Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC338481
Bamattre-Manoukian, ACTING P.J.
Defendants Courtland Clovis Bivens and Taurice Lemar Jourdan were convicted after jury trial of conspiracy (Pen. Code, § 182, subd. (a)(1)), grand theft (§§ 484, 487, subd. (a)), possessing card-making equipment (§ 484i, subd. (c)), making counterfeit access cards (§ 484f, subd. (a)), using counterfeit access cards (§§ 484g, subd. (a), 487), and 10 counts of acquiring access card information with fraudulent intent (§ 484e, subd. (d)). In addition, Bivens was found guilty of 16 counts and Jourdan was found guilty of 20 counts of identity theft (§ 530.5), and Jourdan admitted two on-bail enhancement allegations (§ 12022.1). The court sentenced Bivens to six years and Jourdan to 10 years in state prison.
Further statutory references are to the Penal Code unless otherwise specified.
Both defendants filed timely notices of appeal, and we appointed separate counsel to represent them in this court. Appointed counsel for Bivens has filed an opening brief which states the case and facts but raises no issues. We notified Bivens of his right to submit written argument in his own behalf within 30 days. He has exercised that right by submitting a letter that was filed in this court on February 23, 2007. In the letter defendant states six “[i]ssues [he] would like the court to consider.” Those issues are: (1) Deidre Grace’s testimony had numerous holes and flaws; (2) the evidence is insufficient to support the convictions for using counterfeit access cards (§§ 484g, subd. (a), 487); (3) the evidence is insufficient to support the convictions for making counterfeit access cards (§ 484f, subd. (a)); (4) the court gave him a harsher sentence for allegedly committing perjury without any proof that he did so; (5) the court discriminated against him by not following the recommendation of the probation report; and (6) he did not know what his roommate was doing in their apartment. We address these issues below, and affirm the judgment as to Bivens.
Jourdan contends on appeal that: (1) the court’s admission of highly prejudicial surprise evidence violated his constitutional rights to due process, a fair trial, and effective assistance of counsel; (2) the court’s admission of an unauthenticated computer printout under the coconspirator exception to the hearsay rule was prejudicial error; and (3) the cumulative effect of the errors requires reversal of the judgment. We find no error or abuse of discretion, and also affirm the judgment as to Jourdan.
BACKGROUND
Defendants were charged by first amended information, along with David Plunkett, with conspiracy (§ 182, subd. (a)(1); count 1); grand theft (§§ 484, 487, subd. (a)); count 9); possessing card-making equipment (§ 484i, subd. (c); count 10); making counterfeit access cards (§ 484f, subd. (a); count 11); using counterfeit access cards (§§ 484g, 487; count 12); receiving stolen property (§ 496, subd. (a); count 13); 19 counts of acquiring access card information with fraudulent intent (§ 484e, subd. (d); counts 2 – 8, 35 – 46); and 21 counts of identity theft (§ 530.5; counts 14 – 34). The information also included two allegations that at the time of the offenses Jourdan was out of custody on bail (§ 12022.1). The court granted Jourdan’s request to bifurcate trial on the on-bail enhancements.
Plunkett is not a party to this appeal, and the summary of the trial evidence does not include a discussion of the evidence presented solely against him.
THE TRIAL
The Prosecution’s Case-in-Chief
The parties stipulated that business records showed that a number of people had valid access cards that were used in various transactions that have been classified as fraudulent or otherwise not authorized by the cardholders; that the card issuers have classified those transactions as losses due to fraud; and that the card issuers have absorbed those losses. The parties further stipulated that certain named people had validly issued access cards from various issuers that they used at Max’s Restaurant in Belmont in March 2003, the Tied House Restaurant in San Jose in March or April 2003, or Dave & Buster’s restaurant in Milpitas in June or July 2003; and that, although the cardholders continued to possess their cards, their account information, and account information from other validly issued cards from these same card issuers, was used to purchase unauthorized items or services in cities all over California, and in Nevada, Oklahoma, Oregon, Pennsylvania, Texas, and Washington. Some of the charges were made under the names Latrell Williams, Kenneth Paxon, Chad Morgan, Anthony Miller, and Jonathan Thomas.
Terry Fail, a Citibank vice-president of corporate security investigative services, testified as an expert in credit card fraud investigations. He testified that most merchants swipe cards through machines that read the information in the magnetic strip on the back of the card. Banks absorb any loss due to fraudulent use of customer card information presented this way. Merchants can also manually enter card information into a terminal, which accepts it if it is a valid card even though the card is not presented. However, merchants rather than banks absorb losses due to unauthorized purchases in those types of transactions. When a card has been compromised, the cardholder’s account is closed, the cardholder is issued a new card, and the bank investigates what happened.
Using a skimming device, merchants can retain the information in the magnetic strip of a number of cards. The information can be downloaded into a computer, and the computer information can be used to encode counterfeit or cloned cards. Legitimate skimming devices are available online or from Radio Shack. Blank plastic cards that can be used to make counterfeit access cards can also be purchased online. Encoding and embossing machines are also readily available.
Fail participated in his bank’s investigation of the fraudulent use of customer access card information obtained from the use of the cards at the Tied House, Dave & Buster’s and Max’s Restaurant. Fail identified the server at the Tied House who was involved in some of the transactions there as Luzita Cady. Fail reported that information to San Jose Police Sergeant Kenneth Munson, an officer in the high-tech crime unit. On July 22, 2003, Munson confirmed the information with the restaurant management. Dave & Buster’s management identified their server as Deidre Grace.
