Filed 2/18/20

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE,

 Plaintiff and Respondent,

v.

MICHELLE ABRAHAMIAN,

 Defendant and Appellant.

2d Crim. No. B289162

(Super. Ct. No. 2014030327)

(Ventura County)

Michelle Abrahamian appeals from the judgment entered 

after a jury convicted her of knowingly procuring or offering a 

forged quitclaim deed for recordation in a public office (count 1 -

Pen. Code, § 115, subd. (a))1 and knowingly possessing a false 

completed notary public’s acknowledgment (notary 

acknowledgment) with intent to defraud (count 4 - §§ 475, subd. 

(a), 470, subd. (d)). The jury found true an enhancement

allegation that the victim’s loss exceeded $200,000. (Former 

§ 12022.6, subd. (a)(2).) The jury also found true an “aggravated 

white collar crime enhancement” allegation that a “pattern of 

related felony conduct” had resulted in a loss of more than 

1 Unless otherwise specified, all statutory references are to 

the Penal Code.
2

$500,000. (§ 186.11, subds. (a)(1), (a)(2).) Appellant was 

sentenced to prison for an aggregate term of seven years, eight 

months - the two-year middle term on count 1, plus a consecutive 

eight-month term on count 4, plus two years for the former 

section 12022.6, subdivision (a)(2) enhancement, plus three years 

for the aggravated white collar crime enhancement. Pursuant to 

section 186.11, subdivision (c), the trial court ordered appellant to 

pay a fine of $500,000. Pursuant to section 1202.4, subdivision 

(f), it ordered her to pay restitution of $189,382 to the victim. 

Appellant contends: (1) the court erroneously admitted 

evidence of uncharged acts, (2) the evidence is insufficient to 

support her conviction for possession of a false completed notary

acknowledgment with intent to defraud, (3) the court failed to 

instruct the jury sua sponte on an element of this offense - the 

false notary acknowledgment must be completed, (4) the evidence 

is insufficient to support the aggravated white collar crime 

enhancement, (5) the court erroneously imposed a two-year 

consecutive term for the former section 12022.6, subdivision 

(a)(2) enhancement because the statute was repealed before she 

was sentenced, and (6) the matter must be remanded so that the 

trial court may conduct a hearing on appellant’s ability to pay the 

$500,000 fine and victim restitution of $189,382. 

Because the evidence is insufficient to prove that appellant 

possessed a completed notary acknowledgment, we reverse her

conviction on count 4 for possession of a false completed notary 

acknowledgment with intent to defraud. (§ 475, subd. (a).) We 

also reverse the true finding on the aggravated white collar crime 

enhancement allegation. We strike the $500,000 fine imposed 

pursuant to section 186.11, subdivision (c), and remand the 
3

matter to the trial court for resentencing. In all other respects, 

we affirm. 

Charged Offenses2

Appellant, together with her husband, Patrick Abrahamian

(Patrick), and her sister, Taline Indra, were charged in count 1 

with procuring or offering for recordation a forged instrument, 

i.e., a quitclaim deed conveying Thomas Cotton’s residence to 

appellant. (§ 115, subd. (a).) In count 4, appellant alone was 

charged with possessing false completed notary 

acknowledgements executed by Indra, a California notary public. 

(§§ 475, subd. (a), 470, subd. (d).) The notary acknowledgements 

purported to authenticate Cotton’s signature. 

Cotton was “having trouble meeting [his] financial 

obligations.” He was behind on the mortgage payments for his 

residence on Mustang Lane in Bell Canyon (the Mustang

residence). He had unsuccessfully sought a loan modification. 

Cotton met Patrick through a friend. Patrick said that “he 

could get [Cotton] a loan modification.” 

By a lease dated October 1, 2012, Cotton rented the 

Mustang residence to appellant and Patrick for one year at a 

monthly rent of $5,000. Patrick agreed that he would work on 

obtaining a loan modification. Patrick helped Cotton find 

another place to live while appellant and Patrick were staying at

the Mustang residence. 

Patrick did not obtain a loan modification for Cotton. After 

their one-year lease had expired on October 1, 2013, appellant 

2 The facts underlying the charged offenses and the 

uncharged acts are complex. The summary of the facts comprises 

39 pages of appellant’s opening brief and 34 pages of respondent’s 

brief. We include only the most salient facts in our summary of 

the evidence. 
4

and Patrick stopped paying rent. They continued to occupy the

Mustang residence despite Cotton’s demand that they move out. 

Cotton learned that on October 8, 2013, a quitclaim deed 

had been recorded conveying the Mustang residence to appellant. 

The deed states that the conveyance is a gift so no documentary 

transfer tax is due. Indra authenticated the grantor’s signature

on the deed as the signature of Cotton. She declared under 

penalty of perjury that, on October 3, 2013, Cotton had personally 

appeared before her and had “proved . . . on the basis of 

satisfactory evidence to be the person whose name is subscribed 

to the within instrument.” Cotton denied signing the deed. 

In her notary journal, Indra was required to document the 

notarization of Cotton’s signature. Information was missing from 

the journal entry for Cotton’s signature, including his 

thumbprint. Heather Tallent, a district attorney investigator 

who specializes in the investigation of real estate fraud, testified

that the notarization of a signature “that affects real property . . . 

requires a thumbprint.”3 Tallent opined “that a missing 

thumbprint [in a notary journal] for a real estate document is one 

indicator of fraud.” 

Cotton gave appellant and Patrick a three-day notice to pay 

rent or quit. Appellant filed a verified complaint against Cotton

seeking to quiet title to the Mustang residence. She asserted

that, pursuant to the quitclaim deed, she was “the fee simple title 

owner of the . . . property.” She claimed that on October 1, 2013, 

3 Government Code section 8206, subdivision (a)(2)(G) 

provides, “If the document to be notarized is a deed, quitclaim 

deed, deed of trust, or other document affecting real property, . . . 

the notary public shall require the party signing the document to 

place his or her right thumbprint in the journal.”
5

she and Cotton had “entered into an oral agreement whereby 

[Cotton] would convey title to [her] in exchange for payments 

totaling $175,000.” She “provided [Cotton] with the sum of 

$175,000 . . . in return for fee simple title to the . . . property.” 

