Opinion
NOT TO BE PUBLISHED
Superior Court County of Ventura No. 2005045526, James P. Cloninger, Judge.
Terree A. Bowers and Matthew Kitson, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan Sullivan Pithey, Supervising Deputy Attorney General, John Yang, Deputy Attorney General, for Plaintiff and Respondent.
OPINION ON REHEARING
YEGAN, J.
Abulghasen Ahmadpour appeals from the judgment entered after his conviction by a jury of five counts of filing or recording a forged instrument (counts 1, 3, 4, 6, and 7 - Pen. Code, § 115, subd. (a)) and two counts of forgery (counts 2 and 5 - § 470, subd. (d)). He was sentenced to prison for seven years.
All statutory references are to the Penal Code unless otherwise stated.
Appellant contends that the evidence is insufficient to support his convictions and that the trial court erroneously (1) failed to discharge a juror, (2) failed to inquire into the travel plans of two jurors, (3) limited his cross-examination and impeachment of prosecution witnesses, (4) admitted the expert opinion of a prosecution witness and excluded the expert opinion of a defense witness, and (5) excluded a title insurance policy. Appellant's final contention is that the prosecutor committed misconduct during closing argument. We affirm.
Facts
Count 1
Hamid and Pari Moayer, a married couple, operated WebTD.com, a mortgage broker and banker business. WebTD.com loaned appellant $78,000. The loan was secured by a deed of trust on the residence owned by appellant and his wife. In November 2005 appellant stopped making payments on the loan. Appellant falsely claimed that he had paid the loan in full. In December 2005 the Moayers began foreclosure proceedings on the deed of trust. They discovered that in October 2005 someone had recorded a Substitution of Trustee and Full Reconveyance releasing WebTD. com's interest in the deed of trust. Pari Moayer's signature on the document had been forged.
Counts 2, 3, and 4
In August 2004 judgment was entered in favor of Gholamreza Mohammadi and against appellant. The amount of the judgment was approximately $151,000. An abstract of judgment in that amount was recorded.
In October 2005 an acknowledgement of satisfaction of judgment (People's Exhibit No. 20 - count 2) was filed in superior court. In November 2005 another acknowledgement of satisfaction of judgment (People's Exhibit No. 30 - count 3) was filed. The latter document was recorded by the Ventura County Recorder in March 2006. In November 2005 a quitclaim deed (People's Exhibit No. 40 - count 4) was recorded. The deed purported to release to appellant all of Mohammadi's interest in appellant's residence. On all of these documents, Mohammadi's signature had been forged.
Counts 5, 6, and 7
Mohammed Ershadi operated a limousine service. He sued appellant, and a judgment awarded him approximately $114,000. Ershadi was represented by Attorney Steven Neimand. In February 2006 a substitution of attorney form was purportedly signed by Ershadi and Neimand (People's Exhibit No. 50 - count 5). The form substituted Ershadi as attorney of record in place of Neimand. In February 2006 an acknowledgement of satisfaction of judgment was filed in superior court (People's Exhibit No. 60 - count 6). In March 2006 the same document was recorded by the Ventura County Recorder (People's Exhibit No. 50 - count 7). On all of these documents, Ershadi's signature had been forged. Neimand's signature on the substitution of attorney had also been forged.
Testimony of Kari Jordan
Kari Jordan was employed as a senior escrow officer at Creative Escrow. On January 6, 2006, escrow was opened on the refinancing of a loan on appellant's residence. The amount of the loan was $650,000. The preliminary title report for the property showed that it was encumbered by a number of liens "that needed to be cleaned up and/or cleared" to obtain refinancing. Jordan spoke to appellant about removing the liens. She told him that he needed an acknowledgement of satisfaction of judgment.
Appellant often came to Jordan's office and personally handed documents to her. These documents included People's Exhibit Nos. 20 (count 2), 30 (count 3), 50 (count 5), and 70 (count 7). Jordan saw appellant hand-deliver People's Exhibit No. 60 (count 6) to her associate. As to the Ershadi matter, appellant told her "that the case was satisfied" and that "he had them [the necessary documents] recorded."
