California Court of Appeal Jun 15, 2022 No. E074324Unpublished
Filed 6/15/22 P. v. Dinaali CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, E074324
Plaintiff and Respondent, (Super.Ct.No. FVI1500919)
v. OPINION
ALADDIN DINAALI,
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Bryan K. Stodghill,
Judge. Affirmed as modified.
William G. Holzer, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief
Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha
1
Cortina, Annie Featherman Fraser and Lynne G. McGinnis, Deputy Attorneys General,
for Plaintiff and Respondent.
I. INTRODUCTION
A jury found defendant and appellant, Aladdin Dinaali, guilty as charged of five
count 2); sending a threatening letter with the intent to extort (§ 523, count 3); violating a
civil restraining order, a misdemeanor (§ 166, subd. (a)(4), count 4); and filing a false
instrument with a public office, namely, a mechanics lien (§ 115, subd. (a), count 5).
Defendant was sentenced to six years four months in state prison: the upper term of four
years on count 2, consecutive eight-month terms on counts 1 and 5, and a consecutive
one-year term on count 3. A concurrent 365-day county jail term was imposed on
defendant’s misdemeanor conviction in count 4.2
Defendant represented himself at trial, but after the jury returned its verdicts he
asked the court to appoint counsel to represent him in posttrial proceedings. The court
appointed Peter S. to represent defendant in all posttrial proceedings and denied
defendant’s subsequent Marsden3 motion to relieve Peter S.
1 Undesignated statutory references are to the Penal Code.
2 Defendant was awarded 1,444 days of presentence custody credits: 722 actual days and 722 good conduct days.
3 People v. Marsden (1970) 2 Cal.3d 118 (Marsden). 2
In this appeal, defendant claims: (1) insufficient evidence supports his convictions
in counts 1 through 5; (2) the court erroneously failed to give unanimity instructions, sua
sponte, in counts 2 and 5; (3) the court erroneously denied his Marsden motion to relieve
his appointed counsel, Peter S.; and (4) the court erroneously failed to stay at least one of
his sentences on counts 3, 4, and 5. We agree that defendant’s concurrent 365-day jail
term on count 4 should have been stayed because that count was based on the same acts
underlying counts 3 and 5. We find no merit to any of defendant’s other claims of error
and affirm the judgment in all other respects.
II. BACKGROUND
A. Prosecution Evidence
1. The Events of July 2014 to September 2014
In July 2014, Michele B. lived in a manufactured home in Phelan with her
husband, Mark B., and her teenage daughter. Michele handled all of the family’s
finances and paperwork, and she was in the process of obtaining an FHA (Federal
Housing Act) loan to refinance the existing loan on the family’s home. The home sat on
concrete blocks. On July 2, an appraiser valued the home at $125,000. The appraisal
stated that the home met minimum HUD (Housing and Urban Development) standards.
Adrian Q. worked at a mortgage brokerage firm and was helping Michele with her
refinancing. The lender was requiring a physical FHA inspection of the property. On
July 8, 2014, Adrian Q. obtained a list of FHA inspectors, which included defendant, and
he called defendant to perform the property inspection. On July 9, Adrian Q. asked
defendant to physically inspect the property and e-mailed defendant a copy of the 3
appraisal, Michele’s contact information, and a statement that Michele would be
responsible for paying the $150-$200 inspection fee. Later on July 9, Adrian Q. e-mailed
defendant, saying he would contact defendant the next day with the items that the lender
needed defendant to address in his inspection report.
On July 10, 2014, Adrian Q. e-mailed defendant with the items the lender needed
defendant to address in his report: (1) the property “must not have been installed or
occupied previously at another location. Any structural modifications to the subject
property must be approved by a licensed professional engineer or local, state, or federal
authority”; (2) the property “must be permanently connected to a public sewer/septic tank
and other utilities that meet local, state, and federal requirements”; and (3) “a copy of the
engineer’s foundation report, verifying the subject foundation meets HUD’s
manufactured home permanent foundation guidelines.” The e-mail included a permit
issued the previous year for a sewer-septic tank and advised defendant that he could
access a crawl space beneath the home to confirm that the foundation was permanent.
At 6:06 p.m., on July 10, 2014, defendant advised Adrian Q., by e-mail, that he
could perform the physical inspection the following week. At 6:24 p.m., Adrian Q. e-
mailed defendant that he was waiting to hear back from the lender, and he agreed to
schedule the inspection for the following week, but he asked defendant to wait before
contacting Michele to schedule the inspection. At 6:50 p.m., defendant e-mailed Adrian
Q. that he had found problems with the property, even though he had not physically
inspected the property. At 7:01 p.m., Adrian Q. e-mailed defendant that he had taken
care of “those problem issues.” By this time, the lender had already told Adrian Q. that it 4
would not require a physical FHA inspection of the property, and Adrian Q. intended to
tell defendant that his services were no longer needed.
Before Adrian Q. could cancel the inspection, defendant e-mailed Adrian Q. at
8:16 p.m., on July 10, 2014, saying he would “red flag” the property in the morning.
Adrian Q. did not know what that meant.
At 1:09 p.m., on July 11, 2014, Adrian Q. e-mailed defendant, canceling the
inspection and thanking defendant for his time. At 1:46 p.m., defendant called Michele,
despite Adrian Q.’s cancelation of the inspection. At that time, Michele understood that
the loan required an inspection and she was expecting defendant to contact her. She
described defendant’s demeanor during the call as “very aggressive,” “hostile and
bullying.” Defendant told Michele that she needed to contact her broker and “get” her
broker to “understand” that she needed a more comprehensive inspection. Around
2:00 p.m., Michele called Adrian Q. and asked him to find a new inspector because she
did not like the way defendant spoke to her, she did not know what defendant was talking
about, and she felt uncomfortable having defendant come to her home.
At 2:13 p.m., on July 11, 2014, defendant e-mailed Adrian Q., stating, “Please be
advised that unless you order an inspection of the property before 4 p.m. today, I will
start legal proceedings against you, the lender, and the borrower for fraud upon
government and endangerment of the public.” The e-mail also stated that defendant
would do his best to stop Michele’s loan application and ensure that the lender and the
appraiser no longer worked on the project, unless Adrian Q. ordered the inspection.
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At 2:16 p.m., on July 11, 2014, defendant called Michele and told her that her
broker had canceled the inspection but she was still responsible for ordering an
inspection. He also said she would be subjected to fines and fees and be reported to state
and federal authorities if she did not order an inspection. Michele told defendant she
would contact her broker again and ended the call.
At 2:58 p.m., on July 11, 2014, Adrian Q. e-mailed defendant, again canceling the
inspection and instructing defendant not to contact Michele again. At 3:15 p.m.,
defendant called Michele, but she let the call go to voicemail. In a voicemail message,
defendant told Michele he would file criminal charges against her unless she ordered the
inspection from him before 4:00 p.m. Michele then called Adrian Q., who told Michele
to ignore defendant.
On Saturday, July 12, 2014, defendant e-mailed Adrian Q., saying that Adrian Q.
should be fired; Adrian Q. was “collud[ing]” with the lender and others to defraud the
FHA and taxpayers; the appraiser had overvalued the property; defendant had a contract
with Michele; Michele was defendant’s client and Adrian Q. had no authority to fire
defendant; Adrian Q. had defamed defendant; defendant would use the internet to “hit the
reputations of all the culprits involved in this project very severely”; defendant had filed a
complaint with the building department, and would file suit against Adrian Q. if Adrian
Q. did not cease and desist his activities.
The July 12, 2014 e-mail to Adrian Q. also stated: “You should be aware that I
have now completed my task and I am due my fees. I’ll invoice the borrower and if she
refuses to pay, I will put a lien on her property and take action in civil court until she 6
pay[s] . . . .” Adrian Q. testified that defendant was not owed any fees because he had not
performed the physical FHA inspection.
On July 12, 2014, defendant called Jason M., Michele’s mortgage broker, for
whom Adrian Q. worked. Defendant told Jason M. that the property needed extensive
repairs and permits, and suggested that the borrowers obtain a “203k loan” to finance the
necessary repairs. Jason M. told defendant they could pay him for his services but did
not need him anymore. Defendant said, “ ‘Well, we can do a 203k loan. I’m a general
contractor. I can do the work. They can cash out $35,000 and I can fix the house.’ ”
Jason M. told defendant that the borrowers did not need any of the work defendant
was describing and told defendant he was “ ‘being a little fraudulent here. I think you’re
trying to cash out on them, cash them out to take over the general contractor claim.’ ”
Defendant then became “a little belligerent and started yelling.” He said he would get
Jason M.’s license revoked and would prosecute Jason M. “ ‘to the fullest extent of the
law,’ ” unless Jason M. did what he was demanding. Jason M. told defendant that the
property “ ‘should be fine now’ ” because it had been inspected around 18 months earlier.
On Monday, July 14, 2014, defendant sent an email to Jason M., stating that
unless Jason M. gave defendant “immediate access” to the property to physically inspect
it, defendant would, among other things, call the fire department to inspect the property
on defendant’s behalf, “in which case it will cost the property a whole amount of money
for code violations and required repairs . . . into the thousands of dollars.” The e-mail
gave Jason M. “one hour” to comply with defendant’s demands or defendant would “file
further reports against all of you.” 7
Later on July 14, Jason M. called defendant and reminded him that the inspection
had been canceled. But defendant continued to threaten Jason M., Michele, and others,
and claim that the property was unsafe. At 3:52 p.m. on July 14, defendant again e-
mailed Jason M., stating he had just filed “federal criminal loan fraud charges” against
Mark and Michele; to pass this information on to them because they had told him not to
contact them, and he would be seeking an “inspection warrant” to enter the property.
At 5:47 p.m., on July 14, defendant e-mailed Jason M. that he had filed criminal
complaints against Jason M. and Adrian Q., as well as against Mark and Michele. This e-
mail asked Jason M. who would be paying for “the services” defendant had “performed”
to “avoid” placing a lien on the property, and noted that, if defendant placed a lien on the
property, “you would not be able to refinance. So please let me know who is going to
pay me?” At 8:38 p.m., defendant e-mailed Jason M. that he had told the fire marshal
and the building and safety division of the county that a propane tank on the property was
unpermitted and substandard.
Meanwhile, at 1:45 p.m., on July 14, 2014, defendant texted Michele, saying he
had filed four administrative complaints against her, and she should e-mail or call him
before he filed criminal complaints, which could “put” her “behind bars.” At 1:53 p.m.,
Michele e-mailed defendant, saying he was threatening her, she did not want to work
with him, she would hire another inspector, and if he contacted her again she would
report him to HUD for harassment. She also informed defendant that she had read
reviews about him on RipoffReport.com that said he was “a slanderer,” he was “crazy,”
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and advising people not to work with him. She also told defendant she would call the
police if he attempted to enter her property.
Defendant then e-mailed Michele again, on July 14, 2014, saying he had generated
an inspection report and asking whether she had read it. Michele responded by e-mail,
telling defendant she had ordered a report from another “engineer” and not to contact her
again. Michele then received several “compliance inspection reports” from defendant, on
HUD-approved forms, concerning the property and signed by defendant as a “HUD
inspector.”
The first inspection report, dated and signed by defendant on July 11, 2014, stated
that defendant was unable to inspect the property on July 11 because the “lenders and
borrowers refuse entry for life and safety inspection.” The July 11 report stated that the
property’s foundation, building, electrical, plumbing, mechanical, and grading systems
were all “defective”; that “extensive unpermitted work” was “noted”; and that “extensive
life and safety issues” were “present.” The July 11 report also stated that the “appraisal”
was “defective” and that a “CE [code enforcement] complaint” had been filed.