On December 3, 2014, investigators from the Ventura 

County District Attorney’s Office searched the Mustang residence 

and a Ford Raptor pickup truck pursuant to a search warrant. 

The Raptor was registered in Patrick’s name. Investigators 

stopped the Raptor while appellant was driving it. A manila 

envelope was on the dashboard. Inside the envelope were seven 

notary acknowledgments bearing Indra’s signature and official 

notary seal. These acknowledgments are the basis of appellant’s 

conviction for possessing false notary acknowledgments with 

intent to defraud (count 4). Each acknowledgment purported to 

authenticate the signature of Thomas Cotton. 

In a downstairs office of the Mustang residence, 

investigators found statements of Cotton’s earnings from a 

company named SCV Construction. Cotton never worked for this 

company. Investigators also found Bank of America statements 

in his name. Cotton did not have an account with Bank of 

America. Cotton’s account number was the same as a Bank of 

America account that Patrick had opened in his own name. 

Uncharged Acts

Stephen Danel

Danel owned a home in Northridge. In 2012 he started 

missing mortgage payments, and the lender began foreclosure 

proceedings. A friend introduced him to Patrick, who identified 

himself as “Rick Black.” Patrick and Danel orally agreed that 

Patrick would purchase the home for $60,000. Patrick made a 

down payment of $15,000 and said that he would pay the 
6

remaining $45,000 when Danel vacated the property. After 

Danel moved out, he did not receive the promised $45,000 and 

was unable to contact Patrick. 

Danel never signed any paperwork for the sale of his home. 

After he had vacated the property, he learned that on June 1, 

2012, a quitclaim deed had been recorded conveying the property 

to Gabriel Abrahamian (Gabriel), Patrick’s father. The person 

who requested the recording asked that the recorded deed be 

mailed to Gabriel at Patrick’s home address. Rita Medvedev, a 

notary public, verified that the grantor’s signature on the deed 

was the signature of Danel. But Danel neither signed the deed 

nor appeared before Medvedev. The deed stated that the 

conveyance “is a bonafide gift.” 

When district attorney investigators searched appellant’s 

and Patrick’s Mustang residence on December 3, 2014, in the 

master bedroom they seized a desktop computer that contained 

Bank of America statements in Danel’s name. Danel did not 

have an account with this bank. Danel’s account number was the 

same as a Bank of America account that Patrick had opened in 

his own name. The computer also contained an earnings 

statement in Danel’s name from SCV Construction. Danel never 

worked for this company. 

It is reasonable to infer that the computer belonged to 

appellant. The “name of the user account for the . . . computer” 

was “Michelle,” appellant’s first name. The “registered owner of 

the . . . computer” was also “Michelle.” The computer contained 

“an Apple iPhone backup file.” The iPhone was named “M. 

Abrahamian.” Kristina Bertilson, a district attorney investigator 

and expert in conducting examinations of computer files, opined 
7

that the desktop computer had “one user.” The computer is 

hereafter referred to as “appellant’s computer.”

Gabriel Munoz

Gabriel Munoz owned a home on Bahama Street in North 

Hills (the Bahama residence). At the time of trial in February 

2018, he was 84 years old. He testified through a Spanish 

interpreter. He was able to read “a little bit” of English. 

On October 11, 2013, a quitclaim deed was recorded 

conveying the Bahama residence to Mikael Puskulian. The deed 

stated that the conveyance was a gift. Indra notarized Munoz’s 

signature on October 3, 2013, the same date that she notarized 

Cotton’s signature. Indra’s notary journal entry for the 

transaction did not include Munoz’s thumbprint and other 

required information. District Attorney Investigator Tallent 

opined that, because of the missing information, “the journal is 

indicative of fraud.” 

Munoz testified that he did not know anyone named Mikael 

Puskulian. He did not sign the deed or appear before Indra. He 

did not request that the deed be prepared. 

During the search of the Mustang residence, in the 

downstairs office investigators found a handwritten note stating: 

“Need to do a Quitclaim Deed from Gabriel Munoz to: Mikael 

Puskulian.” The note includes an address that matches the 

address of the Bahama residence. 

Appellant’s computer contained false documents for Munoz. 

These included Bank of America statements in Munoz’s name. 

Munoz did not have an account with this bank. Munoz’s account 

number was the same as a Bank of America account that Patrick 

had opened in his own name. Another false document was an 

April 2012 earnings statement for Munoz from SCV 
8

Construction. Munoz did not work for this company. In April 

2012 he “was in the hospital having surgery for cancer.” An 

additional false document was an Internal Revenue Service Form 

W-2 showing that in 2012 Munoz earned $44,201. Munoz did not 

work in 2012. 

Susan Shepard

In February 2013, a quitclaim deed was recorded conveying 

from Karl and Susan Shepard to Francisco Guerrero a property 

in Mojave. The conveyance was a gift. Indra notarized the 

Shepards’ signatures. But Susan Shepard had died twelve years 

earlier in 2001. In February 2015 a court entered a default 

judgment in favor of Karl Shepard and against Indra and 

Guerrero. The judgment decreed that the quitclaim deed is a

forgery and therefore void. Inside the manila envelope on the 

dashboard of the Raptor that appellant had been driving, district 

attorney investigators found documents pertaining to Karl 

Shepard’s lawsuit, including his request for entry of a default 

judgment. Karl Shepard did not testify.

Kelly Adcock

A quitclaim deed purported to convey from Kelly Adcock to 

appellant a property in Chatsworth. The conveyance was a gift.