Sufficiency of the Evidence
Appellant contends that the evidence is insufficient to support his convictions. "When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains 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. [Citation.]... We presume in support of the judgment the existence of every fact the trier of fact reasonably could infer from the evidence. [Citation.] If the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citation.] A reviewing court neither reweighs evidence nor reevaluates a witness's credibility. [Citation.]" (People v. Lindberg (2008) 45 Cal.4th 1, 27.)
Substantial evidence supports appellant's convictions. The jury credited the testimony by prosecution witnesses that the documents in question had been forged. The jury reasonably concluded that appellant had been involved in the forgeries and had caused the documents to be filed or recorded with knowledge of their falsity. Only appellant and his wife stood to benefit from the forgeries. Appellant had a motive to forge the documents to remove the liens encumbering his residence. Jordan informed him that, to refinance his home loan, the liens needed to be removed. Appellant personally delivered many of the forged documents to Jordan and her associate. As to the Ershadi matter, appellant told Jordan "that the case was satisfied" and that "he had them [the necessary documents] recorded."
Alleged Failure to Discharge a Juror
Appellant contends that the trial court abused its discretion in failing to discharge juror number 3 for being inattentive. "Section 1089 provides in part: 'If at any time, whether before or after the final submission of the case to the jury, a juror dies or becomes ill, or upon other good cause shown to the court is found to be unable to perform his or her duty,... the court may order the juror to be discharged....' 'Before an appellate court will find error in failing to excuse a seated juror, the juror's inability to perform a juror's functions must be shown by the record to be a "demonstrable reality." The court will... uphold the trial court's exercise of discretion on whether a seated juror should be discharged for good cause under section 1089 if supported by substantial evidence. [Citation.]' [Citations.]" (People v. Jablonski (2006) 37 Cal.4th 774, 807.)
During the trial, the court noticed that juror number 3 was "struggling to stay awake." The court said it would discharge her if both parties wanted her to be discharged. Defense counsel requested that she be discharged. Counsel stated, "I have noticed that predominantly her eyes seem to be closed." The court responded, "I wouldn't say predominant. What I have seen is that she is struggling. Her eyes will go into half mast and then she brings herself back awake. And I would have stopped earlier if I thought she was actually sleeping...." The prosecutor requested that the court talk to juror number 3 "and ask her if there's any way she can stay alert and awake...."
Outside the presence of the other jurors, the trial court said to juror number 3, "I am concerned you have fallen asleep during the trial." Juror number 3 replied, "No. I can hear everything, but I just close my eyes sometimes." Juror number 3 assured the court that she was "getting plenty of sleep" and that she had not "missed anything" during the trial. After juror number 3 had exited the courtroom, the trial court stated, "Counsel, based on what [juror number 3] had to say I won't be excusing her."
The trial court's ruling was not an abuse of its discretion. The court credited juror number 3's representation that she had been attentive during the trial. In view of her representation, substantial evidence supports the trial court's implied finding that she was able to perform her duty as a juror. "Even when there is a significant amount of countervailing evidence, the testimony of a single witness that satisfies the [substantial evidence] standard is sufficient to uphold the [trial court's] finding." (People v. Barnwell (2007) 41 Cal.4th 1038, 1052.)
Alleged Failure to Inquire About the Travel Plans of Two Jurors
Two jurors had travel plans that would make them unavailable after Friday, March 14, 2008. Jury deliberations began at 12:15 p.m. on March 13. The following day at 11:31 a.m., the jury rendered its verdict. Appellant contends that the trial court committed reversible error by failing "to inquire whether the jury's deliberations would [be] influenced by the vacation time constraints" of the two jurors. This contention is waived because appellant never requested that the trial court make such an inquiry. (People v. Holloway (2004) 33 Cal.4th 96, 126-127.)
Limitation of Cross-Examination and Impeachment of Prosecution Witnesses
Appellant contends that the trial court erroneously limited his cross-examination and impeachment of three prosecution witnesses: Kari Jordan, Mohammed Ershadi, and Hamid Moayer. This limitation, appellant argues, deprived him of his Sixth Amendment right to confront the witnesses against him.
