Opinion
F085205
03-14-2024
THE PEOPLE, Plaintiff and Respondent, v. TIFFINIE MARVELL JONES, Defendant and Appellant.
Amanda K. Moran, under appointment by the Court of Appeal, Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kings County, No. 19CMS-2649 Kathy Ciuffini, Judge.
Amanda K. Moran, under appointment by the Court of Appeal, Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
SMITH, J.
On January 10, 2022, defendant Tiffinie Marvell Jones was convicted by a jury of one count of insurance fraud. Jones filed a motion for a new trial, which was denied. On appeal, Jones argues that there was insufficient evidence to support the verdict, that her trial counsel provided ineffective assistance, and that the trial court abused its discretion when it denied her motion for a new trial. The People disagree. We affirm.
PROCEDURAL HISTORY
On January 29, 2020, the Kings County District Attorney filed an information charging Jones with one count of insurance fraud (Pen. Code, § 550, subd. (b)(3)).
All further undesignated statutory references are to the Penal Code unless otherwise stated.
On January 10, 2022, Jones was found guilty by a jury. On May 19, 2022, Jones filed a motion for a new trial. On September 30, 2022, Jones's motion was denied.
Jones was sentenced on September 30, 2022. Jones was granted probation for a term of two years. One of the conditions of probation was that Jones serve the first 180 days of her probationary period in jail.
On November 2, 2022, Jones filed a timely notice of appeal.
FACTUAL SUMMARY
The Prosecution's Case
Jones started working for a state prison in May 1995. She held various jobs. From October 16, 1997, to December 2, 1998, Jones was a return to work coordinator. If a staff member was injured, they would go through the return to work office to file workers compensation claims so the staff member could be paid while he or she was off work. The return to work coordinator was the liaison between the injured employee and the workers compensation insurance company. Return to work coordinators were trained and told it was their responsibility to report any employees that have secondary employment. From September 18, 2006, through March 2, 2008, Jones was the institutional budget analyst. It was her job to prepare a monthly report regarding how well the state prison was keeping within its budget. From March 3, 2008, through April 13, 2014, Jones was an associate governmental program analyst, which is a higher classification of budget analyst. From April 14, 2014, through July 24, 2016, Jones was the compliance coordinator with the budget office. Jones then went out on "long term sick" leave. She was still employed by the state prison but her doctor kept her off because she was not able to work.
On February 14, 2014, Jones filed a DWC-1 form (an application to file a workers compensation claim), alleging that on February 11, 2014, a large file shelf fell on her, injuring her left thigh and below her knee. On March 21, 2014, Jones filed a rewritten DWC-1 form, alleging that on February 11, 2014, she suffered an injury to her back, left thigh, left leg, left foot, nervous system, and psyche. On September 12, 2016, Jones filed another DWC-1 form, alleging that on June 29, 2016, her upper back and neck were injured while she was lifting a mail crate from the floor to a desk. Jones filed another DWC-1 form alleging that on October 31, 2016, her entire back was injured due to lifting a 50-pound cart. Finally, on October 31, 2016, Jones filed another DWC-1 form, listing the date of injury as March 4, 2016, and claiming stress and hypertension. All four of Jones's workers compensation claims were accepted as valid.
Steven Carter, an assistant claims manager for the workers compensation insurance company (the insurance company), described the workers compensation claim process: As soon as a workers compensation claim is filed, the state prison informs the insurance company. The insurance company does an investigation, and either accepts or denies the claim. If it is accepted, the insurance company lets the state prison know, and the state prison will pay the injured worker for the first 52 weeks. This is referred to as industrial disability leave (IDL). While the state prison pays the claim, it is the insurance company that verifies that the injured worker is off work and makes the decision as to whether the state prison should pay the worker.
If the injured worker is off for more than 52 weeks, a different benefit kicks in, called temporary disability. The insurance company makes temporary disability payments. It also verifies the claims. When a claim is accepted and the injured worker is being paid, they are sent checks every two weeks.
