Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County Nos. SCD188444, SCD185986, Lisa Foster, Judge.
BENKE, Acting P. J.
Mohamad Nabih Alsayad was convicted of nine counts of grand theft (Pen. Code, § 487, subd. (a)), ten counts of filing a false instrument (§ 115, subd. (a)), six counts of forging a document (§ 470, subd. (d)), three counts of forging a name (§ 470, subd. (a)), one count of counterfeiting a seal (§ 472) and two counts of making a false statement to a notary (§ 115.5, subd. (b)). As to the grand theft conviction in count 22, it was found true within the meaning of section 12022.6, subdivision (a)(2), the loss exceeded $150,000. It was found true within the meaning of section 115.5, subdivision (a), as to the filing of false instruments convictions in counts 24, 27 and 31, appellant's actions affected the title to or encumbered real property. Finally, it was found true within the meaning of section 186.11, subdivision (a)(1), appellant committed related felonies that involved the taking of more than $100,000.
All further statutory references are to the Penal Code unless otherwise specified.
Alsayad was sentenced to a term of seven years four months in prison. He appeals, arguing as to counts 2 through 21 he was improperly charged with general Penal Code violations rather than more specific Vehicle Code sections, the evidence was insufficient to support conviction on many of the counts, the trial court erred in denying his section 1538.5 motion, the charges were improperly joined for trial, effective assistance of counsel was denied, the trial court and prosecutor engaged in misconduct, cross-examination of a prosecution witness was improperly limited and the trial court erred in denying a motion for new trial.
FACTS
A. Prosecution Case
Appellant was convicted of various offenses related to two criminal schemes. One involved the fraudulent sale of cars on which he had rolled back the odometers. The other involved the fraudulent financing of real property.
1. Fraudulent Car Sales
Using assumed names and disguises, appellant in cash transactions purchased highly marketable cars with high mileages. He rolled back their odometers, making them more valuable, falsified documents concerning the vehicles and resold them for cash at a considerable profit.
a. Elias Aramouni
Elias Aramouni was appellant's acolyte. Appellant taught Aramouni his elaborate system for the fraudulent sale of cars. Aramouni testified appellant sought cars with high resale values but with excess mileage. Using a false name, he purchased such vehicles. Using a method that left no evidence of tampering, appellant rolled back the vehicles' odometers. Appellant made it appear the cars had current registration by making current year tabs to place on the vehicles' rear license plates or simply by getting month tabs from the Department of Motor Vehicles (DMV). Appellant prepared fake evidence of insurance documents by scanning legitimate insurance documents into his computer and then altering the information as required. Using disguises, appellant met prospective purchasers in the Mission Valley section of San Diego. Appellant accepted payment only in cash.
Aramouni was convicted of charges similar to those in this case. Aramouni revealed appellant's crimes believing appellant had provided information that led to Aramouni's arrest.
b. Counts 2 Through 4
On November 18, 2003, Dennis Magnuson sold his 1994 Toyota Camry to someone claiming to be Jim Reinard for $2,700. The mileage on the car was 183,000 miles. The buyer was in his mid-40's or early 50's, five feet six to five feet eight-inches tall with dark skin and dark medium length hair. Magnuson was unable at trial, or earlier when shown a photographic lineup, to identify appellant as the seller. Magnuson signed the Certificate of Title for the vehicle once, but a second signature on the document, supposedly that of Magnuson, was not made by him. Magnuson placed a date after his signature but when shown the certificate in court, the date was scratched out and the mileage indicated for the vehicle was changed.
On December 1, 2003, Amy Engelhardt purchased the 1994 Toyota Camry from a person she identified in court and at an earlier photographic lineup as appellant. Engelhardt paid $6,700 in cash for the car. The man was in his mid-50's, medium height and had a Middle Eastern accent. He identified himself to Engelhardt as Matt Magnuson. The odometer on the vehicle showed less than 45,000 miles. The Certificate of Title provided to Engelhardt indicated 43,900 miles on the vehicle. Before submitting the Certificate of Title to the DMV, she changed the date of purchase to December 11, 2003, and, at appellant's suggestion, stated the purchase price was $2,700. Engelhardt was given immunity for her testimony. The month tag on the car's license plate showed the month of registration as December. Engelhardt later learned the registration on the vehicle had expired in October. Engelhardt filed the Certificate of Title with the DMV.
c. Counts 5 Through 7
In November 2003 Gilbert Farrar sold his 1994 Toyota Camry to a man identifying himself as Randy Klien for $3,000. At the time of sale, the car's odometer showed 103,000 miles. The buyer was fairly short and had no accent. Farrar was unable either at trial or earlier in a photographic lineup to identify appellant as the buyer.
Susan Hill purchased the 1994 Toyota Camry on December 2, 2003, for $5,500 in cash. The odometer at the time of purchase showed 43,800 miles. Hill identified appellant at trial and in an earlier photographic lineup as the seller. The Certificate of Title for the vehicle given to Hill did not list the odometer reading. The signature of the purported seller, Michael Farrar, was on the document. At appellant's suggestion, Hill falsely stated on the Certificate of Title the purchase price was $3,000. She was given immunity for her testimony. Hill filed the Certificate of Title with the DMV.
d. Counts 8 Through 10
Beverly Morgan sold her 1992 Toyota Camry on December 8, 2003, for $2,600 to a person identifying himself as Jack Rymer. At trial and in an earlier photographic lineup, Morgan identified appellant as the buyer. The Certificate of Title that Morgan provided to appellant accurately indicated the odometer reading on the car as 165,000 miles. Morgan signed the Certificate of Title for the vehicle once, but a second signature on the document, supposedly that of Morgan, was not made by her.
Pricilla Cummings purchased the 1992 Toyota Camry on January 10, 2004, for $6,200 in cash. The mileage on the car was represented as 45,000 miles. Cummings identified appellant as the seller both at trial and in an earlier photographic lineup. Cummings falsely stated on the Certificate of Title the purchase price was $3,000. She was given immunity for her testimony. Cummings filed the Certificate of Title with the DMV.
e. Count 11
On January 2, 2004, Peter Kondan sold his 1994 Toyota Camry for $3,100 in cash. The vehicle had approximately 130,000 miles. The buyer identified himself as Jim Burk. At trial and in an earlier photographic lineup, Kondan identified appellant as the buyer. The Certificate of Title that Kondan provided to the buyer was altered by someone to reflect an inaccurate odometer reading for the vehicle, and while one of the Peter Kondan signatures on the document was made by Kondan, the second signature was not.
On January 10, 2004, appellant was issued a citation for various violations while driving the Camry.
Johann Altona purchased the 1994 Toyota Camry on March 1, 2004, for $6,400 in cash. The mileage on the car was represented by the seller as being 47,000. Altona was unable to identify appellant as the seller of the car. Altona indicated on the certificate he paid $4,000 for the car. He was given immunity for his testimony.
f. Counts 12 Through 14
On June 26, 2004, Michael Morace sold his 1997 Toyota Avalon for $3,900 in cash to a person representing himself as Michael Ashford. At the time of sale, the mileage on the vehicle was 179,077 miles. At trial when shown the Certificate of Title for the vehicle, Morace stated one of the signatures for Michael Morace on the document was his, but a second Michael Morace signature was not made by him. There was also an alteration concerning the odometer reading for the vehicle. Morace identified appellant as the buyer in a photographic lineup but was not able to identify appellant at trial.
Basam Alyashai and his wife Rowayda Oraha purchased the 19997 Toyota Avalon in July 2004 for $7,750 in cash. The odometer reading on the car was 47,000 miles. Oraha indicated on the Certificate of Title the purchase price was $3,000. She was given immunity for her testimony. Alyashai was unable to identify appellant as the seller of the car. Oraha presented the Certificate of Title to the DMV.
g. Counts 15 through 17
On May 21, 2004, James Van Vranken sold his 1991 Lexus to a person identifying himself as James Riener for $4,000 in cash. At the time of sale of the car, the odometer reading was 191,000 miles. Van Vranken identified appellant in a photographic lineup as the buyer. Van Vranken identified one of the signatures on the Certificate of Title as his but stated a second Van Vranken signature on the document was not made by him.
In August 14, 2004, Dieu Ho purchased the Lexus for $8,400 in cash. At the time of purchase, the odometer on the vehicle indicated 61,000 miles. Ho identified appellant in a photographic lineup as the seller. At appellant's suggestion, Ho indicated on the Certificate of Title he purchased the car for $4,000. Ho was given immunity for his testimony. Ho filed the Certificate of Title with the DMV.
h. Counts 18 through 20
On August 2, 2004, Steven Sparta sold his 1991 Lexus for $5,000 in cash. At the time of sale, the odometer indicated 183,972 miles. Sparta identified appellant in a photographic lineup as the buyer but was not certain of his identification. At trial, Sparta stated appellant looked similar to the buyer. The Certificate of Title was altered after Sparta provided it to the seller to indicate the odometer reading on the vehicle was not the actual mileage. Sparta identified one of the signatures on the Certificate of Title as his but stated a second Sparta signature on the document was not made by him.