A second compliance inspection report, dated and signed by defendant on
July 14, 2014, stated that, “despite several warnings about extreme hazardous conditions”
at the property, the “owners, lenders, and brokers refuse to provide entry for inspection of
life and safety issues”; in addition, the county building and safety division and the fire
marshal had been notified of the dangerous conditions on the property and had been
asked to inspect the property on HUD’s “behalf.” The report further stated: “Any
appraisal and approval of this loan before investigation [is] considered defective.” 9
Around 10 p.m., on July 14, 2014, defendant posted a report on RipoffReport.com,
containing Michele’s and Mark’s names and address, defendant’s allegations about the
defects in their property, and claims that defendant was threatened that he should “sign
off on the property” or be fired from the inspection assignment. He also created a
“CrimeReports.online” webpage containing Michele’s contact information and alleging
she had committed crimes.
At 7:36 a.m., on July 15, 2014, defendant again e-mailed Michele with an invoice
for $200 for “property permit and title check,” stating, “Please pay the attached invoice
immediately to avoid additional legal fees.” The attached invoice stated that a
mechanic’s lien would be “placed against the property and additional fees will be
charged” in case of nonpayment. A mechanic’s lien would have prevented Michele’s
lender from approving her FHA loan. Jason M. gave Michele $200 to pay defendant, and
Michele paid defendant the $200, not because she owed him for the canceled inspection,
but because he was threatening her and she wanted him to “go away.” Jason M. agreed
that defendant was not owed the $200.
After he received the $200, defendant continued to contact Michele. On
July 16, 2014, he e-mailed Michele, thanking her for the $200 payment, telling her she
was entitled “to one free foundation inspection,” but saying he did not need to inspect the
inside of her house or “anything else” because he already knew its condition. In the same
e-mail, defendant said the county would “soon” be inspecting the property, and Michele
would “be forced to make the required corrections,” but he hoped Michele could “get
funding for some parts” of the repairs and “get” her “contractors to pay for others.” 10
Defendant ended the e-mail by stating, “Let me know otherwise I will pursue my current
path, costing you more than if you had listened to my advice.”
On July 18, 2014, defendant e-mailed Michele, informing her that her foundation
and plumbing had been modified without permits, but he could withdraw his complaints
and help her avoid trouble with federal, state, and local agencies. He asked her to take
pictures beneath her home, and he offered to help her with the financing of what he
claimed were necessary repairs. Michele did not know whether her plumbing was
properly permitted because pipes that ran through the bottom of the home had been
replaced.
Meanwhile, Michele’s mortgage brokerage firm hired a licensed civil engineer,
Ingrid S., to inspect the foundation and determine whether it met FHA guidelines, even
though the lender was not requiring an inspection. On July 15, 2014, Ingrid S. wrote a
letter certifying that the home was on a “permanent foundation system” that met HUD
requirements.
On July 23 and 24, 2014 defendant e-mailed Ingrid S., challenging her foundation
inspection report. He also authored another compliance inspection report, dated and
signed July 24, stating that Ingrid S.’s report was “criminally fraudulent” and that the
“borrowers, lenders, appraisers, [and] engineers” were “in collusion to commit fraud.”
On July 25, 2014, defendant again e-mailed Ingrid S., stating that the loan was
fraudulent, he had filed criminal complaints against the parties involved, and he would
file criminal complaints against her if she was complicit in the fraud. He claimed the
county’s code enforcement division would not act because Ingrid S.’s report was being 11
treated as a full inspection of the home. He asked Ingrid S. to reinspect the property and
remove any ambiguities in her report to prevent Michele’s “fraudulent” loan from being
approved. At 4:12 p.m., on July 25, defendant e-mailed Ingrid S. that she had 30 minutes
to rescind her report or he would “fil[e] against” the licenses of Ingrid S. and her
assistant, William S., and file criminal charges against them. At 8:00 p.m., on July 25, he
e-mailed Ingrid S., stating he would post complaints online about Ingrid S. and
William S.
On July 26, defendant again e-mailed Ingrid S., with a copy to Michele, stating: “I
really hope you guys would not be stupid enough to make me go through this but I will if
I have to. If there is an earthquake, there is not an iota of doubt that this house will move
away from its lousy support and collapse like a house of cards. If earthquake does not do
it now, the heavy corrosion will do it eventually. This . . . house is a death trap. If the
owners are so stupid that they do not care for their own safety, I think they should die to
teach a lesson to others but the problem is that FHA and the taxpayers will have to foot
the bill for these imbeciles and you crooks and that is where my job comes into play.”
(Italics added.)
The July 26, 2014 e-mail made Michele even more fearful of defendant and what
he might do. Before July 26, defendant was threatening Michele and others, but he was
now saying that Michele and her husband should “die in the house.” After July 26,
Michele no longer allowed her 16-year-old daughter to stay at home alone. The home
was in a rural area on a two and one-half acre lot, and there were no nearby streetlights or
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neighbors. Michele would watch cars go by her home, wondering whether it was
defendant.
On August 12, 2014, defendant authored another compliance inspection report for
the property, stating that the water and electrical services to the property posed “life and
safety risks” and should be disconnected “until such time as permits have been secured.”
Michele had not noticed any problems with the water or the electricity at her home. Also
on August 12, defendant e-mailed his August 12 report to Michele’s water district and
asked the water district to shut off the water to the property.
The general manager of Michele’s water district, Don B., called defendant in
response to his August 12 e-mail and refused to shut off the property’s water. Defendant
became irate, yelled, and demanded that the district turn off the water. In his 20 years as
the district’s general manager, Don B. had never received “any kind of request like that
from any inspector demanding that we turn off somebody’s water.” Don B. told
defendant that he appeared to be making a fraudulent claim, and that he was not
authorized to demand that the district shut off the property’s water. Don B. ended the
call, but defendant called back and “was threatening and yelling” that the district would
be sued and that Don B. was incompetent. Defendant later e-mailed Don B. and copied
the district’s board members, saying that the property lacked plumbing permits, the
district was providing water to a “substandard building,” and advising Don B. to seek
“mental health services.”
On August 13, 2014, Don B. went to the property, observed its exterior, and saw
no visible water leakage from the water service line to the home. Also on August 13, 13
someone named “Ali Fardi” e-mailed the water district’s board members, saying Don B.
was “a crazed paranoid and schizophrenic lunatic.” Based on his conversations with
defendant, Don B. believed defendant sent the e-mail. At trial, defendant also admitted to
having lived with Fardi and having sometimes used Fardi’s computer and e-mail address.
Thereafter, defendant, again using Fardi’s e-mail address, posted complaints on
RipoffReport.com about the water district’s board members.
On August 14, 2014, defendant issued yet another compliance inspection report,
his fifth concerning the property, asking the water and power companies to shut off the
water and power to the property. On the same day, defendant e-mailed numerous parties,
alleging that Southern California Edison had initially declared the property’s electrical
panel to be unsafe but reversed itself following a second inspection. Defendant disagreed
with the results of the second inspection and claimed that the improper sealing of the
electrical panel presented a “HUGE FIRE HAZARD.” He wrote, “This is a shame and
disgrace on anybody in place of authority reading this for putting the lives of these
suicidal homeowners in danger, never mind HUD and the taxpayers.” Defendant wrote
that Michele’s FHA loan required HUD certification, but the home was not HUD
certified, so the FHA loan had to be “annulled.” By August 14, Michele had completed
her refinance loan.
Jason M. reported defendant’s threats and communications to HUD. On August
16, 2014, defendant e-mailed Michele, Jason M., and Adrian Q., stating that HUD
officials had contacted him concerning their complaints about him and demanding that
they retract their “false allegations.” He said he was no longer working as an FHA 14
inspector; he was “pursuing” the matter “personally”; and he intended to seek criminal
penalties for providing the “false engineer’s report to obtain the refinance.” He would
also be filing “additional complaints with SCE to shut off power as a citizen.” On
August 18, defendant e-mailed numerous parties, stating he would file a criminal
complaint with the HUD inspector general for “mortgage fraud.”
On August 19, 2014, while Michele was away from home and at work, her
husband Mark returned home around 10:30 a.m., after running errands, and found a green
Land Rover parked in front of the home. A hatch was open that provided access to the
crawl space beneath the home. Mark thought someone might be stealing copper. He saw
a man whom he later identified as defendant4 come out of the hatch, and he said to the
man, “ ‘I’m the fucking homeowner. Who are you? What the fuck are you doing
underneath my house?’ ”
Mark asked defendant for his identification and for whom he worked. Defendant
said he worked for Edison, came out of the hatch, and began walking toward his vehicle.
Mark then asked defendant for his supervisor’s name and phone number. Defendant said
he had that information in his vehicle, then he got into his vehicle and drove away. Mark
punched the rear driver’s side window of the vehicle out of frustration. Mark wrote down
4 Mark had never seen defendant before and did not initially know that defendant was the man who came out of the hatch, but Mark realized that defendant was the man after he obtained the Land Rover’s license plate number, the number was traced to defendant, and he identified defendant from a photo lineup. Mark also identified defendant in court as the man who came out of the hatch.
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the vehicle’s license plate number, called 911, and a sheriff’s deputy arrived around
20 minutes later. Mark also called Michele and told her she needed to come home right
away and that he had called the police.
A sheriff’s deputy contacted Mark at the property. Mark was concerned for his
family’s safety. The deputy found a flashlight in the crawl space beneath the home.
Michele was concerned that defendant had placed a bomb beneath the home, and the
deputy called the bomb squad. No explosives were found.
Soon after defendant was on their property, Mark and Michele placed a fence in
front of their home and filed for a civil restraining order against defendant. Mark had
health problems, which were exacerbated by stress, and he became anxious and
physically ill after Michele showed him some of defendant’s e-mails. Mark had already
seen defendant’s July 23 e-mail in which defendant said he thought Mark and Michele
“ ‘should die’ ” to teach others a lesson.
At 2:45 p.m., on August 19, 2014, defendant e-mailed Ingrid S. and copied
numerous others, including Michele. The e-mail stated that, earlier that day, he “had a
chance to make a site visit of the exterior of the building where [he] was physically
assaulted by the homeowner and [his] car’s window sustained damage because of the
homeowner’s wild and brutal attack.” He said he now had “a complete knowledge of the
subject property first hand,” and he again asked Ingrid S. to withdraw her “completely
fraudulent” report or he would include her in his “complaint” for “mortgage fraud.”
On August 21, 2014, a San Bernardino County Sheriff’s detective arrested
defendant for extortion. The detective seized defendant’s cell phone and two computer 16
towers and other items from defendant’s home pursuant to a search warrant. In an
interview, defendant initially denied he was at Michele’s property, then he said he was on
the property and opened the hatch but claimed he did not go underneath the house.
On August 28, 2014, defendant sent Ingrid S. a lengthy e-mail, with a copy to
Michele, detailing his concerns with the property and Ingrid S.’s “fraudulent” report, and
accusing Ingrid S. and William S. of numerous crimes and regulatory violations. In the
same e-mail, defendant also said he had filed a complaint against Michele and Mark with
the department of social services for the “willful endangerment of a minor,” ostensibly
their teenage daughter, due to the dangerous condition of the home, and he threatened to
add Ingrid S. to his complaint if she did not retract her report.
On September 11, 2014, the San Bernardino County Superior Court issued a civil
restraining order against defendant and in favor of Michele, Mark, and their teenage
daughter. The order awarded Michele $770, comprised of $270 in court costs and $500
in attorney fees. The restraining order prohibited defendant from contacting Michele,
Mark, or their daughter “directly or indirectly, in any way,” including by telephone, e-
mail, or text message. Defendant was personally served with the order. The order stated
that “[p]eaceful written contact through a lawyer or process server, or other persons for
service of legal papers related to a court case is allowed and does not violate this order.”