Injured workers are allowed to get a second job, but they need to report the income to the insurance company (reporting a second job, without reporting the income, is not sufficient). The insurance company then reduces the amount it pays the injured worker by the amount the injured worker makes at his or her second job. The IDL payments are also reduced when an injured employee has other income, but the state prison is required to do the calculation, not the insurance company. A claimant's failure to provide information regarding other income can result in a loss to the insurance company.
Jones was sent an IDL letter on August 2, 2016. The letter informed Jones about her rights and how much she was going to be paid. It also identified the date of the injury, February 11, 2014. On page two, the letter stated, among other things:
" 'This warning notice is sent by [the insurance company] to all injured workers who are receiving IDL in lieu of temporary disability. Your employer is paying you IDL benefits because the doctor reports you are unable to work full time due to the injury or injuries you sustained on the job. If you become employed by anyone or become self-employed or your earnings change in any way while you are receiving the IDL payments, [the insurance company] should be notified immediately as IDL payments may need to be changed or stopped. Failure to notify [the insurance company] about your earnings, your employment status, or yourself [ sic ] employment while you are receiving IDL payments could be a crime.' "
There was no indication in the insurance company's claim file for Jones that this letter was returned.
Jones was also sent a temporary disability check on October 3, 2017, in the amount of $3,684.96. The check covered the period of September 5, 2017, through October 2, 2017. The check included the following admonishment:
" '[T]he California state legislature issues this warning. You are required to report to your employer or the insurance company any money that you earned for work during the time covered by this check, and before cashing the check.... If you do not follow the rules, you may be in violation of the law, and the penalty may be jail or prison, a fine, or loss of benefits.
" '[The insurance company] is paying you temporary disability benefits, the enclosed check, because the doctor reports you are unable to work full time due to the injury or injuries you sustained on the job. The amount of each temporary disability payment is calculated on the difference between what you were earning at the time of injury and what you are earning, if anything, while you are healing from your injury. If you become employed by anyone else or become self-employed or your earnings change in any way while you are receiving temporary disability payments, [the insurance company] must be notified immediately as the temporary disability payments may need to be changed or stopped. Failure to notify [the insurance company] about your earnings, your employment status, or your self[-]employment while you are receiving temporary disability payments could be a crime.' "
The check was cashed on November 1, 2017.
In February of 2017, Jones began working for a real estate company as a sales associate. Jones's IRS form 1099 for 2017 from the real estate company indicated that, after certain amounts were deducted, Jones earned $25,095.
Jones did not report that she was earning secondary income to her claims adjuster at the insurance company, and the adjuster never asked.
Jones did fill out a secondary employment form from the state prison, listing her secondary employer as the real estate company. It was approved on behalf of the warden on or around April 24, 2017, as required by the state prison's policy. There was no requirement to report the money made from the secondary employment.
However, the secondary employment form through the state prison had nothing to do with a workers compensation claim. Instead, it had to do with whether the secondary job conflicts with the primary job. When an employee filled out the secondary employment form, it was sent to the warden's office for approval or denial. An employee filling out the form did not submit it to the return to work coordinator's department, and it was not necessarily sent there by prison staff. Return to work coordinators did not have carte blanche access to personnel files, but they could provide documents in personnel files to the insurance company at the insurance company's request.
While return to work coordinators employed by the state prison routinely gave documents to the insurance company, there is no procedure for providing the insurance company with secondary employment forms. If an employee got permission to have a second job, that employee was required to report that information to the insurance company. The employee was also responsible for informing the insurance company if the employee was earning any secondary income because it could have affected the employee's benefits.
In about March of 2017, a special agent working in internal affairs for the state prison system began investigating Jones. The special agent was contacted by an employee of the state prison and provided a lead.