When Sergeant Munson interviewed Cady after her arrest on July 25, 2003, Cady admitted that she had been involved in a skimming scheme when she worked at the Tied House in March 2003. Cady testified at trial that she met Plunkett through a mutual friend after she said that she was in financial trouble and needed money. Plunkett came to her residence one day and brought her a little box. He told her that she could slide customer access cards in the slot on the box, and she told him that she wanted a car. She did what he showed her and met with him at her residence or his about a dozen times over the course of a month. They sat in his car, he connected the box to a laptop computer, the numbers from the cards she skimmed showed up on the computer screen, and then he gave her back the box. When she went to Plunkett’s residence, he introduced her to two men, one of whom was defendant Bivens, who he said was his roommate. She stopped skimming cards after about one month because she knew it was illegal and felt guilty about doing it. She did not get a car, but she got about $700 and a cell phone from Plunkett and $200 from their mutual friend. Once she went to a shoe store with Plunkett because she needed a new pair of shoes for a new job, and defendant Jourdan met them there and paid for her shoes with a credit card. Cady pleaded guilty to charges related to this case, in exchange for a five-month jail sentence with no objection to house arrest.
Cady identified a photograph Sergeant Munson had of Plunkett as the person she met and skimmed credit cards for, and identified his cell phone number and the Descanso Drive apartment complex where he lived, and described his Mustang. Munson identified Bivens from Plunkett’s phone records, Cady’s identification of the apartment complex, and her description of Plunkett’s roommate. The managers for the Descanso Drive apartment complex confirmed that Bivens and Plunkett were roommates there, identified their assigned parking space, and described their cars, including a Lexus that Bivens was seen driving. Munson obtained a search warrant for the apartment and the Mustang and served the warrant with other officers around 7:00 a.m. on November 6, 2003. When the warrant was served, defendant Jourdan was sleeping on the floor in the living room of the apartment, Plunkett was in bed in one of the bedrooms, and Bivens was in the shower.
In Plunkett’s bedroom the officers found a digital scanner, a photo-printer, and a computer with an attached portable access card reader. Several Federal Express (FedEx) receipts were on top of the scanner and boxes of All-Clad cookware were stacked on top of the dresser. A fraudulent driver’s license in the name of Kenneth Paxon but with Plunkett’s picture on it and four counterfeit access cards were found in a wallet in a dresser drawer. Counterfeit access cards in the name of Latrell Williams, Jonathan Thomas, and Anthony Miller were also found in a dresser drawer. Approximately 20 FedEx shipping receipts with a fictitious shipper name and fraudulent account information were also found in the bedroom, as were ticket stubs for a flight from Portland on August 6, 2003.
In Bivens’s bedroom the officers found a covered red plastic storage bin containing an access card embossing machine, blank access cards, and several fraudulent access cards in the names of Kenneth Paxon and Latrell Williams. They also found two laptop computers in black bags. Inside one black bag the officers found fraudulent driver’s licenses, including one from Arkansas; 57 counterfeit access cards in the names of Chad Morgan, Kenneth Paxon, Jonathan Thomas, Anthony Miller, Latrell Willams, and others; some blank plastic cards; passport photos; two card skimming devices; a magnetic card encoder; some CDs; a document labeled “need to be made” showing the information read off the magnetic strips from the back of access cards; and an embossing stamp stating “Fulton County, Georgia Health Department,” like ones used on birth certificates. A wallet containing a fraudulent driver’s license with the name Latrell Williams but with Jourdan’s photograph on it and eight fraudulent credit cards for Latrell Williams was found in a drawer of one dresser and other fraudulent credit cards were found in another drawer. A wallet containing Bivens’s valid driver’s license and access card was also found in the room. On the dresser was a Lexus key and a parking ticket with a license plate number that corresponded to a Lexus parked on the street.
In the combination living/dining room officers found a third laptop computer; a box containing about 15 cell phones; a box of All-Clad cookware; a black bag containing counterfeit driver’s licenses and a wallet containing a driver’s license with the name Chad Morgan but with Plunkett’s picture and four counterfeit credit cards in the name of Chad Morgan; a plastic tub containing a fraudulent driver’s license in the name of Victor Newman but with Bivens’s picture on it as well as a fraudulent driver’s license with Bivens’s name and picture on it; and a box of blank white plastic cards without magnetic strips. A fax machine was on the table. The officers also found a boxed Panasonic DVD video camera containing a “ship to” label with the name Latrell Williams on it.
In the living room the officers also found a binder labeled BCD Ventures. BCD stood for the three members of the organization: B for Bioseh Ogbechie, C for Courtland Bivens, and D for David Plunkett. Inside the binder were business cards for Bivens, Plunkett, and Ogbechie; a void check; a contract for BCD to design a logo and print business cards for another company; information related to the start-up of a store for children’s clothes; and information related to the incorporation of BCD Ventures with Bivens, Plunkett, Ogbechie’s names on it. BCD Ventures appeared to be a corporation formed to run an escort business. Paperwork for the sale of DeWalt tool kits to two different people, All-Clad cookware to two other people, and a Sony Play Station to another person through eBay were also found in the binder.
In the kitchen the officers found five tool kits from various manufacturers. FedEx receipts containing the same fraudulent information as on the ones found in Plunkett’s room, notes regarding the sales of one set of All-Clad cookware and nine DeWalt toolkits on eBay, papers with handwritten notes showing information from various access cards, and a zippered case containing a fraudulent driver’s license in the name of James Morgan but with Jourdan’s name on it and three counterfeit credit cards were on the kitchen counter. On the patio the officers found two DeWalt toolkits and boxes of Yamaha motorcycle parts.
