People v. Pemberton CA2/6

Filed 10/14/24 P. v. Pemberton CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B326488 (Super. Ct. No. 20F-02244) Plaintiff and Respondent, (San Luis Obispo County)

v.

JEREMY PEMBERTON,

Defendant and Appellant.

Jeremy Pemberton was convicted by a jury of two counts of sale of a security by means of a false or misleading statement or omission (Corp. Code, § 25401; counts 1 & 2), one count of theft from an elder (Pen. Code, § 368, subd. (d); count 3) and two counts of theft by false pretenses (id., § 487, subd. (a); counts 4 & 5). The jury also found true that all five counts were related felonies with a material element of fraud involving a pattern of felony conduct and the taking of more than $500,000. (Id., § 186.11, subd. (a)(2).) On count 1, the trial court sentenced Pemberton to the low term of two years, plus a consecutive two years for the multiple

felony fraud enhancement. The court imposed the same sentence on count 2 to run concurrently with the sentence on count 1. On counts 3, 4, and 5, the court imposed two year terms on each count, stayed pursuant to Penal Code section 654. We affirm. FACTS The Project In 2015, Pemberton had plans to open an entertainment facility in the City of San Luis Obispo called Discovery San Luis Obispo (the Project). The facility would offer bowling, dining, and music. Pemberton operated a similar facility in Ventura County. Pursuant to the plan, on March 1, 2015, Pemberton entered into a lease of a building in downtown San Luis Obispo with Jamestown Properties (Jamestown). The building was an empty shell. Under the lease Pemberton would pay for improvements. The Project was supposed to open by the end of 2015. But Pemberton was experiencing various delays, including the unanticipated need for seismic retrofitting of the building. Jamestown refused to pay for the seismic work, pointing out that under the lease such improvements were Pemberton’s responsibility. In the meantime, Pemberton was not paying rent on his lease of the building. As of January 2017, he owed approximately $616,000 in back rent. On January 12, 2017, Jamestown notified Pemberton that unless the back rent was paid in five days he would be in default. On April 25, 2017, Jamestown filed an unlawful detainer action against Pemberton. Pemberton surrendered possession of the premises on May 22, 2017. In July 2017, Jamestown filed a civil action against Pemberton for breach of lease and back rent. Pemberton continued to negotiate with Jamestown for what