In about June of 2017, a special investigator with the insurance company began an investigation because there were concerns that Jones had secondary employment. A few months into her investigation the investigator discovered that defendant could be found online as a licensed real estate agent.
Jones was deposed on October 11, 2017, regarding her workers compensation claim. Jones was represented by two attorneys at the deposition. During the deposition, Jones was asked, "And your attorneys, plural, have probably told you that it's a felony in the State of California to knowingly make a false and misleading statement in a workers' comp claim. Do you understand that?" Jones responded, "Yes." Jones was also asked if she had income from any other sources. She responded, "No." She was then asked, "So the real estate income you don't have?" She responded, "Not yet." When asked to explain, she stated, "You have to have escrows close." When asked how many houses she had in escrow, she responded, "Two." However, based on Jones's 1099 form from the real estate company, prior to the date of the deposition Jones had already closed seven home sales and earned $20,312.
The insurance company incurred a loss because Jones failed to report her secondary income to the insurance company.
Jones's Case
Jones worked at the state prison from May 1, 1995, until she retired in late 2018 or early 2019. While Jones was a return to work coordinator with the state prison from October 1997 through December 1998, which at the time was called a health and safety officer, she was not provided with any training regarding secondary employment or how it should be accomplished. Additionally, Jones never dealt with the issue of secondary employment. She did not know that people having secondary employment are required to tell either the return to work coordinator or the insurance company.
Jones stopped working for the state prison as a result of injuries she suffered. At the time Jones stopped working at the state prison she had four workers compensation claims, all of which were accepted as valid. Jones's doctors provided her with the ability to go back to work, but the state prison would not accommodate her injuries.
The paperwork Jones received regarding her four claims filled multiple boxes. Jones received different types of letters from the insurance company. Among others, she received letters stating how much money she would receive on a particular claim, letters telling her to go to doctors, letters rating her injury, and letters that corrected other letters. Jones also received checks from the insurance company, although some of the checks were sent in error. The paperwork was overwhelming, and Jones got to a point where she could not take it anymore. She would only glance at the letters she received and then throw them in "the box that they belonged to."
Jones cashed one of the checks that was sent in error because she had not been paid for five months, despite sending multiple letters asking for the error to be fixed. Jones believed that the insurance company would recoup this money after she settled her claim.
Jones filled out and submitted a secondary employment form to the state prison while she was off with her injury. She was receiving her disability payments from the state prison at the time. Jones's secondary employment was approved by the warden or his designee on April 24, 2017.
The form was approved and Jones thought she had done everything she needed to do to have secondary employment. Jones was never told that there were other things she needed to do. She did not know that failure to report her income could be a crime. She testified that she followed rules, and she would have reported her income if she were told she needed to do so. She never tried to hide the fact that she was selling houses and making money doing so. She had ads in the newspaper, in magazines, and on a social media website. She had signs, sent mailings, and even sent announcements to employees at the state prison that she was selling real estate.
Jones did not learn that she had to report her income until an investigator called her and told her there was a warrant for her arrest. Jones did not attempt to defraud the state prison or the insurance company. Jones used to be a great analyst, until she had a brain injury at the state prison. Now she cannot process paperwork like she used to.
Jones had a lot of expenses, in part because 2017 was her first year as a real estate agent and there are a lot of expenses in the first year. The IRS 1099 form did not list all of her expenses.
At the October 11, 2017 deposition, Jones said that her medications did not affect her ability to understand the questions, but she was wrong. After receiving and reviewing a copy of the deposition transcript, Jones realized that a lot of it was wrong. She was not in her right mind. Some of her answers reflect that she was confused.
Neither Jones nor her attorneys received a copy of the deposition transcript after the deposition. If Jones had gotten a copy, she would have made corrections.
At the deposition, Jones did not mention that she had already sold houses because she was asked if she made any money, not how many houses she had sold. And the reason she said she was not making any money is because her expenses exceeded what she made. Prior to the deposition she had cashed checks totaling approximately $20,000, but she had not made any money because of her expenses. Jones had offered to provide what she made versus what she spent, but she was told she did not need to.