In Plunkett’s Mustang the officers found a laminating machine, a card skimming device, and the instruction manual for the embossing machine. Inside a cardboard box they found the instruction manual for an encoding machine; a piece of clear plastic showing a DMV logo and the state seal; card sleeves containing the same logo and seal as well as a magnetic strip; blank white card stock; a piece of paper containing the handwritten note “make these top three first, please,” as well as various names and other general notes about how the cards should be made; and envelopes containing photos of unknown people and the information needed to make counterfeit driver’s licenses.
In a Lincoln registered to Plunkett and Ogbechie, searched pursuant to a separate warrant, officers found FedEx receipts containing the same fictitious name and fraudulent account number as found on the receipts in Plunkett’s bedroom, a cell phone agreement in Plunkett’s name, an access card receipt from Orchard Supply Hardware for two tool kits, an access card receipt for Chad Morgan from the Improv Comedy Club in San Jose, and a wallet containing an identification card and genuine access cards in Plunkett’s name as well as an AAA card in Bivens’s name.
In the Lexus parked on the street, searched pursuant to a separate warrant, officers found an envelope addressed to Plunkett; a business card for Plunkett; e-mail from BCD Ventures addressed to Plunkett; a Western Union receipt with Jourdan’s name on it; a Safe way receipt in the name of Vernetha Norris; a Chevron receipt in the name of Plunkett’s brother; and several Nordstrom gift cards in the value of $200.
The officers found the following items that had Jourdan’s name on them in either the kitchen of the apartment or Plunkett’s bedroom: a fax cover sheet from Kinko’s dated September 3, 2003; a receipt from a San Jose dental office dated August 11, 2003; receipts for car insurance dated June 30 and August 6, 2003; a receipt for jewelry from a store in Irvine dated July 5, 2003; a receipt from a San Jose dry cleaners dated August 16, 2003; an envelope addressed to him at the Descanso Drive address; a FedEx receipt dated June 18, 2003, with the Descanso Drive address; two plane tickets from Atlanta, Georgia dated September 1, 2003; and a paycheck stub from BCD Ventures. The paycheck stub states a pay period beginning October 5, and ending October 15, 2003; a pay-rate of $32.74 per hour; a payment of $2,619.20 for the pay period; and cumulative pay of $52,384 for the year. The word “adjustments” on the stub was spelled incorrectly.
The seized CDs contained scanned driver’s licenses and San Jose State University student ID cards; a font-creator program; the DMV logo and state seal; a blue rectangle that could be used for the background of license photos; a driver’s license template; counterfeit licenses for Plunkett, Bivens, Jourdan and Ogbechie; instructions on how to make counterfeit licenses; website information on a company that sells portable card skimming devices; and a user manual for such a device. The counterfeit licenses included one with the photograph of Ogbechie and the name Jonathan Thomas, one with the photograph of Plunkett and the name Kenneth Paxon, and one with the photograph of Jourdan and the name Latrell Williams.
The laptop computer seized from the living room contained downloaded information from the magnetic strips of cards skimmed by Grace and Cady, including information from Bivens’s own account, from the cardholder’s account used at Redwood City Yamaha to buy motorcycle parts, from the cardholder’s account used in Atlanta to buy an Apple monitor, and from the cardholder’s account used in Portland to buy an Apple monitor. It also contained photos of Plunkett, Bivens, Jourdan, Ogbechie and others, and some eBay auction information.
One of the laptop computers seized from Bivens’s room contained cardholder information, including information for Kenneth Paxon, Chad Morgan, Latrell Williams, and Jonathan Thomas; scanned driver’s licenses, including ones with Plunkett’s and Jourdan’s photos; and a scanned social security card. No information related to this case was found on the second computer.
The computer seized from Plunkett’s room contained e-mail messages to Plunkett and his brother Aaron; more cardholder information; pictures of items sold on eBay, such as DeWalt toolkits and All-Clad cookware; information regarding eBay sales of DeWalt toolkits and All-Clad cookware; and photos of Ogbechie, Plunkett, Jourdan and Bivens, each standing in front of a blue sheet or blanket.
On November 21, 2003, Munson interviewed Deidre Grace at Dave & Buster’s following her arrest. Grace admitted that she had been skimming access cards. Grace testified that two men, Bivens and Ogbechie, whom she met at the restaurant through a mutual friend, offered her a way to make some money. She later met the men in the restaurant parking lot during a break. Bivens pulled a black box out of a car, said that he could pay her $10 for every credit card she skimmed using the box, and said that she would not be doing anything illegal. She declined the offer that night but gave him her phone number. Bivens called her several times, and she eventually accepted his offer. Bivens brought her the box and showed her how to use it, and she used it for two or three weeks. She met Bivens weekly, usually on Sundays or Thursdays, sometimes outside her residence, sometimes at the restaurant. Bivens drove a Mustang. He took the skimming device from her and gave her another and $10 for every card she had skimmed the week before. She was paid about $1000 in cash and was given a $100 Nordstrom gift card. In early August, Bivens said something that made her suspicious that what she was doing was illegal, so she stopped doing it and avoided Bivens’s phone calls. Later, when she heard through a friend that Bivens had been arrested, she threw the skimming device away. She later ran into Bivens at a San Jose State University fraternity/sorority party. Grace pleaded no contest to felony charges related to her role in skimming the cards, and was serving five months on house arrest at the time of trial.