On August 14, 2004, the Lexus was purchased by Daina Brumfield-Ryckman and her husband for $8,300 in cash. The odometer indicated 55,843 miles. Rychman's husband identified appellant in a photographic lineup as the seller. Rychman identified another photograph as that of the seller. At trial, both Rychman and her husband identified appellant as the seller. Ryckman filed the Certificate of Title with the DMV.
2. Search Warrant
An examination of appellant's computer showed he had searched the Internet for information on the tools necessary to adjust digital odometers. Appellant also researched California law on odometers and car sales. The computer also contained fragments of evidence of insurance documents.
A search of appellant's house revealed sections of the Penal and Vehicle Codes dealing with false evidence of registration, unlicensed vehicle dealers and grand theft. Appellant had a stack of blank Release of Liability forms and 10 Certificates of Title for cars that were on his property but not registered in either his or his wife's name. Appellant had laminated color photocopies of genuine DMV registration tabs bearing the Seal of California. Three cars found on appellant's property had rolled back odometers.
In a safe at appellant's house $10,100 in $100 bills was found, and $12,500 in $100 bills was found in the pocket of a pair of men's pants hanging in the master bedroom closet. A Syrian passport and a resident alien card were found in the house, each bearing appellant's name. Both showed a birth date in 1955.
The search revealed six credit cards in the name of Jalal Elsayed. There were 21 credit cards in the name of Ahmad Elsaied, appellant's father. There was a photocopy of a passport for Ahmad Alsaied showing a birth date in 1928. Loan documents bearing that name were found as well as a grant deed transferring title from Mohamad Sayed to Ahmad Saied. A quitclaim deed was found transferring appellant's residence from Ahmed Elsaied to Ahmad Saied.
3. Real Estate Fraud
In the late 1980's, appellant became acquainted with real estate broker Mohamad Aledam. Aledam knew appellant by only one name, Mohamad Alsayad. Aledam assisted appellant because he was attempting to buy a house. However, appellant was unable to do so because he could not secure a loan.
In 1998 appellant wanted to buy a house located at 1567 Hilger Street. Representing himself as Al Mohamad, he approached the owner, Ernest Robinson, Jr., with an offer to buy using a lawful but creative finance scheme. Appellant never told Robinson his actual name was Mohamad Alsayad. Appellant made a down payment to Robinson. Robinson retained liability on his existing mortgage, but appellant made the payments. Appellant agreed that within two years he would secure his own loan, pay off Robinson's loan and assume sole responsibility for the property. A grant deed was filed transferring the property to Mohamad Sayed. Appellant was unable to secure a loan in the two-year period originally agreed upon.
In February 2003, appellant, stating he was Ahmad Saied, contacted mortgage broker Abraham Cohen to secure a $234,000, 30-year fixed rate mortgage on the Hilger Street house. Appellant told Cohen he was in his 70's. Cohen questioned appellant concerning the representation because appellant looked much younger. Cohen referred to appellant as Mark Saied.
Using information supplied by appellant, Cohen prepared a loan application for Greenpoint Mortgage Funding, Inc. (Greenpoint), and appellant signed it as Ahmad Elsaied. The application stated the borrower was 73 years old and his social security number was 616-50-6875. The application indicated Saied had lived in the residence for four years and that his income was $5,175 and had monthly expenses of $457. The application stated Elsaied intended to occupy the residence and that he was a citizen of the United States.
Using the name Ahmad Elsaied and the social security number appellant provided, Cohen ran a credit check. Based on that credit report, Cohen concluded appellant could qualify for the loan sought. Appellant said nothing to Cohen about acting under a power of attorney.
Bunty Cross was an employee of Greenpoint and familiar with the March 2003 loan made on the Hilger Street residence. The $234,000 loan would refinance the $125,822 mortgage on the residence and provide an additional $108,177 to the borrower.
Cross explained that in deciding to make a loan, Greenpoint was concerned with the value of the property and the income and credit history of the borrower. She stated the identity of the borrower was also important.
Cross noted Greenpoint required before the loan was made that the borrower provide a notarized certificate indicating the borrower is the person he or she represents himself or herself to be. The notarized certificate in this case indicated Ahmad Saied was also known as Ahmad Elsaied and Mark Elsaied.
The loan was not made to appellant as a person acting under a power of attorney. Greenpoint made such loans but only when the power of attorney was specific to the property in question.
In December 2003, appellant, using the name Ahmad Elsaied, contacted mortgage broker Daniel Miller. Appellant did not tell Miller his real name was Mohamad Alsayad. Appellant told Miller he was in his early 70's. In fact appellant was much younger. Miller told appellant he looked very good for his age. Miller arranged for a line of credit for appellant through Chase Manhattan Bank USA (Chase) secured by the Hilger Street house.
On the application for the loan, appellant stated his name was Ahmad Elsaied. He stated his social security number was 616-50-6876 and that he was 75 years old and retired. The application indicated he had a monthly income of $6,000 with monthly expenses of $1,629. On the application, appellant indicated he was a citizen of the United States and that he planned to occupy the property permanently. With this information, the application was submitted to Chase.
Miller ran a credit check on Ahmad Elsaied using the social security number provided by appellant. The report indicated Elsaied had good credit. The credit report was submitted to the bank with the application.
Carole Kirk-Hutcheon, an underwriting manager at Chase, was familiar with the $100,000 line of credit loan the bank extended to appellant on December 2, 2003. She stated in deciding to make the loan, the value of the collateral, the credit worthiness of the borrower based on a good credit history and factors such as income and citizenship were important considerations. In deciding to make the loan, the bank relied on the application submitted by the mortgage broker but did its own credit check based on the information submitted in the application. Kirk-Hutcheon testified the submission of truthful information is required for receiving the loan. She also noted that at the time appellant received his loan, the bank was not making property loans to owners who did not occupy the property. With regard to obtaining a loan based on a power of attorney, she stated a general power of attorney was insufficient and a specific power of attorney for the transaction was required.
Kirk-Hutcheon testified if the bank knew the person who signed the loan documents was not Ahmad Elsaied and that much of the information concerning the person making the loan were misrepresentations, it would not have made the loan.
On November 22, 2004, appellant took $5,000 from the credit line and on November 30, 2004, he took the remaining $95,000. In January 2005, pursuant to the terms of the loan, appellant began making payments.
Ahmad Elsaied is appellant's father and lives in Damascus, Syria. Neither father nor son is a citizen of the United States. In neither the Greenpoint nor the Chase transaction did appellant tell the brokers or lenders he was someone other than Ahmad Saied or Ahmad Elsaied. He never represented he was acting on behalf of his father but, rather, represented himself as Ahmad Elsaied. He never stated he was operating under a power of attorney.
It was necessary for appellant to notarize the documents, i.e., name certification and affirmation the property would be the borrower's primary residence, for both the Greenpoint and Chase loans. Appellant contacted notary Judy Walls on March 20, 2003. He represented to her he was Ahmad Saied, the name on the documents, and presented a driver's license in that name. The license indicated Saied's address as that of the Hilger Street property. Appellant signed the documents using the name Saied and did not reveal his true identity to the notary. Appellant told Walls she could call him Mark. The name certification noted Ahmad Saied also used the names Ahmad Elsaied and Mark Alsaied.
The driver's license presented by appellant to prove he was Ahmad Saied bore the driver's license number for appellant's driver's license and appellant's photograph. However, the driver's license issued to appellant under the name Mohamad Alsayad indicated his address as a post office box in La Jolla, not the address of the Hilger Street property.
On March 24, 2003, Walls notarized a quitclaim deed changing the name on the deed from Ahmad Saied to Ahmad Elsaied. This change was necessary to make the name on the deed match the name on loan documents.
On August 13, 2003, Walls notarized a homestead declaration for appellant in the name Ahmad Elsaied.
On December 2, 2003, Walls notarized a set of documents for appellant related to the Chase home equity loan. Appellant represented he was Ahmad Elsaied and Walls notarized that signature on the documents.
Appellant did not tell Walls he was acting under a power of attorney in signing the various documents. The process for notarizing documents when a power of attorney is used is different than the one used when persons sign documents on their own authority. In notarizing the various documents, Walls believed appellant was Ahmad Saied or Ahmad Elsaied. At the time of trial, Walls believed appellant had misled her concerning his identity.
B. Defense Case
Appellant testified. As to the fraudulent auto sales, he denied being involved in the transactions. He admitted frequently buying and selling cars but stated he did so because he liked driving different vehicles.