Jones's Motion for a New Trial
On May 19, 2022, Jones filed a motion for a new trial. Jones argued that the verdict was contrary to the evidence and that Jones was denied a fair trial because of ineffective assistance of trial counsel.
On January 25, 2022, Jones substituted counsel.
On September 30, 2022, the trial court held a hearing and denied the motion.
As to Jones's argument that the verdict was contrary to the evidence, the trial court stated, among other things:
"I do find that the evidence . . . that I listened to at the jury trial, and this includes all the documentary evidence that was admitted, I do find that that crime was committed, that crime was committed and it was proven beyond a reasonable doubt by all the evidence that -- the testimony as well as the documents.
"And, again, I had . . . the ability to observe all of the witnesses and make credibility determinations of all the witnesses, including [Jones], and to evaluate them. And had I . . . been the 13th juror, which I'm required to do today, I would have voted for guilty as opposed to not guilty. And there was no question in my mind. I have an abiding conviction today that [Jones] is guilty of the crime.
"[Jones] clearly had a duty to report the income, and her argument that her expenses exceeded her income therefore excused her of that obligation really confuses the issue. And it was not . . . a reasonable conclusion to make. I did not believe it when I heard it."
The trial court also noted that "[Jones] claimed that her brain injury prevented her from reading the back of the checks to see that there were reporting requirements," but the trial court "did not believe that."
The trial court concluded that "[t]here is substantial evidence to sustain the verdict based on the evasive and deceptive answers at the deposition, the evasive answers [Jones] gave at trial under cross-examination, and the evidence that came out at trial, because many of the claimed advertising expenses were actually discretionary spending, as well as the seven checks."
As to Jones's argument that she was denied a fair trial because of ineffective assistance of trial counsel, the trial court found that "it cannot be said that [trial counsel's actions] fell below an objective standard of reasonableness for an attorney."
"With respect to the income versus expense argument, [the trial court held that] the only requirement that [Jones] had was that she report her income. And she didn't. It wasn't . . . report your income and expenses or make a decision whether you have income that exceeds your expenses, that wasn't the requirement."
DISCUSSION
Jones argues that there was insufficient evidence to support the verdict, that her trial counsel provided ineffective assistance, and that the trial court abused its discretion when it denied her motion for a new trial. All three arguments fail.
I. Substantial Evidence Supports the Jury's Verdict
A. Standard of Review
When evaluating a sufficiency of evidence claim," 'we review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence-that is, evidence that is reasonable, credible, and of solid value- from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.'" (People v. Cravens (2012) 53 Cal.4th 500, 507.) "The test for evaluating a sufficiency of evidence claim is deferential." (People v. Flores (2020) 9 Cal.5th 371, 411.) "We must presume in support of the judgment the existence of every fact that the trier of fact could reasonably deduce from the evidence." (People v. Medina (2009) 46 Cal.4th 913, 919 (Medina).) "We must also 'accept logical inferences that the jury might have drawn from the circumstantial evidence.'" (Flores, at p. 411.) "The conviction shall stand 'unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]." '" (Cravens, at p. 508.)
B. Analysis
We first address Jones's argument that there was insufficient evidence to support the verdict.
As the trial court instructed the jury:
"To prove that [Jones] is guilty of [insurance fraud], the People must prove that:
"1. [Jones] concealed or knowingly failed to disclose the occurrence of an event.
"2. The just referred to event effects [Jones's] initial or continued right to entitlement of any insurance benefit or payment or the amount of any benefit or payment the defendant is entitled to, and
"3. That [Jones] acted with specific intent to defraud.
"An intent to defraud is an intent to deceive another person for the purpose of gaining some material advantage over that person or to induce that person to part with property or to alter that person's position to its injury or risk, and to accomplish that purpose by some false statement, false representation of fact, wrongful concealment or suppression of truth, or by any other artifice or act designed to deceive." (§ 550, subd. (b)(3); People v. Blick (2007) 153 Cal.App.4th 759, 772-774.)
