Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County No. CF06901912. James R. Oppliger, Judge.
James M. Crawford, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Larenda Delaini, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
CORNELL, J.
A jury convicted appellant Dangerfield Coldley Cromer, Jr., of two felonies involving identity theft. He contends his convictions should be reversed because of instructional error and prosecutorial misconduct. He also claims the judgment contains an error in the amount of victim restitution. We will affirm the convictions and direct the judgment be corrected.
Although the record and abstract of judgment show Cromer’s name as D.C. Cromer, Jr., for the purposes of this opinion we will use the name as given by Cromer at trial.
FACTUAL AND PROCEDURAL SUMMARY
Troy Jowers was a retired 72-year-old man who had known Cromer and Cathleen Rose Stephens for about six years. Cromer and Stephens lived together and had one child. In November 2005, Stephens performed computer work for Jowers. Stephens helped Jowers purchase airline tickets online, using a debit card, for a trip to Costa Rica. She also helped Jowers apply for a real estate loan.
Stephens’s appeal is before this court as case No. F059427.
On November 29, 2005, Jowers traveled to Costa Rica with a friend. While in Costa Rica, Jowers received several telephone calls from Cromer and Stephens. After Jowers returned from Costa Rica, Stephens called him and asked to meet with him. Jowers met with Stephens and Cromer. During this meeting, Stephens told Jowers she had accessed his bank account without his permission and had taken $2,500. Cromer was present during this conversation. Jowers later testified that “they” said that “they” took the money from his account and were sorry, but “they” needed the money.
Cromer and Stephens did not return the money to Jowers, but they did offer to repay the money and asked Jowers to cosign a loan for them. Cromer needed a cosigner because he had bad credit. Jowers agreed to cosign for the loan because Stephens and Cromer had said they were sorry and they were going to repay the money. Stephens and Cromer had borrowed money from Jowers in the past for gas and, with one exception, had always repaid him.
Jowers had not given Cromer or Stephens permission to use his bank account. He did not report the theft of the $2,500 immediately.
The next day Cromer tried obtaining a loan with Jowers as cosigner. Cromer’s credit was so bad, however, that several financial institutions turned him down, even if Jowers cosigned. Jowers informed them that he was unhappy with the situation.
After Cromer was unable to secure a loan, Jowers received a call from Western Union. The caller stated that a woman was trying to obtain money from Jowers’s Discover card account. Jowers received a second call from Western Union concerning a money transfer. Jowers did not authorize the transfer. Jowers reported the thefts to the Fresno County Sheriff’s Office.
Jowers later discovered a payment for $471.19 to First Savings for the benefit of Cromer. Cromer claimed he did not do it. When Jowers reviewed his bank statements, he discovered 65 unauthorized transactions between November 14, 2005, and February 17, 2006.
Jowers contacted Cromer’s sister, Mary Cromer Perkins, in March 2006. Jowers told Perkins that Cromer and Stephens took money from his account without permission. Perkins gave a statement to the district attorney’s office, wherein she reported that Jowers told her Cromer and Stephens took money from him. At trial, Perkins claimed Jowers had told her Stephens took money; Jowers did not mention Cromer. Perkins denied making a statement that Jowers had implicated Cromer.
On March 21, 2006, Eric Owen, a special agent with the Social Security Administration’s Office of the Inspector General, searched a Lincoln Continental, the vehicle in which Cromer had arrived. Owen found a Bank of America Platinum VISA card inside a Bible tucked between the front seats. The VISA card was in the name of Troy Jowers. There also was a 7-Eleven receipt dated “06/03/21” showing payment with Jowers’s VISA card.
Cromer also was searched on March 21, 2006. In his wallet Cromer had a card with Jowers’s social security number, address, date of birth, and Bank of America checking account information written on it.
Cromer was tried jointly with his codefendant, Stephens. The parties entered into five stipulations for trial.
The first stipulation was that two payments had been made on court cases in Cromer’s name using Jowers’s VISA card. The payments were made online or by telephone and each payment was for $141.95.