Appellant's defense to the fraudulent real estate transactions was essentially that he had acted on a power of attorney from his father to purchase real estate in his father's name.
DISCUSSION
A. Charged Offenses
Asserting the principle that specific penal enactments control general ones, appellant argues as to the counts dealing with the sale of automobiles, that rather than being charged with the felony of grand theft (§ 487, subd. (a)), he should have been charged with the misdemeanor of rolling back an odometer (Veh. Code, § 28051). As to the felony forgery (§ 470, subd. (d)) and filing a false instrument (§ 115, subd. (a)) charges, appellant contends he should instead have been charged with the misdemeanor of making a false statement to the DMV (Veh. Code, § 20).
Section 487, subdivision (a), states: "Grand theft is theft committed in any of the following cases:
Vehicle Code section 28051 states: "It is unlawful for any person to disconnect, turn back, advance, or reset the odometer of any motor vehicle with the intent to alter the number of miles indicated on the odometer gauge." Vehicle Code section 40000.15, makes the offense a misdemeanor.
In relevant part section 470, subdivision (d), states: "(d) Every person who, with the intent to defraud, falsely makes, alters, forges, or counterfeits, utters, publishes, passes or attempts or offers to pass, as true and genuine, any of the following items, knowing the same to be false, altered, forged, or counterfeited, is guilty of forgery: . . . certificate of ownership or other document evidencing ownership of a vehicle."
Section 115, subdivision (a), states: "(a) 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."
Vehicle Code section 20 states: "It is unlawful to use a false or fictitious name, or to knowingly make any false statement or knowingly conceal any material fact in any document filed with the Department of Motor Vehicles or the Department of the California Highway Patrol."
1. Background
As to the sale of automobiles, appellant was charged with and convicted of seven counts of grand theft by false pretenses (§ 487, subd. (a)). Each count was based on a misrepresentation of the odometer reading on the vehicle sold and that appellant was the registered owner.
As to those sales, he was charged with and convicted of six counts of forgery based on the use of false, altered or forged Certificates of Title for the vehicles (§ 470, subd. (d)).
As to the automobile transactions, appellant was charged with and convicted of six counts of procuring or offering a false or forged document for filing with the DMV (§ 115, subd. (a)). These counts were based on appellant presenting to the vehicle buyers false or forged Certificates of Title for filing with the DMV.
2. Law
As a general matter, the prosecution may proceed under either of two statutes that proscribe the same conduct. (People v. Cockburn (2003) 109 Cal.App.4th 1151, 1157.) However, when the Legislature has enacted a specific penal statute addressing a matter and defines a punishment for the conduct in question, the prosecution may not charge under a general statute covering the same conduct but defining a more severe punishment. (Mitchell v. Superior Court (1989) 49 Cal.3d 1230, 1250.)
The rule is not one of substantive criminal law but is rather a device for ascertaining and carrying out legislative intent. That the Legislature has enacted a specific statute covering the same ground as a more general statute is an indication that the Legislature intended the specific provision to control. (People v. Jenkins (1980) 28 Cal.3d 494, 505-506.) If this preference for the specific did not exist, then general and more punitive statutes would swallow exceptions contained in less punitive statutes. (People v. Lee (2006) 136 Cal.App.4th 522, 534.) The Legislature may, of course, enact alternative penal provisions to punish less serious conduct less seriously. (People v. Powers (2004) 117 Cal.App.4th 291, 299-300.)
The rule that the specific controls the general applies when each element of the general statute corresponds to an element of the specific statute or when it appears, viewing the entire context, that a violation of the special statute will necessarily or commonly result in a violation of the general statute. However, because the rule is a device for asserting legislative intent, the specific statute will not preempt the general if the Legislature intended the general to apply. (People v. Weaver (2007) 149 Cal.App.4th 1301, 1326-1327.)
3. Discussion
a. Grand Theft
Appellant argues he was improperly charged with seven counts of grand theft (§ 487, subd. (a)) related to his fraudulent sale of automobiles. He contends that because one component of his fraudulent scheme was to roll back odometers (we note appellant's theft also relied on other misrepresentations), the prosecution was precluded from charging him with the general offense of grand theft and instead was limited to charging him with the specific misdemeanor of rolling back an odometer (Veh. Code, § 28501). The curious effect of this remarkable assertion would be that because of the manner in which appellant committed theft, he immunized himself from a charge of theft.
Appellant's claim is without merit. A specific penal statute controls a general one when each element of the general corresponds to an element of the specific or when a violation of the general statute would necessarily or commonly result in a violation of the specific statute. The elements of the offenses of theft and rolling back an odometer are very different, and theft does not necessarily or commonly result in a rolling back of an odometer. Vehicle Code section 28051 merely requires the disconnection or turning back or forward of an odometer with the intent to alter the number of miles indicated. It is not a theft offense at all. The Legislature clearly did not enact the misdemeanor of rolling back an odometer as a means of punishing more leniently a less culpable form of theft. The crimes of theft and rolling back an odometer are directed at different criminal conduct. In this case, had the prosecution chosen to do so, it could have charged, convicted -- but not punished -- appellant for both grand theft and rolling back an odometer.
b. Forgery of a Document
Citing again the principle that specific penal statutes control general ones, appellant argues he was improperly charged with six felony counts of forgery (§ 470, subd. (d)) related to his fraudulent sale of automobiles. He contends instead he should have been charged with six counts of the misdemeanor of making a false statement to the DMV (Veh. Code, § 20).
As relevant here, forgery is defined in section 470, subdivision (d), as passing, using or offering to use a false, altered or forged "certificate of ownership or other document evidencing ownership of a vehicle" with the intent to defraud. As relevant here, Vehicle Code section 20 makes it a misdemeanor to use a false or fictitious name or knowingly make any false statement or conceal any material fact in any document filed with the DMV. The documents in this case were the altered false Certificates of Ownership for the vehicles appellant fraudulently sold to his victims.
The fundamental problem with appellant's argument is that the more specific penal offense in this case is the forgery defined in section 470, subdivision (d), and not the false filing offense defined in Vehicle Code section 20. Appellant believes the false filing offense is the more specific because it deals specifically with filings with the DMV. The forgery statute, however, specifically refers to the actual document in issue, i.e., a Certificate of Ownership for a vehicle, and makes the alteration of that document a felony.
While it is true a specific offense with a lesser punishment cannot be swallowed by a more general offense with a greater punishment, it is equally the case that a specific statute with a greater punishment cannot be swallowed by a general statute with a lesser punishment. It was clearly the intention of the Legislature that one who forges a Certificate of Ownership for a vehicle be charged with forgery under section 470, subdivision (d).
c. Filing a False Document
Appellant argues he was improperly charged with six counts of the felony of procuring or offering a false or forged document (§ 115, subd. (a)). He contends the prosecution was precluded from so charging him and should instead have charged him with the more specific misdemeanor offense of making a false statement to the DMV (Veh. Code, § 20).
Section 115, subdivision (a), as relevant here makes it a felony to "knowingly procure[] or offer[] any false or forged instrument to be filed, registered, or recorded" in any public office, "which instrument, if genuine, might be filed, registered, or recorded" under the law of California.
Vehicle Code section 20, as relevant here, makes it a misdemeanor "to use a false or fictitious name, or to knowingly make any false statement or knowingly conceal any material fact in any document filed with the [DMV]."
The false or forged document in each of the counts charging violation of section 115, subdivision (a), were the forged Certificates of Ownership provided by appellant to the vehicle buyers for filing with the DMV.
We conclude, at the very least, that a violation of the specific statute, i.e., Vehicle Code section 20, will commonly result in a violation of the general statute, i.e., section 115, subdivision (a), and, therefore, the prosecution was precluded from charging appellant with the general offense.
Both sections have a scienter requirement, the act in question must be done knowingly. While section 115, subdivision (a), refers to instruments and Vehicle Code 20 refers to documents, the definition of "instruments" as the term is used in section 115 is very broad and would include at least most documents filed with the DMV. (See People v. Powers, supra, 117 Cal.App.4th at pp. 294-298.) Vehicle Code section 20 requires the document actually be filed with the DMV, while section 115, subdivision (a), merely requires the false instrument be procured or offered for filing. Certainly, it would commonly be the case that a false instrument procured or offered for filing would be filed.
Our conclusion is supported by the decision in People v. Wood (1958) 161 Cal.App.2d 24. In Wood the defendant was convicted of several violations of section 115, subdivision (a), for filing with the DMV false "Dealer's Reports of Sale" and "Certificates of Non-Operation" documents. The court concluded the convictions were improper because appellant should have been charged with violations of Vehicle Code section 131 (the precursor of Vehicle Code section 20). The court concluded the Vehicle Code section was "clearly applicable to the factual situation" involved. (Id. at pp. 29-30.)
