Opinion
C078140
08-02-2018
THE PEOPLE, Plaintiff and Respondent, v. LAUNA LEA RHOADES, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 11F1723)
Defendant Launa Lea Rhoades appeals following a conviction for grand theft of $20,030 in public housing funds from the Shasta County Department of Housing (Housing Authority). (Pen. Code, § 487i ["Any person who defrauds a housing program of a public housing authority of more than four hundred dollars ($400) is guilty of grand theft"]). Her rent was subsidized by the "Section 8" housing subsidy program of the United States Department of Housing and Urban Development (HUD). (42 U.S.C.A. § 1437f.) Defendant violated Section 8 rules by obtaining the subsidy for an apartment that she failed to disclose was owned by her maternal grandmother. Defendant also violated Section 8 rules by failing to disclose inheritance income of $15,000. The trial court suspended imposition of sentence, placed defendant on conditional revocable release, and ordered her to pay restitution of $20,030, plus various fines and fees.
Defendant appeals, contending the federal regulation restricting rentals from certain family members (Code of Federal Regulations (CFR) tit. 24, § 982.306(d), hereafter CFR 982.306(d)) unconstitutionally burdens a fundamental right to familial association and equal protection (U.S. Const., 14th Amend.) and the right to privacy under the California Constitution. Defendant also claims the trial court abused its discretion by allowing evidence that she failed to disclose inheritance income of $15,000, because the evidence was inadmissible character evidence and was more prejudicial than probative.
We reject defendant's arguments and affirm the judgment.
FACTS AND PROCEEDINGS
Defendant made two motions to dismiss and a motion for judgment of acquittal on grounds that the regulation was unconstitutional and infringed on her fundamental right of familial association. The trial court denied the motions.
During the jury trial, evidence was adduced that defendant was accepted into the Section 8 program in June 2006. A Housing Authority program specialist met with her, educated her on the program rules and the consequences of noncompliance, and gave her a "Voucher" listing the rules -- including that she had to report all income and could not receive a subsidy to rent a unit owned by a parent, child, grandparent, grandchild, sister or brother, unless the Housing Authority approved a reasonable accommodation due to disability. The program specialist also had defendant sign a Certification that she "MUST NOT . . . Rent a unit from a relative without the written authorization from the Housing Authority" and that she "MUST report . . . within 15 calendar days . . . [¶] . . . [¶] [a] change in household income. . . ." She signed a new Certification annually.
The Housing Authority gave defendant a voucher for her to find an apartment for herself and her son on the private market.
Defendant asked to use her subsidy to rent an apartment in a duplex at 19307 East Niles Lane. Defendant concealed from the Housing Authority that the duplex is owned by defendant's grandmother, Charlotte Withers, who lives in her own home on the same street, at 19297 East Niles Lane. Defendant did not claim a need for or seek approval as a reasonable accommodation for disability. Before living in her grandmother's property, defendant lived with her mother at the mother's home on the same street, at 19251 East Niles Lane.
The Housing Authority -- not knowing that landlady Charlotte Withers is defendant's grandmother -- approved the apartment, and a Housing Authority Program contract was signed by defendant, Withers, and a Housing Authority employee. The rent was $500 per month, of which the Section 8 program paid $446 directly to the landlady every month, and defendant was supposed to pay the rest ($54) to the landlady. The record does not disclose whether or not defendant paid her share, but it does not matter, as we explain post.
In 2010, a Housing Authority program specialist attempted to contact defendant for the annual recertification required by Section 8. Defendant did not return the phone messages. The specialist phoned the landlord, Charlotte Withers and asked if Withers could give a message to defendant. Withers agreed to pass along a message and disclosed that she is defendant's grandmother. At trial, Withers testified she did not remember ever being told by the Housing Authority that Section 8 did not subsidize rentals from family members.