The second stipulation was that Cromer called a business and asked that a $400 payment be made to his account then handed the phone to Stephens, who gave Jowers’s VISA information to the business as payment, and that Stephens called a business and asked that a $310 payment be made to her account, using Jowers’s VISA card.
The third stipulation was that someone called a business and made a $100 payment on an account in Cromer’s name using Jowers’s VISA card, and that Cromer and Stephens purchased jewelry, made a down payment, and left a balance of $487.53.
The fourth stipulation was that Stephens called a pet food delivery store and ordered $148.49 worth of dog food to be delivered, paying for the dog food with Jowers’s VISA card; a second order for $154.64 to be charged to the same VISA was rejected by the card company.
The fifth and last stipulation was that Cal State Glass repaired a window at the home shared by Cromer and Stephens and did repair work on a Lincoln Town Car, all of which was paid using Jowers’s VISA card.
Cromer testified that Jowers gave him permission to use the VISA card when it arrived in the mail. Cromer acknowledged meeting with Jowers in February 2006 and telling Jowers he and Stephens had “used” $2,500 from Jowers’s account and agreed to repay Jowers. Cromer acknowledged using the VISA card to make payments and transfer money to his account, but claimed this was done with permission from Jowers.
In rebuttal, Adam Price, branch manager at Bank of America, testified that Cromer had been added as an authorized user on Jowers’s account. An authorized user can be added over the telephone if the caller can provide verifying information, such as date of birth, social security number, and account balances.
Jowers testified in rebuttal that he had never applied for or seen the VISA card that Cromer and Stephens had used. He was not aware that Cromer was an authorized user on any of his accounts.
The amount of the charges by Stephens and Cromer came to approximately $9,500.
The jury found Cromer guilty of identity theft and acquiring access card account information. Cromer admitted enhancements that he had served two prior prison terms. The trial court imposed an aggregate sentence of four years in state prison. Cromer was ordered to pay victim restitution in the amount of $9,562.
DISCUSSION
Cromer contends the trial court erred prejudicially in instructing the jury with CALCRIM No. 357 (adoptive admissions) because the evidence did not support such an instruction. He further claims the prosecutor committed prejudicial misconduct. Finally, Cromer asks this court to correct an error in the stated amount of victim restitution.
I. Adoptive Admission Instruction
Factual summary
Jowers testified that after he returned from Costa Rica, Stephens asked to meet with him. Stephens told Jowers she took $2,500 from his bank account without his permission. Cromer was present during this conversation. Later during testimony, Jowers testified that Cromer and Stephens came to his house and said “they” had something to tell him. Jowers stated “they told me” they had taken $2,500 from his account because “they needed the money, ” and they apologized.
The trial court, over Cromer’s objection, instructed the jury with CALCRIM No. 357 on adoptive admissions.
CALCRIM No. 357 reads: “If you conclude that someone made a statement outside of court that (accused the defendant of the crime/ [or] tended to connect the defendant with the commission of the crime) and the defendant did not deny it, you must decide whether each of the following is true: [¶] 1. The statement was made to the defendant or made in (his/her) presence; [¶] 2. The defendant heard and understood the statement; [¶] 3. The defendant would, under all the circumstances, naturally have denied the statement if (he/she) thought it was not true; [¶] AND [¶] 4. The defendant could have denied it but did not. [¶] If you decide that all of these requirements have been met, you may conclude that the defendant admitted the statement was true. [¶] If you decide that any of these requirements has not been met, you must not consider either the statement or the defendant’s response for any purpose. [¶] [You must not consider this evidence in determining the guilt of (the/any) other defendant[s].]
Analysis
Evidence Code section 1221 provides: “Evidence of a statement offered against a party is not made inadmissible by the hearsay rule if the statement is one of which the party, with knowledge of the content thereof, has by words or other conduct manifested his adoption or his belief in its truth.” When a defendant remains silent after a statement alleging the defendant’s participation in a crime, under circumstances that fairly afford the defendant an opportunity to hear, understand, and reply, the statement is admissible as an adoptive admission, unless the circumstances support an inference that the defendant was relying on the right of silence guaranteed by the Fifth Amendment to the United States Constitution. (People v. Riel (2000) 22 Cal.4th 1153, 1189 (Riel); People v. Mayfield (1997) 14 Cal.4th 668, 741.)