Former Vehicle Code section 131 stated: "(d) Any person who knowingly makes a false statement or conceals a material fact in any document required to be filed with the department as herein provided shall be guilty of a misdemeanor." (Stats. 1937, ch. 148, § 11, p. 413.)
Appellant's six section 115, subdivision (a), convictions (counts 3, 6, 9, 13,16, 19) are reversed.
B. Sufficiency of Evidence Concerning the Loan-Related Offenses
As to the Greenpoint and Chase loans, appellant was convicted of two counts of grand theft, four counts of offering or procuring false or forged instruments for filing, three counts of name forgery and two counts of making a false statement to a notary. Various enhancing allegations were found true with regard to the charges. Appellant argues the evidence was insufficient to support any of the counts and enhancements.
In determining whether the evidence is sufficient to support the verdict, we review the entire record viewing the evidence in the light most favorable to the judgment and presuming in support of the verdict the existence of every fact the jury could reasonably deduce from the evidence. The issue is whether the record so viewed discloses evidence that is reasonable, credible and of solid value such that a rational trier of fact could find the elements of the crime beyond a reasonable doubt. (People v. Carter (2005) 36 Cal.4th 1114, 1156.)
1. Grand Theft
In counts 22 and 29 appellant was convicted of grand theft with regard to the Greenpoint and Chase loans secured by the Hilger Street property. Appellant argues the evidence was insufficient to prove an intent to defraud, insufficient to prove detrimental reliance by the victims on any fraudulent representation and insufficient to prove any intent to deprive the victims of all or a portion of their property. These arguments are based on appellant's contention that no evidence contradicts his claim he was acting or believed he was acting on a power of attorney from his father, the lenders were unconcerned with and did not rely on any misrepresentations concerning the identity or circumstances of the borrower and the lenders suffered no harm because appellant repaid one of the loans and was in the process of repaying the other.
a. Law
The elements of theft by false pretenses are (1) a knowing and intentional false representation to the owner of the property; (2) the intent to defraud the owner of the property and (3) transfer of the property to the defendant in reliance on the false representation. Reliance means the false representation materially influenced the owner's decision to part with his property. It need not be the sole factor but there must be a casual connection between the false representation and the transfer of property. Thus, if the defendant makes both true and false statements to the owner, but the false statements are irrelevant to the owner's decision to transfer the property, theft on the theory of false pretense has not been committed. (§ 484, subd. (a); People v. Wooten (1996) 44 Cal.App.4th 1834, 1842-1843.)
In any theft there must be a specific intent to permanently deprive the owner of possession of the property. In this context, the term "permanently deprive" means to take property "for so extended a period of time as to deprive the owner of a major portion of its value or enjoyment." (People v. Avery (2002) 27 Cal.4th 49, 54; People v. MacArthur (2006) 142 Cal.App.4th 275, 280.)
The restoration of wrongfully obtained property is not a defense to theft by false pretenses. (People v. Pond (1955) 44 Cal.2d 665, 674; People v. Jenkins (1994) 29 Cal.App.4th 287, 297.) However, evidence of such restoration is admissible to show that the intent in taking the property was not to permanently deprive the owner of the property. (People v. Edwards (1992) 8 Cal.App.4th 1092, 1100-1101.)
b. Discussion
The evidence was sufficient to prove theft by false pretenses. There is no doubt appellant made multiple and significant misrepresentations in securing the loans from Greenpoint and Chase. Appellant falsely represented he was his father, that his father was a United States citizen and that his father would reside at the Hilger Street property.
Appellant contends his representation he was his father was not knowing and intentional because he was operating under a valid, if unrevealed, and uncontradicted power of attorney to act in his father's name.
The jury heard appellant testify. Appellant is an intelligent, sophisticated man who is fluent in English. It is simply not reasonable to believe he understood that a power of attorney to act in his father's name allowed him to represent himself as his father and to make false statements concerning his father nationality and residency. The more reasonable conclusion is that appellant, unable to secure a loan in his own name when revealing his own circumstances, decided to misrepresent himself to lenders in order to secure the loans. That plan was successful if ultimately disastrous. The existence of the unused power of attorney, which had its authenticity vouched for only by appellant, does not negate a conclusion appellant knowingly and intentionally made false representations to the lenders.
Appellant argues the lenders did not rely on his multiple misrepresentations in deciding to make the loans. Appellant argues the lenders were only interested in the value of the property and not to whom the loans were made. Appellant was unable to secure a loan in his own name. It was only when he made his various misrepresentations that he received loans. It may be that a crucial consideration in obtaining a secured loan is the value of the security. This does not mean the circumstances of the borrower are irrelevant to the making of the loan. In deciding who to give its money, a lender is reasonably concerned with the prospect the loan will be repaid and time and money will not be lost in reclaiming and disposing of the property. The jury could reasonably conclude the lenders relied in part on appellant's misrepresentations.
Appellant also contends that because he repaid one loan and was in the process of repaying the other, there was no theft by false pretenses. As noted, the mere restoration of wrongfully obtained property is no defense. Evidence of restoration, however, may be offered to negate the intent to permanently deprive the owner of his property. Of course, the requirement for an intent to permanently deprive can be satisfied by a finding the defendant intended to take the property for so extended a period as to deprive the owner of a major portion of its value or enjoyment. The jury could reasonably conclude appellant intended to deprive the lenders here of their money for such a period.
In, at least what was, a real estate market with rapid appreciation, a reasonable approach to a scam like appellant's was to obtain loans on property by any means, repay the loans, accept the profits inherent in the appreciation of the property, all with a reasonable prospect of avoiding detection and prosecution. In this case, the money was given to appellant for long periods and denied the lenders the use of that money for other purposes. The evidence was sufficient to find appellant intended to permanently deprive the lenders of their money.
2. Forgery
Appellant argues the evidence was insufficient to convict him of forgery (§ 470, subd. (a)) in counts 23, 26 and 30. He contends the power of attorney allowed him to act on his father's behalf, and in any event there was no evidence either his father or the lenders suffered an injury because of appellant signing his father's name.
The forgery charge in counts 23 and 26 involved appellant signing his father's name on documents related to the Greenpoint loan. The forgery charged in count 30 involved appellant signing his name on documents related to the Chase loan.
Section 470, subdivision (a), makes it a crime, as relevant here, to sign the name of another person on specific documents with the intent to defraud, knowing he or she has no authority to sign that name.
Contrary to appellant's assertion, injury is not an element of the offense. The crime is complete when the unauthorized signature is made with the requisite intent. (People v. Weitz (1954) 42 Cal.2d 338, 350; People v. Cooper (1978) 83 Cal.App.3d 121, 129.)
Appellant argues the evidence is insufficient to prove he had the intent to defraud. We have rejected that assertion in deciding the evidence was sufficient to convict appellant of theft by false pretenses.
Appellant notes defense evidence he had a power of attorney to act in his father's behalf. He contends the authenticity of the power of attorney was unquestioned and it negates the element of the crime of forgery that he knowingly acted without authorization.
We conclude the jury could reasonably reject the authenticity of the power of attorney. The power of attorney offered by appellant indicates it was notarized by an American official at the United States Embassy in Damascus, Syria, on October 3, 2002. It states Ahmad Elsaied, listing his address as the Hilger Street property in San Diego County, designates appellant to act for him with regard to all matters. The signature, "Ahmad Sayed," appears on the document as the party granting the power of attorney.
Accepting for the sake of argument the document was prepared at the embassy, there is no authentication of the signature on that document except appellant's testimony. A forensic documents examiner concluded the Ahmad Sayed signature on the document was made by an elderly person but did not say the signature was made by appellant's father.
Appellant did not use the power of attorney in conducting business with Greenpoint and Chase and did not reveal to the notary he was signing documents in a representative capacity. The existence of the document purporting to be a power of attorney was unrevealed until appellant was prosecuted. Appellant instead represented he was his father. If the jurors concluded appellant was not worthy of belief, and there were multiple reasons to so conclude, they could disbelieve his claim the power of attorney was authentic and he was acting under it in signing his father's name.
3. Offering False or Forged Documents for Filing
Appellant argues his conviction in counts 24, 27 and 28 are not supported by sufficient evidence. This argument rests on the same claims made with regard to the forgery counts and, as noted above, we reject them.
4. Making a Knowingly False Statement to a Notary
Appellant argues his convictions in count 25 and 32 of knowingly making a false statement to induce a notary to perform an improper notarial act on a document affecting title to real property(§ 115.5, subd. (b)) were not supported by sufficient evidence. The counts concern deeds of trust notarized for appellant by Judy Walls.
Appellant represented himself to Walls as Ahmad Saied, his father, and did not inform her he was operating on a power of attorney. Walls stated that to prove his identity appellant presented her a driver's license bearing appellant's photograph, the name Ahmad Saied and the Hilger Street address of the property in question. The driver's license number on the license presented was for a driver's license issued to appellant.