Ogbechie testified that he met Plunkett and Bivens when he was a student at San Jose State University in 1999 or 2000. Bivens moved into Plunkett’s Descanso Drive apartment in 2002 and Ogbechie visited the apartment once or twice each month. BCD Ventures was a legitimate business that the three of them tried to start but it never got off the ground. Ogbechie sometimes saw packaged toolkits, electronic equipment, and a number of access cards lying around the apartment in the open each time he went there, and he sometimes saw Jourdan there. Once when they were talking about money, Plunkett told Jourdan that he had ways for Jourdan to make money, but Ogbechie did not see Plunkett give Jourdan any credit cards or driver’s licenses. However, Ogbechie saw Plunkett printing counterfeit cards using a computer and, on trips he took to Seattle and Las Vegas with Plunkett, Ogbechie saw Plunkett make large purchases with credit cards that he assumed were fraudulent. Plunkett once mentioned something about not using your own picture on fraudulent cards, and somebody said that Jourdan looked like Plunkett’s brother Aaron. Once Ogbechie went to Dave and Buster’s with Bivens, and heard Bivens talking to Grace about how she could make some money. Ogbechie sold All-Clad cookware and DeWalt tools on eBay that he assumed were fraudulently obtained, and made around $3,000 doing so. He asked Plunkett to give him a counterfeit driver’s license and a counterfeit credit card in the same name, and Plunkett gave him cards with the name Jonathan Thomas. While he was in Washington at the same time Jourdan was visiting his brother, Ogbechie used the cards to buy All-Clad cookware and then tried to buy video equipment, but was arrested, convicted, and sentenced to 60 days in jail. He also served 20 days in jail in 2001 for possessing fraudulent credit cards with the intent to use them in Sunnyvale, and he pleaded guilty to charges related to this case.
On January 14, 2004, Munson served a search warrant for the apartment of Plunkett’s brother Aaron in Davis. Munson found two counterfeit driver’s licenses, one with Plunkett’s name and picture, and one in the name of Michael Edward Washington with Aaron’s picture. Approximately 24 FedEx shipping receipts with the same fictitious name and fraudulent account information as found on receipts in Plunkett’s apartment were also found, as was a notebook containing handwritten notes about the possible sales of items, including toolkits and Apple monitors. A seized computer contained maps of the Portland area and photos of All-Clad cookware and DeWalt toolkits.
An Apple monitor was purchased using a fraudulent American Express card in Atlanta, Georgia on September 18, 2003. Two Apple monitors were purchased at a store in Portland by two people who came into the store together and who both used fraudulent access cards on August 5, 2003, in the name of Kenneth Paxon and Andrew Jones. The salesperson from the store identified Plunkett at trial as one of the purchasers. The motorcycle parts found on the patio of Plunkett and Bivens’s apartment were purchased by two men at Redwood City Yamaha with an American Express card in the name of Jonathan Thomas. American Express ultimately disallowed the entire transaction, and Redwood City Yamaha suffered the loss.
Plunkett’s eBay account records show that he sold various items, including nine DeWalt toolkits, four All-Clad cookware sets, and seven Sony Play Stations, and received over $17,500. Some of the money from the account was transferred to Ogbechie and Bivens. Records of one of Bivens’s eBay accounts show that he sold 106 DeWalt toolkits, 10 camcorders, 12 digital cameras, and an Apple monitor; that he received over $55,700; and that some of the money was transferred to Plunkett and Ogbechie. The serial number of the Apple monitor Bivens sold matched the serial number of the monitor bought in Atlanta on September 18, 2003. Records of Bivens’s older eBay account show that he sold various items prior to October 2001, including one toolkit and one camcorder, and received over $10,900. Records of Ogbechie’s eBay account show that he sold 11 DeWalt toolkits and six All-Clad cookware sets, that he received over $11,200, and that some of the money was transferred to Plunkett and Bivens. Records of Aaron Plunkett’s eBay account show that he sold 41 DeWalt tools and kits, three All-Clad cookware sets, 18 Verizon wireless phones, and an Apple monitor, and that he received over $35,700. The serial number of the Apple monitor Aaron Plunkett sold matched the serial number of one of the monitors purchased in Portland on August 5, 2003.
The Defense Case
Bivens’s Defense
During her November 2003 interview with Sergeant Munson, Grace described the person who gave her the skimming device as a tall, thin, light-skinned Black male San Jose State graduate and fraternity member named Courtland, who was about 23 years old, around six feet tall and 150 pounds, and who drove a silver Mustang. Grace said that she worked the Thursday-through-Sunday shift, and that the man would meet her before her Thursday shift started and after her Sunday shift ended. At the time, Bivens was 24 years old, around six feet five inches tall and 185 pounds.
Bivens testified in his own behalf that he met Plunkett, Jourdan, and Ogbechie when they were all students at San Jose State University. He graduated from San Jose State in 2002 and he and Plunkett became roommates in August 2002. He formed BCD Ventures with Plunkett and Ogbechie in the summer of 2003. They had two businesses: one was a graphic design business, and the other was a children’s clothing store. They also tried to start a business to supply dancing girls for parties. They solicited college students to be the dancers. When he talked to Grace at Dave and Buster’s, it was about making money by being a dancer for the business. He never said anything about skimming credit cards, and he never spoke to her again. He never met with her on any Thursday, Sunday, or any other day of the week, to talk to her about skimmers, or to give her money, or to give her a Nordstrom gift card. He does not own or drive a white or silver Mustang or Lexus, or a black Lincoln. He owns a dark green Mustang.
BCD Ventures made money and had a corporate business checking account at Wells Fargo Bank, where Bivens worked as a credit manager. Bivens also obtained a portable credit card machine at Wells Fargo for BCD Ventures’ use. At one point, the business account had $800 to $900 in it, but it never had more than that because the money they made would be reinvested in the company. At no time were payroll checks written on the account. Prior to trial, he had never seen Jourdan’s paycheck stub before, and, to his knowledge, Jourdan has never received any payments from BCD Ventures and nobody has ever received $52,384 from BCD Ventures.
