Opinion
C082797
03-16-2018
THE PEOPLE, Plaintiff and Respondent, v. DANYA MALENE WALROD, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. P13CRF0613)
Defendant Danya Malene Walrod was found guilty by a jury of charges stemming from her fraudulent application for government benefits that required her to have care and custody of her son in order to collect. Defendant contends the trial court erred in refusing her requests to (1) admit a school emergency contact form into evidence at trial, and (2) allow a school administrator to testify. Disagreeing, we will affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant has two children born approximately five years apart, Heather W. (born in 1992) and Cole W. (born in 1997). Defendant's fraud was alleged to have occurred from September 2012 to August 2013, and concerned only Cole.
Prosecution case at trial
Defendant's father, Warren, lived in a house in Placerville with a one-bedroom guest cottage on the property. From 2000 to 2003, Warren had guardianship of Cole. After the guardianship expired in 2003, Cole resumed living with defendant. In 2008 defendant moved into the guest cottage. Cole split his time between the guest cottage and the house (where Warren lived), depending on whether he was "having problems with his mother."
In 2011 Cole moved in full time to the house with Warren, where he had his own bedroom. Defendant remained in the guest cottage for a "short period" and then moved to Sacramento.
Cole continued living with Warren until 10th grade, when he moved out (to his paternal grandparents' house in Shingle Springs) for between a year and a year and a half and then returned to live with Warren at the end of 11th or beginning of 12th grade.
The record is unclear as to what calendar years correspond with what "grades." The emergency contact form completed by defendant and dated February 4, 2012, identifies Cole as in ninth grade and thus a sophomore (10th grade) during the 2012-2013 school year, the time of the alleged fraud. This is consistent with Warren's testimony that Cole was in seventh grade in 2010 or 2011, which would put Cole in 10th grade in 2013 (or 2014). Cole was born in the summer of 1997, which puts him at age 15--a common age to start 10th grade--during the 2012-2013 school year. This conclusion would reconcile the emergency contact form (completed by defendant) with Warren's recollection, but would mean defendant's recollection at trial was one year off. She testified that Cole was in sixth grade in January 2008. If Cole was neither advanced nor held back, by defendant's recollection he was a junior (11th grade) at the time of the alleged fraud (2012-2013).
Warren testified Cole was living with him between July 2012 and the summer of 2013, and defendant had already moved out of the guest cottage during that time. While Cole lived with Warren, Warren drove him to and from school every day until Cole got a driver's license. Warren also drove Cole to tutoring and sports. Warren's housekeeper, Sandy Robertson, did the food shopping and prepared meals for Cole, including his school lunches. Robertson testified defendant would accompany Robertson once a month to the store and use some of her food stamps to buy food for the family. Warren provided Cole's day-to-day supplies, such as toiletries and clothes. Cole's paternal grandfather would also "sometimes" buy him supplies. Warren also took Cole to the "majority" of doctor's appointments, although Cole's father sometimes helped, too. Warren was the "point person" for Cole during his freshman year, although he was not Cole's emergency contact. Warren was responsible for communicating with Cole's teachers, and the school provided Warren with report cards.
In January 2009 Warren prepared a "written proposal" at defendant's request for her to pay $700 monthly rent for the guest cottage. Warren testified that defendant had wanted the rental agreement to justify what the "state" had been paying her, but that in reality she only paid the rent for a few months starting in March 2008. After that, she generally paid nothing, except "here and there" to help with the costs associated with caring for Cole.
Defendant testified that she had received had government benefits since 1994, including "aid for Cole" in 2009.
The People introduced into evidence a letter dated July 16, 2012, bearing Warren's signature that stated defendant lived in the guest cottage on Warren's property with Cole and paid $700 rent, including utilities. Warren testified he did not draft the letter or sign it. Warren also testified defendant was not living in the guest cottage in 2012, as "she had already moved out."
On July 10, 2012, defendant applied for benefits through CalWORKs and CalFresh. CalWORKs is a cash assistance program designed for people who have a dependent minor child in the home. CalFresh is a food assistance program. In her eligibility interview, defendant stated she lived at the guest cottage and paid $700 rent monthly, including rent for Cole. She also stated she purchased and prepared food for Cole. Defendant submitted the July 16, 2012 letter purportedly signed by Warren as proof of her residency and rent expenses.
