41 Cal.App.5th 1042
Cal. Ct. App.2019Background
- Defendant Lonnie Schmidt ran a "mortgage rescission" foreclosure-rescue scheme through entities/trusts, obtaining homeowners' quitclaim deeds, charging enrollment fees and lease payments, and asserting control over properties.
- Many homeowners stopped mortgage payments; several properties were foreclosed or clouded by deeds, notices, or purported rescissions recorded by defendant, and some were offered for sale or rent to investors.
- Alan, a longtime associate, testified for the prosecution under immunity; defendant represented himself at trial and repeatedly sought (but was denied) advisory counsel; he also attempted to call witnesses (e.g., Alan, John) but faced evidentiary and immunity limits.
- Defendant was convicted after a lengthy jury trial on multiple counts (false instruments, identity theft, burglary, perjury, grand theft, attempted grand theft, and violations of foreclosure-consultant statutes) and sentenced to 28 years plus one year county jail.
- On appeal the People conceded errors as to several counts; the Court of Appeal reversed convictions on counts 3, 26, 20, 28, 29, and 30, ordered resentencing for some counts (including count 17 and stayed count 21), and affirmed the remainder.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for Civ. Code §2945.4 counts 29 & 30 (School St.) | People conceded lack of proof that victims occupied residence in foreclosure, a required element. | Challenged sufficiency; argued victims did not occupy property so statute inapplicable. | Concession accepted; convictions on counts 29 and 30 reversed. |
| Multiple takings (Bailey) re counts 20–21 and 27–28 | People conceded Bailey requires combining theft/attempted-theft where acts arise from one plan pre-Whitmer. | Argued counts should be merged into single grand-theft counts per Bailey. | Concession accepted; convictions on counts 20 and 27 reversed (merged). |
| Sufficiency under Penal Code §115 (false instruments) counts 3 & 26 (quitclaim deeds) | People contended deeds were false because fraudulently induced and clouded title. | Argued deeds were genuine (grantors had title and intended conveyance); inducement fraud does not make instrument "false" under §115. | Court applied Generes/Denman; held deeds were genuine/voidable (not false or forged); insufficient evidence—counts 3 and 26 reversed. |
| Venue for counts 6 & 8 (documents filed in Placer County) | People argued sufficient nexus to try counts in Sacramento County. | Schmidt objected to Sacramento venue. | Defendant forfeited venue claim by not timely renewing objection; claim rejected. |
| Faretta waiver adequacy (advice on maximum sentence) | People argued defendant was adequately advised of severe penalties; any variance was harmless because appellate adjustments bring sentence into warned range. | Argued court misstated maximum exposure, invalidating waiver. | Waiver held valid based on record as a whole; no reversal. |
| Denial of advisory counsel for pro se defendant | People: appointment discretionary; trial court properly exercised discretion considering record and resources. | Schmidt argued court failed to exercise discretion and abused it given case complexity. | No abuse of discretion; requests properly considered and denied. |
| Prosecutor’s refusal to extend immunity to Alan as defense witness | People: prosecutor not required to immunize defense witnesses; immunity denial did not deprive Schmidt of fair trial. | Argued selective immunity deprived him of due process and compulsory process. | Denial did not improperly distort factfinding; no constitutional violation. |
| Section 654 stays (multiple sentences) including count 21 | People conceded count 21 should be stayed; otherwise argued separate intents/time supported multiple punishments. | Schmidt argued many sentences should be stayed as single objective conduct. | Court accepted concession re count 21 (remand to stay); otherwise upheld trial court findings of separate intents/objectives. |
| Burglary conviction (count 17) and Prop 47 reduction error | People conceded trial court misapplied Prop 47 (commercial shoplifting) to an unoccupied residence sentence. | Schmidt argued reduction to misdemeanor and one-year consecutive was improper. | Court ordered resentencing: burglary should have remained felony second-degree and been sentenced to eight months consecutive (not one year). |
| Imposition of fines/assessments without ability-to-pay hearing (Dueñas) | People argued defendant forfeited ability-to-pay challenge by failing to request a hearing; defendant showed no contemporaneous objection. | Schmidt argued Dueñas entitles him to remand for ability-to-pay determination. | Court found Dueñas-based relief forfeited (no timely objection/request); denied remand for ability-to-pay hearing (concurring judge concurred only in result). |
Key Cases Cited
- Bailey, 55 Cal.2d 514 (Cal. 1961) (multiple-takings doctrine; combine thefts committed pursuant to one plan)
- Whitmer, 59 Cal.4th 733 (Cal. 2014) (reexamined Bailey; allowed multiple convictions for separate, distinct thefts under a single scheme)
- Generes v. Justice Court, 106 Cal.App.3d 678 (Cal. Ct. App. 1980) (broad construction of "false" instrument under §115; instrument may be false if it purports to convey an interest not owned)
- Denman, 218 Cal.App.4th 800 (Cal. Ct. App. 2013) (quitclaim deeds to property with no title could be false and cloud title under §115)
- Faretta v. California, 422 U.S. 806 (U.S. 1975) (constitutional right to self-representation requirements)
- People v. Masters, 62 Cal.4th 1019 (Cal. 2016) (prosecutor not obliged to grant immunity to defense witnesses; limits on due-process claims)
- People v. Crandell, 46 Cal.3d 833 (Cal. 1988) (trial court discretion on appointment of advisory counsel for pro se defendants)
- People v. Jackio, 236 Cal.App.4th 445 (Cal. Ct. App. 2015) (discussed advisement of maximum punishment at Faretta waiver)
- People v. Deloza, 18 Cal.4th 585 (Cal. 1998) (section 654 bars multiple punishment for indivisible course of conduct)
- People v. Nasalga, 12 Cal.4th 784 (Cal. 1996) (application of statutory amendments to defendants whose cases were pending on appeal)
- People v. Dueñas, 30 Cal.App.5th 1157 (Cal. Ct. App. 2019) (ability-to-pay due-process concerns for mandatory assessments)