Filed 5/2/19; Certified for Publication 5/22/19 (order attached)




                   COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                DIVISION ONE

                                         STATE OF CALIFORNIA



THE PEOPLE,                                                        D073992

         Plaintiff and Respondent,

         v.                                                        (Super. Ct. No. SCD266414)

YOLANDA ASTORGA-LIDER,

         Defendant;

SUNIL DEO,

         Real Party in Interest and Appellant.


         APPEAL from an order of the Superior Court of San Diego County, Howard H.

Shore, Judge. Affirmed.

         Garrett & Tully, Ryan C. Squire and Jennifer R. Slater, for Real Party in Interest

and Appellant.

         Summer Stephan, District Attorney, Mark A. Amador, and Valerie Tanney,

Deputy District Attorneys, for the Plaintiff and Respondent.
       Yolanda Astorga-Lider pled guilty to six felony counts, including two counts of

violating Penal Code1 section 115, subdivision (a). One of those counts, grand theft

(§ 487; count 6), involved Astorga-Lider encumbering certain real property, purchased by

Nohemi and Jose Lorenzana, 2 with a fraudulent deed of trust. The subject deed of trust

listed Sunil Deo as the lender.

       After Astorga-Lider's guilty plea, the People moved, under section 115,

subdivision (e), for an order declaring certain record instruments void, including the deed

of trust listing Deo as the lender (Deo Deed of Trust). After multiple rounds of briefing

as well as considering evidence and information submitted in support of and opposition

to the People's motion, the superior court granted the motion. In doing so, the court

found the Deo Deed of Trust void.

       Deo appeals the order declaring the Deo Deed of Trust void, contending the

People's motion was procedurally improper; the Deo Deed of Trust is not a false or

forged document under section 115; at most, the Deo Deed of Trust is voidable, not void;

civil court, not criminal court, is the appropriate forum for adjudication of the validity of

the Deo Deed of Trust; Deo's due process rights have been violated; and the order

voiding the Deo Deed of Trust constitutes an unlawful taking. We conclude Deo's

arguments are without merit. Therefore, we affirm.




1      Statutory references are to the Penal Code unless otherwise specified.

2     We refer to Nohemi and Jose by their respective first names to avoid confusion.
Additionally, we refer to Nohemi and Jose together as the Lorenzanas.
                                              2
                  FACTUAL AND PROCEDURAL BACKGROUND

                                Astorga-Lider's Scheme

      In December 2013, Nicolas and Elizabeth Corral owned their home, free and clear

of any liens, located at 1837 Via Encantadoras, San Ysidro. They also owned apartments

located at 3737 Sunset Lane, San Ysidro (Sunset Lane Apartments), together with

Nicolas's brother. The Corrals and their daughter, Nohemi, knew Astorga-Lider since she

was a child. Astorga-Lider claimed to be knowledgeable about the real estate industry.

      The Lorenzanas could not afford to buy a home; thus, they were living with

Nohemi's parents until they could save money for a down-payment and improve their

credit. Astorga-Lider suggested a plan to the Lorenzanas and the Corrals, which would

allow the Lorenzanas to purchase a home. The Corrals could obtain a $350,000 real

estate loan, borrowed against the Sunset Lane Apartments and give the loan proceeds to

the Lorenzanas. In turn, the Lorenzanas could use the proceeds to buy a home while

making payments on the $350,000 loan. The Corrals and Lorenzanas agreed to the plan.

      The Corrals therefore initiated a $350,000 loan with Bank of the Internet. The

loan proceeds were deposited into the Corrals' bank account. Soon after the proceeds

were deposited, the Corrals transferred the money to the Lorenzanas' account. The

Lorenzanas intended to use the money to pay cash for a home located at 3363 Wittman

Way, San Ysidro (Wittman Property). Per their agreement with the Corrals, the

Lorenzanas made the payments on the Corrals' loan with Bank of the Internet.