On September 13, 2014, Michele was copied on an e-mail that defendant, or
someone acting on his behalf, sent to her mortgage brokerage firm, stating that the firm
owed him “offset costs incurred during the course of [his] contract” with the firm and that
he intended to file a mechanic’s lien against the property for those costs unless he was 17
paid those costs. A preliminary notice of an intent to file a mechanic’s lien for $10,655
against Michele’s property was attached to the e-mail.
The September 13, 2014 preliminary notice stated that the $10,655 mechanic’s
lien was for “FHA Inspection and Verification of Site and Work Improvements” that
defendant provided to the property. The e-mail also included an itemized list of the
$10,655 lien claim. The list included the $770 in court costs and attorney fees that
Michele was awarded for pursuing the civil restraining order, which defendant never
paid, along with $250 in “court reporter’s fee[s],” and $750 in “appellate court’s filing
and costs.”
The list also included a “bail amount” of $3,500, “vehicle impound” of $350,
“vehicle impound release” of $50, a $135 cab fare, and a total of $3,150 for “seized”
equipment, namely two desktop towers with upgrades, a smartphone, and two business
software discs. The list further included $500 for the cost of a damaged wall and door
that defendant attributed to “law enforcement break-in repair,” $400 for “forced travel
costs” to and from San Bernardino County, $300 for “legal research costs” and, finally,
$500 for “miscellaneous.”
2. The Two Mechanic’s Liens Against the Property
On November 6, 2014, defendant caused a $10,655 mechanic’s lien to be recorded
against the property. He later filed an action in Los Angeles County to foreclose the lien.
At the time of trial, from December 2018 to January 2019, the $10,655 lien was still on
the property.
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In 2016, Mark and Michele moved out of state to get away from defendant. In
2017, they filed for bankruptcy. On November 22, 2017, during the bankruptcy
proceedings, defendant caused a second mechanic’s lien for $150,000 to be recorded
against the property.
3. Jarrod N.’s Testimony
In early 2015, Michele hired attorney Jarrod N. to remove the $10,655 mechanic’s
lien from the property, after defendant filed an action to foreclose the lien in Los Angeles
County against Michele, Jason M.’s mortgage brokerage firm, and Michele’s lender.
Jarrod N. opined that the lien was invalid on its face because it was not based on work
performed on real property.
The court in the Los Angeles County case granted Michele’s lender’s motion to
change the venue to San Bernardino County, but defendant did not pay the fee to transfer
the case to San Bernardino County. Jarrod N. also did not pay the fee because his
strategy was to wait five years and move to dismiss the lien foreclosure action for failure
to prosecute. As noted, the $10,655 mechanic’s lien was still on the property at the time
of trial. Michele and Mark could not afford to pursue an action to remove the lien.
In a December 11, 2015 letter to Jarrod N., defendant wrote that he was “now
going to proceed with the rest of [his] criminal complaints” against Jarrod N. and his
clients, and he advised Jarrod N. that he had posted three websites using the names of
Jarrod N. and two other attorneys in Jarrod N.’s office. The letter then stated: “You
should also be aware that as I think your clients [Mark and Michele] are somewhat
related to San Bernardino County terrorist attack, I will be sending all the sites to the 19
media. [¶] Your malicious clients have painted me as a Middle Eastern terrorist. You
are all about to learn a very valuable lesson in getting yourselves involved with Middle
Eastern terrorism. [¶] Today is absolutely your last chance. There is no way in the
world I am going to let you scoundrels get away with what you are doing. I will not rest
until justice is served against you corrupt, ruthless animals.” (Italics added.) Jarrod N.
understood the letter to be an implied threat to harm him and others, and he forwarded the
letter to Michele and Mark.
On February 2, 2017, defendant e-mailed Jarrod N. and “all of” Jarrod N.’s
neighbors at Jarrod N.’s high-rise office complex, stating that Jarrod N. and the others at
his firm were “involved in and directly responsible for the events that led to” the
December 2015 San Bernardino terrorist attack. The e-mail further stated that the
lawyers at Jarrod N.’s firm had “been repeatedly warned that conducting their terrorist
activities out of that office could put the lives of the occupants of that complex in danger .
. . . [¶] . . . [W]e do not have any information as to any imminent attack on that building,
but you should beware that we have been warned by various sources, including San
Bernardino officials and agents of Mojahedin-e-Khalq terrorist group, that once we
expose these criminals to the world, we should only expect more violence and San
Bernardino style terrorist attacks . . . . [S]hould there be any backlash from our exposé,
either by extremist Islamists or by the San Bernardino mercenaries, we will hold the
property managers and the occupants of that complex responsible for any outcome.”
The February 2, 2017 e-mail “created a panic” in Jarrod N.’s office and with his
neighbors, his landlord, and the police department. Jarrod N. reported the matter to the 20
police, and it took him nearly a week to explain the matter to the landlord, his neighbors,
and the police. The e-mail also disrupted Jarrod N.’s business “for at least several
months.” Jarrod N. opined that, in sending the e-mail, defendant intended to create a
panic and problems for Jarrod N.
Jarrod N. sued defendant for defamation for posting defamatory websites about
Jarrod N., his colleagues, and his law firm. On August 1, 2017, the judge in the
defamation action issued a judgment in favor of Jarrod N., and defendant was ordered to
take down defamatory websites he had posted about Jarrod N. and others. Defendant did
not initially take down the defamatory websites; instead, he created more websites
targeting Jarrod N. and his staff, including several young women who worked in Jarrod
N.’s firm, calling them “whore[s]” and “all sorts of other really horrible things.”
Defendant was found in contempt of the Los Angeles court order to take down the
defamatory websites. In the fall of 2017, he removed some of the websites, but at his
criminal trial in 2019, he still had active websites targeting Jarrod N., his colleagues,
Michele, Mark, and others related to the 2014 transaction involving Michele’s FHA loan.
He continued to attack Jarrod N. and members of his firm, following the August 1, 2017
order and judgment in the defamation action.
On August 10, 2017, defendant e-mailed several Islamic centers, and sent copies
to Jarrod N. and others in his firm, stating that the firm was responsible for the San
Bernardino terrorist attack and that the firm was “now contemplating an attack in Orange
County to implicate Muslims and stoke Islamophobia. [¶] It is incumbent on all Islamic
organizations to prevent this corrupt and anti-Islam firm and its staff from their mission 21
or you could find yourselves targets of the movement against this law firm.” The August
10 e-mail included a link to two websites indicating that Jarrod N. and members of his
firm were “terrorists and neo-Nazis.”
On August 17, 2017, defendant e-mailed Jarrod N., stating, “Not only I do not
give in to extortion, I am going to teach you mother fucking extortionist piece of shit a
lesson you will not forget for the rest of your short miserable life you mother fucking
extortionist criminal Fascist Nazi piece of shit. . . . [¶] . . . [¶] I cannot be held
responsible if one of those angry Muslims you are trying to have killed, kills you first you
dumb mother fucking incompetent asshole.” This e-mail also included links to websites
targeting Jarrod N. and others. After receiving this e-mail, Jarrod N. was frightened for
his safety and that of his staff, his family, and others.
B. Defense Evidence
Defendant called several witnesses and testified on his own behalf. He sought to
show that numerous aspects of the property were in substandard condition and that
numerous people who disagreed with his claims about the property were incompetent and
had committed fraud in connection with the property.
1. Defense Witness Testimony
On July 16, 2014, the county responded to defendant’s public records request for
the property’s permits. The manager of the county’s building and safety division, John
L., testified that these records showed that the property received an initial permit for a
septic tank on November 20, 1987, and that the mobile home was “set down” on
22
November 24, 1987. At that time, the home still had wheels and was considered a
vehicle.
On April 29, 1992, the home was placed on a permanent foundation and became
real property. The foundation permit stated that the home was on piers and footings but
did not specify the type of piers. Pursuant to state law, the county’s copy of the
foundation plans, which the county used to confirm that the foundation was installed in
accordance with the plans, were destroyed after 90 days. Permits were issued for a patio
cover in 2003 and a replacement septic tank in 2013, after the original septic tank failed.
Defendant called Ingrid S. and her assistant, William S., to testify. Ingrid S. stood
by her report, which certified that the property’s foundation met HUD requirements and
that no structural modifications to the foundation, which were not in compliance with
HUD requirements, were “known to exist.” The scope of her work was limited to “the
structural part” of the foundation, and she was not concerned with other aspects of the
property. She confirmed that the home was on a “ ‘permanent’ ” foundation.
In July 2014, defendant contacted the county’s code enforcement division and
asked them to inspect the property for code violations. The county’s chief code
enforcement officer, Willis W., testified that defendant was making “broad-stroke claims
that the property was in substandard condition,” and that an inspection report for the
foundation (Ingrid S.’s July 15, 2014 report) was fraudulent. On July 23, Willis W. e-
mailed defendant that the county would not be inspecting the property for several
reasons.
23
Willis W. explained the reasons. First, Willis W. was in receipt of a report “from
a licensed professional (civil engineer)” (Ingrid S.) attesting that the foundation met HUD
standards and that no structural modifications had been made to the foundation that
would make it non-compliant with HUD requirements. Second, photos that defendant
had “used to speculate” that some of aspects of the property were “out of compliance”
did “not definitively establish” any code violations.
Third, the hot water heater was unlikely to explode as defendant claimed because
the photos showed it had a thermo-pressure relief valve. Fourth, the owners had asked
the county not to inspect the property, and Willis W. did not believe the county had
grounds to obtain a warrant to enter the property for an inspection. Fifth, defendant was
alleging that the property was in substandard condition without having been to the
property, his services were terminated before they began, and he had written a series of
“threatening and intimidating e-mails” after his services were terminated. In sum, Willis
W. did not believe that defendant’s claims about the property “were at all justified” or
warranted a county inspection.
2. Defendant’s Testimony
Defendant testified that he was not getting a fair trial. He had been “through” 14
attorneys and was representing himself because “every single one” of his attorneys had
colluded with the prosecutor to deprive him of his rights. He was “thrown in jail”
because he dared to challenge the county. His bail was revoked “based on the
assumption” that he was a terrorist.
24
He testified that, on July 8, 2014, Adrian Q. called him and asked him to conduct a
foundation inspection. He immediately saw two “red flags”: (1) he was more than 100
miles away from the property; and (2) a foundation inspection is only needed for new
construction or when there is a problem. He suspected that he was being used to gloss
over “illegal activity” with Michele’s refinance loan.
He received the $125,000 appraisal on July 9, 2014. The appraisal was “bogus”
because it overvalued the property by $20,000 to allow more cash to be taken out of the
home. The appraisal did not contain a “HUD plate” or “VIN” number for the home; it
indicated that the HUD plate had been painted over. An appraisal cannot be completed
without the property’s identifying “HUD plate” number. The appraisal also indicated
that the home was on a permanent foundation, which made defendant suspect there was a
problem, since his work order had asked him to check whether the home had wheels. A
lender would usually have an inspector inspect the property when there was a problem.
Defendant initially inspected the property based on the pictures contained in the
appraisal, which showed extensive problems with the property. The home was a “death
trap.” Its foundation was “nothing”: it consisted of a few cinder blocks and rusted
“carjacks,” resting in dirt.