The deed does not show that it was recorded. On May 30, 2014, 

Indra notarized Adcock’s signature. But Indra’s notary journal 

does not include any entry for this transaction. District Attorney 

Investigator Tallent opined that “it appears . . . that [Adcock] did 

not appear before the notary because there is no correlating 

journal entry.” Appellant’s computer contained Bank of America 

statements and an earnings statement from SCV Construction in 

Kelly Adcock’s name. Adcock’s bank account number was the 
9

same as a Bank of America account that Patrick had opened in 

his own name. Adcock did not testify. 

David Lankford

A quitclaim deed purported to convey from David Lankford 

to Redouane Zidani a property at 5162 West 142nd Street in the 

City of Hawthorne. The conveyance was a gift. The deed does 

not show that it was recorded. On October 1, 2014, Indra 

notarized Lankford’s signature on the deed. Indra’s notary 

journal includes an entry for the transaction, but the entry is 

missing required information, including Lankford’s thumbprint. 

Indra’s journal entry is dated the day after Lankford 

purportedly signed the deed. Tallent opined, “If [the deed] was, 

indeed, signed before the notary, the notary would have 

completed [the journal entry] at the same time on the same date.” 

A handwritten note inside Indra’s “notary journal bag” 

said, “‘Property address is 5162 W’” and “‘From David Lan[k]ford 

going to Red Zidani.’” Tallent opined, “If this was a legitimate 

transaction, then the notary wouldn’t need to have a note to . . . 

keep the facts straight on how to convey the property . . . .” 

During the execution of the search warrant at the Mustang 

residence, a district attorney investigator found a copy of 

Lankford’s driver’s license. Below the license is a handwritten 

note that says, “From David 5162 W. 142nd St[.] Red is 

receiving.” Lankford did not testify. At the time of trial, he was 

deceased. 

Michael Jeffries

In May 2015, a grant deed was recorded conveying from 

Michael Jeffries to Redouane Zidani a property on Whitcomb 

Avenue in Simi Valley (the Whitcomb property). The conveyance 

was a gift. Indra notarized Jeffries’ signature. Indra’s notary 
10

journal is missing required information for the transaction, 

including Jeffries’ thumbprint. 

Tallent testified: “[I]f Mr. Jeffries had appeared before Ms. 

Indra to actually notarize a legitimate deed, these [missing] fields 

[in Indra’s notary journal] would presumably be complete . . . .” 

“[T]he deed was, in my opinion, fraudulently notarized because of 

that.” 

The Whitcomb property had belonged to Dana Ashby. 

Appellant’s computer contained Bank of America statements and 

an earnings statement from SCV Construction in Ashby’s name. 

Ashby’s bank account number was the same as a Bank of 

America account that Patrick had opened in his own name. 

Neither Jeffries nor Ashby testified.

Admissibility of Evidence of Uncharged Acts to 

Prove Intent and Common Design or Plan

“‘Subdivision (a) of [Evidence Code] section 1101 prohibits 

admission of evidence of a person’s character, including evidence 

of character in the form of specific instances of uncharged 

misconduct, to prove the conduct of that person on a specified 

occasion. Subdivision (b) of section 1101 clarifies, however, that 

this rule does not prohibit admission of evidence of uncharged 

misconduct when such evidence is relevant to establish some fact 

other than the person’s character or disposition,’ such as identity, 

common plan, or intent. [Citation.] . . . We review the trial 

court’s determination for abuse of discretion, and view the 

evidence in the light most favorable to the trial court’s ruling. 

[Citation.]” (People v. Edwards (2013) 57 Cal.4th 658, 711.) 

“Cases sometimes describe Evidence Code section 1101(b) 

evidence as ‘prior offenses’ or ‘prior bad acts.’ Both shorthand 

formulations are imprecise. Evidence Code section 1101(b) 
11

authorizes the admission of ‘a crime, civil wrong, or other act’ to 

prove something other than the defendant’s character. (Italics 

added.)” (People v. Leon (2015) 61 Cal.4th 569, 597 (Leon).)

“The relevance [of an uncharged act] depends, in part, on 

whether the act is sufficiently similar to the current charges to 

support a rational inference of intent, common design, identity, or 

other material fact. [Citation.] ‘The least degree of similarity 

(between the uncharged act and the charged offense) is required 

in order to prove intent. [Citation.] . . . In order to be admissible 

to prove intent, the uncharged misconduct must be sufficiently 

similar to support the inference that the defendant “‘probably 

harbor[ed] the same intent in each instance.’”’ [Citation.] . . .

[Citation.]” (Leon, supra, 61 Cal.4th at p. 598.) 

“A greater degree of similarity is required in order to prove 

the existence of a common design or plan. . . . [E]vidence of 

uncharged misconduct must demonstrate ‘not merely a similarity

in the results, but such a concurrence of common features that 

the various acts are naturally to be explained as caused by a 

general plan of which they are the individual manifestations.’ 

[Citation.]” (People v. Ewoldt (1994) 7 Cal.4th 380, 402 (Ewoldt).) 

Uncharged Acts Admissible to Prove Intent and Commission

of the Charged Offenses Pursuant to a Common Design or Plan

The trial court instructed the jury that it may consider the 

uncharged acts for the purpose of establishing identity, intent, 

motive, absence of mistake or accident, and common design or 

plan. The instruction is “‘presumed correct, and it is the 

appellant’s burden to affirmatively demonstrate error.’ 

[Citation.]” (People v. Sullivan (2007) 151 Cal.App.4th 524, 549.) 

Count 4 charged appellant with knowingly possessing a 

false completed notary acknowledgment “with intent to defraud.” 
12

(§ 475, subd. (a).) An intent to defraud is not an element of a 

violation of Penal Code section 115, subdivision (a), which was

charged in count 1. (People v. Guevara (2004) 121 Cal.App.4th 

17, 25.) For count 1, the mental element is knowledge that the 

deed was false or forged when appellant procured or offered it for

recordation. (§ 115, subd. (a).)4

Appellant argues that the uncharged acts were 

inadmissible to prove her intent because she did not dispute this 

issue: “[A]ppellant’s defense was a denial of the alleged acts. 