      The Lorenzanas finalized what they believed to be an all-cash purchase of the

Wittman Property. As such, they wired $360,000 in purchase money to what they

                                           3
believed to be the appropriate account to make the purchase. To this end, Astorga-Lider

accompanied the Lorenzanas to the bank and provided the transfer information to the

bank. Unbeknownst to the Lorenzanas, the account number Astorga-Lider provided the

bank was for an account that she controlled and used to funnel stolen funds from multiple

fraudulent loans.

       While the Lorenzanas believed they were purchasing the Wittman Property

through the wire transfer, Astorga-Lider took steps to continue her illicit scheme. She

contacted the escrow company associated with the closing of the Wittman Property, and

without the Lorenzanas' knowledge, she changed the transaction from a cash purchase

transaction to a loan purchase transaction. Astorga-Lider then applied for a hard-money

$275,000 loan in the Lorenzanas' names with Deo, again without the Lorenzanas'

knowledge and consent. To secure the loan from Deo, she used Michael Leiby, a

mortgage broker that she had utilized for other fraudulent loans. The Lorenzanas signed

several documents associated with the loan from Deo, including the Deo Deed of Trust,

but they were not aware that they were signing loan documents for a new loan. Instead,

they believed they were signing documents to consummate their cash purchase of the

Wittman Property.

       After causing the $360,000 to be wired to an account she controlled, Astorga-

Lider wired a small portion of these funds to escrow as a down payment for the

Lorenzanas' purchase of the Wittman Property. She caused the rest of the purchase price

to be paid by the Deo loan. The Lorenzanas never received any notices about the Deo

loan. To conceal the loan from the Lorenzanas, Astorga-Lider listed her own office

                                            4
address as the Lorenzanas' address so notices would be sent to her and not the

Lorenzanas.

       Astorga-Lider's deceit was not limited to the Lorenzanas. After the Corrals had

applied for the loan with Bank of the Internet, Astorga-Lider used their identities, without

their knowledge, to apply for a second loan in their names for $380,000 with hard-money

lender True Gem. Astorga-Lider had these loan proceeds deposited into an account she

used for funneling stolen funds. To hide her actions from the Corrals, Astorga-Lider

caused the final closing statement to be sent to her. She also made payments on the True

Gem loan. The Corrals never received any payment notices for this loan. The Corrals

only intended to take out a single loan for $350,000 with Bank of the Internet. They did

not intend to or knowingly take out a second loan with True Gem for $380,000.

       The Corrals and Lorenzanas did not discover the fraudulent True Gem and Deo

loans until Victor Ray, an investigator from the district attorney's office, uncovered

Astorga-Lider's scheme and found the loans and corresponding deeds of trust . When

Ray contacted the Lorenzanas about the Deo loan and deed of trust, the Lorenzanas knew

nothing about any loan in their name secured by the Wittman Property. They believed

they had used the proceeds of the Corrals' loan with Bank of the Internet to purchase the

Wittman Property.

                                   Astorga-Lider's Plea

       The grand jury indicted Astorga-Lider on 42 felony counts for taking over $3.2

million in her home loan scheme. Seven of these counts were related to the loans with

True Gem and Deo. Fifteen of the counts were for violations of section 115, subdivision

                                             5
(a), and two of those counts involved Astorga-Lider causing the deeds of trust relating to

the True Gem and Deo loans to be recorded.

         Ultimately, Astorga-Lider pled guilty to six felony counts, including two counts of

violating section 115, subdivision (a).3 She stipulated to a prison sentence of 11 years.

She also stipulated to the grand jury transcript as the factual basis for her plea and entered

a Harvey4 wavier. Among other counts, Astorga-Lider pled guilty to count 6, for grand

theft (§ 487) for encumbering the Wittman Property with the fraudulent Deo Deed of

Trust.