“‘For the adoptive admission exception to apply, … a direct accusation in so many words is not essential.’ [Citation.] ‘When a person makes a statement in the presence of a party to an action under circumstances that would normally call for a response if the statement were untrue, the statement is admissible for the limited purpose of showing the party’s reaction to it. [Citations.] His silence, evasion, or equivocation may be considered as a tacit admission of the statements made in his presence.’ [Citation.]” (Riel, supra, 22 Cal.4th at p. 1189.)
Here, we have more than a tacit admission by Cromer. Jowers clarified in later testimony that “they” said “they” took $2,500 from his account because “they” needed the money and “they” were sorry. “They” referred to Stephens and Cromer. Jowers told Perkins that Cromer and Stephens took money from his account without permission. Cromer himself testified at trial that (1) he met with Jowers and told Jowers he and Stephens had “used” $2,500 from Jowers’s bank account, and (2) he promised to repay the funds to Jowers. These facts support an instruction on adoptive admissions. (People v. Geier (2007) 41 Cal.4th 555, 590.)
Whether Cromer’s conduct constituted an adoptive admission becomes a question for the jury to decide. The trial court correctly instructed the jury how to consider the evidence. (Riel, supra, 22 Cal.4th at pp. 1189-1190; see People v. Medina (1990) 51 Cal.3d 870, 891 [discussing CALJIC No. 2.71.5, counterpart to CALCRIM No. 357], affd. sub nom. Medina v. California (1992) 505 U.S. 437.) We presume the jury understood and followed the instructions. (People v. Holt (1997) 15 Cal.4th 619, 662.)
II. Prosecutorial Misconduct
Cromer contends the prosecutor committed misconduct by simplifying the burden of proof, thereby allowing Cromer to be convicted upon a lower standard than beyond a reasonable doubt.
Factual summary
At the commencement of the trial and prior to accepting any evidence, the trial court instructed the jury with CALCRIM No. 220 (reasonable doubt). During closing argument, the prosecutor addressed the beyond-a-reasonable-doubt burden of proof. In relevant part, the prosecutor argued:
“We talked briefly about reasonable doubt. The only definition of reasonable doubt is what you’ll be getting. The only legal definition. Everything else is argument, including my discussion right now. The first part has to do with presumption of innocence. Proof beyond a reasonable doubt is what? It’s proof that leaves you with an abiding conviction that the charge is true. That’s it. After you [see] the proof, you have an abiding conviction that they’re guilty. That’s it. It doesn’t talk about anything else. It doesn’t talk about anything else that was mentioned before. I won’t even mention it because we shouldn’t go into it. It’s just this. It doesn’t talk about how long or anything of that. Leaves you with an abiding conviction that the charge is true. That’s the definition. [¶] … [¶]
“I know I’ve used this before, but I think it’s a very good way to explain it in my view. Reasonable doubt is like a puzzle, a big jigsaw puzzle. You put pieces into the puzzle. At … first we start out with reasonable doubt. Yeah. What is it the jigsaw puzzle shows? You may end up at some point where there’s some pieces missing, but they don’t matter because the overall structure, you know, you can tell, you have an abiding conviction of what it shows.”
Defense counsel did not object to the prosecutor’s comments during argument. After argument had concluded, the trial court again instructed the jury with CALCRIM No. 220. In addition, the trial court instructed the jury with CALCRIM No. 200 (duties of judge and jury).
Issue is forfeited
Because Cromer did not object to any of the challenged remarks, or request that the jury be admonished regarding them, the claim has been forfeited. “‘As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion-and on the same ground-the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety.’ [Citation.]” (People v. Prieto (2003) 30 Cal.4th 226, 259.) Had Cromer objected or requested a timely admonition, any claimed harm could have been cured. (People v. Sapp (2003) 31 Cal.4th 240, 279.)