An investigator from the Office of Inspector General interviewed defendant, who confirmed that she is her landlady's granddaughter. Defendant said she was sure she was told she could not rent from a relative but "maybe" she "ignored" that rule and "just wanted to rent the house." She was willing to repay the money but did not have the means to do so at that time. She inherited $15,000 around April 2010 from her father (who died in July 2009) but had already spent that money on a car and breast implants for her daughter and a motorcycle for her son.
The Housing Authority sent defendant a letter terminating her Section 8 benefits on July 31, 2010, for violating the rules and stating the Housing Authority had paid $20,030 on defendant's behalf in violation of program rules.
Evidence was adduced at trial about the specific rule against family rentals.
Thus, CFR 982.306 states: "The PHA [Public Housing Authority] must not approve a unit if the owner is the parent, child, grandparent, grandchild, sister or brother of any member of the family unless the PHA determines that approving the unit would provide reasonable accommodation for a family member who is a person with disabilities. This restriction against PHA approval of a unit only applies at the time a family initially receives tenant-based assistance for occupancy of a particular unit, but does not apply to PHA approval of a new tenancy with continued tenant-based assistance in the same unit."
A special agent of the HUD unit of the Office of the Inspector General, who investigates fraud and abuse in HUD programs, testified the reason for restricting rentals from relatives is to ensure program integrity. Before the restriction was adopted, HUD found that "a lot of times" tenants would not pay their share of the rent if they were renting from close family members. This defeated the program's purpose to have the program participant contribute to the rent.
The Housing Authority's housing assistant coordinator also said they used to encounter fraud before HUD promulgated the rule against renting from relatives. On occasion, landlords who were close relatives of tenants did not collect the tenant's share of the rent. Landlords who were related to subsidized tenants would be more likely than unrelated landlords to let the tenants get away with not paying their share of the rent, which defeated Section 8's purpose of making rent reasonable so a low-income family could meet its obligations. Landlords who were relatives were also less likely to report or deal with problems with the tenants.
The Housing Authority's coordinator acknowledged she had no evidence in this case that defendant did not pay her share of the rent. The grandmother did not remember but was "pretty sure" the Housing Authority paid the full rent. Defendant's aunt, who handled the bookkeeping for Withers (the aunt's mother), saw the Housing Authority check every month but did not receive any money from defendant and was not responsible for collecting any money from defendant.
Defendant did not testify at trial. In closing argument, defense counsel argued insufficiency of evidence of intent to defraud; the forms were confusing; maybe defendant was running out of time to find an apartment (which the prosecutor said in rebuttal was not in evidence); there was no evidence defendant did not pay her share; defendant's admission that she received an inheritance was not enough to prove she received it; and defendant's admission of fault and that she ignored the rule about family rentals did not prove intent to defraud as opposed to maybe she just blamed herself for failing to read the forms she was signing.
The jury returned a verdict finding defendant guilty of grand theft of public housing funds in violation of section 487i.
The trial court suspended imposition of sentence for five years and placed defendant on conditional revocable release in the community.
DISCUSSION
I
The Section 8 Housing Program
The Section 8 Housing Choice Voucher Program provides rental assistance to low-income families to enable them to participate in the private rental market. (42 U.S.C. § 1437f; 24 CFR 982; Khan v. Bland (7th Cir. 2010) 630 F.3d 519, 523-524.) Although funded by the federal government, the program is generally administered by state or local government agencies, which must comply with HUD rules and regulations. (24 CFR §§ 982.1(a), 982.52(a).) The housing agency issues a voucher to a participant, who can then search for housing. (24 CFR §§ 982.202, 982.302.) If a property owner agrees to lease a unit to a tenant under the program, the owner enters into a Housing Assistance Payment (HAP) contract with the housing agency and a separate lease agreement with the tenant. (Khan, supra, 630 F.3d at p. 524.) The housing agency pays the subsidized portion of the rent to the owner, and the tenant pays his or her share of the rent to the owner. (Ibid.) Landlords have no right to participate in the Section 8 program. (24 CFR § 982.306(e); Khan, supra, 630 F.3d at p. 529.) The program is for the benefit of low-income families participating in the program, not for landlords. (Khan, supra, 630 F.3d at p. 529.)