                     The People's Motion to Void the Deo Deed of Trust

         On November 8, 2017, almost two months after Astorga-Lider pled guilty, the

People moved for an order declaring certain recorded instruments void under section 115,

subdivision (e). As part of that motion, the People sought to void the Deo Deed of Trust.

The motion was supported by the grand jury transcript, Astorga-Lider's guilty plea, and

Astorga-Lider's stipulation to the grand jury transcript as the factual basis for her guilty

plea.

         On January 23, 2018, an attorney representing Deo in a civil quiet title action, took

the deposition of the Lorenzanas. Seven days later, Deo filed an opposition to the




3      Section 115, subdivision (a) provides: " Every person who knowingly procures or
offers any false or forged instrument to be filed, registered, or recorded in any public
office within this state, which instrument, if genuine, might be filed, registered, or
recorded under any law of this state or of the United States, is guilty of a felony."

4        People v. Harvey (1979) 25 Cal.3d 754.
                                               6
People's motion. In support of the opposition, Deo attached excerpts of the deposition

transcripts of the Lorenzanas as well as loan documentation.

       The People filed a reply brief in which they asked the superior court to take

judicial notice of, among other things, Astorga-Lider's guilty plea, the grand jury

transcripts as well as their accompanying exhibits, and the search warrant returns.

       On February 13, 2018, the superior court held a hearing on the People's motion.

The court took the matter under submission and gave the parties additional time to submit

supplemental briefs. Both Deo and the People submitted further briefs.

       The court subsequently granted the People's motion, declaring the Deo Deed of

Trust void (in addition to other recorded instruments). Deo timely appealed.

                                       DISCUSSION

                                              I

         DEO'S PROCEDURAL CHALLENGE TO THE PEOPLE'S MOTION

       Deo contends the superior erred in granting the People's motion and declaring the

Deo Deed of Trust void because the motion was procedurally improper. Specifically,

Deo asserts the People did not serve him with a copy of the written motion and a notice

of hearing by certified mail as required under section 115, subdivision (f)(7). Further,

Deo insists he was not served with a notice of hearing, even by regular mail, and as such,

he did not receive a notice of hearing listing the street address and the legal description of

the Wittman Property.

       The People concede that they did not serve their motion by certified mail but

emphasize that Deo does not claim he was unaware of the motion or that the People were

                                              7
asking the court to declare the Deo Deed of Trust void. They also argue that they

included the Wittman Property address in their moving papers along with the recordation

number of the Deo Deed of Trust, which contained a legal description of the property. In

other words, the People argue that Deo had notice of their motion and was not prejudiced

by any procedural deficiencies.

       We agree with the People. The record is clear that Deo had actual notice of the

People's motion and that the motion was aimed, in part, at voiding the Deo Deed of Trust.

Indeed, Deo extensively litigated the issue, filing an opposition and evidence in support

of that opposition, challenging evidence submitted by the People, appearing at a hearing

on the motion, and submitting a supplemental brief. Deo does not claim any prejudice

based on the People's failure to serve the motion by certified mail. He does not point to

any argument he was unable to make. Accordingly, it would be a waste of judicial

economy and resources to reverse the superior court's order on this highly technical

ground, only to have the parties make the same arguments below. Therefore, we

determine Deo's claim of procedural improprieties is without merit.

                                             II

        THE DETERMINATION THAT THE DEO DEED OF TRUST IS VOID

       The People moved under section 115, subdivision (e)(1) for an order declaring the

Deo Deed of Trust void. That subdivision provides:

          "After a person is convicted of a violation of this section, or a plea is
          entered whereby a charge alleging a violation of this section is
          dismissed and waiver is obtained pursuant to People v. Harvey
          (1979) 25 Cal.3d 754, upon written motion of the prosecuting
          agency, the court, after a hearing described in subdivision (f), shall

                                              8
          issue a written order that the false or forged instrument be adjudged
          void ab initio if the court determines that an order is appropriate
          under applicable law. The order shall state whether the instrument is
          false or forged, or both false and forged, and describe the nature of
          the falsity or forgery. A copy of the instrument shall be attached to
          the order at the time it is issued by the court and a certified copy of
          the order shall be filed, registered, or recorded at the appropriate
          public office by the prosecuting agency." (§ 115, subd. (e)(1).)

