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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE,
Plaintiff and Respondent,

v.

JEFFERY COWAN LIND , Defendant and Appellant. 2d Crim. No. B2 6 2092 (Super. Ct. No. 1354711 ) ( Santa Barbara County)

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 conditi ons including 30 days in ja il. Lind contends that the trial court erred by not instructing the jury on mistake

- of

- f act 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 of fenses, that the prosecutor committed misconduct by inflaming the jury with irrelevant evidence of his motive, and
that cumulative error warrants reversal . We affirm.2 FACTS Lind Threatens a Witness at His Son’s Trial
Lind’ s son was charged with driving u nder the influence. During the trial,
Lind was “pacing back and forth” outside of the courtroom. He called the d istrict

a ttorney ’ s o ffice and left a voice message stating that his son is in an “ unlawful ” proceeding “[that’s] going to cost the city or the c ounty

. . . a tremendous amount of money if [ it is ] not stopped immediately

. ” He told the district attorney to call him back, stating, “ Y ou ’ ll be very glad if you did and very sorry if you don’ t. ”

Lind encountered Officer Robert Ortega sitting o utside 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 the ir
interaction , Lind exhibited aggressive body language: pointing a nd shaking his hand at Officer Ortega and the courtroom

. 1 Officer Ortega walked outside of the courthouse

. He
advised the ba i liff that he felt Lind was attempting to intimidate him prior to his testimony. Lind was arrested

.

Lind Is Charged with Witness Intimidation
T he d istrict attorney’ s o ffice charged Lind with witness intimidation (§ 136.1) and obstructing an executive officer in performance of duties (§ 69 )

. T he case came before Judge Kay Kuns

. R epresenting himself
, Lind “demand[ed] .

. . the cour t 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 m agistrate Kay S. Kuns, Judge.” H e 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.3 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. ” The se documents “were nonsensical and
difficult to understand. ” They accused Judge Kuns of numerou s immoral and criminal

acts , including treason, insurrection, piracy on the high seas , environmental terrorism,
and violating three of the “Te n Commandments of God’ s Laws

. ” 2 Lind claimed that she was liable for $77,763,000 in monetary damages for not dismiss ing his case.

T he “ Notice and Demand for Damages ” stated that Judge Kuns’s “immediate visible property .

. . shall, at minimum, be the res titution and penance” for her alleged transgressions. “Therefore,” i t con tinued, “ injured party demands that you

execu te and deliver to injured party

. . . a quitclaim deed to remise, release and forever quitclaim to injured party the aforementioned visib le pro perty

. . . .”

Lind Researches Judge Kuns’s Property Two days later
, Lind’s co defendant
, Dee Thomas Murphy, went t o the
Santa Maria b ranch of the Santa Barbara Assessor and Clerk Recorder ’s o f fice

. Murphy told employee Marlene Ashcom that “he had t he name of a person and he needed to find
out what their particular address was.” He gave Ashcom the name “Kay Kuns” withou t identifying Kuns as a judge. Ashcom helped him use the computer kiosk to obtain information about Judge Kuns’s property, includin g its physical and mailing addresses,
its assessed value, and a list of recorded deeds. He purchased a printout of this
information. Murphy t old 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 J udge 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 ”).4

and

. . . needed to be held accountable for that

. ” Murphy further said that he planned on recording a “ N otice of I ntent to P reserve I nterest” (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 d ays earlier. He said “he had obtained the paperwork from the NSEA.”

Ashcom informed Murphy that ba sed on the circumstances he was describing, a NIPI i s not a document he should record beca use 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] pro perty based on [ the ] charges they had against her.”
Ashcom tol d him that if he recorded the document, her office would notify t he 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 San ta 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 attempt ed to record a NIPI on Judg e Kuns ’s property, they should accept the document and tell him they would review it, bu t they should not record it

. Lind Attempts to Record the NIPI on Judge Kuns’s Property

Eight days later, Murphy returned to the r ecorder ’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 evi dencing interest in claimant.”

Ashcom took the document into the back and made a copy of it . N oticing
that it was not an original, she ret urned it to Murphy and told him tha t they could not

3 It stated only “See attached copy of Claim Cover Sheet.”5

accept a photocopy. Murphy retur ned with an original, which the r ecorder ’ s o ffice
receiv ed 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 Mur phy 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 th at Lin d did have an interest. Ready asked what the interest

was. Murphy said he had “filed a claim” with six or seven different government offi ces. Ready asked for a copy. Within a half hour, Murphy emailed Ready the packet of documents that included the “Na tional Standard Damage Claim Form” and “Not ice 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 ti me 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 “ N otice 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 h is rights. The Tribunal of this action

. . . has presented a [ NIPI ] for the County Clerk/Recorder of this County to record.” (F n. omitted.) It further stated that “all documents” are recorded the minute they are received
and the recorder’s refusal to do so “is considered c riminal

. . . and

. . . is punishab le by fines and imprisonment.” Criminal Investigation

Jennifer Glimp, an investigator for the district attorney, reviewed emails between Lind and Murphy that she obta ined through a search warrant. Th e emails show that Lind and Murphy together registered websites for a “National Standa rds Enforcement Agency” (NSEA) and created the NSEA forms that were later completed6

and sent to Ju dge Kuns and Risk Management. Lind informed Glimp that Murphy had
the “ power of att orney 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 mista ke 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 cas e. [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
substan tial 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
instruction s 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 fac t 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, “ign orance 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 belief7

was held in good faith. [Citation.] ” 4 ( People v. Vineberg (1981) 125 Cal.App.3d 127, 137.) “In the a bsence 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 th e 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

. T he prosecuti on 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 fo r itself. Even acceptin g that Lind truly believed he was being tried for witness intimidation unjustly , n o 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 subj ectively 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 wa s bolstered by Lind’s disregard of the repeate d 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 circ umstances 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. ”8 Lind asserts there was evidence of “his reliance on a website [presumably,
the NSEA websi te] relied o n by many others.” In fact, on the day of the offenses, Murphy told Ready that the NSE A 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 r efusing 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 defendant s did not know they were breaking the law or they believed
their act s wer e 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 m istake 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 eleme nts 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

regar ding 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, Lin d 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 [ inst ructing

“ ‘ 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 purpo se” as separate9

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 n ot 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 defend ant 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 i ntent 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 th an the owner of the property.” Lind mis construes 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] lan guage” is unjustified.10

“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 in strument is defective in form or certification.” ( People v. Webber (1919) 44 Cal.App. 120, 129

- 130 [per curiam o pinion of the Supreme Court d enying h earing ].)

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, haras sed, 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 f

eelings about the defendan ts.” 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 (2 006) 39 Cal.4th 641, 726 .) The prosecutor’s comments here were appropriate and did not constitute error,
let alone misconduct. The evidence support s the prosecutor’s characterization that Lind and Murphy threaten ed , harass ed , and intimidate d 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 she11

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
intimidatio n 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 Mur phy committed “maybe not the traditional type of terrorism, maybe you call it document terrorism or paper terrorism.” The trial court sustained Lind’s obje ction to this comment but later

— correctly, in our view

— acknowledged that it “ should not have sustain ed [Lind’s] objection ” because the
statement was “ fair comment on the evidence ,” particularly given the context. There was no prejudice from th e 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.Ap p.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 th e 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.12 DISPOSITION The judgment is affirmed

. NOT TO BE PUBLISHED.

PERREN, J.

We concur:

GILBERT, P. J.

YEGAN, J.Jean M. Dandona , Judge Superior Court County of Santa Barbara

______________________________

Jolene Larimore , under ap pointme nt 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 Atto rney s General, for Plaintiff and Respondent.