The defense asserted that no one forged Cotton’s name and that 

Cotton did in fact sign the deed . . . . No dispute existed that if 

appellant caused a false quitclaim deed to be filed and possessed 

forged notary documents in Cotton’s name, she had [the] intent to 

defraud. Thus, if the acts of forgery did in fact occur, appellant’s 

intent in committing that offense was not reasonably in dispute; 

the intent was to unlawfully transfer Cotton’s property to 

appellant, plain and simple.” 

Appellant’s intent was disputed. “[A] fact—like defendant’s 

intent—generally becomes ‘disputed’ when it is raised by a plea of 

not guilty or a denial of an allegation. (Pen.Code, § 1019 [‘The 

plea of not guilty puts in issue every material allegation of the 

accusatory pleading, except those allegations regarding previous 

convictions of the defendant to which an answer is required by 

[Penal Code] Section 1025’].) Such a fact remains ‘disputed’ until 

4 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.”
13

it is resolved.” (People v. Rowland (1992) 4 Cal.4th 238, 260, first 

brackets added, other brackets in original.)

Moreover, appellant’s defense placed the intent element in 

issue. By providing an innocent explanation for Cotton’s 

signature on the quitclaim deed, appellant in effect claimed that 

she did not intend to defraud Cotton. 

In her pretrial motion to exclude evidence of uncharged 

acts, appellant stated, “She denies the act(s), therefore 

inferentially admitting that if she did it [s]he had the requisite 

intent.” (Italics added.) Appellant did not offer to stipulate that, 

if Cotton’s signature on the quitclaim deed were forged, she had 

knowledge of the forgery and intended to defraud him. Even if

appellant had offered to so stipulate, “[b]ecause we conclude that 

the disputed evidence was admissible to establish a common 

design or plan, . . . [her] offer to [so] stipulate [would not have]

affect[ed] the admissibility of the evidence.” (Ewoldt, supra, 7 

Cal. 4th at p. 406, fn. 7.)

Appellant contends that “[t]he uncharged conduct was 

inadmissible because it was not sufficiently similar to the 

charged offense to prove intent.” Viewing the evidence in the 

light most favorable to the trial court’s ruling, we conclude that 

the uncharged conduct was sufficiently similar to prove both 

intent and common design or plan. “[T]he charged and 

uncharged acts together suggested a planned course of action 

rather than a series of spontaneous events.” (Ewoldt, supra, 7 

Cal.4th at p. 404.) The charged and uncharged acts showed that 

appellant, Patrick, and Indra were involved in a scheme to 

defraud property owners by preparing and recording forged deeds 

with the owners’ signatures notarized by Indra. All of the 

conveyances were characterized as gifts to avoid documentary 
14

transfer tax. Based on the false Bank of America account 

statements and SCV Construction earnings statements in the 

owners’ names, it is reasonable to infer, as the People maintain, 

that there was “a common plan to impersonate the property 

owners for purposes of obtaining mortgage modifications.” 

We reject appellant’s claim that the uncharged “property 

transfers . . . failed to sufficiently implicate [her] and therefore 

were not relevant to prove her intent.” Appellant was linked to 

the uncharged property transfers through information on her 

computer, documents in the manila envelope on the dashboard of 

the Raptor that she had been driving, and documents found 

during the search of the Mustang residence. Moreover, Adcock’s 

property on Jordan Avenue in Chatsworth was conveyed directly 

to appellant.

The charged transfer of the Mustang property involved a 

conveyance from Cotton to appellant. Except for Adcock’s 

property, the uncharged transfers involved conveyances to 

persons other than appellant. This difference between the 

charged offense and uncharged acts did not render the uncharged 

acts inadmissible. The charged offense and uncharged acts must 

be “sufficiently similar,” not identical, to be admissible to show 

intent or common scheme or plan. (See Ewoldt, supra, 7 Cal.4th 

at pp. 401-402 [“evidence of a defendant’s uncharged misconduct 

is relevant where the uncharged misconduct and the charged 

offense are sufficiently similar to support the inference that they 

are manifestations of a common design or plan”].)

Adcock, Lankford, Jeffries, and Ashby did not testify. 

Appellant claims that the absence of their testimony precludes a 

finding that the transactions involving them were fraudulent. 

The transactions were similar to those involving Cotton, Danel, 
15

Munoz, and the Shepards. Cotton, Danel, and Munoz testified 

that the transfers of their properties were fraudulent. Although 

the Shepards did not testify, appellant concedes: “[T]he 

[Shepard] property involved the filing of a fraudulent quitclaim 

deed.” “[T]he default judgment against Indra was . . . strong 

proof of fraud.” Based on the similarity of all of the transactions 

and other evidence, a jury could reasonably infer that the 

transactions involving Adcock, Lankford, Jeffries, and Ashby 

were also fraudulent even though they did not testify. Of 

particular significance is the absence of required information, 

including the grantor’s thumbprint, in Indra’s notary journal. 

For the Adcock transaction, there is no entry at all in her journal. 

The trial court instructed the jury that the uncharged acts 

may be considered to prove motive and identity. Appellant 

argues that this instruction was erroneous because motive and 

identity were not in dispute. Appellant also argues that “the 

uncharged conduct was . . . insufficiently similar to be 

admissible” to prove identity. “Evidence of an uncharged crime is

relevant to prove identity only if the charged and uncharged

offenses display a ‘“pattern and characteristics . . . so unusual 

and distinctive as to be like a signature.”’ [Citation.]” (People v.

Kipp (1998) 18 Cal.4th 349, 370.) 