Bivens worked as a substitute teacher until the middle of June 2003. Although his work hours at Wells Fargo Bank starting in July 2003 were 9:00 a.m. to 6:00 p.m., Monday through Friday, he often worked an hour extra after his shift in order to contact clients. After work he often went to a fraternity brother’s house because he was an officer of his college fraternity chapter even after he graduated. Chapter meetings were held on Sunday evenings. When he was at his apartment, from time to time there were other people there that he did not know. He was there when Cady came over in February 2003, but he did not see Plunkett give Cady a skimming device or see him read information off a skimming device. Jourdan was an overnight guest on November 5, 2003, because Bivens was going to take him to the airport on the morning of November 6, 2003.
Bivens owns a laptop computer which he keeps next to his bed, and which does not have internet access. He accessed eBay at work, even while he was a substitute teacher, not by using any computer at his apartment. From time to time, he would find a laptop computer in a black nylon bag that belongs to Plunkett, or other items that did not belong to him, in his room and he would throw them into the living room or Plunkett’s room. Although he tried to lock the door to his room when he left for work in the morning, he would find it wide open when he returned to the apartment at night. When he left for work the morning of November 5, 2003, he did not notice any particular items in the kitchen of his apartment. However, when he arrived home around 11:00 p.m. that night, he noticed that there were toolkits in the kitchen and several people in the apartment. He did not notice the black bag containing Plunkett’s laptop in his bedroom, and he did not know what was in the red plastic storage bin. None of the contents of the black bag and the red storage bin belonged to him.
Bivens did not ask anyone to make the fraudulent driver’s licenses with his picture on them that the police found on November 6, 2003, and he never used them for any purpose. Plunkett showed them to him, and he took them and threw them into a red plastic bin in the living room that held junk that needed to be thrown out. When Plunkett took the digital photos of him, Plunkett told him that he was going to use them for BCD Ventures’ website. He did not know that there were skimming devices, an embossing machine, blank access cards, or fraudulent credit cards in his apartment, and he never saw anybody ever possess or use them.
Bivens sold digital cameras, camcorders, DeWalt toolkits and an Apple monitor on eBay, but he did not purchase the items using fraudulent credit cards. He bought the items from Plunkett, who said that he had bought the items with his wholesale license. Bivens had no reason to believe that Plunkett obtained the items illegally. The money transfers from Plunkett, his brother Aaron and Ogbechie into Bivens’s account were to cover Plunkett’s share of the apartment rent and utilities.
Christopher Parker, a teacher at DeAnza College and a former probation officer, testified that he has known Bivens since 1986. In his opinion, Bivens is very honest. The fact that Bivens is facing felony charges has not changed his opinion. Coleetta McElroy, a San Jose State University administrator, testified that she has known Bivens for eight or nine years. In her opinion, Bivens is hardworking and honest. He is highly regarded in the San Jose State community. Knowing that he is facing the criminal charges in this case has not changed her opinion. Robert Poynter, a semi-retired teacher, testified that he has known Bivens for over 15 years. In his opinion, Bivens is very honest. Knowing that Bivens has been charged with numerous felonies has not changed his opinion.
Jourdan’s Defense
Stephanie Hatchett, Jourdan’s girlfriend since 2002, testified that Jourdan lives in Long Beach and does not own an automobile or motorcycle. After Jourdan’s arrest, Bivens gave her over $3,000 to bail him out of jail. Jourdan’s brother Charles testified that he lives in Lacy, Washington, which is 45 minutes from Seattle. In 2003, when Jourdan came to visit him, Jourdan was alone when he picked him up at the Seattle airport. Jourdan stayed with him for a week, during which time Jourdan did not have any transportation of his own, and he took Jourdan back to the airport when he left.
The Prosecution’s Rebuttal
Sergeant Munson testified that, in addition to the Nordstrom gift cards found in the Lexus, a Nordstrom gift card was found in the top drawer of a dresser in Bivens’s bedroom, the same drawer where Bivens’s valid driver’s license was found.
Shira Womack, Grace’s aunt, testified that she spoke to Grace on November 21, 2003, the day Grace was arrested. Grace said that she had been arrested for swiping credit cards. She had been called by a woman friend who offered to introduce her to someone who could help her make some extra money. Later, she was approached at Dave & Buster’s by a tall, good looking light-skinned Black man named Courtland, who she has also seen at sorority/fraternity parties. He gave her a device to use at work and said that he would give her $10 for every card she swiped through the device. Later, but prior to Womack’s testimony, Grace pointed out to Womack in court who Courtland is. Grace also showed her a picture of a group of people including Grace, and told her that it included the woman who had called her and gotten her involved in the situation. Womack thought that Bivens was also in the picture.
Grace testified that it was Bivens, and not Ogbechie, who asked her if she wanted to make some extra money. Bivens was in a fraternity, and had dated her friend. He never mentioned anything to her about running an escort or exotic dancing service. He asked her to skim credit cards, showed her a black box, and showed her how to use it using his own card. He paid her for the skimmed cards and gave her a Nordstrom gift card. He also told her that one of his roommates could make her a fake driver’s license. She identified herself, her friend, and Bivens in the same picture Womack identified.
Bivens’s Surrebuttal
Rhonda Ector, Bivens’s mother, testified that the man in the picture Womack and Grace identified as Bivens is not her son.