" '[A] criminal defendant states a violation of the Confrontation Clause by showing that he was prohibited from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness, and thereby, "to expose to the jury the facts from which jurors... could appropriately draw inferences relating to the reliability of the witness." ' [Citations.] However, not every restriction on a defendant's desired method of cross-examination is a constitutional violation. Within the confines of the confrontation clause, the trial court retains wide latitude in restricting cross-examination that is repetitive, prejudicial, confusing of the issues, or of marginal relevance. [Citations.]" California law is in accord. [Citation.] Thus, unless the defendant can show that the prohibited cross-examination would have produced 'a significantly different impression of [the witnesses'] credibility' [citation], the trial court's exercise of its discretion in this regard does not violate the Sixth Amendment. [Citation.]" (People v. Frye (1998) 18 Cal.4th 894, 946, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
Kari Jordan
Jordan testified before the jury that she had "cancelled [appellant's escrow] file" by sending a letter to the title company, lender, and mortgage broker saying that she would "no longer proceed" with the matter. But her employer, Creative Escrow, assigned the file to another employee and continued with the escrow.
During an Evidence Code section 402 hearing outside the presence of the jury, Jordan testified that, after she had cancelled appellant's escrow file, she had been "laid off" by her employer and had not been "fired." The stated reason for her termination was that she "did not have a good production level" and therefore "was not bringing enough money into the company." But she admitted telling District Attorney Investigator O'Neill that she believed she had been laid off for not "allowing the escrow file to go through with respect to [appellant's] case." She denied telling O'Neill that she had been fired.
Following Jordan's testimony at the Evidence Code section 402 hearing, defense counsel referred the court to a report prepared by Lance Steaman, a district attorney investigator who had also interviewed Jordan. Steaman reported that Jordan "believes she was fired from Creative Escrow Services because of [appellant's] escrow and the fact that she tried to be ethical and this caused issues with her own employer." Defense counsel requested permission to "impeach" Jordan by questioning her about whether she had been laid off or fired. Counsel said that Steaman "will be called by the defense about this subject matter."
The trial court replied that defense counsel could cross-examine Jordan about why her employment had been terminated. But counsel was ordered not to call Steaman as a witness to impeach Jordan on the "fired" versus "laid off" issue unless counsel had assurances from Steaman that the word "fired" was a direct quote from Jordan. The court explained, "[W]hat I don't want is to put the word 'fired' in front of the jury only to have the witness [Steaman], when he's cross-examined in front of the jury, have to admit that he doesn't know if he assumed that's what she meant. So what I am telling you to do is to find out what [Steaman] will say... before you go calling him and trying to impeach what Ms. Jordan said to him about the interview."
During her cross-examination, Jordan testified that she had been "laid off" rather than "fired" and that she had not told a district attorney investigator that she had been "fired." Appellant did not call Steaman to impeach Jordan's testimony.
Appellant contends that the trial court's ruling erroneously limited his "ability to impeach Ms. Jordan via the Steaman report." Appellant's contention is meritless because the report was inadmissible hearsay. (Evid. Code, § 1200.) The only admissible impeachment evidence would have been Steaman's testimony that Jordan had said she had been "fired" rather than "laid off." The court permitted appellant to call Steaman for the purpose of so testifying. We reject appellant's contention that "the court forbid [defense counsel] from... calling Mr. Steaman as a witness."
Appellant argues that the trial court erroneously excluded the impeachment testimony of Christopher Garvin. The excluded testimony was that Garvin had "heard [Jordan] was stealing money through escrow" and that this was the reason for her termination. Garvin could not remember the identity of the person from whom he had "heard" this information. The court also excluded testimony that Jordan had told Garvin that "funds were missing" from an account and "[n]o one knew where they were." The trial court did not abuse its discretion in determining that Garvin's proffered testimony was inadmissible hearsay. (Evid. Code, § 1200.)
Mohammed Ershadi
Defense counsel asked Ershadi if he had had "a dispute with [appellant] about a suspended driver's license." Ershadi responded, "No." The trial court refused to allow defense counsel to ask Ershadi whether his driver's license had been suspended. The court concluded that Ershadi's "license status" was "completely irrelevant." Defense counsel contended that the issue was relevant because if Ershadi testified that his license had not been suspended, appellant would be able to prove that his license had in fact been suspended. Defense counsel declared: "[I]t goes to his credibility that he's not being truthful about this particular issue and if he's not truthful about a driver's license suspended issue, I think I can reasonably argue... that he might not be credible with respect to his own testimony."