Appellant argues there was no substantial evidence concerning Walls's testimony because there was no evidence appellant ever possessed a driver's license like the one she described. There was no requirement Walls's testimony be corroborated, and the jury was free to concluded he possessed such a driver's license because Walls said that he did. Appellant's claim that Walls was mistaken is mere speculation.
5. "Great Taking" Allegations
As to the grand theft conviction in count 22 involving the Greenpoint loan, the jury found true great taking allegations within the meaning of sections 1203.044, subdivision (d), and 12022.6, subdivision (a)(2). Appellant argues the evidence was insufficient to support those findings. Appellant argues as to each section that Greenpoint essentially suffered no loss and at least no loss in the amount required for a finding under the sections. He notes the loan was paid off and claims he could have received a loan from Greenpoint on the Hilger Street property using the power of attorney given him by his father.
Section 1203.044 was repealed as of January 1, 2008. (Stats. 2001, ch. 854 (S.B. 205), § 43, operative Jan. 1, 2008.
The fact that Greenpoint ultimately suffered no permanent loss is irrelevant. Section 12022.6 provides various sentence enhancements, the length of which depend on the amount of "loss" suffered by the victim. The word "loss" in the context of the section includes any dispossession that constitutes a theft. What is crucial is not that the victim be permanently deprived of property but that the property be intentionally and not accidentally taken. (People v. Mellor (1984) 161 Cal.App.3d 32, 38-39; People v. Bates (1980) 113 Cal.App.3d 481, 484; Judicial Council of Cal. Crim Jury Instns. (1007-2008) CALCRIM No. 3220; see also People v. Ramirez (1980) 109 Cal.App.3d 529, 539-540.)
Appellant relies on People v. Crow (1993) 6 Cal.4th 952. In Crow the defendant was convicted of welfare fraud. As to that crime, the court stated for the purposes of section 12022.6, the government's loss "should be calculated by subtracting the amount the government would have paid had no acts of fraud occurred from the amount the government actual paid. Any money the government would have been obliged to pay had the fraud not occurred is not attributable to the fraud, and thus is not a 'loss' arising out of the out of the criminal offense." (Id. at p. 962.)
The reasoning of Crow has never been applied to a case in which the victim was a private party with no preexisting obligation. The "loss" suffered by Greenpoint was completely the result of appellant's theft, and the evidence was sufficient to support the true findings on the great taking allegations.
C. Sufficiency of Evidence Concerning Vehicle-Related Offenses
Appellant argues the evidence was insufficient to support his vehicle-related convictions for grand theft in counts 5, 8, 11, 12, 15 and 18 and the forgery and filing false document counts associated with those grand theft charges.
We agree with the Attorney General these claims of insufficient evidence may be summarily rejected. In counts 8, 15 and 18, appellant was identified by both the seller and the buyer of the vehicles on which appellant altered the odometers. In count 5, he was identified by the buyer of the subject vehicle. In counts 11 and 12, the seller of the subject vehicle but not the buyer was able to identify appellant as the person involved in the transaction. In count 11, appellant was cited for various violations while driving the subject vehicle.
Appellant points out possible weaknesses in some of the identifications. None of those weaknesses, however, is so significant that they render the identifications unreliable. As to those counts where the buyer was unable to identify appellant, it was reasonable to infer appellant was the seller based on his identification by the persons who sold him the vehicle and on the similarity of those counts to the others. The evidence was sufficient.
D. Motion to Suppress
Appellant argues the trial court erred in denying his motion to suppress evidence seized pursuant to a warrant at his house. Appellant argues the evidence seized was not specifically described in the warrant and, contrary to the argument of the prosecution, did not reasonably show dominion and control of the premises.
1. Background
A DMV peace officer secured a search warrant for appellant's house. The probable cause for the warrant dealt solely with the fraudulent sale of vehicles. The property to be seized related to those sales. The warrant authorized the seizure of evidence of forgery, including documents bearing the signature of persons not living at the residence. The warrant also included an authorization to search for "Papers, documents and effects which tend to show dominion and control over said premises."
In a single paragraph by way of in limine motion, appellant noted that subject to the warrant the People seized from his house documentation -- which the motion did not identify -- related to "questionable real estate transactions." He argued the warrant did not authorize the seizure of such documents and asked the document be excluded.
The prosecution responded the documents related to ownership of the house searched and to loans procured using that property as collateral. The documents were in names other than appellant's (Ahmad Saied and Ahmad Elsaied) and were properly seized as evidence of dominion and control of the residence searched.
At a hearing on the motion, appellant argued the officers had no need to seize evidence of dominion and control because they already knew appellant lived at the residence. The prosecutor responded that because of the nature of appellant's fraudulent sale of vehicles, the warrant authorized the seizure of evidence of forgery. The real estate-related documents in question were for the residence to be searched but were in names other than appellant. The documents, thus, were possible evidence of forgery, raised questions concerning exactly who was involved in the vehicle transactions and exactly who resided at the house. The documents, therefore, were properly seized.
The trial court denied appellant's motion to suppress. It noted some of the documents were grant deeds for the property and were certainly evidence of dominion and control. The court also noted the documents bore signatures of persons who did not appear to be residents of the house and could, therefore, be evidence of forgeries. The court made the same observations with regard to the loan documents seized. The court concluded the documents were covered by the warrant and lawfully seized.
2. Discussion
The real estate-related items seized during the search of appellant's residence were properly admitted. First, as the trial court found, the documents were quintessential evidence of dominion and control. The authorization to search and seize evidence of dominion and control is firmly established. (See People v. Alcala (1992) 4 Cal.4th 742, 799-800; People v. Balint (2006) 138 Cal.App.4th 200, 206.) That the officers already believed appellant was a resident at the premises does not in the least affect the propriety of seizing the documents, particularly when they bore names other than appellant. Additionally, the documents could be seized under the warrant because it was reasonable to believe they were relevant to the vehicle cases because they might show evidence of forgery, a component of appellant's fraudulent vehicle sales.
E. Consolidation of Cases
Appellant argues the trial court abused its discretion when it granted the prosecution's motion to consolidate for trial one case involving his multiple fraudulent sales of vehicles and related offenses with another involving thefts and related offenses arising from real estate transactions. Appellant contends the vehicle theft case was much stronger than the real estate case and joining them was prejudicial.
1. Background
In October 2004 the prosecution filed a complaint charging appellant with crimes related to his fraudulent sale of vehicles. In January 2005 the prosecution filed a complaint in a second case charging appellant with various offenses related to real estate transactions.
A motion to consolidate the two cases for trial was filed on June 8, 2005. The prosecutor noted the law's preference for the consolidation of charges when they are connected either in their commission or of the same class of crime. The prosecutor asserted both cases here involved theft and theft-related charges and thus all charges in the two cases were of the same class. It was asserted much of the same evidence would be introduced in both cases to establish appellant's car-selling practices and his effort to hide his true identity from car sellers, buyers, loan brokers and lenders. The prosecutor argued both cases were strong.
Appellant, then acting in propria persona, opposed the motion, arguing that joining the cases would prejudice him. Appellant argued the cases were entirely separate and there was no cross-admissibility of evidence. He asserted prejudice would result from the shear number of counts that would be charged in a consolidated prosecution.
After a hearing, at which appellant was represented by counsel, the trial court granted consolidation.
2. Law
In relevant part, section 954 provides "if two or more accusatory pleadings are filed" charging "two or more different offenses of the same class of crimes or offenses, . . . the court may order them to be consolidated." If offenses are of the same class, consolidation is proper and can only be denied if the defendant shows that a substantial danger of prejudice would result. In reviewing an order of consolidation, we apply the deferential abuse of discretion standard. An abuse of discretion can exist when a weak case is joined with a strong one such that the aggregate evidence on the several charges might alter the outcome on some or all of the charges. (People v. Geier (2007) 41 Cal.4th 555, 574-575.)
3. Discussion
The evidence against appellant in both the vehicle and real estate cases was strong. There is no doubt the real estate counts were more complex, but we find no basis for concluding the trial court abused it discretion in joining them.
F. Retaining Counsel
Appellant argues the encumbrances placed on his property by the prosecution denied him the right to the effective assistance of counsel.
1. Background
On January 28, 2005, the prosecution filed the complaint in SCD188444, the case involving theft counts regarding the financing of appellant's house. At the same time, the prosecution petitioned for and the trial court granted a temporary restraining order prohibiting the sale or encumbrance of that house pursuant to section 186.11, subdivision (e)(2). Section 186.11, known as the "Freeze and Seize Law," provides a means in certain serious white-collar cases to secure the defendant's assets in order, upon conviction, to pay fines and restitution. (People v. Green (2004) 125 Cal.App.4th 360, 363, 367-369.)
