People v. Viray

36 Cal.Rptr.3d 693

134 Cal.App.4th 1186

The PEOPLE, Plaintiff and Respondent, v. Carmelita VIRAY, Defendant and Appellant.

No. H026515.

Court of Appeal, Sixth District.

December 14, 2005.

Lauretta Marie Oravitz-Komlos under appointment by the Court of Appeal, San Francisco, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gerald A. Engler, Senior Assistant Attorney General, Gregg E. Zywicke, Deputy Attorney General, Mark S. Howell, Deputy Attorney General, for Plaintiff and Respondent.

RUSHING, P.J.

Defendant Carmelita Viray was convicted of financial abuse of an elder (Pen.Code, § 368, subd. (e)) after the court, sitting without a jury, found that she attempted to steal a house from her aunt by duping her into signing a deed the aunt believed would transfer a different property. On appeal defendant contends that the prosecutor violated her Sixth Amendment right to counsel and engaged in extreme misconduct by interrogating her at length on the morning of her arraignment. We hold that while the interrogation did violate her right to counsel, its admission in evidence cannot be charged as error because no objection was raised below. We also hold that, assuming the interrogation may be viewed as prosecutorial misconduct, the present record does not reflect the level of egregiousness necessary to justify outright dismissal of the charges. Nor does the admission of the fruits of the interrogation justify reversal on the basis of ineffective assistance of counsel, because it is impossible to conclude on the face of this record that defense counsel lacked a tactical reason for failing to object at trial. We therefore find no reversible error in defendant's conviction. However, we reverse, for want of substantial evidence, an order requiring defendant to reimburse the public defender's office for costs assertedly incurred in representing her.

BACKGROUND

Defendant's aunt, Olgaria Watkins, owned three adjacent lots in Seaside. Two of the lots (numbers 2679 and 2681) were occupied by Mrs. Watkins's own house; we will refer to them collectively as "the house." The third lot (number 2683) was occupied by a rundown structure sometimes described in the record as a "shack."

Defendant, who lived near San Diego with her husband, visited her aunt several times a year, and on some number of occasions stayed in the Seaside area to assist her aunt through periods of illness. At some point Mrs. Watkins formed the intent to give one of the properties to defendant. According to Mrs. Watkins, her intent was to deed the shack to defendant in the expectation that defendant would fix or replace it, move in, and thus live conveniently nearby. Defendant testified, however, that the intent was for her to receive the house.

Presumably for the purpose of facilitating the intended conveyance, Mrs. Watkins gave defendant copies of her existing deeds to both properties. Defendant prepared a new deed which, by its terms, conveyed the house to her. A neighbor reviewed the deed at the request of Mrs. Watkins and noted that the tax number referred to the house and not the shack. The deed was modified in defendant's presence so that it contained the tax number for the shack. However, the property description, which was the legally operative language for conveyancing purposes, continued to refer to the house. At some point the deed was further modified to contain the tax numbers for both properties. Mrs. Watkins, who was then 85 or 86 years of age, signed the deed, thus conveying the house to defendant.

About a year later, Mrs. Watkins engaged an estate planning attorney who, upon investigation, told her that title to the house had passed to defendant. The attorney testified at trial that when this fact was initially conveyed to defendant, she stated that the intent had been only to convey the shack. He wrote to her on September 30, 2002, enclosing a quitclaim deed by which she could convey the house back to her aunt. Defendant responded by telephone, saying that she would not sign the quitclaim deed unless her aunt executed a new deed conveying the shack to her. When the attorney insisted on settling title to the house first, defendant refused to execute the conveyance.

This refusal apparently triggered a criminal investigation. In November 2002, defendant was questioned by a police officer, to whom she again expressed a refusal to reconvey the property, stating that her aunt was no longer capable of managing her own affairs. The officer said that defendant expressed surprise when told that Mrs. Watkins had not intended to convey the house. However, the officer did not directly ask, and defendant made no statement, about her own understandings and intentions when her aunt executed the deed.

