People v. Malburg
| Decision Date | 30 November 2011 |
| Docket Number | B223580 |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. LEONIS C. MALBURG et al., Defendants and Appellants. |
| Court | California Court of Appeals Court of Appeals |
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BA327248)
APPEAL from a judgment of the Superior Court of Los Angeles County, Michael M. Johnson, Judge. Affirmed in part and reversed in part.
Loeb & Loeb, Anthony Murray and Patrick Downes for Defendant and Appellant Leonis C. Malburg.
Lightfoot Steingard & Sadowsky, Michael J. Lightfoot, Richard M. Steingard, Stephen B. Sadowsky and Naomi L. Svensson for Defendant and Appellant Dominica Leonie Malburg.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lance E. Winters and Michael Katz, Deputy Attorneys General, for Plaintiff and Respondent.
Defendants Leonis C. Malburg and Dominica Leonie Malburg appeal from judgments of conviction entered after a court trial. Defendants were convicted as follows:
Both defendants:
+-----------------------------------------------------------------------------+
¦Count¦Offense ¦Date of Commission ¦
+-----+-----------------------------------------------+-----------------------¦
¦ ¦Conspiracy (Pen. Code, § 182, subd. (a)(1)) to ¦ ¦
¦ ¦ ¦February 17, 2005 ¦
¦ ¦commit voter registration fraud (Elec. Code, ¦through ¦
¦ ¦ ¦ ¦
¦1 ¦§ 18100, subd. (a)), fraudulent voting (id., ¦the commencement of ¦
¦ ¦ ¦this ¦
¦ ¦§ 18560, subd. (a)), and false candidacy ¦ ¦
¦ ¦(id., ¦case ¦
¦ ¦ ¦ ¦
¦ ¦§ 18203) ¦ ¦
+-----+-----------------------------------------------+-----------------------¦
¦7 ¦Fraudulent voting (id., § 18560, subd. (a)) ¦April 11, 2006 ¦
+-----+-----------------------------------------------+-----------------------¦
¦11 ¦Voter registration fraud (id., § 18100, subd.¦August 27, 2006 ¦
¦ ¦(a)) ¦ ¦
+-----------------------------------------------------------------------------+
Leonis Malburg:
The trial court placed Leonis Malburg on felony probation for a period of five years. The court imposed fines in the amount of $51,000 pursuant to the Elections Code. It imposed penalty assessments pursuant to the Penal and Government Codes in the amount of $132,600. It also required Leonis Malburg to repay the City of Vernon for compensation received during the term for which he was elected at the April 11, 2006 municipal election in the amount of $395,588.
The trial court placed Dominica Malburg on felony probation for a period of three years. The court imposed fines in the amount of $10,000 pursuant to the Elections Code. It imposed penalty assessments pursuant to the Penal and Government Codes in the amount of $26,000.
On appeal, defendants challenge the denial of their motion to suppress evidence obtained pursuant to search warrants on the ground the warrants were not supported by probable cause. They also challenge the sufficiency of the evidence to support their convictions. We agree that their convictions on counts 10 and 11 must be reversed. In all other respects, we affirm the judgments.
On April 4, 2005, Judge Michael E. Pastor signed a search warrant authorizing a search of 10 different locations for evidence of misappropriation of funds belonging to the City of Vernon (Vernon) and election fraud.
The April 4, 2005 search warrant was supported by a statement of probable cause by Carlos Villamayor (Villamayor), Senior Investigator for the Los Angeles County District Attorney's Office, Bureau of Investigation, Public Integrity Division. Villamayor stated that on December 9, 2004, a deputy district attorney received information from a citizen informant that the informant had seen a report prepared by Eduardo Olivo (Olivo), formerly legal counsel to Vernon, on misappropriation of funds through the misuse of petty cash and credit cards by the City Administrator, Bruce Malkenhorst, Sr. (Malkenhorst Sr.). The amount of the misappropriated funds was over $300,000. A copy of the report was presented to the City Council, and copies of the report were mailed to the residences of the councilmembers. On December 15, the matter was assigned to Villamayor for investigation.
On December 30, 2004, Villamayor interviewed Greg Tsujiuchi (Tsujiuchi), the former Vernon Assistant Administrator. Tsujiuchi had resigned his position three days earlier after finding documents showing suspicious petty cash transactions and what appeared to be attempts at covering them up. Tsujiuchi related that earlier, City Attorney Erick Fresch (Fresch) had instructed him to burn magnetic tapes from the Accounting Department containing financial data. Tsujiuchi had conveyed his suspicions to Olivo, who said he would produce a report documenting his findings. Tsujiuchi did not know if Olivo had done so and suggested that Villamayor contact former Deputy City Clerk Gloria Molleda (Molleda). Tsujiuchi added that Olivo had since been fired by the CityCouncil, and Molleda had resigned due to sexual harassment by Malkenhorst Sr. Tsujiuchi informed Villamayor that Malkenhorst Sr. held several positions with the city in addition to that of City Administrator. Tsujiuchi also told Villamayor where financial documents were stored.
Villamayor interviewed Molleda on January 3, 2005. Molleda said that in July 2004, Fresch, who had been hired by Malkenhorst Sr., instructed her to stop taking minutes of closed city council sessions and not to take minutes of open sessions unless instructed to do so; she was not instructed to do so, and the sessions were not recorded. In December 2004, Molleda heard conversations suggesting that Bruce Malkenhorst, Jr. (Malkenhorst Jr.) had improperly destroyed "closed session items."
In early September 2004, Molleda had spoken to city councilmember William Davis, who mentioned that Olivo's report had been delivered to the homes of all five councilmembers—Davis; Leonis Malburg, who also served as the mayor; Thomas Ybarra; Hilario Gonzales; and William McCormick. Councilmember Davis came into the office later that day holding the report, which was about 1500 pages long. Molleda later learned from a series of faxed messages from Olivo addressed to Malkenhorst Sr. or the City Attorney, that Malkenhorst Sr. was the subject of the report. Molleda suspected something was wrong when Olivo was fired abruptly during an open city council meeting on September 15. Mayor Leonis Malburg read a...
To continue reading
Request your trial