“[B]ecause evidence of prior conduct may be admitted to 

prove a defendant’s intent and plan, regardless of whether it also 

is relevant to prove the defendant’s [motive or] identity as the 

perpetrator, we need not decide whether the evidence was 

admissible to prove [appellant’s motive or] identity. Assuming, 

without deciding, that the jury should not have been instructed

that it could consider the evidence to establish [appellant’s 

motive or] identity as the perpetrator, any error in this jury 
16

instruction was harmless.” (People v. Foster (2010) 50 Cal.4th 

1301, 1329 (Foster).)

Finally, appellant contends that the trial court should have 

excluded the evidence under Evidence Code section 352. “If 

evidence of prior conduct is sufficiently similar to the charged 

crimes to be relevant to prove the defendant’s intent, common 

plan, or identity, the trial court then must consider whether the 

probative value of the evidence ‘is “substantially outweighed by 

the probability that its admission [would] . . . create substantial 

danger of undue prejudice, of confusing the issues, or of 

misleading the jury.” (Evid.Code, § 352.)’ [Citation.]” (Foster, 

supra, 50 Cal.4th at p. 1328.) “We review a challenge to a trial 

court’s choice to admit or exclude evidence under section 352 for 

abuse of discretion. [Citation.] We will reverse only if the court’s 

ruling was ‘arbitrary, whimsical, or capricious as a matter of law. 

[Citation.]’ [Citation.]” (People v. Branch (2001) 91 Cal.App.4th 

274, 282.)

The trial court did not abuse its discretion. “‘Evidence is 

not prejudicial, as that term is used in a section 352 context, 

merely because it undermines the opponent’s position or shores 

up that of the proponent. The ability to do so is what makes 

evidence relevant. The code speaks in terms of undue

prejudice. . . . “‘The “prejudice” referred to in . . . section 352 

applies to evidence which uniquely tends to evoke an emotional 

bias against the defendant as an individual and which has very 

little effect on the issues.’”’” (People v. Doolin (2009) 45 Cal.4th 

390, 438-439.) Here, the prejudice resulting from the admission 

of the uncharged acts was not undue. Evidence of these acts was 

highly probative. “The testimony describing [appellant’s] 

uncharged acts . . . was no stronger and no more inflammatory 
17

than the testimony concerning the charged offenses. This 

circumstance decreased the potential for prejudice, because it 

was unlikely that the jury disbelieved [Cotton’s] testimony 

regarding the charged offenses but nevertheless convicted 

[appellant] on the strength of [the] testimony . . . regarding the 

uncharged offenses, or that the jury’s passions were inflamed by 

the evidence of [appellant’s] uncharged offenses.” (Ewoldt, supra, 

7 Cal. 4th at p. 405.)

Insufficient Evidence of a False Completed 

Notary Acknowledgment 

Section 475, subdivision (a) (475(a)) provides: “Every 

person who possesses or receives, with the intent to pass or 

facilitate the passage or utterance of any forged, altered, or 

counterfeit items, or completed items contained in subdivision (d) 

of Section 470 with intent to defraud, knowing the same to be 

forged, altered, or counterfeit, is guilty of forgery.” (Italics 

added.) The statute is divisible into two parts. “The first portion, 

‘any forged, altered, or counterfeit items’ is one category set apart 

by the word ‘any,’ which means no particular limit is placed on 

the type of forged, altered, or counterfeit items. [¶] The second 

portion, ‘completed items contained in subdivision (d) of Section 

470,’ in its plain meaning, is limited to completed items listed in 

section 470, subdivision (d).” (People v. Mutter (2016) 1 

Cal.App.5th 429, 434 (Mutter).) 

One of the items listed in section 470, subdivision (d), is 

“the acknowledgment of any notary public.” Appellant was 

charged with possessing completed notary acknowledgements 

under the second portion of section 475(a). She claims that the 

evidence is insufficient to support her conviction because, as a 

matter of law, the notary acknowledgments she possessed were
18

incomplete. Since this is a pure legal question, we exercise our 

independent judgment. (Danser v. Public Employees’ Retirement

System (2015) 240 Cal.App.4th 885, 890 [“we exercise 

independent judgment to address a pure legal question”].)

The violation of section 475(a) is based on appellant’s

possession of seven notary acknowledgments collectively marked

as People’s Exhibit 78. The notary acknowledgments

authenticate Cotton’s signature, are signed by Indra, and bear

her official notary seal. 

District attorney investigators found the notary 

acknowledgments in December 2014 when they searched the 

Raptor that appellant had been driving. At that time, former 

Civil Code section 1189, subdivision (a)(1) set forth the required

form for a notary acknowledgment.5 Former section 1189, 

subdivision (a)(1) provided: “Any certificate of acknowledgment 

taken within this state shall be in the following form:

State of California )

County of __________ )

On _____________________________ before me, (here insert 

name and title of the officer), personally appeared 

___________________, who proved to me on the basis of 

satisfactory evidence to be the person(s) whose name(s) 

5 Present Civil Code section 1189 requires the same form 

except that the following new language must appear in an 

enclosed box at the top of the form, “A notary public or other 

officer completing this certificate verifies only the identity of the 

individual who signed the document to which this certificate is 

attached, and not the truthfulness, accuracy, or validity of that 

document.” (Id., subd. (a)(3).)
19

is/are subscribed to the within instrument and 

acknowledged to me that he/she/they executed the same in 

his/her/their authorized capacity(ies), and that by 

his/her/their signature(s) on the instrument the person(s), 

or the entity upon behalf of which the person(s) acted, 

executed the instrument. 

I certify under PENALTY OF PERJURY under the laws of 

the State of California that the foregoing paragraph is true 

and correct.

WITNESS my hand and official seal.

Signature ______________________________ (Seal)” 

As to the seven notary acknowledgments included in 

People’s Exhibit 78, three fully comply with the required form

except for the date. On two of these three acknowledgments, the 

space for the date was left blank. As appendix A to this opinion, 

we attach a copy of one of these two undated acknowledgments. 