"Only relevant evidence is admissible, and the trial court has broad discretion to determine the relevance of evidence. [Citation.]" (People v. Cash (2002) 28 Cal.4th 703, 727.) " 'Relevant evidence' means evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Evid. Code, § 210.) "[A] trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it." (People v. Carmony (2004) 33 Cal.4th 367, 377.)
The trial court did not improperly curtail appellant's cross-examination of Ershadi on the status of his driver's license. It "could reasonably find the proffered line of cross-examination was not relevant to any disputed fact of consequence to the question of [appellant's] guilt of the charged crimes, or to [appellant's] veracity. (Evid. Code, § 210.)" (People v. Frye, supra, 18 Cal.4th at p. 946.) A party cannot cross-examine a witness about irrelevant matters in the hope that he will answer falsely and thereby provide grounds for his impeachment. (See People v. Lavergne (1971) 4 Cal.3d 735, 744 [impermissible to cross-examine witness "upon collateral matters for the purpose of eliciting something to be contradicted"].) Appellant has not shown "that the prohibited cross-examination would have produced 'a significantly different impression of [Ershadi's] credibility'...." (People v. Frye, supra, 18 Cal.4th at p. 946.)
Ershadi testified concerning the nature of his business relationship with appellant. Appellant asked Ershadi if he had "a written contract" with appellant. The prosecutor objected on relevance grounds, and the trial court sustained the objection. We reject appellant's contention that the court's ruling was erroneous. Appellant has failed to show how the existence of a written contract would have any tendency in reason to prove or disprove Ershadi's veracity or "any disputed fact that is of consequence to the determination of the action." (Evid. Code, § 210.)
Appellant argues that the trial court "prevented" him "from asking Mr. Ershadi about... the background of their business relationship in general." The court took no such action. It precluded appellant from questioning Ershadi about (1) the problems Ershadi had encountered in procuring insurance for his fleet of limousines and (2) how these problems had led to his business relationship with appellant. The court ruled that this evidence is not relevant and, "[i]f it has any relevance at all,... any probative value is outweighed by the consumption of time. This is a tangential issue in this case." Pursuant to Evidence Code section 352, a court has discretion to exclude relevant evidence "if its probative value is substantially outweighed by the probability that its admission will... necessitate undue consumption of time...." (Ibid.) Appellant has not shown that the insurance evidence was relevant. Even if it were relevant, appellant has not shown that the trial court abused its discretion in excluding the evidence under section 352. "[R]eliance on Evidence Code section 352 to exclude evidence of marginal impeachment value that would entail the undue consumption of time generally does not contravene a defendant's constitutional rights to confrontation and cross-examination. [Citations.]" (People v. Brown (2003) 31 Cal.4th 518, 545.) "This routine application of state evidentiary law does not implicate [appellant's] constitutional rights" because he has failed to " 'show that the prohibited cross-examination would have produced "a significantly different impression of [Ershadi's] credibility" [citation].... ' " (Id., at p. 545, fn. omitted.)
Hamid Moayer
Moayer's wife was the sole shareholder and president of WebTD.com. Hamid Moayer was vice-president and secretary of the company. During cross-examination, defense counsel asked him, "Isn't it true that because you had no financial backing and you declared bankruptcy is why you put the company in your wife's name?" The prosecutor objected on relevance grounds, and the court asked for an offer of proof. Defense Counsel stated: "My theory of relevance... is that the defense believes we're going to be able to show a pattern that he utilizes his wife['s]... name because he is not qualified for any of these programs or to be on title or a president of any corporation." "[H]e was aware that he could not become a mortgage broker or run a company because of his bankruptcy and credit problem..., that's why they put this particular WebTD in his wife's name when she has nothing to do with the company. [¶] What this relevance goes to, it goes to his... shady business practices. I want to show that what he's doing is because he has no real financing. Everything is in his wife's name. He quitclaimed his residence and other property into her name...."
The trial court sustained the prosecutor's relevance objection. The court declared: "This inquiry is irrelevant. I don't see any relevance to [Moayer's] transactions with his wife or any bankruptcy issues he may have experienced in the past."