Jones argues that the evidence does not prove the first and third elements beyond a reasonable doubt. However, a review of the record shows that substantial evidence supports the conviction.
Jones "does not dispute that she did not report secondary income she received from her real estate sales, and that her real estate income may have affected her IDL, or [insurance company] checks."
In 2017, Jones earned $25,095 from her secondary employment. She did not report this come to her claims adjuster.
Jones worked at the state prison for almost 30 years. One of the positions she held was return to work coordinator, a position that works with individuals who file workers compensation claims.
After Jones filed her workers compensation claims, she was sent two separate warnings that she had to report secondary income.
First, on August 2, 2016, Jones was sent a letter, which stated:
" '[T]his warning notice is sent by [the insurance company] to all injured workers who are receiving IDL in lieu of temporary disability. Your employer is paying you IDL benefits because the doctor reports you are unable to work full time due to the injury or injuries you sustained on the job. If you become employed by anyone or become self-employed or your earnings change in any way while you are receiving the IDL payments, [the insurance company] should be notified immediately as IDL payments may need to be changed or stopped. Failure to notify [the insurance company] about your earnings, your employment status, or yourself [ sic ] employment while you are receiving IDL payments could be a crime.' "
There was no indication in the insurance company's claim file for Jones that this letter was returned.
Second, Jones was sent a temporary disability check on October 3, 2017. The check included the following admonishment:
" '[T]he California state legislature issues this warning. You are required to report to your employer or the insurance company any money that you earned for work during the time covered by this check, and before cashing the check .... If you do not follow the rules, you may be in violation of the law, and the penalty may be jail or prison, a fine, or loss of benefits.
"[The insurance company] is paying you temporary disability benefits, the enclosed check, because the doctor reports you are unable to work full time due to the injury or injuries you sustained on the job. The amount of each temporary disability payment is calculated on the difference between what you were earning at the time of injury and what you are earning, if anything, while you are healing from your injury. If you become employed by anyone else or become self-employed or your earnings change in any way while you are receiving temporary disability payments, [the insurance company] must be notified immediately as the temporary disability payments may need to be changed or stopped. Failure to notify [the insurance company] about your earnings, your employment status, or your self[-]employment while you are receiving temporary disability payments could be a crime.' "
The check was not cashed until November 1, 2017.
Finally, Jones was deposed on October 11, 2017. At the deposition, Jones was asked if she had income from any other sources. She responded, "No." She was then asked, "So the real estate income you don't have?" She responded, "Not yet." When asked to explain, she stated, "You have to have escrows close." However, based on Jones's 1099 form from the real estate company, prior to the date of the deposition Jones had already closed seven home sales and earned $20,312.
Jones argues on appeal that she did not lie at her deposition because her expenses exceeded her income. The problem with this argument is that, at the deposition, Jones never stated that she did not have income because her expenses exceeded the amount of money she made. Instead, she stated that she did not have income because "You have to have escrows close." At the time she made this statement, however, seven escrows had closed and Jones had earned $20,312. Moreover, the only evidence in the record that Jones's expenses exceeded $20,312 was her own testimony, which the jury could have reasonably decided was not credible. Accordingly, the deposition testimony is substantial evidence from which a reasonable jury could have found that Jones lied about not having secondary income.
Jones is correct that, shortly after making this statement, her expenses were discussed. However, she never stated that she had already sold seven houses but her expenses exceeded the amount she received from the sales. In fact, she stated that she did not know the amount of her monthly expenses.
Jones also argues that the jury incorrectly resolved conflicts in the evidence and asks us to resolve the conflicts in her favor instead. However, we do not resolve evidentiary conflicts on a substantial evidence appeal." 'Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence.'" (People v. Lee (2011) 51 Cal.4th 620, 632.) And as discussed herein, substantial evidence supports the conviction.