II
CFR 982.306(d)
Defendant contends CFR 982.306's ban on renting from grandparents burdens a fundamental right to free association with family members, as guaranteed by the Fourteenth Amendment of the United States Constitution. She contends the regulation is invalid. We address in turn defendant's contentions that the regulation violates substantive due process, equal protection, and privacy rights.
A. Substantive Due Process
Defendant claims the regulation infringes on a fundamental constitutional right to familial association, triggering strict scrutiny. We disagree.
1. No Fundamental Right Subject to Strict Scrutiny
A regulation that infringes on a fundamental constitutional right will be struck down as violative of substantive due process under the Fourteenth Amendment unless it is narrowly tailored to serve a compelling state interest. (Reno v. Flores (1993) 507 U.S. 292, 302 .) Regulations that do not interfere with fundamental rights are presumed to be constitutional and will be upheld if rationally related to a legitimate state interest. (Ibid.; City of Cleburn v. Cleburne Living Ctr., Inc. (1985) 473 U.S. 432, 440.)
Fundamental rights are rights deeply rooted in this Nation's history and tradition. (Washington v. Glucksberg (1997) 521 U.S. 702, 719-721 .) In addition to those enumerated in the Bill of Rights, fundamental rights are implicit in the concept of ordered liberty such that neither liberty nor justice would exist if they were sacrificed. (Ibid.) Fundamental rights protect against government interference with personal decisions relating to marriage, procreation, family relationships, child rearing, and individuals' bodily integrity. (Ibid.; Planned Parenthood v. Casey (1992) 505 U.S. 833, 851 .)
However, there is no fundamental right to receive welfare. (Medora v. Colautti (3d Cir. 1979) 602 F.2d 1149, 1154), and social welfare legislation is ordinarily subject to rational basis review. (Dandridge v. Williams (1970) 397 U.S. 471, 484-485 (Dandridge) [equal protection analysis]; King v. McMahon (1986) 186 Cal.App.3d 648, 661 (King).)
There is a constitutional right to intimate association among family members: "Family relationships, by their nature, involve deep attachments and commitments to the necessarily few other individuals with whom one shares not only a special community of thoughts, experiences, and beliefs but also distinctively personal aspects of one's life." (Roberts v. Jaycees (1984) 468 U.S. 609, 619-620 .) Family relationships are distinguished by "such attributes as relative smallness, a high degree of selectivity in decisions to begin and maintain the affiliation, and seclusion from others in critical aspects of the relationship. As a general matter, only relationships with these sorts of qualities are likely to reflect the considerations that have led to an understanding of freedom of association as an intrinsic element of personal liberty." (Id. at p. 620 [state statute requiring Jaycees to accept females as full voting members did not abridge freedom of association].)
Defendant argues the right to familial association includes the right to rent housing from family members, but she cites no supporting authority. She cites Moore v. City of East Cleveland, Ohio (1977) 431 U.S. 494 (Moore), where a grandmother was convicted of violating an ordinance limiting occupancy of a dwelling to members of single family, because she had not only her son living with her, but also two grandsons who were first cousins. Their relationship did not fit within the ordinance's definition of "family." (Id. at pp. 495-496.) The United States Supreme Court in a plurality opinion found a violation of due process. (Id. at pp. 499-500.) The tradition of grandparents, children, and grandchildren sharing a household deserved constitutional recognition. (Id. at p. 504.)
However, Moore did not find a fundamental right or invoke strict scrutiny; rather, it said that "when the government intrudes on choices concerning family living arrangements, [it] must examine carefully the importance of the governmental interests advanced and the extent to which they are served by the challenged regulation." (Id. 431 U.S. at p. 499.)