The trial court reasonably concluded that the proffered line of cross-examination was irrelevant. Nothing in appellant's offer of proof showed how evidence of Moayer's bankruptcy and business arrangement with his wife would have "any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Evid. Code, § 210.) Nor did the offer of proof indicate how the proffered evidence would show that Moayer was biased or untruthful.
For the first time on appeal, appellant contends that the evidence was admissible to show that Moayer "should not be trusted as a witness because some of his own business practices were questionable." Appellant failed to preserve this point for appellate review because he did not raise it in the trial court. (See People v. Fauber (1992) 2 Cal.4th 792, 854.) In any event, the point is waived because it is not supported by reasoned argument or citation to authorities. (Addam v. Superior Court (2004) 116 Cal.App.4th 368, 373.) Furthermore, appellant has not shown "that the prohibited cross-examination would have produced 'a significantly different impression of [Ershadi's] credibility.' " (People v. Frye, supra, 18 Cal.4th at p. 946.)
Expert Opinion Evidence
Steven Neimand - Prosecution Witness
Appellant contends that Steven Neimand, Ershadi's attorney in his civil action against appellant, was erroneously permitted to testify as an expert on quitclaim deeds and satisfaction of judgment documents without first qualifying as an expert on these matters. The quitclaim deed testimony concerned People's Exhibit No. 40: the quitclaim deed purporting to release to appellant all of Mohammadi's interest in appellant's residence. The purpose of this transaction was to release the judgment lien obtained by Mohammadi through the recording of an abstract of judgment. The prosecutor asked Neimand: "[I]s it fair to say it's simply not common practice to use a quitclaim deed to release a judgment against a property?" Over appellant's "[n]o foundation" objection, Neimand testified: "Well, I can tell you in 30 years of being a lawyer I have never seen anybody try to do that. So I guess it's uncommon." Neimand had previously testified without objection that the release of a judgment lien is accomplished by recording an acknowledgement of satisfaction of judgment.
Appellant waived the quitclaim expertise issue because his general "[n]o foundation" objection did not make clear that the specific ground for his objection was Neimand's lack of expertise. "Although no 'particular form of objection' is required, the objection must 'fairly inform the trial court, as well as the party offering the evidence, of the specific reason or reasons the objecting party believes the evidence should be excluded, so the party offering the evidence can respond appropriately and the court can make a fully informed ruling.' [Citation.]" (People v. Zamudio (2008) 43 Cal.4th 327, 354.) " '[T]he "defendant's failure to make a timely and specific objection" on the ground asserted on appeal makes that ground not cognizable. [Citation.]' [Citation.]" (Ibid.)
Even if appellant had informed the court that the ground of his objection was Neimand's lack of expertise, the trial court would not have abused its discretion in overruling the objection. Neimand had conducted a general civil law practice for approximately 30 years. Prior to appellant's objection, he had testified at length regarding his familiarity with judgment collection procedures.
Even if the trial court had erroneously overruled appellant's objection concerning lack of foundation, the error could not have prejudiced him because Neimand's answer was already before the jury. Neimand had previously testified without objection that he had "never heard of anybody" recording a quitclaim deed to release a judgment lien against real property. (2RT 149) Neimand had further testified without objection: "[T]hat's not how it's done. Normally you get a satisfaction of judgment...."
Neimand's satisfaction of judgment testimony concerned People's Exhibit No. 60: the acknowledgement of satisfaction of judgment purportedly signed by Ershadi. The prosecutor asked Neimand whether he believed it was "a false document." The trial court overruled appellant's no foundation objection. Neimand opined that it was a false document, and he explained the reasons for his opinion. Here again appellant waived the issue of Neimand's alleged lack of expertise because he did object on that specific ground. (People v. Zamudio, supra, 43 Cal.4th at p. 354.) Even if appellant had made a properly specific objection, the overruling of the objection would not have constituted an abuse of discretion in view of Neimand's 30 years of legal experience.
James Uyeda - Defense Witness
James Uyeda is an attorney who represented appellant in a lawsuit that he had filed against Hamid Moayer and his wife. Appellant sought the admission of Uyeda's opinion that Moayer had signed wife's name on various documents not at issue in this case. Uyeda's opinion was based on his comparison of two sets of writings. As to one set, Uyeda had assurances that wife's signature was genuine. As to the other set, Moayer had notarized wife's signature. (Moayer had been granted a California Notary Public Commission.) Uyeda concluded that the signatures notarized by Moayer "were very similar" and "very different" from the signatures known to be genuine. The opinion evidence was offered to show that Moayer, not appellant, had forged wife's signatures on the documents at issue in this case.