On December 6, 2004, Deputy District Attorney Joe Buckalew signed a felony complaint alleging that defendant had committed financial abuse of an elder in violation of Penal Code section 368, subdivision (e),¹ in that defendant "being a caretaker, committed theft and/or embezzlement with respect to the property of an elder or dependent adult, . . . having a value exceeding $400.00," with actual or constructive knowledge that the victim was "an elder adult and/or dependent adult."

The complaint was filed on December 10, 2002, and the matter set for arraignment on January 3, 2003. By a means not apparent from this record, Prosecutor Buckalew arranged with defendant to meet on the morning of her arraignment, but prior thereto, "in one of the offices . . . at the Salinas district attorney's office." At that time she was interrogated at length and in detail by Buckalew and Bob Empasis, an investigator for that office. The interrogation was recorded, and both the recording and a transcript were introduced and admitted into evidence without objection. Although respondent characterizes the "interview" as having been conducted by Empasis, more than half the transcript consists of questioning by "JB," who is identified on the first page as prosecutor Buckalew.

The transcript does not indicate that defendant was given a warning or admonition of any kind or that any waiver of the right to counsel was solicited or given. At the beginning of the interrogation, Empasis confirmed that defendant had no attorney and asked whether she was "planning to retain one." She replied that she would if authorities "pursue[d]" the matter, but asserted that she had brought papers showing that her aunt had given her the property Empasis told her, "[W]ell, that's why we're here. We're just gonna kinda go through this to kinda determine which way we want to go with this." During the interview defendant insisted that her aunt had intended to convey the house to her, and perhaps to convey both properties, and that she had no intention of undoing the conveyance. She brought her originals of certain documents, including the deed in question, which Empasis kept, telling defendant, "[T]hey'll be safe with me." These documents were ultimately admitted into evidence without objection.

At 1:30 that same afternoon, defendant was arraigned on the complaint and the public defender was appointed to represent her. The court imposed a $25 registration fee payable within 30 days and added, "The Court may assess additional fees at the end of the case to reimburse the county for the services of the public defender." So far as the record shows, this is the only notice defendant ever received that such an order might be made.

The matter was called for trial on June 9, 2003. At the outset both parties waived jury trial. The matter was prosecuted by Buckalew, who called investigator and fellow interrogator Empasis as his second witness. His testimony served primarily to authenticate the documents defendant had brought to the interrogation, and the tape recording of the interrogation, to which the court later listened in chambers.

The court ultimately found defendant guilty as charged. It concluded that she had deliberately presented her aunt with a deed for the house while telling her it was a deed for the shack, and had thereafter kept a low profile to avoid discovery while Mrs. Watkins was still alive, a plan that was foiled when Mrs. Watkins engaged an estate planning attorney. "Even then [defendant] attempted to mislead [the attorney]," the court observed, "asserting that she had been given title to the lot; not the house. . . . It was only when her deception was uncovered by [the attorney] that she changed her story and said that Mrs. Watkins had intended all along to give her not only the house but the smaller parcel as well. I found her testimony to be not credible. . . ."

Pending sentencing, the court ordered defendant "to refrain from signing or encumbering the property in any fashion," and added that a reconveyance of the house to Mrs. Watkins would "have a very significant positive effect on the sentence that you receive." As of the time of sentencing, however, defendant had not reconveyed the house, and the court continued the matter while soliciting briefing on the question whether it had the power to order her to do so, or to effect reconveyance by other means. At the continued sentencing hearing, colloquy on this subject led to the statement by defense counsel that defendant "does tell me she does not intend to return the property." At that point defendant herself volunteered, "If the judgment is negative, I will appeal. [¶] . . . [¶] My aunt grant me the property in good faith, and so—because I'm her niece. I've been helping her for a long time since her husband passed away. . . . I cannot refund the property, because she give it to me in good faith, and . . . I give her everything. She grant me the property." After explaining to defendant that it intended to pronounce a sentence that could result in her imprisonment if she failed to make restitution, the court ordered defendant placed on three years' probation...