During the pretrial proceedings in both SCD18444 and SCD185986, the case involving vehicles, appellant repeatedly, for one reason or another, changed counsel. During one period, appellant acted in propria persona. During that period, appellant noted he was having difficulty raising funds to retain counsel and asked the trial court to withdraw the TRO so he could secure counsel. The prosecution, which had not sought a preliminary injunction, asked appellant's motion be denied or a preliminary injunction issued.
On July 26, 2005, the trial court issued an order to show cause concerning the granting of a preliminary injunction. On August 9, 2005, a hearing was held on the matter at which appellant was specially represented by Attorney Gene Iredale. The trial court denied the preliminary injunction. It appeared Iredale would be retained to represent appellant. This did not occur, however, and on September 16, 2005, private conflict counsel Jeff Carver was appointed to represent appellant.
On December 27, 2005, and again on January 4, 2006, appellant's motion requesting counsel be relieved was denied. On January 17 and 19 various in limine motions were heard. On January 19, 2005, appellant was released on his own recognizance on the condition he not attempt to encumber his house.
On January 26, 2006, Attorney Allen Bloom appeared specially for appellant. He asked the January 19 order forbidding appellant from encumbering his house be lifted so appellant could use his equity in the property to retain Bloom as counsel. Bloom also asked for a continuance so he could prepare for trial. A hearing was held on the motions on January 26, 2006, the date set for trial. The trial court, after reviewing the long history of appellant's repeated motions to relieve counsel, attempts to retain counsel, changes of counsel and resulting delays in trial, tentatively denied the motions.
In response, Bloom indicated to the trial court that while the lis pendens on appellant's house was lifted on August 9, 2005, the TRO was not and that encumbrance had kept appellant from using his house to secure retained counsel.
The trial court denied the motions pending evidence concerning whether a lender would accept appellant's house as security such that he could retain counsel and evidence that Bloom had been retained.
On February 10, 2006, Jeff Carver was relieved as counsel and Allen Bloom was substituted in as retained counsel. The trial date was continued until April 10, 2006. Bloom indicated to the trial court he could be ready on that date to go to trial.
The defense made no additional requests for a continuance.
2. Discussion
While the history of appellant's relationship with his various attorneys, his attempts to retain counsel and the prosecution's attempts to freeze appellant's assets are less than pretty, appellant was not denied the effective assistance of counsel. Twice in appellant's brief, he argues Attorney Bloom was unable to adequately prepare for the case. Conspicuously, the claims do not include references to the record. Bloom stated to the trial court that absent unforeseen developments, a two-month continuance would be sufficient. Bloom asked for no additional time. It must be remembered that when Bloom took over appellant's representation, much had already been done in preparation of the case.
No claim of specific ineffective assistance is made on appeal and the appeal is unaccompanied by a petition for habeas corpus making such a claim. Our review of the record indicates an active, intelligent and prepared defense at all stages of the proceeding. While appellant's representation lacked the continuity usually seen in cases -- in part the result of appellant's own actions -- the prosecution's attempts to freeze his assets did not result in his inability to retain counsel of his choice for trial nor did it render that representation ineffective.
G. Charts Outlining Counts
Appellant argues the trial court denied him due process when it gave charts to the jurors prepared by the prosecution listing the counts and the victims and witnesses applicable to those counts. Appellant argues doing so conveyed to the jury the court's approval of the prosecution's case.
1. Background
At a hearing prior to trial, the prosecutor noted the case was complex. She proposed that at the start of trial she give the jurors a chart listing the counts and providing for each count the name of the witnesses and exhibits applicable to the counts. The prosecutor stated the chart was nothing more than a more specific version of the complaint that outlined but did not argue the case.
Defense counsel did not object with the proviso that the jury be told the chart was not evidence and that it was offered to the jurors as an aid by the prosecution, the defense and the court. The prosecutor agreed.
The trial court stated it had prepared essentially the same chart for itself. The court believed the chart helpful but directed changes in verbiage. The court, for example, took issue with the heading "Summary of Evidence" because it suggested the evidence existed and had probative value. The court also asked the prosecutor to remove any reference to the exhibits related to the counts. The prosecutor made the amendments. After review by defense counsel and the trial court, it was agreed the chart would be given the jurors.
Later, after appellant changed counsel , the defense objected to use of the chart. Counsel argued it was improper for the court to provide the jury with a chart outlining the prosecution's case. It was totally up the jury to decide how the various parts of the prosecution's case went together.
After the trial court gave preliminary instructions and before opening statements, one of the jurors noted the complexity of the case and asked if it was possible to get a "printout of the counts."
Before opening statements, the trial court handed out the chart to the jurors. The court noted there were 32 counts in the case. The court noted the chart listed for each count the nature of the charge and the vehicle, if any, related to the count. The court told the jurors the chart was to help them. If they did not find it helpful, they were to throw it away. The court stated that by giving the jurors the chart, it was not suggesting there is proof supporting any of the charges.
2. Discussion
This was a factually complex and detailed case. It is virtually impossible to understand it without some means of organizing it. While it might have served the interests of the defense to keep the case as disorganized, complex and impenetrable as possible, a defendant has no due process right to obscurity.
H. Prosecutorial Misconduct
Appellant argues the prosecutor engaged in misconduct by knowingly eliciting perjury from Elias Aramouni. Aramouni testified appellant engaged in fraudulent vehicle sale using methods like those used in this case. His testimony, therefore, strongly corroborated the testimony of the victims that it was appellant who fraudulently sold them cars. Aramouni's credibility was important. Appellant claims the prosecutor, who had also prosecuted Aramouni, elicited or failed to correct false testimony by Aramouni with regard to his use of false names and addresses in buying and selling cars, whether he went to buyers' houses or met them in public places and whether he had received a benefit from the prosecution for reporting appellant.
1. Background
a. Testimony Concerning Benefit
During his direct examination, the prosecutor established Aramouni pled guilty to charges arising from a series of fraudulent vehicle sales much like those charged against appellant. Aramouni testified that on the date he pled guilty, he gave the prosecution a document accusing appellant of fraudulent vehicle sales. Aramouni testified no promises were made him by either the prosecutor or the court in exchange for the document. He stated he did not receive a more lenient sentence because of reporting appellant's crimes.
On cross-examination, defense counsel asked Aramouni if he was attempting to get a benefit for turning appellant in. Aramouni stated he was not.
After the close of the prosecution case, the trial court indicated it reviewed the probation report in Aramouni's case and discovered the report indicated Aramouni hoped the sentencing court would take into account, among other things, the fact he turned in appellant. The trial court believed the statement was inconsistent with Aramouni's testimony at trial and provided the defense a redacted version of the probation report.
Later, Aramouni was called as a defense witness. He testified that before his sentencing he was interviewed by a probation officer. His probation report indicated he wanted the judge in his case to know he was cooperating with the DMV and provided the department with information concerning appellant.
b. Testimony Concerning Location of Meetings and Use of Names and Addresses
Aramouni testified that in general his fraudulent sales scheme was less sophisticated than appellant's in large part because his English language skills were not as good. Aramouni testified on direct examination by the prosecutor that unlike appellant, who met buyers at public locations, he went to their homes. Aramouni explained that given his limited knowledge of English, he was unable to arrange meetings with buyers at locations other than their homes.
Also on direct examination, the prosecutor asked Aramouni if, like appellant, he used different names in buying cars. Aramouni testified he used only one name to buy cars, John Tobia, and only one street address, Pala Street. He explained because of his limited language skills, it was the only name he could remember.
At one point, the prosecutor asked Aramouni: "So you never used any other fake names or fake address for selling cars or buying cars?" He said "[n]o."
On cross-examination, Aramouni was reminded he testified that in "selling" vehicles he always used the same false name. Aramouni stated he sometimes used his son's first name, James, and Gate as the last name. Aramouni then stated he might have used other names. Aramouni explained the transactions in question had occurred four or five years before. Defense counsel, using documents received in discovery, indicated in his transactions Aramouni had used other names and different addresses. Aramouni stated his memory of the events was not clear.
Aramouni was shown additional discovery materials and admitted that while he testified he always met persons at their homes, there were occasions when he met them at other locations.
c. Argument
During opening argument, the prosecutor, in making the claim Aramouni was less sophisticated than appellant, told the jury that, unlike appellant, Aramouni tended to meet buyers at their homes, he usually used the same name and used either Palay or Pala Street as an address.
In argument, defense counsel attacked the claim Aramouni was unsophisticated by noting inconsistencies in his testimony, including his contradictory claims about the use of multiple names and addresses and his claim he only met persons at their homes.
2. Discussion
There was no claim made below either during trial or in a motion for new trial the prosecutor committed misconduct by suborning perjury from Aramonui. There is no petition for habeas corpus accompanying this appeal making that claim and more fully developing the facts surrounding it. At no time has the prosecutor had the opportunity to meet that allegation.
