Filed 3/8/16 P. v. Lind CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B262092
(Super. Ct. No. 1354711)
Plaintiff and Respondent, (Santa Barbara County)
v.
JEFFERY COWAN LIND,
Defendant and Appellant.
A jury convicted appellant Jeffery Cowan Lind of offering a false
instrument for recording (Pen. Code, § 115, subd. (a)), conspiracy to offer a false
instrument for recording (§ 182, subd. (a)(1)), and perjury (§ 118, subd. (a)). The trial
court suspended execution of a three-year, eight-month sentence and imposed five years
of felony probation with terms and conditions including 30 days in jail. Lind contends
that the trial court erred by not instructing the jury on mistake-of-fact and mistake-of-law
defenses and not instructing sua sponte on lesser included attempted offenses, that the
evidence was insufficient to show more than attempted offenses, that the prosecutor
committed misconduct by inflaming the jury with irrelevant evidence of his motive, and
that cumulative error warrants reversal. We affirm.
FACTS
Lind Threatens a Witness at His Son’s Trial
Lind’s son was charged with driving under the influence. During the trial,
Lind was “pacing back and forth” outside of the courtroom. He called the district
attorney’s office and left a voice message stating that his son is in an “unlawful”
proceeding “[that’s] going to cost the city or the county . . . a tremendous amount of
money if [it is] not stopped immediately.” He told the district attorney to call him back,
stating, “You’ll be very glad if you did and very sorry if you don’t.”
Lind encountered Officer Robert Ortega sitting outside the courtroom.
Officer Ortega had arrested Lind’s son and was waiting to be called as a witness in the
case. Lind shook Officer Ortega’s hand and engaged him in conversation. During their
interaction, Lind exhibited aggressive body language: pointing and shaking his hand at
Officer Ortega and the courtroom.1 Officer Ortega walked outside of the courthouse. He
advised the bailiff that he felt Lind was attempting to intimidate him prior to his
testimony. Lind was arrested.
Lind Is Charged with Witness Intimidation
The district attorney’s office charged Lind with witness intimidation
(§ 136.1) and obstructing an executive officer in performance of duties (§ 69). The case
came before Judge Kay Kuns. Representing himself, Lind “demand[ed] . . . the court to
discharge all charges in the interest of justice for absolute lack of cause and lack of
jurisdiction . . . [,] pointing out the criminal acts being committed against Jeffery Cowan
Lind by this court, specifically the magistrate Kay S. Kuns, Judge.” He demanded that
Judge Kuns dismiss the charges “within three judicial days or accordingly show cause
why [the] judge should not be charged with treasonous acts.” Judge Kuns denied the
motion.
1
The record contains no evidence of what they said to one another because the
security camera footage that was played for the jury lacked audio and Officer Ortega did
not testify.
2
Lind Demands $77 Million in Damages from Judge Kuns
Lind sent a set of documents to Judge Kuns’s chambers. He left another set
at her home and sent a copy to the Santa Barbara Risk Management Office. One of the
documents was entitled “National Standard Damage Claim Form” and another was
entitled “Notice and Demand for Damages.” These documents “were nonsensical and
difficult to understand.” They accused Judge Kuns of numerous immoral and criminal
acts, including treason, insurrection, piracy on the high seas, environmental terrorism,
and violating three of the “Ten Commandments of God’s Laws.”2 Lind claimed that she
was liable for $77,763,000 in monetary damages for not dismissing his case.
The “Notice and Demand for Damages” stated that Judge Kuns’s
“immediate visible property . . . shall, at minimum, be the restitution and penance” for
her alleged transgressions. “Therefore,” it continued, “injured party demands that you
execute and deliver to injured party . . . a quitclaim deed to remise, release and forever
quitclaim to injured party the aforementioned visible property . . . .”
Lind Researches Judge Kuns’s Property
Two days later, Lind’s codefendant, Dee Thomas Murphy, went to the
Santa Maria branch of the Santa Barbara Assessor and Clerk Recorder’s office. Murphy
told employee Marlene Ashcom that “he had the name of a person and he needed to find
out what their particular address was.” He gave Ashcom the name “Kay Kuns” without
identifying Kuns as a judge. Ashcom helped him use the computer kiosk to obtain
information about Judge Kuns’s property, including its physical and mailing addresses,
its assessed value, and a list of recorded deeds. He purchased a printout of this
information.