There were other problems with the property. For example, the electrical system
used flexible conduits; the electrical panel was ungrounded and likely to explode; the
propane tank was improperly secured; the copper piping for the water heater was attached
to steel, which would make the piping corrode; and the plumbing used toxic piping
material. There were also no permits for the property’s electrical, plumbing, or 25
mechanical systems, and no records showed that the property was inspected after its
foundation was approved. The lack of permits alone should have “kill[ed]” Michele’s
refinance application, and homes with illegal work like Mark and Michele’s had
“exploded.” But the county refused to inspect the property because it was corrupt, and
HUD officials had no idea what they were doing. Jason M. also threatened to put
defendant in jail.
On July 10, 2014, defendant told Adrian Q. that Adrian Q. needed to take care of
the problems with the property, but Adrian Q. refused. Defendant thought the home
needed $35,000 in repairs, and he proposed refinancing the home with a $35,000 cash-out
“203K loan” designed to fix distressed properties. He did not have a financial incentive
in proposing the alternative loan because his contractor’s license had been inactive since
1998. He viewed his role as a consultant and not solely as a property inspector.
On July 11, 2014, defendant discussed the property’s problems with Michele. He
said her life was in danger due to the hazards in the home. He could get the contractor
who installed the plumbing to fix the plumbing for free, but she refused, and he later
suspected that Mark had done the plumbing. He also claimed he later discovered that
William S. had installed the foundation and was involved in a “racket[]” with his brother
to install faulty foundations.
Defendant attempted to alert authorities about the property’s condition. He
claimed the county’s code enforcement division was prepared to conduct a full inspection
until Ingrid S.’s foundation report found no problems. But Ingrid S. was not a structural
engineer, the foundation had to be bolted down in order to comply with HUD guidelines, 26
and there was no record of this occurring. He claimed he later went to the home to
protect his professional integrity, but Mark displayed a firearm and told him to leave, so
he left. He believed he could go into uninhabited areas, as long as no one was present, if
he was concerned about the property’s safety. After he left the property, he sent an e-
mail to “everyone” saying he was at the property.
After Michele applied for a civil restraining order, defendant’s daughter served a
20-day preliminary notice of defendant’s intent to file a mechanic’s lien against the
property. Defendant believed that the civil restraining order allowed him to send legal
documents to Michele through a third party, and he later caused the $10,655 mechanic’s
lien to be recorded. He claimed the lien was valid because he was trying to improve the
property, and the costs of his arrest and bail in this case were part of the costs of doing his
job. He filed an action to foreclose the lien in Los Angeles County because he was
located there and his contract to inspect the property was breached there.
During the current criminal proceedings, one of defendant’s former attorneys told
him that the charges would be dropped if he would remove the $10,655 mechanic’s lien
and pay attorney fees to Jarrod N.’s firm. But the San Bernardino terrorist attack then
occurred, and he put up a website claiming that the San Bernardino County Sheriff’s
Department was responsible for the attack. He claimed he was told to remove the
website or he would be charged with stalking, but he refused to remove the website, to
release the mechanic’s lien, and to pay the attorney fees. As a result, he was charged
with stalking and additional crimes.
27
Defendant claimed he was only trying to do two things by becoming involved with
Michele’s property: protect taxpayer money, and protect lives and physical safety. His
e-mail saying that Mark and Michele “should die” was intended to tell them that they
were living in a “very dangerous house.”
Defendant had previous experiences with fraud and corruption in the building and
mortgage lending industries. While working as a property manager in the early 2000s, he
knew that plumbing contractors and building inspectors were colluding to hide shoddy or
unperformed plumbing work. After he tried to protect the property owners by enforcing
the plumbing code, the plumbing contractors and the building inspectors “went after”
him.
While later working as a building inspector for a bank, he knew that brokers were
telling appraisers to “jack up the price[s]” of the homes in order to fatten the brokers’
commissions. The bank retaliated against him, then fired him, after he refused to
perpetuate the fraud. He then “took [the bank] down” by filing mechanic’s liens against
its properties and its customers’ properties, but he released the liens after the FDIC took
over the bank and asked him to release the liens. He first threatened the bank that he
would file the liens unless the bank rehired him, and he threatened to file criminal
complaints against several of the bank’s employees.
He had also been involved in other disputes in which he had threatened people,
accused them of fraud and other crimes, and filed mechanic’s liens. In one dispute, he
threatened to have a family living in Iran “tried in Islamic court for [the] death penalty.”
28
He wrote that his “ultimate goal” was to have the family tried in Iran and “ ‘have them
executed and post the pictures of their corpses on my website.’ ”
He claimed he did not extort people; he only made demands through legal
processes. He also claimed he exercised his freedom of speech to create websites about
people with whom he had disputes. He admitted he had impersonated other people “a
hundred times.” He forged one of his former attorney’s signatures in filing a motion to
dismiss the charges, and he forged his daughter’s signature on a proof of service.
After Mark and Michele filed for bankruptcy in 2017, a realtor listed their home
for sale on behalf of the bankruptcy court. Defendant told the bankruptcy court he would
release his $10,655 mechanic’s lien if Mark and Michele would tell the realtor about the
many problems with the property. Because the prosecutor and Michele were not listening
to him, in 2017 he caused to be recorded a second mechanic’s lien for $150,000 against
the property. He was owed “way more” than $150,000 for losses he had incurred in
connection with this case.
III. DISCUSSION
A. Substantial Evidence Supports Defendant’s Convictions in Counts 1 through 5
Defendant claims insufficient evidence supports each of his convictions in counts
1 through 5. We conclude substantial evidence supports each conviction.
In considering a claim that insufficient evidence supports a conviction, we review
the entire record in the light most favorable to the judgment to determine whether it
contains substantial evidence—evidence that is reasonable in nature, credible, and of
solid value, such that any rational trier of fact could have found the defendant guilty of 29
each element of the crime beyond a reasonable doubt. (People v. Johnson (1980)
26 Cal.3d 557, 576.) We presume, in support of the judgment, the existence of every fact
the trier of fact could have reasonably inferred from the evidence (ibid.), bearing in mind
that reasonable inferences may not be based on “ ‘suspicion alone, or on imagination,
speculation, supposition, surmise, conjecture, or guess work.’ ” (People v. Morris (1988)
46 Cal.3d 1, 21.) Reversal for insufficient evidence is unwarranted unless it appears
“ ‘that upon no hypothesis whatever is there sufficient substantial evidence to support
Defendant was charged in count 2 with extorting Michele for money and other
property on or about July 14, 2014. (§§ 518, 519.)
The jury was instructed that, to prove this crime, the People had to prove:
(1) defendant threatened to unlawfully injure the property of another person, or
threatened to accuse another person of a crime; (2) when making the threat, defendant
intended to use that fear to obtain the other person’s consent to give him the money or
property; and (3) as a result of the threat, the other person then gave defendant money or
property. (CALCRIM No. 1830.) 34
The instruction reflected the elements of extortion: “(1) A wrongful use of force
or fear, (2) with the specific intent of inducing the victim to consent to the defendant’s
obtaining [the victim’s] property, (3) which does, in fact, induce such consent and results
in the defendant’s obtaining property from the victim.” (People v. He1sslink (1985)
167 Cal.App.3d 781, 789.) “Fear, such as will constitute extortion, may be induced by a
threat . . . [¶] . . . [t]o do an unlawful injury to the person or property of the individual
threatened . . . [¶] [or] . . . [t]o accuse the individual threatened . . . of a crime.” (§ 519.)
“ ‘ In order to establish extortion, “the wrongful use of force or fear must be the
operating or controlling cause compelling the victim’s consent to surrender the thing to
the extortionist.” ’ ” (People v. Bollaert (2016) 248 Cal.App.4th 699, 725.) The threat
that constitutes extortion may be implied from all of the circumstances. (Ibid.) Extortion
is a specific intent crime; thus, “guilt depends on the intent of the person who makes the
threat and not the effect the threat has on the victim.” (Id. at p. 726.)
Defendant claims insufficient evidence shows he wrongfully used force or fear to
obtain the $200 payment from Michele, either by (1) threatening to unlawfully injure
Michele’s property by filing an unlawful mechanic’s lien against it, or by (2) threatening
to accuse Michele of a crime. (§ 519; CALCRIM No. 1830.) Thus, he challenges the
first element—the wrongful use of force or fear element—of his extortion conviction.
On July 15, 2014, defendant e-mailed Michele, stating, “Please pay the attached
invoice immediately to avoid additional legal fees.” An invoice for $200 was attached to
the July 15 e-mail, and the invoice stated that a mechanic’s lien would be recorded
35
against Michele’s property and additional fees would be charged unless the invoice was
paid.
Defendant argues that his July 15, 2014 e-mail did not satisfy the “wrongful use of
force or fear” element of his extortion conviction. He claims the July 15 e-mail did not
threaten to accuse Michele of a crime unless she paid the invoice. (§ 519.) In addition,
before he sent the July 15 e-mail and the $200 invoice, he unequivocally told Michele
that he had already reported her and others to authorities for crimes she and others had
committed. Thus, he argues, he was not “hanging a threat” of accusing Michele of a
crime to induce her to pay the $200 invoice.5
Substantial evidence shows, however, that defendant was continuing to “hang a
threat” to further accuse Michele of crimes, and to further publicize his accusations,
unless she paid the $200 invoice. Between July 11 and July 14, 2014, defendant
repeatedly threatened to accuse Michele, Adrian Q., and Jason M. of crimes unless they
cooperated with him by allowing him to (1) inspect the property, ostensibly for the $200
inspection fee; and (2) fix the property, with a $35,000 cash-out refinance loan. The jury
could have reasonably inferred that defendant’s July 11 to July 14, 2014 threats to accuse
Michele of crimes implicitly continued in his July 15 demand for payment of his $200
5 Defendant also argues that his July 15 e-mail did not constitute “an unlawful threat to injure” Michele’s property (§ 519) because he had probable cause to file a mechanic’s lien if his $200 invoice was not paid. (Ibid.) It is unnecessary to address this argument, in light of the substantial evidence that defendant wrongfully threatened to accuse Michele of crimes unless she paid his $200 invoice. (§ 519.) 36
invoice. That is, he would continue to accuse Michele of crimes, and he would continue
to publicize these accusations, unless she paid the invoice.
The evidence shows that, on July 11, 2014, shortly after Adrian Q. canceled
defendant’s inspection, defendant called Michele and told her she needed to “get” her
broker to “understand” that she needed a more comprehensive inspection. Defendant was
“very aggressive,” “hostile and bullying” during the call. He then e-mailed Adrian Q. at
2:13 p.m., on July 11, stating, “Please be advised that unless you order an inspection of
the property before 4:00 p.m. today, I will start legal proceedings against you, the lender,
and the borrower for fraud upon government and endangerment of the public.” This July
11 threat to “start legal proceedings” “for fraud upon the government and endangerment
of the public” was tantamount to threatening to accuse Michele and others of crimes,
unless his inspection services were ordered and he was paid his $200 inspection fee. (§
519.)
Defendant’s extortionist threats continued after his July 11, 2014 e-mail to Adrian
Q. After he sent the July 11 e-mail, he called Michele at 2:16 p.m., on July 11, telling her
that her broker had canceled the inspection but she was still responsible for ordering an
inspection, and she would be subjected to fines and fees and be reported to federal and
state authorities if she did not order an inspection. In a subsequent, 3:15 p.m. call to
Michele, defendant left a message that he would file criminal charges against Michele
unless she ordered the inspection before 4:00 p.m. that day. No inspection was ordered
on July 11.