King, supra, 186 Cal.App.3d at page 659, noted Moore did not find a fundamental right. King involved an equal protection challenge to a state statute that made a child ineligible for foster care benefits under AFDC (Aid to Families with Dependent Children) if the foster parents were relatives of the child. The appellate court rejected the trial court's determination that the state was impinging on a fundamental right of children to live with members of their extended family. (Id. at pp. 658-662.) King, supra, at page 659, pointed out that in Moore "no finding was made that there was a fundamental right involved despite the fact that the city very explicitly contended that grandparents had no fundamental right to live with their grandsons."
King concluded the foster care program was subject to a rational basis test. " 'Although a fundamental interest may be involved . . . not every limitation or incidental burden on a fundamental right is subject to the strict scrutiny standard. When the regulation merely has an incidental effect on exercise of protected rights, strict scrutiny is not applied. [Citations.] It is only when there exists a real and appreciable impact on, or a significant interference with the exercise of the fundamental right that the strict scrutiny doctrine will be applied. . . .' Any impact by the foster care benefit limitations on the claimed right to live with relatives is 'unintended, indirect, and, in any case, attenuated . . . .' " (King, supra, 186 Cal.App.3d at p. 662.)
Applying the rational basis test, King concluded that the different treatment accorded foster children cared for by relatives and those cared for by others was reasonable as rationally calculated to achieve the goal of providing the maximum amount of needed foster care with available public funds. (Id. 186 Cal.App.3d at p. 665.) Persons having a family tie to a child in need of foster care will often provide such assistance without any financial incentive to do so; persons having no family tie ordinarily will not provide foster care unless financially induced to do so; and denial of benefits to related foster parents allows more foster care to be provided to all children. (Ibid.)
The constitutional right to familial association does not include the right to rent an apartment from a relative subsidized by the government. Even assuming a fundamental interest may be involved, the Section 8 restriction on renting from relatives does not significantly interfere with the exercise of any fundamental right of familial association. The weakness of defendant's position is apparent from her argument that the regulation unconstitutionally prevents family members "from forming land-tenant relationships . . . ." As in King, no basis for strict scrutiny applies in this case.
Defendant attempts to distinguish King by arguing that the regulation, CFR 982.306, is not related to how the benefits are being spent by the government. However, Section 8 provides rental subsidies for low income families, and the regulation's purpose is to preserve integrity in the expenditure of Section 8 housing funds.
Defendant claims this case is like Robbins v. Superior Court (1985) 38 Cal.3d 199 (Robbins), which King, supra, 186 Cal.App.3d at page 661, cited as the sole exception to the long-standing rule that rational basis review is applied to social welfare legislation. Robbins involved a county resolution enabling the welfare department to replace cash grants with "in-kind" benefits for single, employable applicants as part of the county's general assistance program for indigents. (Robbins at pp. 203-204.) The county resolution eliminated the prior cash grants and instead gave persons the choice of residing in a county shelter or receiving nothing. (Id. at p. 204.) The shelters were open dormitories with shared toilets, no privacy, and rules restricting movements and dictating meal times and bed times. (Ibid.) Robbins found a likelihood that the challengers would prevail on the merits of their claim that the new policy infringed on constitutional rights to privacy which includes the right to choose with whom one lives and associates. (Id. at p. 213.)
Robbins is not like our case. The Section 8 restriction on renting from relatives does not interfere with family members living with or associating with each other, and it certainly does not make it a "crime" to rent from a relative, as defendant argues.
In an effort to manufacture a significant impairment of familial association, defendant mischaracterizes the record. She suggests her grandmother, who was age 94 at the time of trial and lived on the same street as the rental, needed to have family nearby to "assist[] . . . in maintaining her day-to-day life," and defendant could not have afforded to rent the nearby unit from her grandmother without the Section 8 subsidy. The record does not show that grandmother Withers needed any assistance from defendant or that defendant provided any assistance.