Murphy told Ashcom that he needed the information because “this person,
Kay Kuns, had committed . . . criminal acts and . . . had caused injury to many people
2
Specifically, Lind accused Judge Kuns of violating the Eighth Commandment
(“Thou shalt not steal”), the Ninth Commandment (“Thou shalt not bear false witness
against thy neighbor”), and the Tenth Commandment (“Thou shalt not covet . . . any
thing that is thy neighbor’s”).
3
and . . . needed to be held accountable for that.” Murphy further said that he planned on
recording a “Notice of Intent to Preserve Interest” (NIPI) on behalf of his “client” to
preserve “rights that he felt they had to her property.” He showed Ashcom the “National
Standard Damage Claim Form” that Lind had sent Judge Kuns two days earlier. He said
“he had obtained the paperwork from the NSEA.”
Ashcom informed Murphy that based on the circumstances he was
describing, a NIPI is not a document he should record because he did not own the
property. Murphy “argued . . . that he had a right to [record the NIPI] because they had
an interest in [Judge Kuns’s] property based on [the] charges they had against her.”
Ashcom told him that if he recorded the document, her office would notify the district
attorney’s office. Murphy stated, “Good, because we plan on notifying them ourselves as
well as other agencies.”
After Ashcom’s encounter with Murphy, several persons within Santa
Barbara County were notified about what Murphy was attempting to do, including Senior
Deputy County Counsel Kevin Ready. Ready told the recorder’s office that someone
with an interest in a property is allowed to record a NIPI, but if a person does not have a
current interest in the property, recording a NIPI “would be improper.” Ready instructed
the recorder’s office that if Murphy attempted to record a NIPI on Judge Kuns’s property,
they should accept the document and tell him they would review it, but they should not
record it.
Lind Attempts to Record the NIPI on Judge Kuns’s Property
Eight days later, Murphy returned to the recorder’s office and presented a
NIPI on Judge Kuns’s property signed by Lind. The NIPI did not identify the nature of
Lind’s interest,3 but stated that the Santa Barbara Risk Management Office was the
“[l]ocation of document creating or evidencing interest in claimant.”
Ashcom took the document into the back and made a copy of it. Noticing
that it was not an original, she returned it to Murphy and told him that they could not
3
It stated only “See attached copy of Claim Cover Sheet.”
4
accept a photocopy. Murphy returned with an original, which the recorder’s office
received but did not record. Ashcom told him that somebody would contact him by the
end of the day and “let him know one way or the other if [they’d] be able to record the
document.”
After Murphy left, Ready contacted him by telephone regarding the NIPI.
Ready told Murphy that Lind “[had] to have an interest in the property” to record the
NIPI. Murphy told Ready that Lind did have an interest. Ready asked what the interest
was. Murphy said he had “filed a claim” with six or seven different government offices.
Ready asked for a copy. Within a half hour, Murphy emailed Ready the packet of
documents that included the “National Standard Damage Claim Form” and “Notice and
Demand for Damages.” Lind was cc’d on the email.
Lind Again Attempts to Record the NIPI
Murphy returned to the recorder’s office four days later and “asked
[employee Eva Chavez] to take a few pages that he forgot to submit the first time
with . . . his document.” Chavez told him she could not accept them because they “no
longer had his document.” He smirked and said, “Yes, you can, and, yes, you will.”
Before leaving, he gave her a document entitled “Notice To Clerk and Recorder,” which
stated that “[o]ne of the people of the state, having superior standing, has convened a
common law court of record and has initiated lawful action against one of his purported
‘public servants’ that has trespassed upon his rights. The Tribunal of this action . . . has
presented a [NIPI] for the County Clerk/Recorder of this County to record.” (Fn.
omitted.) It further stated that “all documents” are recorded the minute they are received
and the recorder’s refusal to do so “is considered criminal . . . and . . . is punishable by
fines and imprisonment.”