The Verdicts, Admission of the Enhancement Allegations, and Sentencing
While the jury was deliberating, and outside its presence, Jourdan waived his right to a jury trial on the on-bail enhancement allegations. On February 28, 2005, the jury found Jourdan guilty of conspiracy (§ 182, subd. (a); count 1); grand theft (§§ 484, 487, subd. (a); count 9); possessing access card-making equipment (§ 848i, subd. (c); count 10); making counterfeit access cards (§ 484f, subd. (a); count 11); using counterfeit access cards (§§ 484g, subd. (a), 487; count 12); receiving stolen property (§ 496, subd. (a); count 13); 10 counts of acquiring access card information with fraudulent intent (§ 484e, subd. (d); counts 3, 7, 35-38, 40-43); and 16 counts of identity theft (§ 530.5; counts 16-18, 20-29, 31, 33, 34). The jury found Jourdan not guilty of 10 counts of acquiring access card information with fraudulent intent (§ 484e, subd. (d); counts 2, 4-6, 8, 39, 44-46) and five counts of identity theft (§ 530.5; counts 14, 15, 19, 30, 32). On March 1, 2005, Jourdan admitted the on-bail enhancement allegations. The probation officer recommended that Jourdan be sentenced to six years in state prison. On November 18, 2005, the court sentenced Jourdan to 10 years in state prison.
On February 28, 2005, the jury found Bivens guilty of conspiracy (§ 182, subd. (a)(1); count 1); grand theft (§§ 484, 487, subd. (a); count 9); possessing access card-making equipment (§ 848i, subd. (c); count 10); making counterfeit access cards (§ 484f, subd. (a); count 11); using counterfeit access cards (§§ 484g, subd. (a), 487; count 12); receiving stolen property (§ 496, subd. (a); count 13); 10 counts of acquiring access card information with fraudulent intent (§ 484e, subd. (d); counts 3, 7, 35-38, 40-43); and 20 counts of identity theft (§ 530.5; counts 14-29, 31-34). The jury found Bivens not guilty of nine counts of acquiring access card information with fraudulent intent (§ 484e, subd. (d); counts 2, 4-6, 8, 39, 44-46), and one count of identity theft (§ 530.5; count 30). The probation officer originally recommended that Jourdan be granted probation with a 10-month jail commitment. However, in a supplemental memorandum the probation officer recommended that probation be denied and that Jourdan be sentenced to six years in state prison. On November 18, 2005, the court sentenced Bivens to six years in state prison.
The jury also found Plunkett not guilty of counts 2, 4 through 6, 8, 39, and 44 through 46, but guilty of all other counts. The court sentenced Plunkett to 10 years in state prison on the same day that it sentenced Jourdan and Bivens.
While sentencing Bivens, the court stated in part: “The evidence against you in this case was overwhelming. It was compelling. Your decision to take the stand and commit perjury, denying your involvement, denying your knowledge of what was going on right under your nose, is unacceptable. And make no mistake. Perjury did occur in my court, because the evidence that was presented by the prosecution in this case and your testimony were so inconsistent that there is no other explanation but that someone got on the stand in this case and lied. [¶] And the jury said it was you. Twelve people listened to you testify, looked you in the eye, heard what you had to say, and totally rejected it. And I think they got it right. [¶] And you do have a right to have a fair trial in any court. And you had one. You don’t have a right to take the stand and commit perjury. I think that’s an aggravating factor. [¶] Given the fact that that’s your stance in this case, [the prosecutor] is right. You’ve shown absolutely no remorse. You’ve shown absolutely no consideration of the victims in this case. And you’ve taken absolutely no responsibility for your part in the case. And that’s – that’s unacceptable. [¶] At least Mr. Jourdan, at least Mr. Plunkett, at least Mr. Ogbechie and the other people who were involved in here at some point said, ‘You got me. I did it. I’m sorry.’ And I’ve not heard any of that from you. And if that’s because you maintain your position that you said in trial, I’ll accept that. But until those – I hear those words, until I know that you sincerely feel these feelings, then probation is not something that I’m going to consider in your case. And I haven’t, and I’m not.”
DISCUSSION
Jourdan’s Appeal
Cady’s Identification
On February 8, 2005, Cady testified that she once went to a store with Plunkett and that another man with Plunkett paid for her shoes with a credit card. She had not seen that man before, but she saw him again when she “went to court.” The prosecutor asked Cady if she saw the man in court that day and, when she replied affirmatively, to point him out. Cady pointed to Jourdan. Jourdan’s counsel objected, arguing, “[t]his is not only untimely discovery, it’s based on what I believe has been information that’s provided us with regard to the police report, it’s erroneous, it’s misleading, and this information was not provided to us until late last night.” The court ruled: “I’ll let you cross-examine on it. The objection’s overruled.”
During cross-examination of Cady by Plunkett’s counsel, Cady testified that she did not tell Sergeant Munson that someone else besides Plunkett purchased the shoes for her, and that she never saw Plunkett use a credit card to purchase something for her. During her cross-examination by Jourdan’s counsel, Cady testified that the first time she saw the man was at the shoe store and that he never asked her to do anything illegal. She also testified that she did not learn that his name was Jourdan until the first time she went to court, but that she did not remember if she told the police at that time that Jourdan was the man who bought the shoes.
The next day, during cross-examination by Jourdan’s counsel, Sergeant Munson testified that, in his original interview of Cady, she told him that Plunkett drove her to the shoe store and told her that he would buy her some shoes, but that Jourdan actually bought the shoes. Cady did not give him Jourdan’s name during the interview, she only gave him his name “yesterday.” Following that cross-examination, the following occurred on the record but outside the jury’s presence.
“THE COURT: . . . [¶] Another thing that did come up there was late discovery that could be characterized when Miss Cady indicated to the detective that upon seeing Mr. Jourdan outside that she recognized him as the gentleman that supposedly bought the shoes. And that name had previously not been given to the detective. Apparently the detective told [the prosecutor] of that information, and [the prosecutor] then disclosed that to counsel. And counsel brought it to my attention and because I believe there was an objection to that coming in the court found that the evidence was newly discovered as to the exact name it was given to the detective and [the prosecutor] in an appropriate method and turned over as soon as possible. [¶] Anybody want to make a record on that.