The third acknowledgment contains the date of June 16, but the 

year is missing. These three notary acknowledgments were not 

affixed or attached to a document. The other four notary 

acknowledgments were affixed to the last page of an unsigned 

affidavit. They are undated and, although Indra signed them, 

she did not do so under penalty of perjury as required by Civil 

Code section 1189. These four undated and unverified notary 

acknowledgments cannot qualify as “completed items” within the 

meaning of section 475(a). 
20

We must ascertain whether the three undated but 

otherwise fully executed, verified notary acknowledgments

qualify as “completed items” within the statutory meaning. “In 

construing . . . any statute, we strive to ascertain and effectuate 

the Legislature’s intent. [Citations.] . . . ‘[W]e follow the 

Legislature’s intent, as exhibited by the plain meaning of the 

actual words of the law, “‘“whatever may be thought of the 

wisdom, expediency, or policy of the act.”’”’ [Citation.] We give 

the words of the statute ‘“their usual and ordinary meaning.”’

[Citation.] . . . ‘Interpretations that lead to absurd results or

render words surplusage are to be avoided. [Citation.]’ 

[Citation.] ‘If there is no ambiguity in the language of the 

statute, “then the Legislature is presumed to have meant what it 

said, and the plain meaning of the language governs.” [Citation.] 

“Where the statute is clear, courts will not ‘interpret away clear 

language in favor of an ambiguity that does not exist.’ 

[Citation.]”’” (People v. Loeun (1997) 17 Cal.4th 1, 8-9.)

The pertinent language of sections 475(a) and 470, 

subdivision (d) - “completed” notary acknowledgment - is clear 

and unambiguous. Webster’s Third New International 

Dictionary defines “complete” as “possessing all necessary parts, 

items, components, or elements: not lacking anything necessary.” 

(Webster’s Third New Internat. Dict. (1981) p. 465, col. 1.) Both 

former and present Civil Code section 1189 make clear that a 

notary public’s certificate of acknowledgment must include the 

date that the person seeking notarization personally appeared 

before the notary public. The certificate of acknowledgment form 

begins with the language, “On ________ before me, . . . personally 

appeared ______________ . . . .” (Former Civ. Code, § 1189, subd. 
21

(a)(1), present § 1189, subd. (a)(3).)6 Thus, as a matter of law, a 

notary public’s certificate of acknowledgment is not a “completed 

item” within the meaning of section 475(a) if it omits the date 

that the person seeking notarization appeared before the notary 

public.

Our interpretation of section 475(a) does not lead to absurd 

results. The requirement that the certificate of acknowledgment 

include the date is not a mere formality. The requirement assists 

in verifying the identity of the person who signed the notarized 

document. For example, suppose that a notary public’s certificate 

of acknowledgment states that on March 1, 2018, John Smith 

appeared before the notary in the County of Ventura and proved 

that he signed the attached document. If John Smith can show

that he was not in the County of Ventura on that date, he may be 

able to prove that he did not sign the document.

Accordingly, appellant’s conviction for possessing a 

completed notary acknowledgment with intent to defraud in 

violation of section 475(a) must be reversed for insufficiency of 

the evidence.

6 The requirement of the date is set forth at page 10 of the 

2019 Notary Public Handbook, published by the California 

Secretary of State: “The certificate of acknowledgment must be in 

the form set forth in Civil Code section 1189. In the certificate of 

acknowledgment, the notary public certifies: [1] That the signer 

personally appeared before the notary public on the date 

indicated in the county indicated; [2] To the identity of the signer; 

and [3] That the signer acknowledged executing the document.” 

(Italics added.) The 2019 Notary Public Handbook appears at 

https://notary.cdn.sos.ca.gov/forms/notary-handbook-2019.pdf.
22

Reduction to Attempted Possession, Vel Non

At our request the parties have submitted supplemental 

letter briefs on whether appellant’s invalid conviction for a 

violation of section 475(a) can be reduced to an attempted 

violation of the statute, i.e., an attempted possession of a 

completed notary acknowledgment with the intent to defraud.

In People v. Bailey (2012) 54 Cal.4th 740 (Bailey), our 

Supreme Court discussed when an appellate court can reduce a

conviction of a completed crime to an attempt to commit the 

crime. The court noted, “We have ‘long recognized that under 

Penal Code sections 1181, subdivision 6, and 1260, an appellate 

court that finds that insufficient evidence supports the conviction 

for a greater offense may . . . modify the judgment of conviction to 

reflect a conviction for a lesser included offense.’” (Id. at p. 748, 

fn. omitted.) For an attempt to qualify as a lesser included 

offense of the completed crime, the “elements test” must be

satisfied. (Id. at p. 752.) This “test is satisfied if the statutory 

elements of the greater offense include all of the statutory 

elements of the lesser offense, such that all legal elements of the 

lesser offense are also elements of the greater. [Citation.] In 

other words, ‘“[I]f a crime cannot be committed without also 

necessarily committing a lesser offense, the latter is a lesser 

included offense within the former.”’” (Id. at p. 748.) 

Another test for determining whether an uncharged offense 

is a lesser included offense is “the ‘accusatory pleading’ test.” 

(Bailey, supra, 54 Cal.4th at p. 748.) Under this test, “a lesser 

offense is included within the greater charged offense if the facts 

actually alleged in the accusatory pleading include all of the 

elements of the lesser offense.” (Ibid.) But “the accusatory 

pleading test only applies in determining whether a defendant 
23

received notice of the charges against him in order to have a 

reasonable opportunity to prepare and present his defense.” (Id.

at p. 751.) To reduce the conviction of a completed crime to an 

attempt to commit that crime, the attempt must still satisfy the 

elements test. (Id. at pp. 751-752.) 