Criminal Investigation
Jennifer Glimp, an investigator for the district attorney, reviewed emails
between Lind and Murphy that she obtained through a search warrant. The emails show
that Lind and Murphy together registered websites for a “National Standards
Enforcement Agency” (NSEA) and created the NSEA forms that were later completed
5
and sent to Judge Kuns and Risk Management. Lind informed Glimp that Murphy had
the “power of attorney to act on [his] behalf.”
DISCUSSION
Requested Instructions on Mistake of Fact and Mistake of Law
Lind contends that the trial court erred by refusing his requested
instructions on mistake of fact and mistake of law. He asserts that his “only defense”
was “that [he] and Murphy were acting at all times under a sincere belief that the
documents they prepared and offered were lawful and proper.”
“A criminal defendant has the right to instructions that pinpoint the theory
of the defense case. [Citation.]” (People v. Gurule (2002) 28 Cal.4th 557, 660.) A
proposed instruction need not be given, however, “if it incorrectly states the law, is
argumentative, duplicative, or potentially confusing [citation], or if it is not supported by
substantial evidence [citation].” (People v. Moon (2005) 37 Cal.4th 1, 30.) We review
de novo the trial court’s refusal to give a requested defense instruction. (People v.
Manriquez (2005) 37 Cal.4th 547, 581.) In doing so, “‘“we must consider the
instructions as a whole . . . [and] assume that the jurors are intelligent persons and
capable of understanding and correlating all jury instructions which are given.”
[Citation.]’ [Citation.]” (People v. Ramos (2008) 163 Cal.App.4th 1082, 1088.)
A mistake of fact occurs when a person understands the facts to be other
than they are, whereas a mistake of law occurs when a person knows the facts but has a
mistaken belief as to their legal consequences. (People v. LaMarr (1942) 20 Cal.2d 705,
710.) Ordinarily, “ignorance of a law is not a defense to a charge of its violation” (Hale
v. Morgan (1978) 22 Cal.3d 388, 396), and a factual mistake must be objectively
reasonable to negate general criminal intent. (People v. Braslaw (2015) 233 Cal.App.4th
1239, 1250.) Even a mistake of law or an objectively unreasonable mistake of fact may
provide a defense, however, if it negates a required specific intent or mental state. (See
People v. Givan (2015) 233 Cal.App.4th 335, 350; People v. Meneses (2008) 165
Cal.App.4th 1648, 1662.) In both cases, “an accused is only entitled to such an
instruction if the evidence supports a reasonable inference that any such claimed belief
6
was held in good faith. [Citation.]”4 (People v. Vineberg (1981) 125 Cal.App.3d 127,
137.) “In the absence of some evidence from which it can be inferred that [a defendant’s]
alleged belief in the lawfulness of [his] conduct was in good faith, [a] court [is] under no
duty to instruct the jury that a good faith mistake of law constitute[s] a defense to the
action.” (Id. at p. 138.)
Lind and Murphy did not testify at trial and presented no evidence in their
defense. While this was their right, a consequence was that Lind relied on the
prosecution for evidence to support his defense theory. The prosecution presented no
evidence from which the jury could have inferred that he was acting in a good faith belief
that his actions were legal. In fact, there was considerable evidence to the contrary.
Lind’s “claim” for damages speaks for itself. Even accepting that Lind
truly believed he was being tried for witness intimidation unjustly, no reasonable person
in his position would believe that a claim against Judge Kuns for $77 million in damages
was legitimate. Although the ultimate question is what Lind subjectively believed rather
than what is objectively reasonable, without any evidence to explain why he would
believe something so outrageous, the jury could only conclude that he was insincere.
This inference was bolstered by Lind’s disregard of the repeated warnings from
employees at the recorder’s office that he should not record an interest in a property he
did not own and that if he attempted to do so they would contact the district attorney.
(See People v. Stewart (1976) 16 Cal.3d 133, 140 [“[T]he circumstances in a particular
case might indicate that although defendant may have ‘believed’ he acted lawfully, he
was aware of contrary facts which rendered such a belief wholly unreasonable, and hence
in bad faith”].) There was also direct evidence of Lind’s insincerity. In an email to an
acquaintance, he admitted that he attempted to record the NIPI “only as leverage for
[Judge Kuns] to dismiss my case.”