“[JOURDAN’S COUNSEL]: I did object, Your Honor. And I would continue to object, based on just the standard of late discovery, regardless of what absolutely was no intentional reason but I would also add that to the admission of liability of that lady’s statement do not exist at all. As far as having that statement come in as evidence. I see that is definitely [Evidence Code section] 352 material. Should not come in over objection.
“THE COURT: Thank you.”
Jourdan now contends that the court’s admission of Cady’s “Late-Disclosed, Extremely Prejudicial Testimony,” violated his constitutional rights to due process, a fair trial and effective assistance of counsel. He argues that his objection to the testimony on Evidence Code section 352 grounds preserves the constitutional issue for appellate review. He argues that the court should have excluded the “extraordinarily prejudicial, previously undisclosed statement,” even though the nondisclosure was not willful. He further argues that his constitutional rights were violated because his counsel was deprived of information necessary to prepare a meaningful defense. “[T]he delayed disclosure of Luzita Cady’s last-minute identification of Mr. Jourdan as the person who bought the shoes that were part of her pay-off for illegal skimming placed counsel in the untenable situation of trying to present a defense on incomplete information.” He requests that all counts pre-dating July 18, 2003, or at least counts 3 and 7 (acquiring access card information with fraudulent intent, § 484e, subd. (d), alleged to have occurred in April and June 2003, respectively), be reversed as there was no evidence other than Cady’s testimony that he was involved in the conspiracy prior to July 18, 2003.
The Attorney General argues that Jourdan has waived any claim that there was discovery error due to counsel’s concession below that the nondisclosure was not intentional. The Attorney General further argues that Jourdan has not shown that he was prejudiced by admission of the evidence because he does not claim that the evidence was inflammatory or irrelevant, and because counsel below did not request a continuance so that he could rebut Cady’s testimony.
Section 1054 et seq. authorizes reciprocal discovery in criminal cases and requires the prosecution to disclose the “written or recorded statements of witnesses or reports of the statements of witnesses whom the prosecutor intends to call at the trial.” (§ 1054.1, subd. (f).) The prosecution is required to disclose the matter only “if it is in the possession of the prosecuting attorney or if the prosecuting attorney knows it to be in the possession of the investigating agencies.” (§ 1054.1.) “Thus, materials discoverable by the defense include information in the possession of law enforcement agencies that investigated or prepared the case against the defendant. [Citations.]” (Teal v. Superior Court (2004) 117 Cal.App.4th 488, 491; see also, People v. Superior Court (Barrett) (2000) 80 Cal.App.4th 1305, 1313; People v. Kasim (1997) 56 Cal.App.4th 1360, 1380.) Failure to produce the materials may result in the trial court making an order “including, but not limited to, immediate disclosure, contempt proceedings, delaying or prohibiting the testimony of a witness or the presentation of real evidence, continuance of the matter, or any other lawful order.” (§ 1054.5, subd. (b).) “The court may prohibit the testimony of a witness pursuant to subdivision (b) only if all other sanctions have been exhausted.” (§ 1054.5, subd. (c).)
Among the trial court’s considerations in imposing sanctions for a discovery violation is whether the noncomplying party committed willful misconduct designed to obtain a tactical advantage. (People v. Gonzales (1994) 22 Cal.App.4th 1744, 1756-1757.) The trial court must also consider the extent to which exclusion of the particular evidence would undermine the reliability of the fact finder’s conclusions. (Id. at p. 1757.) “[A]bsent a showing of significant prejudice and willful misconduct, exclusion of testimony is not appropriate as punishment. To conclude otherwise might well place upon the truth-finding process an imprimatur of unreliability inconsistent with the confidence in a finding of guilt.” (Id. at p. 1758.)
“We generally review a trial court’s ruling on matters regarding discovery under an abuse of discretion standard. [Citation.] In particular, ‘a trial court may, in the exercise of its discretion, “consider a wide range of sanctions” in response to the prosecution’s violation of a discovery order.’ [Citation.]” (People v. Ayala (2000) 23 Cal.4th 225, 229; People v. Wimberly (1992) 5 Cal.App.4th 773, 792.) A court abuses its discretion when its ruling “ ‘exceeds the bounds of reason, all of the circumstances before it being considered.’ ” (Denham v. Superior Court (1970) 2 Cal.3d 557, 566.) In addition, where express or implicit factual findings incident to the court’s rulings on discovery matters are supported by the evidence, we shall accept them in determining whether the ultimate ruling was an abuse of discretion. (Cf., e.g., People v. Eubanks (1996) 14 Cal.4th 580, 595; People v. Daily (1996) 49 Cal.App.4th 543, 549-550; People v. Drake (1992) 6 Cal.App.4th 92, 97.)
Here, defense counsel did not claim that the failure to disclose Cady’s identification of Jourdan was willful, and the court found that the evidence was newly discovered. As Cady had not identified Jourdan to Sergeant Munson until just before she testified about the incident, and the prosecutor and defense counsel were advised of the identification prior to her testimony, substantial evidence supports the finding that the identification was newly discovered. Counsel then argued that the testimony was prejudicial and should be excluded under Evidence Code section 352.
“We apply the deferential abuse of discretion standard when reviewing a trial court’s ruling under Evidence Code section 352. [Citation.]” (People v. Kipp (2001) 26 Cal.4th 1100, 1121.) While defendant contended that the evidence was prejudicial, “ ‘prejudicial’ is not synonymous with ‘damaging,’ but refers instead to evidence that ‘ “uniquely tends to evoke an emotional bias against defendant” ’ without regard to its relevance on material issues. [Citations.]” (Ibid.)