Aramouni, a difficult witness in many respects, was incorrect when he stated he invariably used different names and addresses and always met persons at their homes. The defense in cross-examining Aramouni clearly established this was not true. In arguing the matter, the prosecutor said nothing more than Aramouni usually or tended to use the same names and addresses and usually met persons at their homes. There is nothing in the record suggesting this was an untrue characterization.
Aramouni was an important but not crucial witness for the prosecution. The issue of whether he always or usually used the same name and address, etc., was of some importance but was not central to an evaluation of his credibility. It is certainly possible the prosecutor, undoubtedly to her consternation, simply did not fully review Aramouni's case before questioning him concerning his fraudulent practices. Based on this record, it is simply impossible to say.
Neither does the record reveal any impropriety in the prosecutor's questions concerning receiving a benefit for reporting appellant. Aramouni testified no promises were made him either by the prosecutor or the court in exchange for a document reporting appellant's crimes. The document making those claims against appellant were presented to the prosecution on the day Aramouni pled guilty. It may very well be that Aramouni hoped he would reap some benefit at sentencing. There is nothing, however, in the record indicating Aramouni was promised anything by the prosecutor or the court in exchange for the document.
I. Cross-examination of Elias Aramouni
Appellant argues the trial court improperly limited his cross-examination of Aramouni concerning Aramouni's English language skills and general sophistication and concerning the details of Aramouni's plea bargain. Appellant also argues the trial court erred in refusing access to Aramouni's tax and phone records.
1. Aramouni's Language Skills
a. Background
It was the intention of the prosecutor to offer Aramouni's testimony through an interpreter. Defense counsel objected, stating his understanding Aramouni spoke English and asked the court to determine whether an interpreter was necessary. Counsel stated the jury could better judge Aramouni's credibility if his testimony was not filtered through an interpreter. Counsel also argued Aramouni would use the time necessary for the translation of a question to prepare an untruthful answer.
The prosecutor stated Aramouni requested an interpreter and she believed one should be provided. The prosecutor stated Aramouni does well in English for short periods but becomes confused and makes mistakes that would render his testimony confusing and misleading. The prosecutor also noted Aramouni at times was unable to fully understand questions asked in English. The prosecutor observed Aramouni was not granted immunity, and in fairness she believed it essential he fully understand the questions asked.
The trial court agreed with defense counsel that if possible it is better for a witness to testify directly to the jury. The court conducted a hearing to determine if Aramouni required an interpreter. The trial court and counsel questioned Aramouni without the help of an interpreter. At the end of the hearing, defense counsel stated he believed Aramouni understood 90 percent of what was asked. Counsel asked that Aramouni testify in English with a standby interpreter to assist if necessary.
The trial court concluded Aramouni understood some English and probably more than he admitted. Still, the court was concerned he did not fully understand the questions asked and his answers in English did not always reflect what he meant. The court was also concerned, apparently because of the witness's accent, the court reporter had difficulty in understanding his answers and feared the jury would also have difficulty. The court concluded Aramouni would testify through an interperter.
Defense counsel stated he intended to cross-examine Aramouni about and present evidence concerning Aramouni's facility with English. Counsel stated it was the prosecution's position appellant taught Aramouni the business of fraudulently selling cars. It was the defense position that it was Aramouni who was the mastermind and allowing Aramouni to testify through an interpreter left a false impression concerning his sophistication and abilities.
As direct examination by the prosecutor began, Aramouni repeatedly answered questions in English. Defense counsel asked that the record so note. The court admonished Aramouni that he needed to allow the interpreter to answer, and if he felt he did not need an interpreter he should so inform the court. From time to time during direct examination, Aramouni would answer questions directly in English. As direct examination continued, however, it was conducted almost exclusively through the interpreter with Aramouni responding to questions in Arabic.
At the end of direct examination, defense counsel stated it was clear Aramouni had the ability to converse in English and asked that he be allowed to cross-examine without use of the interpreter. Counsel stated Aramouni was perpetrating a fraud on the court by pretending he was not fluent in English. The prosecutor disagreed, saying it was clear Aramouni struggled with English and cross-examination should be through the interpreter.
The court stated it was appropriate for the defense to cross-exam Aramouni concerning his English skills. The trial court concluded Aramouni understood questions in English better than it at first believed he would. The trial court stated cross-examination would begin with the interpreter but the court would decide later if some part of the examination would be conducted in English.
The court stated its ultimate ruling on cross-examination in English might turn on the defense being offered. The court was unsure if the defense was suggesting Aramouni and not appellant bought and sold the cars that were the basis of the charges. If that was the defense, then there was greater relevance to Aramouni's language skills. Defense counsel merely replied the matter had "blossomed into a full bore credibility issue." Counsel stated: "I'm talking only about how believable Mr. Aramouni is."
During cross-examination, counsel established Aramouni testified in English at a hearing before his testimony to the jury. Counsel also questioned Aramouni in general about his use of English.
During Aramouni's cross-examination, the trial court revisited the issue of whether he could be examined in English. Defense counsel stated Aramouni's use of English was better when he was not being questioned before the jury.
The trial court replied the jury saw Aramouni answer questions in English before they were translated by the interpreter. The court noted defense counsel repeatedly pointed that out by asking the record so reflect. The court stated it did not think the jury believed Aramouni. The court again asked defense counsel the relevance of Aramouni's language skills. The court stated its understanding the evidence went to Aramouni's general credibility. Defense counsel essentially agreed. He stated if there was a teacher, it was Aramouni and not appellant. The court stated cross-examination would continue using the interpreter. When cross-examination was completed, it would consider the issue again.
At the end of cross-examination, the trial court allowed defense counsel to ask Aramouni a series of questions in English concerning his fluency in English without the use of the interpreter.
b. Discussion
Appellant argues he was denied due process when the trial court improperly limited his cross-examination of Aramouni concerning his facility with English. The limitation about which appellant apparently is complaining is that with the exception of a few questions at the end of cross-examination Aramouni was allowed to testify through an interpreter.
Evidence Code section 752, subdivision (a), requires that when a witness "is incapable of understanding the English language or is incapable of expressing himself or herself in the English language so as to be understood directly by counsel, court, and jury," the court is required to appoint an interpreter for the witness.
Whether an interpreter is required under Evidence Code section 752 is a matter within the discretion of the trial court. (People v. Augustin (2003) 112 Cal.App.4th 444, 450-451.)
The trial court in a thorough and fair manner considered the issue of whether Aramouni required an interpreter. This court did not hear Aramouni testify either at the hearing to determine whether an interpreter was required or at trial. We are simply in no position to second guess the trial court's finding an interpreter was required. There was certainly a question concerning whether Aramouni was misrepresenting his facility in English. The trial court, however, was sensitive to that issue and allowed the defense to thoroughly explore the question. The trial court did not abuse its discretion in allowing Aramouni to testify through an interpreter.
As an aside, we take issue with appellant's position, curiously concurred in by respondent, that one of appellant's defenses to the fraudulent vehicle sales counts was that it was Aramouni who committed the crimes and not appellant. There was no evidence supporting that claim and it was certainly not argued to the jury by defense counsel.
2. Aramouni's Plea Bargain
Appellant argues the trial court erred in not allowing him to cross-examine Aramouni about the details of his plea bargain.
a. Background
Appellant sought in discovery all records related to Aramouni's plea bargain. During a pretrial hearing in this case, Aramouni's defense attorney and the prosecutor made statements concerning Aramouni's plea bargain. They noted nothing in the bargain precluded Aramouni's prosecution by any other state or federal agencies. Aramouni pled guilty to five counts and agreed to pay $38,000 in restitution as well as $4,000 in fees to the DMV. Aramouni also agreed to make restitution to any other victims who came forward.
At the beginning of his trial testimony for the prosecution, Aramouni admitted he pled guilty to felony offenses involving the fraudulent sale of vehicles. Aramouni stated on the day he pled guilty he gave his attorney a note for the prosecutor outlining appellant's criminal activities. He stated no promises were made to him in exchange for the paper and he did not receive a more lenient sentence because of it.
During cross-examination, defense counsel apparently showed Aramouni the judgment in his case. When counsel asked if the sentence on the form was the sentence Aramouni received, the prosecutor objected that the sentence was irrelevant. The objection was sustained. When counsel asked Aramouni if he was told he could serve five years eight months in prison, the prosecutor again objected and side bar conference was held.
The trial court was concerned that because appellant was charged with the same offenses to which Aramouni pled guilty, the jury would understand the sentence appellant was facing. The court believed it was improper for the jury to have that information. The court also noted the possible maximum sentence had nothing to do with the deal Aramouni agreed to. The court stated the important issue was whether Aramouni's plea bargain or the sentence imposed were the result of the information he supplied about appellant.