       Here, Astorga-Lider pled guilty to two counts that she violated section 115,

subdivision (a) and entered a Harvey waiver. One of those counts (count 7) related to the

Deo Deed of Trust. The superior court found that the Lorenzanas were "crime victims as

a matter of law." The court also found, after "[c]onsidering all the available information

presented by all parties," the Lorenzanas "believed the documents they signed to be

substantially different from their true nature." Thus, relying on Buck v. Superior Court of

Orange County (1965) 232 Cal.App.2d 153 (Buck), the court found the Deo Deed of

Trust to be a forgery as a matter of law, and thus, void ab initio.

       Deo maintains the court erred in concluding the Deo Deed of Trust was forged

because the undisputed evidence is that the Lorenzanas signed the various documents

related to the Deo loan, including the Deo Deed of Trust. In other words, Deo claims the

Lorenzanas' respective signatures on the deed of trust are authentic; thus, the deed of trust

cannot be considered a forgery. Deo's argument fails under Buck, supra, 232 Cal.App.2d

153.

       In Buck, the victims were tricked into signing a blank deed of trust by an

aluminum siding salesman. When the salesman presented a purchase contract for

signature, he included among the papers a blank deed of trust, which the victims signed.


                                              9
The missing information was later supplied to the deed of trust. (Buck, supra, 232

Cal.App.2d at pp. 156-157.) The issue on appeal was whether the salesman committed a

forgery when he tricked the victims into signing the blank deed of trust. This court

concluded he had, reasoning: "Where a person who has no intention of selling or

encumbering his property is induced by some trick or device to sign a paper having such

effect, believing that paper to be a substantially different instrument, the paper so signed

is just as much a forgery as it would have been had the signature been forged." (Id. at

p. 162.)

       We agree with the superior court that Buck is instructive here. Like the victims in

Buck, the Lorenzanas believed the Deo Deed of Trust they were signing was substantially

different from what it actually was. Moreover, the Lorenzanas had no intention of

encumbering the Wittman Property with the Deo loan or Deo Deed of Trust. To the

contrary, they believed they were purchasing the Wittman Property with cash from the

proceeds of the Corrals' loan with Bank of the Internet. The superior court found that

they were not aware that they were borrowing additional money to be secured by the

Wittman Property. Thus, the Deo Deed of Trust was a forgery. (See Buck, supra,

232 Cal.App.2d at p. 162; accord People v. Parker (1967) 255 Cal.App.2d 664, 672;

People v. Johnson (1966) 247 Cal.App.2d 331, 337; People v. Bresin (1966)

245 Cal.App.2d 232, 238-240; People v. Carson (1966) 240 Cal.App.2d 477, 480.)

       Nevertheless, relying on People v. Denham (2013) 218 Cal.App.4th 800

(Denham), Deo contends the Deo Deed of Trust is not void because it does not involve

the transfer of an interest in the Wittman Property that the Lorenzanas did not have the

                                             10
capacity to convey. Alternatively stated, Deo asserts only wild deeds (deeds wherein the

grantor has no interest in the property to convey) may be found void under section 115.

We disagree and do not read Denham as creating any rule that would prohibit us from

following Buck, supra, 232 Cal.App.2d 153 on the record before us.5

       In Denham, supra, 218 Cal.App.4th at pages 804 to 807, the defendant recorded

quitclaim deeds and homestead declarations on nine properties that he believed were

abandoned to acquire them via adverse possession. The defendant placed tenants at the

properties. (Id. at pp. 805-806, 807.) The defendant had no claim of title to or interest in

the properties (id. at p. 807) and was convicted of 20 counts of violating section 115

(Denman, at p. 804).