We conclude this case does not present a restriction on a fundamental right to familial association triggering strict scrutiny; rather, the appropriate test is whether the regulation is rationally related to a legitimate government interest.
2. Rational Relationship
The regulation will be upheld if it is rationally related to a legitimate government interest. (Reno v. Flores, supra, 507 U.S. at pp. 305-306.) The regulation must correspond to the legislative goals but there need not be a perfect fit between means and ends. (Ibid.)
The evidence at trial showed that the regulation restricting Section 8 recipients from renting from close family members, including grandparents, is designed to combat fraud and ensure integrity of the program. Before the regulation was adopted, it was the experience of the Housing Authority that, where people rent from family members, the landlord who is not being paid the tenant's personal share of the rent is less likely to do anything about it, perhaps out of familial affection or reluctance to jeopardize the family member's participation in the subsidy program by reporting the dereliction to the Housing Authority. And it was difficult for the Housing Authority to uncover a tenant's failure to pay his or her share of the rent if the landlord was covering for the scofflaw. This manipulation undermines the purpose of the program to make rent reasonable so that a low-income family can be responsible and meet its obligations.
Defendant complains no statistics or internal findings were offered into evidence to support the testimony of the Office of Inspector General investigator that the federal regulation was adopted to protect the integrity of the Section 8 program because of a determination that family members would not pay rent and fraud was more likely between family members. However, the testimony suffices, and defendant fails to show anything more was required.
Defendant thinks the Section 8 program's concern about fraud is a pretext, because the Housing Authority did not immediately investigate whether she actually paid her share of the rent after learning she is the landlady's granddaughter. This overlooks the evidence that not only is fraud more likely to occur between close relatives, it is more difficult to prove, e.g., a grandmother is more likely to lie to protect a granddaughter.
Defendant argues there was no evidence (or no sufficient evidence) that she failed to pay her share of the rent. However, it does not matter whether defendant paid her share. What matters is that the potential for fraud justifies the regulation, and defendant violated the regulation by concealing that her landlady was her grandmother. There need not be a perfect fit between means and ends. (Heller v. Doe (1993) 509 U.S. 312, 321.) Similarly, it does not matter that fraud can also happen if one rents from a more distant relative or from a friend. As noted, there need not be a perfect fit between means and ends.
Although it would not matter if defendant paid her share, we nevertheless note there was some evidence she did not. The person keeping the books for the rental properties (defendant's aunt) never received any money from defendant and said she was not responsible for collecting any money from defendant. Although the landlady said defendant paid the rent, the landlady also said defendant paid $500 and the payments came from the Housing Authority (not from defendant) and the landlady was "pretty sure" the Housing Authority paid the full rent. Thus, when the landlady said defendant paid the rent, she was referring to the payment from the Housing Authority.
The regulation is not draconian; it allows an exception to provide reasonable accommodation for persons with disabilities. Defendant did not seek or obtain an exemption. We have no need to decide whether the exception could apply to disability of a landlord, as opposed to disability in the Section 8 participant's household. Either way, defendant does not claim an exemption would have been appropriate.
We conclude the regulation does not unconstitutionally infringe on a right to familial association in violation of substantive due process.
B. Equal Protection
Defendant separately argues that the regulation violates equal protection by arbitrarily discriminating between family members. We disagree.
Under the Fourteenth Amendment, persons similarly situated with respect to the legitimate purpose of the law must be similarly treated. (King, supra, 186 Cal.App.3d at p. 656.) This principle does not preclude the government from drawing distinctions between different groups but does require at a minimum that classifications bear a rational relationship to a legitimate public purpose. (Ibid.) A challenged classification is upheld if it is rationally related to a legitimate public purpose and tailored to accomplish that purpose. (City and County of San Francisco v. Garnett (1999) 70 Cal.App.4th 845, 851.)