The elements of a completed violation of section 475(a) are 

(1) possession of a completed notary acknowledgment, (2) “with 

the intent to pass or facilitate the passage or utterance” of the 

acknowledgment, (3) with the intent to defraud, and (4) with 

knowledge that the acknowledgment is “forged, altered, or 

counterfeit.” (Ibid.) An attempt to commit a violation of section 

475(a) “requires a specific intent” to commit the crime. (Bailey, 

supra, 54 Cal.4th at p. 749.) “Section 21a states that ‘[a]n 

attempt to commit a crime consists of two elements: a specific 

intent to commit the crime, and a direct but ineffectual act done 

toward its commission.’” (Ibid.)

We need not decide whether, under the elements test, an 

attempt to violate section 475(a) is a lesser included offense of a 

completed violation of section 475(a). Even if it is a lesser 

included offense under this test, we cannot reduce appellant’s 

conviction of a violation of section 475(a) to an attempted 

violation of that section. We cannot do so because the jury was 

not instructed that the possession of a completed notary 

acknowledgment is an element of the charged offense. The jury 

was instructed as follows: “The defendant . . . is charged in 

Count 4 with possessing or receiving a forge[d] document in 

violation of Penal Code [s]ection 475, sub[division] (a). To prove 

that the defendant is guilty of this crime, the People must prove 

that: One, the defendant possessed a false notary 

acknowledgment [not a false completed notary acknowledgment]; 
24

two, the defendant knew that the document was forged or false; 

three, the defendant intended to pass, use, aid the passage or use 

of the document as genuine; and, four, when the defendant 

possessed or received the document, she intended to defraud.”7

An appellate court can reduce a conviction of a completed 

crime to an attempt to commit that crime only if “the jury, by 

finding defendant guilty of [the completed crime], . . . impliedly 

[found] all the elements of the attempt offense.” (Bailey, supra, 

54 Cal.4th at p. 752.) Because the jury here was not instructed 

on the requirement that the notary acknowledgment must be 

completed, “the jury, by finding defendant guilty of [a violation of 

section 475(a)], [could] not [have] impliedly [found] all the 

elements of the attempt offense.” (Ibid.) In other words, the jury 

could not have found that appellant had attempted to possess a 

false completed notary acknowledgment. Since an attempt to 

commit a crime requires “a specific intent to commit the crime”

(§ 21a), it follows that an attempt to commit a violation of section 

475(a) requires a specific intent to possess a false completed

notary acknowledgment. 

We have attempted to follow the law. But our conclusion 

gives us some pause. The Legislature has determined that it is a 

7 CALCRIM No. 1930, the jury instruction for section 

475(a), does not require a finding of “completeness” where, as 

here, the defendant is charged under the second portion of the 

statute, which “is limited to [the possession or receipt of] 

completed items listed in section 470, subdivision (d).” (Mutter, 

supra, 1 Cal.App.5th at p. 434; see the discussion of section 

475(a), ante, at pp. 17-18.) The jury instruction should be 

modified to rectify this omission.
25

crime to possess a completed but forged notary document, with 

the criminal intent to use it to obtain title to real property. 

Paradoxically, possession of a nearly identical document with the 

same criminal intent is apparently legal. If there is a rationale 

for this distinction, we have not found it. Section 475(a) is 

written in a way that seems to preclude application of the general 

attempt statute. (§ 664.) 

Although she was not charged with conspiracy, the record 

shows that appellant, her husband and her sister were engaged 

in a criminal scheme to fraudulently acquire title to multiple 

parcels of real property. There were many victims. As part of the 

scheme, appellant possessed forged but incomplete notary 

documents with the intent to use them to further the criminal 

scheme. This should be a crime. The fact that it is not, means the 

punishment appellant will receive at resentencing is not 

commensurate with her culpability. 

Possession of even an incomplete forged notary 

document shows a sophisticated disregard for the laws relating to 

perjury and strikes at the heart of real property conveyancing in 

the State of California. We urge the Legislature to revisit this 

matter and clarify that possession of an incomplete forged notary 

document with the requisite criminal intent constitutes an 

attempted violation of section 475(a). (See, e.g., People v. 

Wetmore (1978) 22 Cal.3d 318, 331, citing Witkin, Manual on 

Appellate Court Opinions (1977) § 88 [suggestions to the 

Legislature concerning potential change in the law].)

Aggravated White Collar Crime Enhancement

and $500,000 Fine

The jury found true an aggravated white collar crime 

enhancement allegation that appellant had “committed two 
26

related felonies as set forth in Counts 1 and 4 which resulted in a 

loss to another person of more than $500,000 within the meaning 

of Penal Code section 186.11(a)(2).” For this enhancement, the 

trial court imposed a consecutive three-year term of 

imprisonment. 

Since we must reverse appellant’s conviction on count 4 for 

a violation of section 475(a) and the conviction cannot be reduced 

to an attempted violation of that section, appellant stands 

convicted of only one felony, not two related felonies. We 

therefore must also reverse the true finding on the aggravated

white collar crime enhancement.

The $500,000 fine must be stricken. Section 186.11, 

subdivision (c) authorizes a fine not to exceed $500,000 only when 

a person has been convicted of two or more related felonies.

Repeal of Former Section 12022.6

The jury found true an allegation that appellant “took, 

damaged or destroyed property of a value exceeding $200,000,

within the meaning of Penal Code section 12022.6(a)(2).” The

trial court imposed a consecutive two-year term for this 

enhancement. Appellant was sentenced in March 2018. 

Pursuant to a sunset clause, section 12022.6 was repealed 

effective January 1, 2018. (See former § 12022.6, subd. (f).)8 

Because of the repeal, appellant contends that “[t]he true finding 

8 Former section 12022.6, subdivision (f) provided: “It is 

the intent of the Legislature that the provisions of this section be 

reviewed within 10 years to consider the effects of inflation on the 

additional terms imposed. For that reason this section shall 

remain in effect only until January 1, 2018, and as of that date is 

repealed unless a later enacted statute, which is enacted before 

January 1, 2018, deletes or extends that date.” (Stats. 2010, ch. 