4
Because Lind’s claim of error turns on whether there is evidence of his good
faith, we agree with him that “[t]his court does not need to settle the technical issue of
whether [his alleged lack of knowledge and criminal intent was] caused by mistakes of
fact or mistakes of law.”
7
Lind asserts there was evidence of “his reliance on a website [presumably,
the NSEA website] relied on by many others.” In fact, on the day of the offenses,
Murphy told Ready that the NSEA did not even have a website. And to the extent there
was an NSEA website, the evidence shows that it belonged to Lind and Murphy and that
they created the NSEA forms. There is no evidence that anyone other than Lind and
Murphy used these forms. Because there was no evidence to support Lind’s mistake of
fact and mistake of law defenses, the trial court did not err by refusing pinpoint
instructions.
We agree with Lind that since each of the charged offenses required a
specific intent or mental state, the trial court erred by instructing the jury that “[i]t is not a
defense . . . that the defendants did not know they were breaking the law or they believed
their acts were lawful.” (See People v. Goodin (1902) 136 Cal. 455; CALCRIM No.
3407, Bench Notes [“The court should . . . exercise caution with specific intent crimes. A
mistaken belief about legal status or rights may be a defense to a specific intent crime if
the mistake is held in good faith”].) The error was harmless beyond a reasonable doubt,
however, given the complete lack of evidence to support Lind’s defense theory.
The error was also harmless because the trial court properly instructed on
each of the elements involving a specific intent or mental state. The trial court instructed
that Lind was guilty of offering a false document for recording only if “he knew that the
document was false.” This instruction was referenced in the conspiracy instruction
regarding Lind and Murphy’s intent to commit the target offense. The perjury instruction
similarly required the jury to find that Lind knew his sworn statement—“the information
contained in this [NIPI] is true”—was false. Under each of these instructions, Lind could
not have been convicted if he mistakenly believed that his interest in Judge Kuns’s
property, and thus the NIPI, were valid. Accordingly, the trial court’s instruction was not
prejudicial. (See People v. Garcia (2001) 25 Cal.4th 744, 754-55 [instructing
“‘ignorance of the law is no excuse’” for crime requiring actual knowledge was harmless
error]; cf. People v. Braslaw, supra, 233 Cal.App.4th at p. 1246 [knowledge requirement
in instruction on elements of substantive offense “served the same purpose” as separate
8
instruction on mistake of fact because knowing something is untrue precludes a mistaken
belief that it is true].)
Sua Sponte Instruction on Lesser Included Offenses
Lind contends that the trial court erred by not instructing sua sponte on
attempted offering a false instrument for recording and attempted perjury as lesser
included offenses. “Although a defendant has a constitutional right to have a jury
determine every material issue presented by the evidence and the failure to so instruct is
error, a trial court is not required to instruct the jury as to all lesser included offenses,
only those that ‘find substantial support in the evidence.’ [Citation.] In this context,
substantial evidence is evidence from which reasonable jurors could conclude ‘“that the
lesser offense, but not the greater, was committed.”’ [Citation.]” (People v. Medina
(2007) 41 Cal.4th 685, 700.)
Lind’s argument rests upon his theory that completion of the offenses was
factually or legally impossible because “the authorities were never going to accept the
document for recording.” The offenses were complete, however, as soon as he offered
the NIPI for recording. (People v. Garfield (1985) 40 Cal.3d 192, 195 [section 115
violation “was complete at the moment defendant offered the [document for recording]
with knowledge of its falsity”]; Collins v. Superior Court (2001) 89 Cal.App.4th 1244,
1247 [perjury complete at “the time when [the false sworn statement] is delivered by the
accused to any other person, with the intent that it be uttered or published as true”].) The
likelihood that it would be recorded is irrelevant.
In his reply brief, Lind focuses on section 115’s third element that the
“instrument, if genuine, might be filed, registered, or recorded under any law of this state
or of the United States.”5 (§ 115, subd. (a).) He argues that this “was factually or legally
impossible” because “the document could not be recorded as it was prepared in the name
of someone other than the owner of the property.” Lind misconstrues this element, which
5
Given that Lind did not raise this argument in his opening brief and claimed that
only the other two elements were “‘significant,’” his charge that “[r]espondent ignores
[this] language” is unjustified.