The challenger of the regulation has the burden to prove that the regulation is not rationally related to a legitimate governmental interest. (Minnesota v. Clover Leaf Creamery Co. (1981) 449 U.S. 456, 464.)
Here, defendant argues the regulation violates equal protection because it prohibits a Section 8 recipient from renting a home from a sibling, parent, child, grandparent, or grandchild, while allowing the Section 8 recipient to rent from aunts, uncles, nieces, nephews, great grandparents, or even close friends. Defendant argues the classification is not justified by the purpose to prevent fraud, because the prosecution did not prove that close family members are more likely to defraud the government than other groups of relatives or friends, or even that close family members are likely to commit fraud. She argues family relation is not a reasonable proxy for a willingness to defraud the government. However, this argument ignores and conflicts with the very reason for defendant's invocation of a constitutional right to familial association in the first place, i.e., that "[f]amily relationships, by their nature, involve deep attachments and commitments to the necessarily few other individuals with whom one shares not only a special community of thoughts, experiences, and beliefs but also distinctively personal aspects of one's life." (Roberts v. Jaycees, supra, 468 U.S. at pp. 619-620.)
It is reasonable for the regulation to restrict rentals involving only the closest family relationships most likely to be tempted to conceal misconduct in order to protect those close relationships.
"In the area of economics and social welfare, a State does not violate the Equal Protection Clause merely because the classifications made by its laws are imperfect. If the classification has some 'reasonable basis,' it does not offend the Constitution simply because the classification 'is not made with mathematical nicety or because in practice it results in some inequality.' [Citation.] 'The problems of government are practical ones and may justify, if they do not require, rough accommodations -- illogical, it may be, and unscientific.' [Citation.] 'A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.' [Citation.]" (Dandridge, supra, 397 U.S. at p. 485.)
Dandridge involved a Maryland regulation that set an absolute maximum of $250 per month for AFDC, regardless of family size. Since funds were distributed based on the number of persons in the household, the $250 maximum disadvantaged large families which thereby received less money per person. (Id. 397 U.S. at pp. 473-474.) The State asserted four reasons for the regulation: (1) Encourage gainful employment, (2) maintain an equitable balance in economic status between welfare families and working families, (3) provide incentives for family planning, and (4) allocate available public funds to reach the largest number of families. (Id. at pp. 483-484.) The United States Supreme Court held there was a valid basis for the regulation in the State's legitimate interest in encouraging employment and avoiding discrimination between welfare families and the families of the working poor. (Id. at p. 486.) Although the regulation's classification was not perfect and may not be beneficial for the plaintiffs, the imperfections did not invalidate the regulation. (Id. at pp. 486-487.) Although the regulation in Dandridge served multiple purposes, there is no requirement that a regulation serve multiple purposes. "It is enough that the State's action be rationally based and free from invidious discrimination." (Id. at p. 487.)
Here, the regulation, CFR 982.306, in drawing a line between close and more distant family members is rationally based and free from invidious discrimination.
Defendant argues an easier and less restrictive means of preventing fraud exists, in that housing authorities could simply require periodic proof that the tenant paid his or her share of the rent. However, as amply demonstrated, that is not the test for validity of the regulation. Moreover, defendant's proposal would not be easier. To the contrary, it would add an administrative burden to the housing authorities' work. (People v. Chatman (2018) 4 Cal.5th 277, 290.) And it would not help prevent fraud, because close relatives willing to engage in fraud could simply give bogus receipts that prove nothing.
We conclude CFR 982.306 does not violate equal protection.
C. Privacy
Defendant contends the regulation violates her right to privacy under the California Constitution. Defendant does not cite any particular provision but presumably relies on article 1, section 1, of the California Constitution, which states: "All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy."