In his opening brief appellant asserts: "If Mr. Uyeda had been allowed to testify about the differences in Mrs. Moayer's signatures when her husband was notarizing them, he could have raised a reasonable doubt that Mr. Moayer was the one forging the documents, not [appellant]."
The trial court excluded the opinion evidence for two reasons. First, Uyeda was not qualified to express an opinion because he was not a handwriting expert. Second, pursuant to Evidence Code section 352, the probative value of the opinion evidence was substantially outweighed by the probability that its admission would be "unduly consumptive of time."
The trial court did not abuse its discretion. Only an expert can give an opinion as to the genuineness of handwriting when the opinion is based on a comparison of handwritten documents. Evidence Code section 1418 provides: "The genuineness of writing, or the lack thereof, may be proved by a comparison made by an expert witness with writing (a) which the court finds was admitted or treated as genuine by the party against whom the evidence is offered or (b) otherwise proved to be genuine to the satisfaction of the court." (Italics added.)
Appellant contends that Uyeda's opinion was admissible pursuant to Evidence Code section 1416, which provides that a nonexpert may "state his opinion whether a writing is in the handwriting of a supposed writer if the court finds that he has personal knowledge of the handwriting of the supposed writer." Section 1416 is inapplicable here because Uyeda's opinion was based on his comparison of handwriting, not on his personal knowledge of wife's handwriting. Furthermore, the proffered opinion was not just that wife's signature was not genuine on the documents notarized by Moayer; the opinion was also that Moayer had signed wife's name on these documents.
In any event, the trial court did not abuse its discretion in excluding the opinion evidence pursuant to Evidence Code section 352. The court reasonably concluded that the evidence had little probative value because it concerned "documents other than the documents at issue here in this case" and because wife had previously testified that Moayer had signed her name on business documents with her consent. In view of wife's testimony, the proffered opinion evidence was cumulative of evidence already in the record.
Insurance Policy
The charged offenses were committed in 2005 and 2006. Appellant contends that the trial court erroneously excluded as hearsay a title insurance policy issued in February 2007. The policy showed the judgment liens of Ershadi and Mohammadi. It did not show WebTD.com's deed of trust, but it showed the filing of an action in which appellant and WebTD.com were parties. The policy had been issued in connection with the successful refinancing of appellant's home loan.
In the trial court, appellant argued that the policy was not hearsay because it was "not being offered for the truth" of the matters stated therein. Instead, it was being offered to "explain" appellant's "state of mind" by showing that he had been "aware" of the "particular liens" set forth in the policy. It was also being offered as "circumstantial evidence with respect to the theory that the liens were still referenced in that particular document even after all of these issues."
The trial court did not abuse its discretion in excluding the policy. Appellant did not explain to the court how his awareness of the liens in February 2007 would have "any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Evid. Code, § 210.) Nor did he explain how the policy's mere reference to the liens would have any such tendency.
For the first time on appeal, appellant contends that the title insurance policy was admissible to rebut the "prosecution's primary theory" that appellant had "purportedly forged the various documents... to remove liens on the property so that he could obtain refinancing." Appellant argues that, because the title insurance policy showed that he had been able to refinance his home loan despite the liens of Ershadi and Mohammadi, the policy "demolish[ed] the People's argument regarding [appellant's] motive" for committing the forgeries.
This point has not been preserved for appellate review because appellant failed to raise it in the trial court. (People v. Fauber, supra, 2 Cal.4th at p. 854.) In any event, the policy was irrelevant as to appellant's motive because it had been issued after the commission of the charged offenses. Before the recording of the forged acknowledgements of satisfaction of judgment, Jordan informed appellant that the judgment liens needed to be removed to obtain refinancing.