       Because the defendant did not have an interest to transfer, he argued that the

quitclaim deeds were not false or fraudulent. (Denham, supra, 218 Cal.App.4th at

p. 807.) The appellate court disagreed, reasoning:

          "While defendant is technically correct that he attested in the
          quitclaim deed that he was only transferring whatever title or interest
          he possessed, it was clear based on the evidence he had absolutely
          no interest in the property. The documents themselves were false in
          that they transferred an interest that he did not have to himself and
          then he recorded the document, clouding the title of the true property
          owners. Adopting defendant's reasoning would be in direct
          contradiction with the purpose behind section 115 to preserve and
          protect the integrity of public records. Based on the purpose of the
          statute and the fact that section 115 has been broadly construed, the


5      We note that nowhere in his opening or reply briefs does Deo discuss or even
address Buck, supra, 232 Cal.App.2d 153. This omission is curious because the People
relied on Buck below as did the superior court. And the People cite to Buck in the
respondent's brief. Moreover, Buck is an opinion from our district that has not been
overturned. We thus follow that case.
                                             11
          quitclaim deeds could reasonably be considered false documents by
          the jury." (Denham, at p. 809.)

       Thus, Denham presents a specific factual situation to which section 115 applies

(i.e., the defendant preparing and recording quit claim deeds involving property to which

he has no interest). There is nothing in that case that limits the application of section 115

only to wild deeds. Further, Denham does not call into question the validity of Buck,

supra, 232 Cal.App.2d 153. In fact, the court in Denham did not discuss or even cite to

Buck. As such, Denham, supra, 218 Cal.App.4th 800 is not instructive here.

       Additionally, we are not persuaded by Deo's argument that the Deo Deed of Trust

is only voidable, not void. Deo bases this contention on two claims: (1) the Lorenzanas

were negligent in signing the Deo loan documents, including the Deo Deed of Trust; and

(2) Deo is a bona fide encumbrancer who engaged in no untoward conduct. In support of

his position, Deo notes that, under California law, one who signs a document is presumed

to know its contents and cannot escape from being bound by contending he or she did not

read the document. (See Stewart v. Preston Pipeline Inc. (2005) 134 Cal.App.4th 1565,

1588-1589.)

       Similarly, Deo also argues that where a person is aware of what he or she is

executing but has been induced to sign a deed of trust through fraudulent

misrepresentations, the deed is merely voidable not void. (See Fallon v. Triangle

Management Servs., Inc. (1985) 169 Cal.App.3d 1103, 1106.) These arguments, based

on civil quiet title and contract law principles, are not of the moment.




                                             12
       Deo's argument that the Deo Deed of Trust is voidable not void asks us to ignore

the criminal circumstances giving rise to section 115 here. Not surprisingly, none of the

cases on which Deo relies address the situation where the person who executes a deed of

trust is a crime victim. Nor does Deo explain why civil contract and quiet title law

should trump section 115. Indeed, the superior court observed that the People's motion

under section 115, subdivision (e) raised issues that were "different from that of a title

dispute arising in a purely civil context, where less information is available to resolve

factual disputes without extensive discovery." The court further explained, "Here, for

example, available information includes substantial Grand Jury testimony leading to the

Indictment, as well as [Astorga-Lider's] judicial admissions underlying her guilty pleas."

Thus, the superior court explicitly described why the People's motion was different than a

civil title dispute or quiet title action. Deo simply glosses over the superior court's

distinction. More importantly, Deo has not explained why the superior court's reasoning

is incorrect. In short, he has not illustrated why section 115 does not apply to the instant

action or why we should follow general contract law and disregard the undisputed

criminal activity leading the Lorenzanas to sign the Deo Deed of Trust. As Deo has the

burden to show error below (see People v. Nero (2010) 181 Cal.App.4th 504, 510,

fn. 11), these shortcomings are fatal to his appeal.

