived at a different conclusion.

Declarant Charles Lukens

Charles Lukens, a resident of Shasta Lake, testified that, in late November 2011, two or possibly three people came to his residence circulating a petition to recall defendant. Lukens did not know any of the people circulating the petition, although he may have recognized the name Kay Kobe. When shown a photograph of Kobe, Lukens testified that she was one of the people. Lukens did not know the others. Lukens signed the petition.

Sometime after Lukens signed the recall petition, defendant came to Lukens’s house. Defendant told Lukens that Kobe was not a resident of Shasta Lake, and that she was not permitted to have people sign the recall petition. Defendant did not take a statement from Lukens, and he did not give her information about what he knew about the recall. Thereafter, defendant came to Lukens’s house a second time. Lukens believed that, on this second occasion, defendant came to his residence "about ... signing some paper or something." Defendant spent approximately 15 to 20 minutes talking to Lukens before she presented him with a prepared declaration. The document was pre-typed with some blank lines for information to be filled in. Lukens testified that defendant explained the declaration was about Kobe not being a resident and that it was illegal for her to pass out the petition. Defendant told him he needed to sign the document and write in his address and how long he had been a Shasta Lake resident.

Lukens identified the signature on the declaration marked as People’s exhibit 2-A and other handwritten entries as his. He believed that exhibit 2-A was the document that he filled out when defendant came to his residence on this last occasion. He told the jury that all the handwriting was his except the word "November." Defendant told him to fill in his address and she would fill in the date.

People’s exhibit 2-A read in pertinent part: "1. I am a resident and registered voter of the City of Shasta Lake, California (‘Shasta Lake’). I have been a resident of Shasta Lake since 32 years.^{[3 ]} [¶] 2. I am over the age of eighteen (18) and I have personal knowledge of each and every fact stated herein and, if called to testify as a witness, I could and would testify competently thereto under oath. [¶] 3. This Declaration is submitted with full knowledge that it will be used in support of Shasta Lake Citizens for Justice and Dolores Lucero’s Application for a Temporary Restraining Order and Order to Show Cause for a Preliminary Injunction, which seeks to stop the currently schedule [sic ] April 10, 2012 recall election of Councilmember Dolores Lucero (‘Councilmember Lucero’). [¶] 4. I am familiar with the facts and circumstances surrounding the movement to institute a recall election for City Councilmember Lucero, but I am personally politically neutral on the issue. [¶] 5. I am familiar with the individual known as Kay Kobe, who is a resident of Redding , California, and a member of the Gateway School Board. [¶] 6. On November, 2011, at approximately 3 p.m., Kay Kobe approached me at my private residence ....^{[4 ]} She was circulating a petition for the recall of Councilmember Lucero. There were no other persons with her circulating the petition. She asked by [sic] if I would sign such petition. I declined ." (Italics added.)

Lukens testified that a number of statements in the declaration were true. However, the statement that he was familiar with Kobe was not true. Lukens testified, "I’m not really familiar with her, and that whole point what she was saying was that it was -- that she wasn’t a resident, so that’s untrue right there." Lukens also testified that he only knew Kobe was a Redding resident because defendant told him as much. Additionally, the statement that Lukens knew Kobe was a member of the Gateway School Board was false.

Lukens further testified that the statement in the declaration that there was no one else with Kobe when she was circulating the recall petition was false. He testified that a woman who was with Kobe presented him with the petition, explained the petition or where to sign it, and he signed it. Lukens testified that he told defendant "that there was other people there with Ms. Kobe ...."⁵

Additionally, the statement in the declaration that Lukens declined to sign the recall petition was false. Lukens told defendant that he signed it.

Lukens testified that he did not read the entire declaration before signing it. He explained that he had been tired, "a little hazy," from working a double shift. When asked on direct examination if he read it before signing, Lukens responded, "No, I didn’t. I – it was just explained the document, and it wasn’t the smartest thing I did. It was just I just went off of her word, what she told me." When asked on cross-examination if, since the document was a declaration, he thought it was important to read it before he signed, Lukens responded, "To be honest, I should have read it. Uhm, what was explained to me and what’s on the paper was two different things. So, I went off of – I made the mistake of going off of just what somebody said instead of reading it." Lukens acknowledged that defendant did not tell him not to read the declaration, and he did not tell defendant he was not reading the declaration.

Declarant Cheri Ala

Cheri Ala testified that, in November 2011, two people came to her house about a petition to recall defendant. Ala...