Defendant submitted a required quarterly report on August 8, 2012, claiming no changes to the household composition. She also requested renewed benefits on May 8, 2013, stating she continued to live in the guest cottage, paid $700 rent, and prepared and purchased food for herself and Cole.
Elizabeth Moore, an eligibility worker for the El Dorado Health and Human Services Agency (the Agency), testified defendant was only eligible for CalFresh benefits because she reported she had a dependent child. Likewise, she was only eligible for CalWORKs benefits if she had care and control of a child. Moore testified that a parent has care and control of a child based on the following nonexclusive factors: (1) deciding where a child attends school or child care; (2) dealing with the school on educational decisions and problems; (3) controlling participation in extracurricular and recreational activities; (4) arranging medical and dental care services; (5) claiming the child as a tax dependent; and (6) purchasing and maintaining the child's clothing. It is presumed a parent who does not live with her child does not have control or care of him.
On July 29, 2013, defendant told a district attorney's investigator that it had been at least eight months since she last had care and custody of Cole. A county eligibility supervisor calculated defendant was overpaid between September 2012 and August 2013 by $2,400 in CalFresh benefits ($200 per month) and $4,008 in CalWORKs benefits ($334 per month).
Defense case
Defendant testified that during the relevant time period (fall 2012 to summer 2013), she was living in the guest cottage with Cole, although he would sometimes stay with Warren in the house. Cole took the bus to school, with a bus pass defendant obtained for him. Defendant controlled Cole's participation in extracurricular and recreational activities, and took Cole to a few of his soccer games and practices. She was also the emergency contact person for Cole and dealt with Cole's school regarding educational decisions and problems. In addition, she arranged for medical and dental care services, and purchased and maintained Cole's clothing.
Defendant denied seeking benefits to which she was not entitled, and denied telling the investigator that she did not have care and control of Cole for the relevant time period. She also denied the July 2012 letter detailing her rental agreement with Warren was a forgery. She testified Cole did not move out of the guest cottage until August 2013.
Disputed evidence on appeal and verdicts
Defendant sought to introduce into evidence at trial the above-mentioned emergency contact form completed by her and dated February 4, 2012 (see fn. 1, ante). She had attached a handwritten note to the form, bearing the same date, stating Warren had no permission to have any school records or sign any school permission slips. Defendant argued the two-page document would show Warren was not Cole's emergency contact and support her argument that she had care and custody of Cole. The trial court excluded the document as hearsay, reasoning it did not qualify for the business records exception because the relevant part of the document was created (filled out) by defendant, who had no "obligation to be accurate with this information." The court found no valid nonhearsay purpose to admit the document.
Defendant also sought to have Nancy "Sam" Felcher, the registrar of Cole's high school, testify that defendant was Cole's emergency contact for the 2012-2013 school year. Defense counsel informed the trial court that the basis for Felcher's knowledge was the emergency contact form. The court disallowed Felcher's proposed testimony, reasoning it was inadmissible hearsay.
On June 23, 2016, the jury found defendant guilty of obtaining aid by misrepresentation (Welf. & Inst. Code, § 10980, subd. (c)(2)) and attempting to file a false or forged instrument (Pen. Code, § 115, subd. (a)). On August 15, 2016, the trial court placed defendant on five years' formal probation, with a condition of 60 days in county jail, and ordered restitution. Defendant timely appealed.
DISCUSSION
I
Defendant contends the trial court abused its discretion in refusing her request to admit the emergency contact form for the purpose of showing defendant was Cole's emergency contact. Defendant further argues the trial court erred in refusing to allow Felcher to testify to foundational facts necessary to establish the form was admissible under the business records exception. She adds that the form was admissible hearsay as a prior consistent statement.
We review a trial court's decision to exclude evidence for abuse of discretion. (People v. Vieira (2005) 35 Cal.4th 264, 292.)