A violation of a right to privacy requires (1) a legally protected privacy interest, (2) a reasonable expectation of privacy under the circumstances, and (3) a serious invasion unjustified by a countervailing interest. (Hill v. National Collegiate Athletic Association (1994) 7 Cal.4th 1, 35-37.) Privacy interests generally fall into one of two categories: (1) An interest in making intimate personal decisions or conducting personal activities without observation, intrusion, or interference (autonomy privacy), or (2) an interest in precluding the dissemination or misuse of sensitive and confidential information (informational privacy). (Id. at p. 35.)
Here, there is no breach of any protected privacy interest under either category. We have explained that there is no infringement of any constitutional right to familial association. And defendant cites no authority that the right to privacy under the California Constitution entitles a Section 8 recipient to receive a government subsidy to rent an apartment from a grandparent.
Defendant cites Parrish v. Civil Service Commission (1967) 66 Cal.2d 260 (Parrish) for the proposition that a regulation cannot require a person to waive a constitutional right in conjunction with the receipt of a welfare benefit, unless the condition is rationally related to the governmental purpose, the value of the condition outweighs a waiver of rights, and there are no alternative means that are narrowly tailored.
Parrish, using the doctrine of unconstitutional conditions, held a county could not constitutionally condition continued receipt of welfare benefits upon the giving of consent to search the home of the welfare recipient. (Id 66 Cal.2d at p. 263.) "Operation Bedcheck" sent social workers to search recipients' homes on Sunday mornings at 6:30 a.m. in mass raids not based on any suspicion of fraud. (Ibid.) The purpose of the program was to persuade the public that the incidence of welfare fraud was below popular estimates. (Id. at p. 274.) The California Supreme Court held the practice, which violated the substantial right of innocent persons to be secure in their homes, was unconstitutional. (Ibid.) The purported consent was invalid because the request for entry by persons whom the welfare beneficiaries knew to possess virtually unlimited power over their livelihood nullified the legal effectiveness of the apparent consent. (Id. at p. 270.) The scope of the raids was not closely correlated to achievement of some legitimate end, and alternate means for the detection of fraud -- less subversive of constitutional rights -- were available to the county. (Id. at pp. 273-275.)
There is no comparison between Parrish, which clearly involved interference with substantial Fourth Amendment rights, and this case where defendant shows no interference with any constitutional right.
We conclude CFR 982.306 is constitutionally valid.
III
$15,000 Inheritance
Defendant argues the trial court abused its discretion in allowing evidence that she told the Section 8 investigator about the $15,000 inheritance. (People v. Harris (2005) 37 Cal.4th 310, 335.)
Trial counsel objected to the evidence on the grounds that there was no proof of corpus delecti, i.e., no proof (apart from her own statement) that she actually received the money, and income received in April 2010 was not relevant to show intent to defraud from 2006 through July 2010 -- the period alleged. The prosecutor argued defendant had a continuing obligation not to violate the rules for every month she received the Section 8 funds. Defendant violated Section 8 rules not only by concealing the relationship with the landlady but also by failing to report income received. The inheritance was relevant to defendant's state of mind. The trial court ruled the father's death certificate sufficed to establish the corpus delecti, and the evidence was admissible.
The jury was instructed that the People had presented evidence of more than one act to prove the single count of grand theft of public housing funds, and they must all agree on at least one act to find defendant guilty. In closing argument to the jury, the prosecutor argued defendant's concealment of the inheritance as further evidence of defendant's intent to defraud when she concealed her relationship with the landlady. Defense counsel told the jurors they had to unanimously agree on renting from family or unreported income as the basis for the conviction. However, the jury instruction told the jurors they had to agree on "at least one. . . ." Thus, they could agree that both acts supported the conviction. On appeal, defendant makes no contention about unanimity.