711, § 5.) No such statute was enacted.
27

on [the] enhancement must . . . be reversed and the resultant 

two-year term must be stricken as unauthorized.”

The only published opinion on this issue is People v. Shiga

(2019) 34 Cal.App.5th 466, 470-471: “Shiga contends . . . the 

enhancement the trial court imposed . . . under former section

12022.6, subdivision (a)(4), for causing damage in excess of $ 3.2 

million, must be stricken because the enhancement was 

repealed by its own terms, effective January 1, 2018. (Former § 

12022.6, subd. (f).) We reject this contention because the repeal 

of former section 12022.6 does not apply retroactively.” The 

excerpt from Shiga appears in the opinion’s introduction. The 

portion of the opinion discussing the issue in depth was not 

certified for publication.

The controlling authority is In re Pedro T. (1994) 8 Cal.4th 

1041. There, a minor was found to have unlawfully taken and 

driven a vehicle under an amendment to Vehicle Code section 

10851, which increased the maximum punishment from three to 

four years. The amendment had a sunset clause. The minor

“committed [the offense] during the effective period of the 

provision for increased punishment, but [the judgment] . . . was 

not yet final as of the ‘sunset’ date of that provision . . . .” (Id. at 

p. 1043.) The minor was committed to the California Youth 

Authority for the maximum term of four years. 

The Supreme Court concluded that “the provision for 

enhanced penalties shall apply to all vehicle thefts committed 

during its stated effective period.” (In re Pedro T., supra, 8 

Cal.4th at p. 1048.) The court reasoned: “Ordinarily when an 

amendment lessens the punishment for a crime, one may 

reasonably infer the Legislature has determined imposition of a 

lesser punishment on offenders thereafter will sufficiently serve 
28

the public interest.[9] In the case of a ‘sunset’ provision attached 

to a temporary enhancement of penalty, the same inference

cannot so readily be drawn.” (Id. at p. 1045.) “[T]he very nature 

of a sunset clause, as an experiment in enhanced penalties, 

establishes—in the absence of evidence of a contrary legislative 

purpose—a legislative intent the enhanced punishment apply to 

offenses committed throughout its effective period.” (Id. at 

p. 1049.) 

Appellant has failed to show that, when the sunset 

provision of section 12022.6 was enacted, the Legislature did not 

intend to apply the provision’s enhanced punishment to offenses 

committed throughout its effective period. (See In re Pedro T., 

supra, 8 Cal.4th at p. 1048 [“It is axiomatic that in assessing the 

import of a statute, we must concern ourselves with the 

Legislature's purpose at the time of the enactment”].) The trial 

court therefore did not err in imposing a two-year consecutive 

term for the enhancement. (See People v. Enlow (1998) 64 

Cal.App.4th 850, 858 [“applying the reasoning of Pedro T., we 

conclude that since Penal Code section 666.5 . . . provides for a 

period of increased penalties and contains a sunset clause, the 

legislative intent was that persons such as Enlow who committed 

9 See In re Estrada (1965) 63 Cal.2d 740, 745: “When the 

Legislature amends a statute so as to lessen the punishment it 

has obviously expressly determined that its former penalty was 

too severe and that a lighter punishment is proper as punishment 

for the commission of the prohibited act. It is an inevitable 

inference that the Legislature must have intended that the new 

statute imposing the new lighter penalty now deemed to be 

sufficient should apply to every case to which it constitutionally 

could apply.”
29

his crime during the experimental period of increased penalties 

are to be punished pursuant to the increased penalties,” even 

though their sentences were not final when the sunset clause 

took effect].)

Ability to Pay Victim Restitution

In a supplemental brief, appellant argues that, pursuant to 

People v. Dueñas (2019) 30 Cal.App.5th 1157, “this Court should 

remand this case to the trial court for a determination on 

appellant’s ability to pay . . . the $189,382 in victim restitution 

imposed under section 1202.4 subdivision (f).” 

Appellant forfeited the ability to pay issue because she 

failed to raise it in the trial court. (People v. Frandsen (2019) 33 

Cal.App.5th 1126, 1153-1155; People v. Avila (2009) 46 Cal.4th 

680, 728-729; People v. Bipialaka (2019) 34 Cal.App.5th 455, 464; 

People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1033.) Even if

appellant had not forfeited the issue, Dueñas does not apply to

victim restitution under section 1202.4, subdivision (f). (See

People v. Evans (2019) 39 Cal.App.5th 771, 777 [“Based on the 

significant differences in purpose and effect between victim

restitution and the moneys at issue in Dueñas, we decline to 

extend the rule of Dueñas to victim restitution”].)

Disposition

The conviction on count 4 for possession of a false 

completed notary acknowledgment with intent to defraud 

(§ 475(a)) is reversed for insufficiency of the evidence. The true 

finding on the aggravated white collar crime enhancement

allegation (§ 186.11, subds. (a)(1), (a)(2)) is also reversed. The 

$500,000 fine imposed pursuant to section 186.11, subdivision (c), 

is stricken. The matter is remanded to the trial court for 

resentencing. In all other respects, the judgment is affirmed. 
30

After resentencing, the trial court shall prepare an amended 

abstract of judgment and send a certified copy to the Department 

of Corrections and Rehabilitation.

CERTIFIED FOR PUBLICATION.

YEGAN, Acting P. J.

We concur:

PERREN, J.

TANGEMAN, J.
31
Michael Lief, Judge

Superior Court County of Ventura

______________________________

Kelly C. Martin, under appointment by the Court of Appeal

for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters,

Assistant Attorney General, Michael R. Johnsen, Supervising

Deputy Attorney General, Theresa A. Patterson, Deputy Attorney

General, for Plaintiff and Respondent.