37
On July 12, 2014, defendant e-mailed Adrian Q., saying, among other things, that
he had “completed” his “task,” his fees were “due,” and he would invoice Michele, put a
lien on her property, and sue her in civil court unless she paid his fees. Defendant also
spoke with Jason M. on July 12 and threatened to “prosecute” him “to the fullest extent
of the law” unless he agreed to recommend the 203k loan with the $35,000 cash-out for
property repairs. On July 14, defendant texted Michele that he had filed four
administrative complaints against her and that she should contact him before he filed
criminal complaints against her, which could “put” her “behind bars.” This e-mail also
threatened to accuse Michele of crimes unless she (1) allowed him to inspect the
property, ostensibly for the inspection fee, and (2) allowed him to fix the property, with a
$35,000 cash-out refinance.
Also on July 14, 2014, defendant sent Michele two inspection reports, noting
“extensive life and safety issues” with the property (the July 11 report), and that the
“owners” and others had refused to provide “entry for inspection of life and safety issues”
(the July 14 report). The reports thus suggested, and threatened to publicize to others,
that Michele was committing crimes. On July 14, defendant also posted an online report
and a webpage, one implying, and the other expressly alleging, that Michele was
committing crimes.
Against this background, defendant e-mailed Michele at 7:36 a.m., on
July 15, 2014, with his $200 invoice, saying he would claim additional charges and file a
mechanic’s lien against her property unless the invoice was paid. Although the July 15 e-
mail did not itself threaten to accuse Michele of crimes, the jury could have reasonably 38
inferred that defendant’s July 11 to July 14 threats to accuse Michele of crimes, unless
she ordered the inspection and otherwise cooperated with him, were continuing and
implicit in his July 15 e-mail demanding payment of the $200 invoice. That is, defendant
would continue to accuse Michele of crimes, and would further publicize his accusation
to numerous people, unless she paid the invoice.
Defendant points out that his 5:47 p.m., July 14, 2014 e-mail to Jason M.
“unequivocally stated” that he had already filed “criminal complaint[s]” against the
borrowers, Adrian Q., and Jason M. “for threats and blackmail with local jurisdictions.”
But this July 14 e-mail did not necessarily mean that defendant would no longer threaten
to accuse Michele of crimes unless she cooperated with him, including by paying his
$200 fee. Based on the entire record, including defendant’s previous threats, the jury
could have reasonably inferred that defendant would continue to threaten to accuse
Michele and others of crimes, and that defendant would further publicize his allegations
against Michele and others, unless Michele paid his $200 invoice as he demanded in his
July 15 e-mail.
As discussed, defendant threatened to accuse Michele of crimes in his July 11 to
July 14 communications unless she cooperated with him, and his threats were escalating.
Michele testified that she paid the $200 invoice, not because defendant had done any
work or was owed any money, but because he was threatening her and she wanted him to
“go away.” In sum, substantial evidence shows that defendant extorted the $200 payment
from Michele by implying that he would continue to threaten to accuse her of crimes and
39
would further publicize his criminal accusations against her unless she paid him the $200.
(§ 519.)
3. Extortion with a Threatening Letter (§ 523, Count 3)
Defendant was charged in count 3 with extorting Michele by sending her a
threatening letter on or about September 13, 2014. (§§ 519, 523.)
The jury was instructed that, to prove this crime, the People had to prove
(1) defendant sent or delivered a threatening letter or other writing to another person;
(2) in the letter or writing, defendant threatened to unlawfully injure the other person or
the property of the other person; and (3) when sending or delivering the letter or writing,
defendant intended to use fear to obtain money or property with the other person’s
consent. (§§ 519, 523; CALCRIM No. 1831.)
The evidence shows that, on September 13, 2014, Michele received a copy of a
letter that defendant, or someone acting on his behalf, sent to her mortgage brokerage
firm, stating that the firm owed him “offset costs incurred during the course of his
contract” with the firm, and that he intended to file a mechanic’s lien against Michele’s
property for the $10,655 sum unless he was paid that sum. A preliminary notice of an
intent to file a mechanic’s lien for $10,655 against Michele’s property was attached to the
e-mail.
The preliminary notice stated that the $10,655 sum was for an “FHA inspection”
and “verification of site and work improvements,” and included an itemized list of the
$10,655 claim. The list included the $770 in court costs and attorney fees that Michele
was awarded for pursuing the September 11, 2014 civil restraining order, which $770 40
sum defendant never paid. The rest of the $10,655 claim was comprised of costs
defendant claimed he incurred in connection with the September 11, 2014 civil
restraining order and his August 21, 2014 arrest for extortion.
Defendant claims that the September 13, 2014 letter was not a threat to unlawfully
injure Michele’s property (§§ 519, 523) because he had “probable cause” to record a
$10,655 mechanic’s lien against her property. Relying on Jarrow Formulas, Inc. v.
LaMarche (2003) 31 Cal.4th 728 (Jarrow), he argues that whether his mechanic’s lien
“theory” would prevail in civil court is “beside the point” because evidence that a civil
action may fail on its merits is not evidence that filing and serving the civil complaint is
unlawful. (See id. at p. 743 [“[A]n action that ultimately proves nonmeritorious may
have been brought with probable cause.”].) He also points out that, “[c]ounsel and their
clients have a right to present issues that are arguably correct, even if it is extremely
unlikely that they will win . . . .” (In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650.)
This argument disregards the standard of review. Notwithstanding defendant’s
claim that his $10,655 mechanic’s lien claim was legal and in good faith, the jury could
have reasonably credited Jarrod N.’s testimony that the entire $10,655 mechanic’s lien
was “invalid on its face” because none of the $10,655 amount was for work or services
performed on Michele’s real property. (See Civ. Code, § 8400 et seq.) The jury also
could have reasonably inferred that defendant’s September 13, 2014 letter to Michele,
demanding payment of the $10,655 sum under the threat of recording a $10,655
mechanic’s lien against her property, was a threat to unlawfully injure her property unless
41
he was paid the $10,655. (§§ 519, 523.) Thus, substantial evidence supports defendant’s
conviction in count 3 for extortion by a threatening letter. (§§ 519, 523)
4. Violating the Civil Restraining Order (§ 166, subd. (a)(4), Count 4)
Defendant was charged in count 4 with violating the September 11, 2014 civil
restraining order, a misdemeanor. (§ 166, subd. (a)(4).) The prosecutor argued that
defendant violated the restraining order by sending Michele the September 13, 2014
letter, threatening to file a $10,655 mechanic’s lien against her property unless he was
paid the $10,655 sum. The proof of service of the preliminary notice, which was attached
to the September 13 letter, along with the preliminary notice, was signed by Daalina
Dinaali on September 13.
The jury was instructed, that to prove count 4, the People had to prove, among
other things, that defendant willfully violated the September 11 civil restraining order by
sending Michele the September 13 letter. (See CALCRIM No. 2700.) The jury was
further instructed that an act is committed willfully when it is committed “willingly or on
purpose.” (Ibid.)
Defendant argues that, in testifying at trial, Michele “speculated” that defendant
was the person who sent Michele the September 13, 2014 letter and preliminary notice, or
that he directed someone to do so on his behalf. He points out that, in a prior declaration,
Michele stated that defendant’s wife sent the e-mail. Thus, he argues, insufficient
evidence shows he violated the September 11 order because insufficient evidence shows
he directed “Daalina Dinaali” to sign the proof of service and send the preliminary notice
and September 13 letter to Michele. This argument is completely unavailing. The record 42
shows that defendant signed the September 13, 2014 letter, demanding payment of the
$10,655 sum, to which the preliminary notice and proof of service were attached. The
record also shows that Michele was not speculating, but reasonably inferring, based upon
the content of the letter and her on-going dispute with the defendant, that defendant either
sent the letter and preliminary notice to her, or directed one “Daalina Dinalli”—a person
ostensibly related to defendant—to sign the proof of service and send the September 13
letter and preliminary notice to Michele.
Defendant alternatively argues he did not violate the September 11, 2014
restraining order by sending, or causing another person to send, the September 13 letter
and preliminary notice, because the order provided that “ ‘peaceful written contact
through a lawyer or process server, or other person for service of legal papers related to a
court case is allowed and does not violate this order.’ ” He argues his September 13 letter
and preliminary notice were “in compliance with the exception for peaceful written
service of a court document.”
But substantial evidence shows, and the jury could have reasonably inferred, that
defendant had no lawful basis for demanding that Michele pay him any part of the
$10,655 sum on September 13, 2014, and no lawful basis for filing a mechanic’s lien for
the $10,655 sum, at any time. No part of the $10,655 sum was for a work of
improvement on Michele’s property. (Civ. Code, § 8400 et seq.) Rather, the entire
$10,655 sum was for costs defendant incurred in connection with the September 11 civil
restraining order and his August 21 arrest for extortion.
43
Thus, the jury could have reasonably inferred that defendant had no lawful basis
for demanding any part of the $10,655 sum, and that he sent the September 13 letter and
preliminary notice to Michele as a means of continuing to harass her. Thus, substantial
evidence shows that defendant violated the September 11 civil restraining order by
sending Michele the September 13 letter and preliminary notice.
Defendant was charged in count 5 with procuring and offering a false or forged
instrument, a felony (§ 115, subd. (a)), on November 6, 2014. The record shows that, on
November 6, defendant caused the $10,655 mechanic’s lien to be recorded against
Michele’s property. The jury was instructed that, to prove count 5, the People had to
prove (1) defendant caused a false document to be recorded in a public office in
California; (2) when defendant did that act, he knew that the document was false; and (3)
the document was one that, if genuine, could be legally filed or recorded. (CALCRIM
No. 1945; § 115, subd. (a).) “[S]ection 115 was designed to prevent the recordation of
spurious documents knowingly offered for record.” (Generes v. Justice Court (1980)
106 Cal.App.3d 678, 681-682.)
Defendant does not dispute that he caused the $10,655 mechanic’s lien to be
recorded on November 6, 2014. He argues, however, that insufficient evidence shows
that the lien was false. Again, he argues that a claim can be lawful, or made in good
faith, even though it ultimately fails on its merits. (See Jarrow, supra, 31 Cal.4th at p.
743.) Again, however, substantial evidence shows that the entire $10,655 mechanic’s
lien was false—it was “invalid on its face”—because none of it represented work 44
performed to improve Michele’s property. (Civ. Code, § 8400 et seq.) Thus, the jury
could have reasonably inferred that defendant knew the lien was false when he caused it
to be recorded on November 6. Accordingly, substantial evidence supports defendant’s
conviction in count 5.
B. No Unanimity Instructions Were Required To Be Given on Counts 2 and 5
Defendant claims the trial court prejudicially erred in failing to give unanimity
instructions, sua sponte, on counts 2 and 5. We find no error.
1. Applicable Legal Principles
In criminal cases, the jury must unanimously agree that the defendant committed a
specific crime. (People v. Russo (2001) 25 Cal.4th 1124, 1132.) Thus, “when the
evidence suggests” that more than one discreet crime was committed, “either the
prosecution must elect among the crimes or the court must require the jury to agree on the
same criminal act. [Citations.] [¶] This requirement of unanimity as to the criminal act
‘is intended to eliminate the danger that the defendant will be convicted even though
there is no single offense which all the jurors agree the defendant committed.’
[Citations.] . . . [¶] On the other hand, where the evidence shows only a single discreet
crime but leaves room for disagreement as to exactly how that crime was committed . . .
the jury need not unanimously agree on the basis or, as the cases often put it, the ‘theory’
whereby the defendant is guilty.” (Ibid.) “Thus, the unanimity instruction is appropriate
‘when conviction on a single count could be based on two or more discrete criminal
events,’ but not ‘where multiple theories or acts may form the basis of a guilty verdict on
45
one discrete criminal event.’ ” (Id. at p. 1135; see People v. Hernandez (2013)
217 Cal.App.4th 559, 569.)6
2. No Unanimity Instruction Was Required to be Given on Count 2 (Extortion)
In count 2, defendant was charged with extorting Michele by extorting “money
and other property . . . by means of force and threat, such as mentioned in section 519,”
on or about July 14, 2014. Following the close of the evidence, the jury was instructed
that all of the crimes allegedly occurred between July 11, 2014 and December 10, 2015.