Finally, Jones argues that the evidence against her was circumstantial, that it could have reasonably been viewed in favor or against her, and that the jury erred in not viewing the circumstantial evidence in her favor. However, even if we agreed with Jones that one reasonable interpretation of the circumstantial evidence supported a finding in her favor instead of a finding of guilt, reversal would not be warranted because on appeal we "must presume in support of the judgment the existence of every fact that the trier of fact could reasonably deduce from the evidence." (Medina, supra, 46 Cal.4th at p. 919; People v. Zamudio (2008) 43 Cal.4th 327, 357-358 [" 'Although it is the jury's duty to acquit a defendant if it finds the circumstantial evidence susceptible of two reasonable interpretations, one of which suggests guilt and the other innocence, it is the jury, not the appellate court that must be convinced of the defendant's guilt beyond a reasonable doubt. [Citation.]' [Citation.] Where the circumstances reasonably justify the trier of fact's finding, a reviewing court's conclusion the circumstances might also reasonably be reconciled with a contrary finding does not warrant the judgement's reversal."].)
Jones relies heavily on this argument. However, the jury instructions regarding circumstantial evidence, CALCRIM Nos. 224 and 225, are for the trier of fact, not for the appellate court. As discussed in this opinion, we "must presume in support of the judgment the existence of every fact that the trier of fact could reasonably deduce from the evidence." (People v. Medina (2009) 46 Cal.4th 913, 919.) And based on the evidence presented in this case, the jury found, via their verdict, that the interpretation favoring Jones was not reasonable.
Even Jones admits that a reasonable interpretation of the evidence is that Jones knew she was supposed to report her income and that she had a specific intent to defraud.
Reviewing the evidence in the light most favorable to the conviction, there was substantial evidence from which a jury could reasonably infer that Jones knew that she was supposed to report her real estate income to the insurance company, that she did not do so, and that she lied about not having real estate income at the deposition. Accordingly, there is substantial evidence from which a reasonable trier of fact could find Jones guilty of insurance fraud beyond a reasonable doubt.
II. Jones's Ineffective Assistance of Counsel Claim Fails on Direct Appeal
A. Standard of Review
Jones has the burden of proving ineffective assistance of counsel. (People v. Pope (1979) 23 Cal.3d 412, 425, overruled on other grounds in People v. Berryman (1993) 6 Cal.4th 1048, 1081, fn. 10.) To establish such a claim, a defendant must show (1) his counsel's performance fell below an objective standard of reasonableness and (2) prejudice, that is, but for counsel's unprofessional error a different result would have been reasonably probable. (Stricklandv. Washington (1984) 466 U.S. 668, 687-688, 694 (Strickland); People v. Ledesma (1987) 43 Cal.3d 171, 216-218.) "A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Strickland, at p. 694.)
"Because of the difficulties inherent in making the evaluation [of counsel's performance], a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.'" (Strickland, supra, 466 U.S. at p. 689.) "When a claim of ineffective assistance is made on direct appeal, and the record does not show the reason for counsel's challenged actions or omissions, the conviction must be affirmed unless there could be no satisfactory explanation." (People v. Anderson (2001) 25 Cal.4th 543, 569.) Reversal is permitted" 'only if (1) the record affirmatively discloses counsel had no rational tactical purpose for the challenged act or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there simply could be no satisfactory explanation.'" (People v. Arredondo (2019) 8 Cal.5th 694, 711.)
B. Analysis
We next address Jones's argument that trial counsel provided ineffective assistance by failing to introduce evidence of Jones's expenses.
Jones argues that evidence of Jones's expenses was key to her defense. Jones further argues that these expenses could have been proven through evidence such as receipts or witness testimony, but trial counsel failed to introduce any such evidence.