       Finally, we disagree with Deo's assertion that the superior court erred below by

resolving the dispute under section 115 because civil court is "a more appropriate forum

for adjudication of the validity of the Deo Deed of Trust." Deo represents that he filed a

civil quiet title action on October 10, 2017 to determine and enforce his rights under the

                                              13
Deo Deed of Trust, but he provides no authority that a criminal court addressing a motion

under section 115 must defer to an ongoing civil quiet title action. In fact, section 115

deals with the possibility of a pending civil suit:

           "If, prior to the hearing on the motion, any person or party files a
           quiet title action that seeks a judicial determination of the validity of
           the same false or forged instrument that is the subject of the motion,
           or the status of an interested party as a bona fide purchaser of, or
           bona fide holder of an encumbrance on, the property affected by the
           false or forged instrument, the court may consider that as an
           additional but not dispositive factor in making its determination
           under subdivision (e); provided, however, that a final judgment
           previously entered in that quiet title action shall be followed to the
           extent otherwise required by law." (§ 115, subd. (f)(9)(B).)

       Therefore, section 115 instructs the court to consider the "additional" factor of a

civil suit but makes clear that such a factor is not "dispositive." (§ 115, subd. (f)(9)(B).)

Accordingly, the superior court did not err below by granting the People's motion under

section 115 instead of deferring to the ongoing civil quiet title action. It was well within

the superior court's discretion to proceed under section 115 and not wait until the civil

suit was resolved.

                                              III

                          DEO'S CONSTITUTIONAL CLAIMS

       Deo additionally asserts that his due process rights under the California and

federal constitutions were violated because the superior court's order under section 115

was "wholly contrary to established California law," and he "was deprived of his

opportunity to confront witnesses . . . during the grand jury proceedings upon which the

court's order[] [was] based." We disagree. As we discuss above, the superior court's


                                              14
order was not contrary to California law. Moreover, Deo was presented with several

opportunities to oppose the People's motion, present evidence (including deposition

testimony of the Lorenzanas), and challenge the evidence relied on by the People. And

Deo has not provided any authority where a third party has a due process right to question

witnesses in a grand jury proceeding. On this record, we conclude Deo's due process

claims are without merit.

       Similarly, we are not persuaded by Deo's assertion that the superior court's order

voiding the Deo Deed of Trust constituted a taking without just compensation under the

Fifth Amendment of the United States Constitution. Because the superior court correctly

found that the Deo Deed of Trust was void, that void document passed no title to Deo

upon which he could claim a property interest. Thus, Deo's claim of an unlawful taking

necessarily fails.

                                     DISPOSITION

       The order is affirmed.



                                                                  HUFFMAN, Acting P. J.

WE CONCUR:



HALLER, J.



O'ROURKE, J.



                                            15
Filed 5/22/19
                            CERTIFIED FOR PUBLICATION


                COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                      DIVISION ONE

                                STATE OF CALIFORNIA



THE PEOPLE,                                        D073992

        Plaintiff and Respondent,
                                                   (Super. Ct. No. SCD266414)
        v.

YOLANDA ASTORGA-LIDER,                             ORDER CERTIFYING OPINION
                                                   FOR PUBLICATION
        Defendant;

SUNIL DEO,

        Real Party in Interest and Appellant.


THE COURT:

        The opinion in this case filed May 2, 2019, was not certified for publication. It

appearing the opinion meets the standards for publication specified in California Rules of

Court, rule 8.1105(c), the request pursuant to rule 8.1120(a) for publication is

GRANTED.

        IT IS HEREBY CERTIFIED that the opinion meets the standards for publication

specified in California Rules of Court, rule 8.1105(c); and
      ORDERED that the words "Not to Be Published in the Official Reports" appearing

on page one of said opinion be deleted and the opinion herein be published in the Official

Reports.



                                                                 HUFFMAN, Acting P. J.

Copies to: All parties




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