Extortion is the obtaining of property or other consideration—anything of value—
from another person with that person’s consent. (§ 518.) To prove count 2, “extortion by
threat,” the jury was instructed that the People had to prove (1) defendant threatened to
unlawfully injure the property of another person, or threatened to accuse another person
of a crime; (2) when making the threat, defendant intended to use “that fear” (of unlawful
injury or criminal accusation) to obtain the other person’s property; and (3) as a result of
the threat, the other person consented to give, then gave, the defendant money or
property. Consent for extortion can be “coerced or unwilling,” as long as it is given as a
result of the wrongful use of force or fear. (CALCRIM No. 1830.)
6 The unanimity pattern instruction, CALCRIM No. 3500, states: “The defendant is charged with <insert description of alleged offense> [in Count ][sometime during the period of to ]. [¶] The People have presented evidence of more than one act to prove that the defendant committed this offense. You must not find the defendant guilty unless you all agree that the People have proved that the defendant committed at least one of these acts and you all agree on which act (he/she) committed.”
46
In his closing argument, the prosecutor did not argue that count 2 was based on a
single letter or e-mail that defendant sent to Michele. Rather, he argued defendant
committed extortion, as charged in count 2, by (1) threatening to accuse Michele of a
crime—to file criminal complaints and “put [her] behind bars,” and by (2) threatening to
place unlawful mechanic’s liens against her property, unless she paid him $200 for the
canceled property inspection he did not perform. The prosecutor argued, “not only did he
threaten to unlawfully injure the property to get money, but he also threatened to accuse
them of crimes to get the money . . . .”
As defendant points out, the evidence shows he sent multiple letters and e-mails to
Michele—between July 11 and July 14, 2014—in which he threatened to accuse her of
crimes and threatened to file a mechanic’s lien against her property unless she paid him
$200 for the canceled inspection. Given that he made “many calls” and sent “many e-
mails,” he argues, “some jurors may have disagreed about whether a particular call or e-
mail threatened criminal prosecution or contained an unlawful threat to property.” Thus,
he argues, without a unanimity instruction, or “an election tying a specific
communication to the charge, the jury may not have unanimously agreed that any
particular message constituted the threatening letter or writing required for a section 523
conviction.”
We conclude that no unanimity instruction was required to be given on count 2, by
the court sua sponte, because the evidence did not suggest that defendant committed more
than one discrete crime of extortion by threat. (People v. Russo, supra, 25 Cal.4th at
p. 1132.) Rather, the evidence showed he committed only one crime of extortion by 47
threat: he extorted $200 from Michele by continually threatening her, in writing between
July 11 and July 15, 2014, to continue to accuse her of crimes, and to continue to
publicize his accusations, unless he was paid the $200. (§§ 518, 519, 523.)
To be sure, the evidence left room for disagreement among the jurors as to exactly
how defendant committed the crime: either he extorted Michele of the $200 by
threatening to accuse her of crimes, or he extorted her of the $200 by threatening to injure
her property by filing an unlawful mechanic’s lien against it. (People v. Russo, supra,
25 Cal.4th at pp. 1132, 1135.) But the jury was not required to agree on whether
defendant threatened to accuse Michele of crimes or threatened to injure her property; it
was only required to unanimously agree that defendant made either of these threats. (Id.
at p. 1135.) Thus, the court did not have a duty to instruct the jury sua sponte that it had
to unanimously agree on exactly how, or by which particular communication, defendant
unlawfully threatened Michele unless she paid him $200.
3. No Unanimity Instruction Was Required for Count 5 (Filing False Document)
As discussed, defendant was charged in count 5 with offering a false document for
filing in a public office within California (§ 115, subd. (a)), namely, the mechanic’s lien
for $10,655 he caused to be filed against Michele’s property on November 6, 2014. The
jury was instructed that, to prove this crime, the People had to prove defendant (1) caused
a false document to be filed or recorded in a public office in California; (2) when
defendant did this, he knew the document was false, and (3) if genuine, the document
could legally be filed or recorded. (CALCRIM No. 1945.)
48
Defendant points out that, although count 5 was based on the $10,655 mechanic’s
lien that he caused to be filed against Michele’s property on November 6, 2014, during
closing argument the prosecutor mentioned the mechanic’s lien he caused to be filed
against Michele’s property, in 2017, for $150,000. Thus, he argues, “some jurors may
have disagreed on which lien was a false document.” That is, some jurors may have
believed he was “entitled to the costs associated with his work in the first lien,” and
others may have “thought the second lien was valid,” given that, by 2017, he had learned
that an entity associated with William S. had installed and approved the foundation.
This argument, too, is unavailing, for at least two reasons. First, the prosecutor
relied on the 2014 mechanic’s lien as the basis of the charge in count 5, not the 2017
mechanic’s lien. The prosecutor mentioned the 2017 mechanic’s lien in his closing
argument, not as the basis of the charge in count 5, but in arguing that defendant had
continually harassed Michele for years, including in 2017, for purposes of the harassment
element of the stalking charge in count 1. (§ 646.9, subd. (a).) Second, the jury was
instructed that all of the crimes allegedly occurred between July 11, 2014 and December
10, 2015. This time frame prohibited the jury from considering the 2017 mechanic’s lien
as the basis for count 5.
In sum, the prosecutor relied on the November 6, 2014 mechanic’s lien as the
basis for the charge in count 5, and the instructions prohibited the jury from basing its
conviction in count 5 on the 2017 mechanic’s lien. For these reasons, the court did not
have a duty to give a unanimity instruction sua sponte on count 5.
49
C. The Marsden Motion to Remove Attorney Peter S. Was Properly Denied
Defendant claims the trial court erroneously denied his posttrial Marsden motion
to relieve his appointed counsel, Peter S., and to appoint another attorney to represent
him in posttrial proceedings, including for the purposes of filing a motion for a new trial
and representing defendant at sentencing. Defendant claims Peter S. had a conflict of
interest in representing him. We conclude that the court did not abuse its discretion in
denying defendant’s Marsden motion to relieve Peter S.
1. Relevant Background
When the court denied defendant’s Marsden motion to relieve Peter S. on
June 28, 2019, defendant had previously been represented by numerous court-appointed
and private attorneys. To place the motion in perspective, we summarize the lengthy
background preceding the denial of the motion.
The complaint was filed in April 2015. The court appointed the public defender to
represent defendant at his arraignment on August 20, 2015. On October 5, 2015, the date
of the preliminary hearing, the court denied defendant’s Marsden motion to relieve
deputy public defender Phillip Z. In January 2016, another deputy public defender,
Mark B., began representing defendant.
On May 3, 2016, defendant filed a Marsden motion to relieve Mark B. He
claimed Mark B. had a conflict of interest in representing him because he was pursuing
“criminal police reports and administrative charges” against Mark B., with law
enforcement agencies and the State Bar of California, for several offenses including
“dereliction of duties.” Defendant admitted having posted “websites exposing the 50
incompetence and negligence” of Mark B. and Phillip Z. He was pursuing “similar
complaints” against supervising public defender, Rasheed A., and the public defender,
Phyllis M., and had been “prompted . . . to publish additional websites” concerning
Rasheed A. and Phyllis M. after they ignored his e-mails.
On May 5, 2016, the public defender’s office declared a conflict of interest in
representing defendant and was relieved as his counsel. That day, the court appointed the
conflict panel to represent defendant. On October 13, 2016, Scott B., from the conflict
panel, declared a conflict of interest. On October 19, 2016, Stuart O., from the conflict
panel, began representing defendant. On November 21, 2016, defendant told the court
that he did not want “this attorney,” Stuart O., to represent him. The court held a
Marsden hearing and denied defendant’s motion to relieve Stuart O.
On February 22, 2017, defendant told the court he wished to represent himself, the
court granted defendant’s Faretta7 motion, and relieved the conflict panel. The court
vacated the February 27 preliminary hearing date and reset the preliminary hearing on
March 13. On March 2, a first amended felony complaint was filed, and defendant pled
not guilty to the charges on March 9. On March 9, the prosecutor told the court that
defendant had been sending him e-mails and letters, threatening criminal and
administrative proceedings against the prosecutor personally and the district attorney’s
office. Based on defendant’s threats, the prosecutor told the court, and the court agreed,
7 Faretta v. California (1975) 422 U.S. 806 (Faretta).
51
that the prosecutor would no longer communicate with defendant except in court and on
the record.
On March 13, 2017, defendant asked the court to appoint counsel for him. The
court reappointed Stuart O. from the conflict panel and continued the preliminary hearing
to March 16. On March 16, defendant asked the court to continue the preliminary
hearing again so he could hire private counsel. The court denied defendant’s continuance
request and proceeded with the preliminary hearing. Defendant was held to answer, and
an information was filed on March 21.
At his March 24, 2017 arraignment, defendant asked the court to continue the
matter so he could hire private counsel. The court continued the arraignment to May 5
and, on that day, defendant appeared with a private attorney, Christopher K., and pled not
guilty. On July 28, 2017, Christopher K. asked to be relieved. The court relieved
Christopher K. and granted defendant’s request to continue the matter, once again, so
defendant could seek new counsel, but the court limited the continuance to 30 days.
On September 1, 2017, defendant hired a second private attorney, Eugene C., and
another attorney specially appeared for Eugene C. The specially appearing attorney told
the court that Eugene C. had been hired only for the “specific purpose” of filing a section
995 motion. On the next court date, October 6, Eugene C. asked to be relieved as
counsel, and his request was granted. Defendant told the court he wanted to hire yet
another private attorney, and the court continued the matter to October 13. On October
13, defendant was granted an additional two-week continuance to find another private
attorney. 52
On October 27, 2017, private attorney George W., defendant’s third private
attorney, specially appeared for defendant and explained that defendant had only hired
him to file a section 995 motion. The court asked whether defendant was planning to
represent himself in the case, including at trial, with George W. assisting him in filing a
section 995 motion. Defendant said he did not wish to represent himself and claimed
George W. had agreed to represent him at trial if the section 995 motion was denied. The
court set a November 17 hearing date for the section 995 motion.
On November 17, 2017, the court relieved George W. and granted defendant yet
another continuance to find private counsel. The court struck a section 995 motion that
defendant filed on November 2 because defendant falsely used George W.’s name and
state bar number in filing the motion.
In court, on November 17, George W. confirmed that he did not file the motion,
and defendant admitted that he filed the motion, falsely using George W.’s name and
state bar number. Meanwhile, on November 14, 2017, the prosecutor filed a motion to
revoke defendant’s bail and remand him into custody. On November 17, the court set a
December 1 hearing date on that motion.
On December 1, 2017, defendant had not hired another private attorney, so the
court appointed Robert P. to represent defendant. Robert P. was a former member of the
conflict panel. After Robert P. was appointed, defendant complained that he still wanted
to hire a private attorney and wanted more time to do so. The prosecutor urged the court
not to grant defendant any further continuances and to proceed with the motion to revoke
defendant’s bail. 53
The prosecutor claimed that defendant’s bail should be revoked because he posed
an extreme danger to the public: he had defamed and threatened all of his prior attorneys,
Michele, other witnesses, other people involved in the case, and people associated with
people involved in the case. He had also posted defamatory websites about his prior
attorneys, the prosecutor, others involved in the case, and people associated with them.