No ineffective assistance
Alternatively, Cromer maintains that if we find his claim forfeited, then defense counsel’s failure to object and request an admonition amounted to ineffective assistance of counsel. In the absence of any misconduct, the claim fails.
The familiar standard for review of claims of ineffective assistance of counsel is that the appellant must show (1) trial counsel failed to act in a manner to be expected of reasonably competent attorneys, and (2) a more favorable result would have been obtained absent counsel’s failings. (People v. Lewis (1990) 50 Cal.3d 262, 288.)
A defendant whose counsel did not object at trial to alleged prosecutorial misconduct can argue on appeal that counsel’s inaction violated the defendant’s constitutional right to the effective assistance of counsel. Failure to object, however, rarely constitutes constitutionally ineffective legal representation. (People v. Boyette (2002) 29 Cal.4th 381, 424.) The decision whether to object is inherently tactical, and the failure to object rarely will establish ineffective assistance. (People v. Hillhouse (2002) 27 Cal.4th 469, 502.)
It is clear that the challenged remarks were not objectionable. The prosecutor’s analogy to which Cromer objects is a select quote taken out of context. When the entirety of the prosecutor’s comments are considered, it is clear the prosecutor emphasized that his remarks were merely argument and the jurors would be instructed by the trial court on the legal definition of reasonable doubt. The prosecutor emphasized that proof beyond a reasonable doubt was proof that left the juror with an “abiding conviction that the charge is true, ” the exact language used in CALCRIM 220 to instruct jurors on reasonable doubt.
The prosecutor did not suggest inappropriately a specific quantitative measure as has been found improper in other cases. (See People v. Katzenberger (2009) 178 Cal.App.4th 1260, 1267-1268.) The prosecutor did not trivialize inappropriately the standard as one people use and apply every day in their lives. (People v. Nguyen (1995) 40 Cal.App.4th 28, 36.)
From a review of the totality of the prosecutor’s comments, it is clear the prosecutor did not improperly simplify the standard as Cromer claims.
In any event, in light of the instructions provided to the jury, we cannot conclude any of the prosecutor’s remarks, even if objectionable, were prejudicial. The jury was instructed with CALCRIM No. 200, which provides in relevant part: “You must follow the law as I explain it to you, even if you disagree with it. If you believe that the attorneys’ comments on the law conflict with my instructions, you must follow my instructions.” The jury was then instructed with CALCRIM 220, explaining the burden of the prosecution to prove guilt beyond a reasonable doubt and defining reasonable doubt.
“‘We presume that jurors treat the court’s instructions as a statement of the law by a judge, and the prosecutor’s comments as words spoken by an advocate in an attempt to persuade.’ [Citation.] Given the instructions provided here, we discern no reasonable likelihood [citation] that the prosecutor’s statements would have misled the jury; therefore defendant fails to demonstrate any prejudice arising from the failure to object.” (People v. Mayfield (1993) 5 Cal.4th 142, 179.)
III. Correction to Abstract of Judgment
Cromer contends the judgment incorrectly sets forth an amount of victim restitution. The People concede the point.
The trial court’s oral pronouncement of judgment ordered victim restitution in the amount of $9,562. The abstract of judgment sets forth the amount requested by the prosecution, $9,562.18. If there is a discrepancy between the oral pronouncement of judgment and the clerk’s recordation of judgment, the oral pronouncement controls. (People v. Mitchell (2001) 26 Cal.4th 181, 185-186; People v. Zackery (2007) 147 Cal.App.4th 380, 388.)
The abstract of judgment should be corrected to reflect victim restitution in the amount of $9,562.
DISPOSITION
The judgment is affirmed. The trial court is directed to amend the abstract of judgment to reflect victim restitution in the amount of $9,562 and forward the amended document to the appropriate agencies.
WE CONCUR: WISEMAN, Acting P.J., POOCHIGIAN, J.