A. Business Records Exception
Under Evidence Code section 1271, "[e]vidence of a writing made as a record of an act, condition, or event is not made inadmissible by the hearsay rule when offered to prove the act, condition, or event if: [¶] (a) The writing was made in the regular course of a business; [¶] (b) The writing was made at or near the time of the act, condition, or event; [¶] (c) The custodian or other qualified witness testifies to its identity and the mode of its preparation; and [¶] (d) the sources of information and method and time of preparation were such as to indicate its trustworthiness." As the Law Revision Commission comment to section 1271 explains: " 'The chief foundation of the special reliability of business records is the requirement that they must be based upon the first-hand observation of someone whose job it is to know the facts recorded. . . . But if the evidence in the particular case discloses that the record was not based upon the report of an informant having the business duty to observe and report, then the record is not admissible under this exception, to show the truth of the matter reported to the recorder.' [Citations.] [¶] Applying this standard, the cases have rejected a variety of business records on the ground that they were not based on the personal knowledge of the recorder or of someone with a business duty to report to the recorder. Police accident and arrest reports are usually held inadmissible because they are based on the narrations of persons who have no business duty to report to the police. [Citations.] They are admissible, however, to prove the fact of the arrest." (See also People v. Hernandez (1997) 55 Cal.App.4th 225, 240 [police reports inadmissible under business records exception to hearsay rule because they were based on observations of witnesses with "no official duty to observe and report the relevant facts"].)
Undesignated statutory references are to the Evidence Code. --------
Here, akin to a police report, the contents of the emergency contact form lacked sufficient indicia of trustworthiness and the form did not meet the requirements of the exception for business records. The form was filled with statements from defendant herself, and she was neither acting on behalf of the school nor acting in the ordinary course of her own business when she completed the form. Without defendant's statements contained within the form, the form itself was irrelevant. Moreover, there is no evidence that defendant's statements in the form were inherently trustworthy.
Felcher's proposed "foundational" testimony regarding the school's general use or collection of the form does not change this analysis; there is nothing in the record indicating Felcher had personal knowledge of the information provided by defendant and contained in the form.
B. Prior Consistent Statement
Section 1236 provides: "Evidence of a statement previously made by a witness is not made inadmissible by the hearsay rule if the statement is consistent with [the witness's] testimony at the hearing and is offered in compliance with Section 791." Thus, "[t]o be admissible as an exception to the hearsay rule, a prior consistent statement must be offered (1) after an inconsistent statement is admitted to attack the testifying witness's credibility, where the consistent statement was made before the inconsistent statement, or (2) when there is an express or implied charge that the witness's testimony recently was fabricated or influenced by bias or improper motive, and the statement was made prior to the fabrication, bias, or improper motive." (People v. Riccardi (2012) 54 Cal.4th 758, 802, disapproved on other grounds in People v. Rangel (2016) 62 Cal.4th 1192, 1216; see People v. Crew (2003) 31 Cal.4th 822, 843 [evidence of a "previous statement made by a witness is admissible under the prior consistent statement exception to the hearsay rule if there has been an express or implied charge that the witness's testimony is recently fabricated and the prior consistent statement was made before the motive for fabrication is alleged to have arisen"].)
Defendant argues her statements in the emergency contact form were admissible under subdivisions (a) and (b) of section 791, providing for admission of certain prior consistent statements to attack or support credibility. However, section 791, subdivision (a) requires a previous inconsistent statement from the defendant; in this case from defendant regarding her status as Cole's emergency contact. This requirement is not met; defendant at no time testified that she was not the emergency contact.
Nor are the requirements of subdivision (b) met; that subdivision requires that a charge of recent fabrication or improper influence be made, and that the consistent statement be made before the motive to fabricate or other improper motive arose. (§ 791, subd. (b).) Here, the prosecutor did not argue defendant fabricated her trial testimony regarding her status as Cole's emergency contact. Indeed, Warren testified (for the prosecution) that he was not Cole's emergency contact. Further, defendant's statement that she was Cole's emergency contact occurred after her motive to fabricate arose rather than before. Defendant had received government aid since 1994. She applied for aid for Cole in 2009 and was likely aware that she needed to have a dependent child in order to qualify for future aid. As such, defendant had a motive to fabricate her level of care and control of Cole. (See People v. Flores (1982) 128 Cal.App.3d 512, 524 [trial court did not err in excluding allegedly consistent statement made after the bias, motive for fabrication, or other improper motive arose].)
The trial court did not abuse its discretion in excluding the emergency contact form and Felcher's proposed testimony.
DISPOSITION
The judgment is affirmed.
/s/_________
Duarte, J. We concur: /s/_________
Raye, P. J. /s/_________
Renner, J.