For example, after Eugene C. was relieved as counsel, defendant posted a website stating
that Eugene C. was a “white-collar criminal” and a “fraudulent and corrupt and
malicious” attorney who was “part of a scheme responsible for the current wave of
Islamophobia caused by” the San Bernardino County terrorist attack. Defendant had also
violated court orders not to threaten people and not to contact anyone involved in the case
except through counsel—conditions of his continued release on bail.
The court continued the hearing on the bail revocation motion to December 4,
2017, and gave defendant until then to hire private counsel. The hearing was later
continued to December 5. On December 5, defendant, Robert P., and a private attorney,
Eric A. appeared in court. Eric A. told the court that he had spoken with defendant the
day before, had read documents defendant had given him, and had concluded he could
not represent defendant. Defendant told the court that Eric A. could not represent him
because Eric A. was on the conflict panel, and he needed more time to find an attorney.
Eric A. asked the court to order defendant not to “create websites” with Eric A.’s “name
on them,” and the court made that order. The court also struck, as “completely
unfounded,” an affidavit of prejudice defendant filed to disqualify the judge who was
scheduled to hear the motion to revoke his bail. (Code Civ. Proc., § 170.1.) 54
At this point, Robert P. was still defendant’s attorney. The court ordered
defendant not to file any motions while he was represented by counsel and proceeded
with the motion to revoke defendant’s bail. Robert P. told the court he was not ready to
proceed on the motion, both because he had not had the time to prepare and because his
only conversations with defendant had been that defendant wanted to hire a private
attorney. Robert P. urged the court to give defendant additional time to hire an attorney.
The prosecutor objected to any further continuances of the bail revocation hearing,
and told the court that, on November 17, 2017, defendant filed a “malicious $150,000”
mechanic’s lien against Michele’s property, ostensibly to prevent the property from being
sold. Defendant had also recently threatened to report Michele’s realtor, who was listing
her property for sale, to “the Bureau of Real Estate for False Advertising” and for crimes,
in violation of the court orders not to contact people involved in the case except through
counsel. The realtor’s family was “in extreme fear.” Defendant was also continuing to
threaten, harass, and defame numerous other people.
The court continued the bail revocation hearing to December 22, 2017, after
defendant told the court he would be prepared to defend the motion, without counsel, if
he could not hire an attorney before December 22. On December 8, defendant filed a
motion to recuse the San Bernardino County District Attorney and for sanctions against
the district attorney and defense attorneys, claiming his prior attorneys had all “colluded”
with the prosecutor.
On December 22, 2017, defendant, Robert P., and a private attorney, Ken B.,
appeared in court. Ken B. said he was making a special appearance for the bail 55
revocation hearing; he had just been hired the day before; he had not had time to prepare;
and he asked the court to continue the hearing. The court relieved Robert P. and gave
defendant the option of defending the bail revocation motion in propria persona.
Defendant claimed that all of his prior attorneys, including Robert P. and Ken B., had
“colluded” against him with the prosecutor, and that the court lacked jurisdiction to
proceed with the hearing. Defendant also denied he had hired Ken B. and said, “I would
like to fire him.”
The court proceeded with the hearing, with Ken B. representing defendant.
Shortly before the hearing began, defendant was remanded into custody for continuing to
interrupt the court, after the court admonished him that he would be remanded if he did
so. At the conclusion of the hearing, defendant was ordered remanded into custody
without bail. The court found that defendant would not follow court orders, he was
inherently dangerous, and his behavior was “going to get someone killed.”
The case was set for trial on January 22, 2018. On January 11 and 17, defendant
requested more time to retain counsel. On January 19, he still did not have counsel. The
court told defendant that, because he would not listen to court orders, the court would not
allow him to represent himself at trial until he was evaluated, and that could not occur
until he had counsel. The court vacated the January 22 trial date, set a trial readiness
conference on January 26, and set trial on January 29.
On January 26, 2018, defendant said he had retained an attorney, Mark C., but
claimed that Mark C. had “backed out” of representing him after “he was threatened and
intimidated by the district attorney.” Defendant said he wanted to represent himself. 56
Attorney Brian W., who supervised the conflict panel, appeared on January 26 and
confirmed that the entire conflict panel could not represent defendant due to conflicts.
The court’s judicial assistant contacted attorney Peter S., who agreed to appear in court
on January 29.
On January 29, 2018, Peter S. appeared by special appointment by the court and
entered not guilty pleas for defendant on the second amended information. Peter S. said
he had met with defendant that morning and recommended that the court suspend
criminal proceedings and institute a section 1368 evaluation to assess defendant’s
competence to stand trial. The court declared a doubt concerning defendant’s
competence, suspended the criminal proceedings, ordered two psychological
examinations for defendant, and set the next hearing on March 5.
After two psychologists reached different conclusions on defendant’s competency
to stand trial, the court ordered a third evaluation. The third evaluator found defendant
incompetent to stand trial.
At the next court hearing on April 23, 2018, Peter S. told the court that defendant
did not want Peter S. to represent him and that defendant wanted to represent himself.
Defendant had also filed a complaint against Peter S. with the State Bar. The court found
that defendant used such complaints as “a tactic” and set a jury trial to determine
defendant’s competence to stand trial.
During the jury trial on defendant’s competence, defendant told the court he would
like a different appointed attorney, other than Peter S., and the court denied the request.
Later during the trial, defendant again asked for another attorney because Peter S. was 57
“lying.” Again, the court denied the request. Shortly before defendant accused Peter S.
of “lying,” Peter S. objected to defendant testifying at the trial, and the court did not
allow defendant to testify. The next day, defendant told the court he was “firing” Peter
S., and the court again denied the request. Peter S. argued to the jury that defendant was
incompetent to stand trial, that is, he could not, in a rational manner, help Peter S. defend
him, and two of the evaluators testified that defendant had paranoid delusional disorder
and should be hospitalized.
On June 20, 2018, the jury found defendant competent to stand trial. On July 3,
Peter S. moved to be relieved as defendant’s counsel, based on defendant’s repeated
requests to fire Peter S. and to represent himself. The court granted Peter S.’s motion,
relieved Peter S., and later granted defendant’s Faretta request to represent himself. As
noted, defendant represented himself at trial. He testified he had had 14 attorneys and
there had been 14 judges in the case, and all of them had colluded with the prosecutor and
“deprived” him of his rights.
The jury returned its guilty verdicts on February 7, 2019. On March 8, the original
sentencing date, defendant asked the court to continue the sentencing hearing and to
appoint an attorney to represent him in filing a new trial motion and for sentencing. He
told the court he was physically disabled, he could hardly work, and he was “under heavy
medication.”
After Michele gave a victim impact statement and testified that defendant owed
her a total of $26,826.80 in restitution, the court continued the hearing to April 19, 2019,
in order to find an attorney for defendant. The court told defendant that finding an 58
attorney for him would take time because “most attorneys” in the county had “conflicted
off” his case.
On March 26, 2019, the court reappointed Peter S. On April 9, defendant filed a
motion to disqualify the trial judge, his fifth such motion against the trial judge, based on
Peter S.’s appointment. In this motion, defendant described Peter S. as “a corrupt and
malicious attorney who was forced upon him,” and who had declared him incompetent.
On April 19, 2019, Peter S. and defendant appeared in court, and the matter was
continued to June 28. On April 19, defendant objected to Peter S.’s appointment, saying
he had not appointed Peter S. On June 18 and 19, defendant filed a motion for a new trial
and a motion to reinstate his in propria persona status, both without Peter S.’s assistance.
On June 28, 2019, the court struck defendant’s fifth disqualification motion as
being without merit and having “no basis in fact or reality.” The court also struck
defendant’s new trial motion and defendant’s motion to reinstate his in propria persona
status. Defendant then made a Marsden motion to relieve Peter S. and another Faretta
motion to resume his in propria persona status. The court first heard the Marsden
motion.
During the Marsden hearing, defendant claimed that, before trial, Peter S. had
“fraudulently declared” him incompetent to stand trial after speaking with defendant for
only 10 minutes. He claimed that Peter S. told the jury during his competency trial that
he was “ a dangerous criminal” who “needed to be put away,” and he questioned how
Peter S. could defend him against Michele’s restitution claim, or adequately represent
him on his new trial motion or at sentencing, if Peter S. believed he was such a dangerous 59
criminal. He believed Peter S. agreed with “everyone” that he should receive the
maximum sentence. In addition, Peter S. had not done “a single thing” about his pending
restitution hearing or his motion for new trial.
The court said it was “a little disingenuous” for defendant to claim Peter S. had not
done anything because Peter S. had not had an opportunity to “fully review the case,”
including the trial transcripts or Michele’s restitution claim. Peter S. was not appointed
on March 8, 2019, when Michele testified about the restitution she was owed, and Peter
S. would have to read the trial transcripts before filing a new trial motion. The transcripts
had not been ordered because the case had been stayed on appeal, pending a ruling on
whether the court had properly struck one of defendant’s disqualification affidavits. But
the stay had since been lifted, and the court would now order the trial transcripts.
Concerning defendant’s competency, Peter S. explained that, shortly after he was
first appointed to represent defendant before trial, he, Peter S., spoke with the prosecutor
and defendant’s prior attorneys, and formed the opinion that a section 1368 hearing for
defendant was appropriate. The court noted that two psychologists had also determined
that defendant was incompetent.
Thus, the court did not find that Peter S.’s representation had been deficient in any
respect. The court explained to defendant, and “for the court of appeals,” that in the
court’s opinion, “whatever issues you are experiencing right now are of your own
making. These issues are not unique to Mr. [Peter S.]. As evidence of this, the entirety
of the San Bernardino County Public Defender’s office has recused itself from
representing you. The entirety of the San Bernardino County’s alternative defense, or 60
conflict panel, has recused itself from representing you. All, or at least the vast majority
of the private defense attorneys that regularly work in this county have recused
themsel[ves] from representation, or refused to accept appointment of this Court. [¶] In
addition, the majority of private investigators in this county have refused to work with
you. Finally, numerous judges in this courthouse are recused from hearing your cases.
“These are the fact[s], Mr. Dinaali. The people and the entities designated to
provide services to you have all been frustrated and undermined by your conduct. The
attorneys, judges, parties, witness[es], and litigants who have had contact with you have
all suffered a detriment. You have created websites in the names of judges, attorneys—
both defense and prosecution—public officials, and witnesses. And you have posted
negative information online against these same people. You have filed liens, grievances,
and complaints against everyone associated with your case. [¶] My point is, Mr. Dinaali,
that the problem is not with Mr. Peter S., or any of your prior attorneys, or with anyone
else associated with your cases. The problem is you. You are a difficult—you are
difficult and a difficult personality. It is this Court’s opinion that there is no attorney that
would be satisfactory to you, except yourself.”
The court, thus, denied defendant’s Marsden motion to relieve Peter S. The court
then denied defendant’s Faretta motion to represent himself, noting that during trial, “it
was clear” that defendant was either “unwilling or unable to control” his behavior “and
maintain proper courtroom decorum.”
On December 2, 2019, Peter S. filed a motion for a new trial. On December 13,
the day of sentencing, defendant again objected to Peter S.’s representation “in light of 61
the motion that he has a conflict of interest here.” Defendant said he “need[ed]” to
represent himself. The court denied the requests. As the court was explaining its rulings,
defendant continued to interrupt and argue with the court, until he was removed from the
courtroom. The court then denied the new trial motion and sentenced defendant.8
2. Applicable Law and Analysis
We review the denial of a Marsden motion for an abuse of discretion. (People v.
Taylor (2010) 48 Cal.4th 574, 599.) The denial of a Marsden motion is not an abuse of
discretion “ ‘ unless the defendant has shown that a failure to replace the appointed
attorney would “substantially impair” the defendant’s right to assistance of counsel.’ ”
(People v. Barnett (1998) 17 Cal.4th 1044, 1085.)