Defense counsel argued Aramouni's belief he would benefit from providing information about appellant was relevant and admissible. The court agreed but stated questions about the possible maximum sentence appellant faced were not relevant. Counsel stated he wanted to show one motive for Aramouni reporting appellant and testifying against him was that he believed it would benefit him. The court stated counsel could ask Aramouni if he was concerned about the possible maximum length of sentence he was facing. The court stated it would not allow questioning about the actual length of that maximum sentence. Defense counsel stated he could abide by that ruling.
Counsel asked Aramouni if he was attempting to get a benefit for turning in appellant. Aramouni stated he was not.
After the close of the prosecution case, the trial court indicated it reviewed the probation report in Aramouni's case and discovered the report indicated Aramouni hoped the sentencing court would take into account, among other things, the fact he turned in appellant. The trial court believed the statement was inconsistent with Aramouni's testimony at trial and provided a redacted version of the probation report to appellant's defense counsel.
Defense counsel stated he expected to call Aramouni as a defense witness and wished to question him concerning his expectations of the maximum sentence he could have received in his case. Counsel stated he wanted to ask Aramouni if it was his understanding he was facing up to two years in prison and if he felt he might get a better sentence by turning in appellant.
The trial court noted Aramouni's probation report indicated there were many things he wished the court to consider he determining his sentence. The court, citing Evidence Code section 352, was concerned that if it allowed testimony concerning Aramouni's hopes with regard to turning in appellant, it would have to allow testimony about all of Aramouni's sentencing hopes. The court noted there was no condition of probation requiring Aramouni to cooperate with the prosecution. The court stated the fact Aramouni was on probation was admissible. The court stated it did not believe it proper for Aramouni to testify concerning specific numbers of years he was facing in prison. The court stated it would allow counsel to ask Aramouni if he believed he was facing some prison time.
Called as a defense witness, Aramouni was reminded of his testimony he did not report appellant to gain an advantage in sentencing. He was then shown the statement in the probation report that he hoped the sentencing court would consider the fact that he had turned in appellant. Aramouni stated he did not remember making the statement. Aramouni also stated he knew it was possible he would be sentenced to prison.
b. Discussion
The trial court gave the defense great latitude in impeaching Aramouni. The impeachment undertaken by defense counsel was broad and skillful. Aramouni was impeached based on his prior felony convictions, inconsistencies in his testimony and his personal animus toward appellant. While the trial court restricted defense counsel from questioning Aramouni about some details of his plea bargain, counsel was able to explore completely the essential aspects of the bargain and the possibility that, facing a prison term, Aramouni turned appellant in, hoping to receive a more lenient sentence. Appellant was not denied due process in the manner the trial court allowed counsel to impeach Aramouni.
3. Aramouni's Tax and Cell Phone Records
Appellant argues he was denied due process when the trial court refused him access to certain of Aramouni's tax and cell phone records.
a. Background
Appellant sought discovery of the prosecution's entire file on Aramouni. Among the items in the file were cell phone records for Aramouni's daughter and Aramouni's tax returns (apparently federal and state income tax returns for 2002, a period during which Aramouni was engaged in fraudulent vehicle sales). At a hearing before trial, Aramouni's attorney appeared and objected to those documents being provided to the defense. Appellant's counsel stated he had no interest in the daughter's cell phone records but wished to see Aramouni's tax returns because they might lead to useful information. Counsel explained the tax returns might show Aramouni filed false returns and, therefore, was potentially at risk of federal prosecution. That possibility might provide an additional reason for Aramouni to seek favor with the prosecution by turning in appellant
The trial court reviewed the tax returns and concluded they were not discoverable. The court stated there was nothing in the returns that would assist appellant in making a claim of false income reports concerning Aramouni's business. The returns were simply too general. Defense counsel stated he agreed such reports were often general but thought it possible, based on other information, the returns might suggest Aramouni's income reports were understated. The court stated that if in the future the defense could present evidence of how much Aramouni made from his sales in 2002, the court would revisit the issue and determine if the tax returns were relevant or helpful.
b. Discussion
Contrary to appellant's argument, the defense did not seek cell phone records. With regard to Aramouni's 2002 tax return, based on the record before us, the trial court's ruling was eminently fair and unassailable.
J. Motion for New Trial
After the attorneys argued and immediately before sentencing, appellant made an in propria persona written motion for new trial based on a claim of ineffective assistance of counsel. The trial court denied the motion. Appellant argues this was error.
1. Background
On May 8, 2006, appellant was found guilty on the various charges and sentencing was set for June 6, 2006.
On June 6, 2006, defense counsel made oral motions for judgment notwithstanding the verdict and for new trial. Counsel also requested sentencing be continued. The trial court denied the defense motions and continued sentencing to June 26, 2006.
On June 26, 2006, counsel stated he wished to make additional arguments concerning his earlier motion for new trial. The trial court heard the motion and again denied it.
The court then asked if there was any reason why judgment should not be pronounced. Defense counsel stated there was not.
The sentencing hearing began. During the hearing, appellant made a lengthy statement explaining his conduct and asked for leniency. After the prosecutor made her argument and after defense counsel responded, appellant stated he had an additional "timely" motion. When the trial court stated appellant was represented and any motions would have to be made by counsel, appellant stated he was making an "IAC" motion. When the court stated the motion was untimely, appellant stated: "Before sentencing, your honor." The court at first stated it would not consider the motion but then asked if the motion was a claim trial counsel had provided ineffective assistance. Appellant then offered a letter to the court concerning his claims. The prosecutor stated she had not seen the letter, apparently neither had defense counsel.
After reading the letter, the court stated defense counsel was retained, and if appellant was unhappy with his representation before or during trial, his remedy was to fire counsel. The court stated that from its perspective, defense counsel was more than adequate and there was no basis for concluding to the contrary. Appellant, repeating he was making the motion before sentencing, asked the court to read his letter. The court asked if appellant was asking that a new trial be granted because of ineffective assistance. Appellant stated that was his motion. The court stated it had the motion before it and that the motion was denied.
The court then sentenced appellant to prison. Appellant made no further argument concerning his motion for new trial. The letter appellant presented to the trial court stating the basis for his claim of ineffective assistance of counsel is not contained in the record on appeal. No claim of ineffective assistance of trial counsel is made on appeal and no petition for habeas corpus raising that issue was filed in this court.
2. Discussion
Appellant, who was convicted of multiple crimes involving serious misreprentations and manipulations, at the eleventh hour attempted to manipulate the trial court, placing it and the prosecution at serious disadvantage with the hope he could induce confusion and error or at the least a continuance. As with his other schemes, he failed.
It is, of course, no mystery why appellant repeatedly noted his surprise motion for new trial was made before sentencing. As applicable here, a motion for new trial can be made at any time before pronouncement of judgment. (§ 1182.)
A motion for new trial may be oral or written. (People v. Braxton (2004) 34 Cal.4th 798. 807.) It is clear the trial court considered appellant's written motion. It read his letter, clarified he was raising an issue of ineffective assistance of counsel, stated it believed there was no basis for the motion and denied it. Appellant did not ask the trial court that he be allowed to make an oral presentation. Thus, appellant's claim his motion was ignored or not considered by the trial court is simply untrue.
In terms of the merits of the motion, it is impossible for us to consider the issue. On the record here, we have no clue concerning the issues raised in appellant's motion. Did the claims of ineffective assistance involve matters of record? If they did, no issue is raised on appeal that counsel was ineffective. Did the claims of ineffective assistance involve matters not of record? There is no indication appellant's written motion included declarations concerning acts or omission of counsel. This appeal is unaccompanied by a petition for habeas corpus evidencing matters not of record demonstrating ineffective assistance.
DISPOSITION
The convictions in counts 3, 6, 9, 13, 16 and 19 are reversed. In all other respects the judgment is affirmed.
WE CONCUR: MCDONALD, J., IRION, J.
"(a) When the money, labor, or real or personal property taken is of a value exceeding four hundred dollars ($400), except as provided in subdivision (b)."
Appellant's defense to the fraudulent vehicle counts was misidentification. He claimed he did not roll back odometers and the various sellers and buyers simply made uncertain and erroneous identifications of him. Aramouni's testimony, however, corroborated the victims' identifications. Aramouni testified appellant carried on a sophisticated fraudulent vehicle sales operation that relied on detailed tactics closely mirroring those used in the charged sales. Aramouni testified he learned the scheme from appellant but had to use it in a less sophisticated manner because of his limitations in English.
If, however, as the defense attempted to show, Aramouni, who had several motives for testifying falsely, could capably use English and was generally more sophisticated than he admitted his claim he was taught the scheme by appellant was less compelling. That Aramouni was more capable in English than he would admit was important, therefore, not because it supported a claim he committed the charged offenses but because it tended to impeach his claim he learned the odometer scheme from appellant.