Trial counsel also appears to have believed that evidence of Jones's expenses was important, and he elicited testimony regarding expenses from both Jones and the president of the real estate company that Jones worked for. However, the record is silent as to why trial counsel did not introduce additional evidence regarding the expenses. Additionally, on the record before us, we cannot find that there could be no satisfactory explanation for not presenting additional expense evidence.
In her motion for a new trial, the only additional expense evidence Jones provided is a spreadsheet listing her income and expenses. However, based on the record before us, the spreadsheet is not corroborating evidence of Jones's expenses. It appears to have been prepared by Jones herself. Additionally, there is no evidence as to what information was used to create the spreadsheet, and the spreadsheet states that it was "Revised" on February 4, 2020 (which is at least two years after the expenses were incurred and approximately one month after the information was filed). Finally, because the spreadsheet does not list the dates the expenses were incurred, it does not show that, on the date of the October 2017 deposition, Jones's expenses exceeded her income.
Additionally, it is not clear that any other expense evidence exists, let alone what probative value it has. The only suggestion that other unpresented expense documents exist comes from comments that Jones made in a deposition that occurred in 2017. This evidence has not been provided or described. As to witnesses, Jones refers to the uncalled witnesses on trial counsel's witness list, but there is nothing before us suggesting that any of the uncalled witnesses were relevant to the issue of Jones's expenses.
In support of her argument that additional evidence exists, Jones points to witness testimony that first year associates do not typically make money their first year. However, there is no indication that this witness had personal knowledge of Jones's expenses or of the existence of additional evidence regarding Jones's expenses.
Jones also argues that trial counsel failed to investigate whether there was additional expense evidence. However, there is no evidence in the record to support this contention.
Given the lack of information related to additional expense evidence in the record, "without engaging in speculation, we cannot infer anything about its existence, availability, or probative force, or the probable consequences of its use at trial." (People v. Wrest (1992) 3 Cal.4th 1088, 1116.) Accordingly, Jones's claim that defense counsel provided ineffective assistance by failing to introduce additional evidence is more appropriately brought in a petition for a writ of habeas corpus. (People v. Gray (2005) 37 Cal.4th 168, 211; People v. Mai (2013) 57 Cal.4th 986, 1009.)
III. The Trial Court Did Not Abuse its Discretion in Denying Jones's Motion for a New Trial
Finally, we address Jones's argument that the trial court abused its discretion in denying her motion for a new trial, which includes two separate allegations of error.
A. Motion for New Trial Pursuant to Section 1181
i. Standard of Review
In consideration of a motion for new trial based on the ground that the jury's verdict is contrary to the law or evidence (§ 1181, subd. (6)), the trial court acting as a" '13th juror,'" determines whether the charges have been proven beyond a reasonable doubt. (Porter v. Superior Court (2009) 47 Cal.4th 125, 133.) In making this determination "a trial court must review the evidence independently, considering the proper weight to be afforded to the evidence and then deciding whether there is sufficient credible evidence to support the verdict." (People v. Lewis (2001) 26 Cal.4th 334, 364.)" '" '"' "a trial court's ruling on a motion for new trial is so completely within that court's discretion that a reviewing court will not disturb the ruling absent a manifest and unmistakable abuse of that discretion." '" '" '" "The court abuses its discretion, however, where it misconceives its duty, applies an incorrect legal standard, or fails to independently consider the weight of the evidence." (People v. Carter (2014) 227 Cal.App.4th 322, 328.)
ii. Analysis
Jones argues that the trial court abused its discretion in denying her motion for a new trial pursuant to section 1181, subdivision (6), because it misconstrued the purpose of Jones's expense evidence. Specifically, Jones argues that "[t]he entire purpose of the expense evidence was to demonstrate that [Jones] was not lying, and therefore did not possess the requisite intent." This evidence had nothing to do with Jones's duty to report her income, yet the trial court stated that the expense evidence was related to this element of the crime.