“A criminal defendant is guaranteed the right to the assistance of counsel by the
Sixth Amendment to the United States Constitution and article I, section 15 of the
California Constitution. This constitutional right includes the correlative right to
8 On September 27, 2019, Peter S. received the exhibits that the prosecution had submitted in support of Michele’s restitution claim, so that Peter S. would be able to present any issues concerning the restitution claim at sentencing on December 13. Peter S. did not raise any issues concerning the restitution claim. Regarding the new trial motion, Peter S. told the court on December 13 that he could “not find any meritorious issue that would justify a new trial.” He had seen from reading the trial transcript that the court had gone “overboard” to ensure that defendant received a fair trial, and defendant had received a fair trial. The only potential issue Peter S. raised in the new trial motion concerned the prosecutor’s potential conflict of interest in prosecuting defendant based on defendant’s online postings of defamatory statements about the prosecutor. (§ 1424.) But, in the motion, Peter S. noted that the court “thoughtfully” considered the issue and made a reasoned decision not to recuse the prosecutor.
62
representation free from any conflict of interest that undermines counsel’s loyalty to his
or her client.” (People v. Doolin (2009) 45 Cal.4th 390, 417 (Doolin).) “ ‘As a general
proposition, such conflicts “embrace all situations in which an attorney’s loyalty to, or
efforts on behalf of, a client are threatened by his responsibilities to another client or a
third person or his own interests.” ’ ” (Ibid.)
Defendant claims that Peter S. had an “extremely serious” conflict of interest in
representing him in the posttrial proceedings because, during the 2017 jury trial on
defendant’s competence to stand trial (§ 1368), Peter S. argued that defendant was not
competent to stand trial and that defendant’s defense theories were “ ‘ridiculous.’ ” In
the 2017 competence trial, Peter S. argued to the jury that defendant was unable to assist
Peter S. in presenting a defense “in a rational manner” because defendant would have
Peter S. argue to the jury in his criminal trial that the entire San Bernardino County law
enforcement and legal community had conspired to bring false charges against him.
Peter S. said that defendant would have him “stand in front of a criminal jury and say,
hey, the cops are in on it. The judge is in on it. The defense lawyer is in on it. All of his
multitude of prior defense lawyers have been in on it. All the DA’s have been in on it. I
mean that’s ridiculous.” (Italics added.)
As the lengthy history of this case shows, defendant accused all of his many
attorneys of conspiring against him, and as, therefore, having conflicts of interest in
representing him, without basis in fact or reality. The court was aware of this history,
and in denying defendant’s posttrial Marsden motion to relieve Peter S., reasonably
rejected defendant’s claim that Peter S., too, had such a conflict of interest. 63
Further, Peter S.’s opinion that defendant was incompetent to stand trial and that
defendant’s conspiracy defense was “ridiculous” did not show that Peter S. had any
conflict of interest in representing defendant at any time, including in the posttrial
proceedings. There was no evidence that Peter S. had any personal interest, or loyalty to
anyone other than defendant, that undermined his loyalty to defendant and that therefore
conflicted with his ability to competently represent defendant.
Defendant points out that, at sentencing, Peter S. did not make any argument on
his behalf, including that any of his sentences should have been stayed under section 654.
Thus, he argues, “the People cannot show beyond a reasonable doubt that Peter S. did not
pull his punches, so the sentencing should be reversed.”
To the extent defendant is arguing that Peter S. rendered ineffective assistance of
counsel at sentencing, it is defendant’s burden to show that Peter S. had an “ ‘ actual’
conflict of interest—one that in fact adversely affected counsel’s performance.” (People
v. Perez (2018) 4 Cal.5th 421, 435-436; Doolin, supra, 45 Cal.4th at pp. 420-421.)
Defendant has not made this showing here. He has not shown that Peter S. had an actual
conflict of interest such that Peter S. “ ‘pulled his punches’ ” by failing to argue that one
or more of defendant’s sentences on counts 3, 4, or 5 should have been stayed under
section 654. (People v. Perez, at pp. 435-436.)
D. Defendant’s 365-day Term on Count 4 Was Required To Be Stayed (§ 654)
Defendant claims the trial court erroneously failed to stay two of the three terms it
imposed on his convictions in counts 3, 4, and 5. He claims these convictions were based
64
on a single course of conduct and were incident to a single intent and objective; thus, he
argues, imposing separate terms on these convictions violated section 654.
We agree that defendant’s concurrent, 365-day jail term on count 4 was required
to be stayed, because that count was based on the same acts underlying counts 3 and 5.
But counts 3 and 5 were based on separate acts, and substantial evidence shows and the
trial court could have reasonably found that defendant harbored separate intents and
objectives in committing counts 3 and. 5.
1. Relevant Background
Defendant was convicted of sending a threatening letter with the intent to extort in
count 3 (§§ 519, 523), violating the civil restraining order in count 4 (§ 166, subd. (a)(4)),
and causing a false document, the $10,655 mechanic’s lien, to be recorded in count 5
(§115, subd. (a)). Defendant was sentenced to four years on count 2 (extortion),
consecutive eight-month terms on counts 1 (stalking) and 5 (filing the false mechanic’s
lien), plus a consecutive one-year term on count 3 (extortion by threatening letter). A
concurrent 365-day jail term was imposed on count 4 (civil restraining order violation).
Michele obtained a civil restraining order against defendant on
September 11, 2014. On September 13, 2014, defendant sent Michele an e-mail, stating
he intended to file a (false) $10,655 mechanic’s lien against her property unless she paid
him the $10,655 sum. A preliminary notice for filing a $10,655 mechanic’s lien was
attached to the e-mail. On November 6, 2014, defendant recorded a false mechanic’s lien
in the amount of $10,655 against Michele’s property.
65
The prosecutor argued that defendant committed count 3 (extortion by threatening
letter) by sending Michele the September 13, 2014 e-mail. He also argued that defendant
violated the September 11, 2014 restraining order (count 4) both by sending Michele the
September 13, 2014 e-mail and by filing the false $10,655 mechanic’s lien on November
6, 2014. He argued defendant committed count 5 by recording the false $10,655
mechanic’s lien on November 6, 2014.
2. Applicable Law
Section 654 states in relevant part: “An act or omission that is punishable in
different ways by different provisions of law may be punished under either of such
provisions, but in no case shall the act or omission be punished under more than one
“ ‘ “Whether a course of criminal conduct is divisible and therefore gives rise to
more than one act within the meaning of section 654 depends on the intent and objective
of the actor. If all of the offenses were incident to one objective, the defendant may be
punished for any one of such offenses but not for more than one.” ’ ” (People v.
Capistrano (2014) 59 Cal.4th 830, 885.) Multiple punishment is permissible, however,
when the defendant had a separate intent and objective for each offense for which he was
convicted. (Id. at p. 886.)
“Whether section 654 applies in a given case is a question of fact for the trial
court, which is vested with broad latitude in making its determination. [Citations.] Its
findings will not be reversed on appeal if there is any substantial evidence to support
them. [Citations.] We review the trial court’s determination in the light most favorable 66
to the respondent and presume the existence of every fact the trial court could reasonably
deduce from the evidence.” (People v. Jones (2002) 103 Cal.App.4th 1139, 1143.)
Section 654 also bars multiple punishment for convictions that are based on a single act.
(People v. Jones (2012) 54 Cal.4th 350, 360.)
3. Analysis
Defendant claims that one of his sentences on counts 3, 4, and 5 should have been
stayed under section 654 because his convictions in these counts are based on “a single
course of conduct” incident to a single intent and objective: to “lawfully” record the
$10,655 mechanic’s lien against Michele’s property.
He claims his actions in committing counts 3, 4, and 5 constitute a single course of
conduct because, in order to lawfully record the $10,655 mechanic’s lien, he first had to
serve a preliminary notice on Michele, which he did by his September 13, 2014 letter.
He also notes that, in rebuttal closing argument, the prosecutor linked his acts in
committing counts 3, 4, and 5, as if his acts constituted a single course of conduct: “once
he sent it [the September 13, 2014 e-mail], then that was a threatening letter to extort. It
violated the restraining order. And once he recorded it [the mechanic’s lien], that’s the
false document.”
But “[i]t is the defendant’s intent and objective, not the temporal proximity of his
offenses, which determine whether the transaction is indivisible.” (People v. Harrison
(1989) 48 Cal.3d 321, 335.) Here, substantial evidence shows, and at sentencing the trial
court could have reasonably found, that defendant harbored separate intents and
objectives in committing counts 3 and 5. The record also shows that counts 3 and 5 were 67
based on separate acts. Count 4, however, was based on the same acts underlying counts
3 and 5. Thus, the 365-day jail sentence on count 4 should have been stayed.
Count 3: Substantial evidence shows that defendant was convicted in count 3 of
sending Michele a threatening letter—the September 13, 2014, letter—in which he
threatened to file a $10,655 mechanic’s lien against Michele’s property unless she paid
him the $10,655 sum. (CALCRIM No. 1831.) The record permits a reasonable inference
that, in sending the September 13 threatening letter, defendant intended to extort an
immediate payment of $10,655 from Michele. The act underlying count 3 is defendant’s
act of sending Michele the September 13 threatening letter.
Count 4: The record shows defendant could have been convicted of violating the
September 11, 2014 civil restraining order (count 4) based on two acts: (1) his act of
sending Michele the September 13 threatening letter, and (2) his act of recording the
$10,655 false mechanic’s lien against her property on November 6, 2014. But
defendant’s act of sending Michele the September 13 threatening letter was the basis of
his conviction in count 3, and his act of recording the $10, 655 false mechanic’s lien was
the basis of his conviction in count 5.
Count 5: The record shows that defendant committed count 5 (filing a false
document) by causing the false $10,655 mechanic’s lien to be recorded against Michele’s
property on November 6, 2014. Thus, defendant’s conviction in count 5 is based on his
singular act of causing the $10,655 lien to be recorded. Substantial evidence also shows,
and the court could have reasonably concluded that defendant harbored an intent and
objective in committing count 5, separate from and independent of his intent and 68
objective in committing count 3: that is, to cause damage to Michele’s property rights
and to prevent her sale of, or further refinance of, the property.
In sum, the record shows that counts 3 and 5 were based on separate acts and
separate intents and objectives. Count 4, however, is based on the same acts underlying
count 3 (the Sept. 13 threatening letter) and count 5 (the recording of the $10,655
mechanic’s lien). Thus, the concurrent 365-day jail term on count 4 should have been
stayed.
IV. DISPOSITION
The judgment is modified to stay defendant’s concurrent, 365-day jail term on
count 4. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS Acting P.J. We concur:
RAPHAEL J.
MENETREZ J.
69
AI Brief
AI-generated · verify before citing
Holding. The court affirmed the defendant's convictions for stalking, extortion, sending a threatening letter, violating a restraining order, and filing a false instrument, but held that the concurrent jail term for the misdemeanor violation of a restraining order must be stayed because it was based on the same acts as other counts.
Issues
Whether sufficient evidence supports the convictions for counts 1 through 5.
Whether the trial court erred by failing to give sua sponte unanimity instructions for counts 2 and 5.
Whether the trial court erred in denying the defendant's Marsden motion.
Whether the trial court erred by failing to stay sentences on counts 3, 4, and 5.
Disposition. Affirmed as modified.
Quotations verified verbatim against the opinion
“We agree that defendant’s concurrent 365-day jail term on count 4 should have been stayed because that count was based on the same acts underlying counts 3 and 5.”
“We find no merit to any of defendant’s other claims of error and affirm the judgment in all other respects.”