Defendant argues that evidence she received $15,000 in 2010 is not probative of whether she intended to defraud the Housing Program when she signed the agreement in 2006. She thinks her position is supported by People v. Sisuphan (2010) 181 Cal.App.4th 800, 812-813, where a defendant charged with embezzlement claimed he merely took the money temporarily to get a coworker fired and later returned the money. He argued that, because he returned the money he took, he did not have the requisite intent to embezzle when he took the money. The Court of Appeal rejected the argument and said the fact he later returned the money was not probative on the issue of his intent at the time he took it -- because his intent to use the money to get a coworker fired was still fraudulent and therefore any evidence of intent to return the money did not tend to prove that he lacked a fraudulent intent. (Id. at pp. 813-814.)
Here, in contrast, defendant's unreported receipt of a lump sum of money was probative of an intent to defraud the Section 8 program in light of defendant's continuing violation of program rules. She violated Section 8 regulations by renting from her grandmother -- a violation which was ongoing for four years and was repeated with each annual signing of the Certification. During that time, she also violated the rule against failing to report income, which itself supports conviction for theft of public housing funds and also further demonstrated intent to continue to defraud the Housing Authority of Section 8 funds by concealing her violation of the rule against renting from a relative.
Defendant argues the lump sum evidence should have been excluded as more prejudicial than probative under Evidence Code section 352. We disagree. The prejudice referenced in that statute does not merely mean "damaging"; rather, it means evidence that uniquely tends to evoke an emotional bias against the defendant as an individual which has very little effect on the issues. (People v. Karis (1988) 46 Cal.3d 612, 638.) Here, the evidence that defendant concealed $15,000 in violation of Section 8 rules had an effect on the issues, and rightly so. She cheated the Housing Authority out of public housing funds by violating two rules.
We conclude the trial court did not abuse its discretion in allowing evidence about the inheritance.
Defendant also argues the evidence should have been excluded as inadmissible character evidence under Evidence Code section 1101, which makes character evidence inadmissible to prove conduct on a specified occasion unless relevant to prove some fact "such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident . . . " other than her disposition to commit such an act. However, defendant forfeited this contention by failing to raise it in the trial court. (Evid. Code, § 353, subd. (a).) Her back-up claim of ineffective assistance of counsel fails because defendant fails to show deficient performance by counsel or that it is reasonably probable the result would have been different had counsel objected. (Strickland v. Washington (1984) 466 U.S. 668, 688; People v. Ledesma (1987) 43 Cal.3d 171, 215-218.)
Thus, Evidence Code section 1101 restricts the use of uncharged conduct as evidence of bad character to prove disposition to commit the charged act, because of the potential for undue prejudice. (People v. Ewoldt (1994) 7 Cal.4th 380, 402-403; People v. Thompson (1980) 27 Cal.3d 303, 314-317.) Here, defendant's failure to report the $15,000 income was not uncharged conduct; it was part of the charged conduct of grand theft of public housing funds between October 1, 2006, and July 31, 2010, and was argued to the jury as part of the charged conduct. It was not character evidence to show propensity or disposition to commit the charged crime; it was direct evidence to show commission of the charged crime. It did not violate Evidence Code section 1101 for the prosecutor to argue that defendant's concealment of her $15,000 windfall was also material to show that her concealment of her relationship with the landlady was not an innocent mistake caused by confusing forms but rather an intentional deception to obtain public housing funds.
Thus, Evidence Code section 1101 was inapplicable to exclude evidence of the unreported income. Though not mentioned by the parties, the prosecutor suggested in the trial court that "almost it could be under an 1101 motion of a common theme." Defense counsel responded, "you don't get to bring in a statement from any person under any circumstances unless you show there's a corpus." The court ruled the death certificate sufficed for corpus delecti and asked if there was anything else, to which defense counsel said no.
Defense counsel was not deficient in failing to press an Evidence Code section 1101 objection, and there is no possibility of a better result for defendant had counsel done so.
Defendant on appeal fails to show any reversible evidentiary error.
We conclude defendant fails to show grounds for reversal.
DISPOSITION
The judgment is affirmed.
HULL, Acting P. J. We concur: ROBIE, J. MURRAY, J.