9
“simply seeks to cover as coming within [the statute’s] terms the various classes of
instruments entitled, under our law, to be recorded, such as deeds, mortgages, etc.,
without any regard whatever whether the particular instrument is defective in form or
certification.” (People v. Webber (1919) 44 Cal.App. 120, 129-130 [per curiam opinion
of the Supreme Court denying hearing].)
A NIPI is a recordable instrument. (Civ. Code, § 880.310.) Whether
Lind’s particular NIPI met all of the statutory recording requirements does not bear on
the possibility of his completing the offenses. Consequently, the trial court had no
obligation to instruct on attempted offenses. We reject Lind’s challenge to the
sufficiency of the evidence because it also is predicated on the impossibility of his
completing the offenses.
Prosecutorial Misconduct
Lind asserts that the prosecutor, “under the guise of motive, repeatedly
informed the jurors that the defendants” were “bullies” who “threatened, harassed, and
intimidated Judge Kuns.” In particular, Lind objects to the prosecutor’s statement that
they engaged in “paper terrorism.” He contends that these remarks in the prosecutor’s
opening statement and closing argument amounted to “misconduct . . . so egregious as to
constitute a violation of due process; . . . so deceptive and reprehensible as to violate state
standards, and resulted in an inflamed jury who decided the case not on the facts, but on
emotion and negative feelings about the defendants.” We disagree.
“A prosecutor is given wide latitude to vigorously argue his or her case and
to make fair comment upon the evidence, including reasonable inferences or deductions
that may be drawn from the evidence. [Citation.]” (People v. Ledesma (2006) 39 Cal.4th
641, 726.) The prosecutor’s comments here were appropriate and did not constitute error,
let alone misconduct. The evidence supports the prosecutor’s characterization that Lind
and Murphy threatened, harassed, and intimidated Judge Kuns. They referred to their
attempt to coerce Judge Kuns into dismissing Lind’s case as an “attack” that would “take
out the enemy.” (Capitalization omitted.) Lind told Judge Kuns his “demand” that she
dismiss the charges against him and suggested she would be charged with treason if she
10
did not. Judge Kuns felt “not very good” when she received Lind’s claim packet at her
home. As a result of Lind’s actions, she had to recuse herself from the witness
intimidation case.
The prosecutor’s reference to Lind’s tactics as “paper terrorism” during
closing argument would not have been out of line but for the trial court’s prior order not
to use that term. The prosecutor pointed out the “irony” that Lind accused Judge Kuns of
environmental terrorism when he and Murphy committed “maybe not the traditional type
of terrorism, maybe you call it document terrorism or paper terrorism.” The trial court
sustained Lind’s objection to this comment but later—correctly, in our view—
acknowledged that it “should not have sustained [Lind’s] objection” because the
statement was “fair comment on the evidence,” particularly given the context. There was
no prejudice from the prosecutor’s statement. Lind’s failure to request a curative
admonition forfeits any claim to the contrary. (See People v. Lopez (2013) 56 Cal.4th
1028, 1073.)
Lind asserts that “proof of motive was not necessary to a conviction” and
“doubt[s] whether all of the motive testimony . . . should have been admitted.” Lind
“vigorously contested” the evidence of his mental state, however, arguing that he
mistakenly believed he had a valid claim to Judge Kuns’s property. This put his motive
in issue. The prosecution’s motive evidence was necessary to rebut Lind’s mistake
defense. (See People v. Enos (1973) 34 Cal.App.3d 25, 35 [“[I]n view of the [mistake]
defense offered by defendant, evidence . . . relevant to show criminal intent [and]
motive . . . was admissible”].) As the trial court properly instructed, “[h]aving a motive
may be a factor tending to show that the defendant is guilty.” The trial court did not
abuse its discretion in admitting the motive evidence.
Cumulative Error
Lind asserts that cumulative error warrants reversal. As we have identified
only one error, which was harmless, there is no error to cumulate.
11
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
PERREN, J.
We concur:
GILBERT, P. J.
YEGAN, J.
12
Jean M. Dandona, Judge
Superior Court County of Santa Barbara
______________________________
Jolene Larimore, under appointment by the Court of Appeal, for Defendant
and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, and Jonathan J.
Kline and Michael Katz, Deputy Attorneys General, for Plaintiff and Respondent.