This argument is not persuasive. The trial court reviewed the trial transcripts. Additionally, the trial court listened to the evidence, observed the witnesses, and made credibility determinations. Finally, she reviewed the jury instructions, including the elements of the offense. Based on her review of the evidence and law, the trial court "would have voted for guilty as opposed to not guilty."
In making this determination, the trial court found that Jones "clearly received income" yet intentionally failed to disclose it. Additionally, the trial court addressed Jones's argument that she thought she did not have to report her income because it was exceeded by her expenses and found that she did not actually believe this. Instead, "defendant was trying to redefine what 'income' meant, placing her spin on it, to make excuses for not reporting her income and complying with her reporting requirements for the [insurance company]." Thus, contrary to Jones's assertion, the trial court addressed the expense evidence as to the specific intent element and found that Jones knew that she had to report her income even if it was exceeded by her expenses but intentionally failed to do so.
In making these findings the trial court did not misconceive its duty, apply an incorrect legal standard, or fail to independently consider the weight of the evidence. Nor did the trial court abuse its discretion in any other way. Accordingly, we see no reason to disturb the trial court's ruling.
The trial court made other comments as well, but at most, they were surplusage and not reversible error. (People v. Price (1992) 4 Cal.App.4th 1272, 1275-1276.)
B. Motion for New Trial Based on Ineffective Assistance of Counsel
i. Standard of Review
When a defendant raises an ineffective assistance of counsel claim in a motion for a new trial and the motion is denied, we review de novo the trial court's rulings on whether trial counsel's performance was deficient and whether any deficiency was prejudicial. (See People v. Ault (2004) 33 Cal.4th 1250, 1261-1262; People v. Taylor (1984) 162 Cal.App.3d 720, 724-725.) "The trial court's factual findings, express or implied, will be upheld if they are supported by substantial evidence." (Taylor, at p. 724.)
There is some question as to whether the appropriate standard is more deferential in this situation. (See, e.g., People v. Hoyt (2020) 8 Cal.5th 892, 957 (Hoyt) [" '"' "We review a trial court's ruling on a motion for a new trial under a deferential abuse-of-discretion standard." [Citations.]" 'A trial court's ruling on a motion for new trial is so completely within that court's discretion that a reviewing court will not disturb the ruling absent a manifest and unmistakable abuse of that discretion.'" '" '"' "].) However, we need not decide which standard applies in this case, because even reviewing the trial court's alleged error de novo instead of for an abuse of discretion, Jones's argument still fails.
ii. Analysis
Jones argues that the trial court abused its discretion because it generally discussed trial counsel's performance but did not specifically address the claimed error, that is, trial counsel's failure to introduce corroborating expense evidence and the prejudice that resulted from that failure.
Jones does not appeal the denial of her motion for a new trial as to trial counsel's alleged failure to introduce evidence regarding psyche trauma or the effect of the medication on Jones's ability to comprehend the questions asked at the deposition.
Jones misconstrues the record. While perhaps addressed out of order, the trial specifically addressed the only additional expense evidence that Jones provided, the spreadsheet, and found that it was "unhelpful." As discussed above, we also find that the spreadsheet is not helpful. As the spreadsheet is not helpful to Jones's case, the failure to present it was not prejudicial.
As to other expense evidence that may exist but was not presented at trial or provided with the motion for a new trial, as addressed above, a claim of ineffective assistance for failure to introduce this evidence is more appropriately brought in a petition for a writ of habeas corpus. (Hoyt, supra, 8 Cal.5th at 958 ("To make out an ineffective assistance claim on the basis of the trial record, the defendant must show '(1) the record affirmatively discloses counsel had no rational tactical purpose for the challenged act or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there simply could be no satisfactory explanation. All other claims of ineffective assistance are more appropriately resolved in a habeas corpus proceeding.' "].)
DISPOSITION
The judgment is affirmed.
WE CONCUR: POOCHIGIAN, Acting P. J. DE SANTOS, J.