Alleged Prosecutorial Misconduct During Closing Argument
Appellant contends that the prosecutor committed misconduct by stating in closing argument that appellant "is now trying to keep the government from investigating this case." The argument was based on a letter from appellant that had been received in evidence. Appellant maintains that the argument was improper because the letter was unauthenticated and therefore should have been excluded. But it is not misconduct for a prosecutor to comment on matters that have been received in evidence. To the extent that appellant is contending that the trial court abused its discretion in admitting the letter, the contention is waived because it is not supported by reasoned argument, citations to authorities, or references to the record. (People v. Garcia (2008) 161 Cal.App.4th 475, 486; Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785; People v. Cooks (1983) 141 Cal.App.3d 224, 329.)
For the first time in his reply brief, appellant contends that defense counsel "properly challenged the document's admissibility on [Evidence Code] Section 352 grounds." This issue is waived because it was not raised in appellant's opening brief. (People v. Baniqued (2000) 85 Cal.App.4th 13, 29)
Appellant's wife and Dr. Shamlou were defense witnesses. During closing argument, the prosecutor said, "All I'll say about [Dr. Shamlou] is, 'shame on you.' " The prosecutor then stated: "[I]'ll submit that shame on the defendant for putting his wife in a morally impossible position. And that's all I am going to say about her testimony." Appellant contends that the prosecutor's remarks were misconduct because they implied that defense counsel had knowingly presented perjured testimony. The contention is waived because appellant neither objected to the remarks nor requested that the jury be admonished to disregard them. (People v. Turner (2004) 34 Cal.4th 406, 422.)
In any event, the prosecutor's remarks did not imply that defense counsel had knowingly presented perjured testimony. The remarks were directed at Dr. Shamlou and appellant, not at defense counsel. Furthermore, the remarks were fair comment on the evidence. " ' " '[A] prosecutor is given wide latitude during argument. The argument may be vigorous as long as it amounts to fair comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom. [Citations.]'... 'A prosecutor ... "is not limited to 'Chesterfieldian politeness' [citation], and he may use "appropriate epithets...." ' " [Citation.]' [Citation.]" (People v. Stanley (2006) 39 Cal.4th 913, 951-952.)
Appellant maintains that the prosecutor committed misconduct when he told the jury "that no one else but [appellant] had a motive to create a false identification in the name of Pari Moayer...." In his opening brief, appellant does not cite any evidence in the record on this issue. This claim of misconduct, therefore, is not "sufficiently developed to be cognizable" as an appellate issue. (People v. Turner (1994) 8 Cal.4th 137, 214, fn. 19, overruled on other grounds in People v. Griffin (2004) 33 Cal.4th 536, 555, fn. 5; see also People v. Fiu (2008) 165 Cal.App.4th 360, 381, fn. 26 ["We reject claims that are not carefully enough developed to be discrete contentions; contentions 'raised in such [a] perfunctory fashion [are] waived' "].) In any event, the prosecutor's statement was fair comment on the evidence.
Appellant's failure to develop the claim in his opening brief is not remedied by his attempt to develop it in his reply brief. (See Aviel v. Ng (2008) 161 Cal.App.4th 809, 821; People v. Baniqued, supra, 85 Cal.App.4th at p. 29; Pan Asia Venture Capital Corp. v. Hearst Corp. (1999) 74 Cal.App.4th 424, 429, fn. 4.)
Appellant contends that the prosecutor committed misconduct because "he argued that [appellant had] obtained [an] expert opinion in preparation for a civil hearing; therefore this showed consciousness of guilt." The prosecutor did not so argue. He argued that appellant had misled his own expert witness by providing her with false information. The prosecutor stated, "[I]f she is given bogus information, how is she to know what to draw conclusions to? That's consciousness of guilt and he did that in preparation for what he thought would be a civil hearing back in May of 2006." Appellant has failed to show that the prosecutor's remarks were not fair comment on the evidence.
Finally, appellant contends that the prosecutor engaged in misconduct by declaring that the civil cases of Mohammadi and Ershadi "have come and gone through the system." Appellant argues that this statement was "contrary to the testimony of the prosecution's own witness, Mr. Neimand, that some of the cases were still on appeal." This claim of misconduct is waived because appellant neither objected to the alleged misconduct nor requested that the jury be admonished to disregard it. (People v. Turner, supra, 34 Cal.4th at p. 422.)
Disposition
The judgment is affirmed.
We concur: GILBERT, P.J., COFFEE, J.