The probative value of Cady’s identification of Jourdan was considerable, because it bore directly upon the issue of whether Jourdan was a member of the charged conspiracy, even though he did not live at the apartment where the fraudulent access cards and driver’s licenses were produced. Given the evidence that fraudulent driver’s licenses with Jourdan’s photo on them and fraudulent access cards in the same name as the fraudulent driver’s license were found in Plunkett’s apartment, but that Jourdan did not live at the apartment, evidence linking Jourdan to Plunkett and to the obtaining and fraudulent use of access card information was highly relevant. Therefore, although Cady’s identification of Jourdan was damaging to his defense, it was highly probative and not unduly prejudicial. (See People v. Garceau (1993) 6 Cal.4th 140, 178-179; People v. Kipp, supra, 26 Cal.4th at p. 1121.)
The court allowed counsel to cross-examine Cady on the late disclosure of the identification, and to address the identification evidence once it was disclosed. Counsel did not request a continuance, presumably because counsel realized that the defense case would not be presented until the week following Cady’s testimony. Granting a continuance is the preferred sanction in most situations (see Gray v. Netherland (1996) 518 U.S. 152, 169), and exclusion of the evidence was not authorized unless all other available sanctions had been exhausted. (§ 1054.5, subd. (c).) Accordingly, we conclude that the record does not demonstrate that the court’s decision to admit Cady’s testimony was erroneous or an abuse of discretion. And, the evidence was not so prejudicial that it denied Jourdan a fair trial or that its admission warrants reversal of counts 3 and 7.
To the extent that Jourdan contends that counsel rendered ineffective assistance by failing to request a continuance, we reject the claim as defendant cannot show prejudice, i.e., that there is a reasonable probability that, had counsel requested a continuance and had the continuance been granted, the result of the proceeding would have been different. (Strickland v. Washington (1984) 466 U.S. 668, 688.)
The Paycheck Stub
At the beginning of trial, Jourdan’s counsel objected to the introduction of “an alleged pay stub, basically a payment printout with Taurice Jourdan’s name on it, which reflects amounts of money paid, amounts of money withheld, hours worked, received from BCD Ventures Incorporated.” He argued that he understood that the document was going to be introduced by the prosecutor “to show an association[,] to infer a relationship, to indicate monies paid to Mr. Jourdan, and the document itself proves nothing. That’s my argument. [¶] The fact that it came out of a computer, absent again authentication and foundation is suspect.”
The prosecutor argued that the document would be used for some non-hearsay purposes: to show why the police were investigating the case; to show the existence of and membership in a conspiracy; and to show common access to the computers in the apartment. The prosecutor also argued that writings on the computers “could reasonably be considered statements in furtherance of the conspiracy. And on that basis they would be admissible for the truth of their content under [Evidence Code section ]1223.”
The court ruled: “Counsel, I’m going to require the prosecuting attorney to lay an appropriate foundation, based on the offer of proof, I’m assuming that’s coming, but if we get to that point and you are not satisfied it has been laid, make the appropriate objection. [¶] Although, the authentication, with regard to the hearsay, the court will acknowledge that [the prosecutor] identified several non-hearsay purposes of this information would be used for, and that there are some hearsay purposes he’s indicated it may be used for, so I’m going to go ahead and admit this preliminarily at this point. Whether these items will be actually admitted at the end, any documents admitted at the end is subject to a different objection. [¶] With regard to any type of a[n Evidence Code section] 352 argument, the court does find that on balance the probative value of this information would outweigh any prejudicial effect, so the evidence will be admitted.”
Sergeant Munson testified that exhibit No. 29 was a paycheck stub made out to Jourdan from BCD Ventures for the pay period of October 5 to October 15, 2003, that was found in Plunkett’s bedroom. It showed a check No. 22571; an address for Jourdan in Modesto, where he was not known by the relevant postal carrier; and the word “adjustments” on it was misspelled. Munson testified that he did not know how exhibit No. 29 was created, or when it was created. Munson also testified that it could “be fair to say that all this document reflects may be accurate or inaccurate, we just don’t know, other than maybe Taurice Jourdan’s name.”
At the close of the prosecution’s case-in-chief, Jourdan’s counsel objected to the admission of exhibit No. 29. “It’s really a statement of earnings and as it relates to Taurice Jourdan in BCD Ventures. And my argument from the beginning was that this document is basically a hearsay document. The prosecution wants to introduce it as a representation of truth and I would argue under Evidence Code [section] 1200 that further argument’s necessary, that it’s hearsay and it can’t be introduced or used as evidence.”
The prosecutor argued that the document “was authenticated by virtue of the circumstances under which it was found. It was found in the residence. I believe a computerized version of it was also found inside a computer. It is evidence of the conspiracy. It is circumstantial evidence which rebuts a defense, that is to say, that in opening statement [Jourdan’s counsel] said that Taurice Jourdan was simply an overnight guest who happened to be sleeping on the floor because he was getting a ride to the airport the next day. It corroborates much of the People’s evidence, which would suggest that Mr. Jourdan was, in fact, deeply involved and financially intertwined with the other defendants. And it’s arguably a statement in furtherance of the conspiracy since it purports to reflect a transfer of monies between co-conspirators.”
The court ruled that the document “can be considered a statement in furtherance of the conspiracy.” “And counsel, that’s my analysis here. It was found in the apartment. Your client was found in the apartment. I mean, it’s got circumstantial evidence value just to link him physically to the apartment where a lot of this stuff occurred. It’s got the circumstantial evidence would, also, possibly, if it’s a statement in furtherance to limit [sic] him financially to co-defendants who are co-conspirators. [¶] So based on all that, and I think counsel, again, its probative value is not substantially outweighed by prejudicial effect. It goes to the weight. You can argue that the weight is very, very small. I’m sure, again, [the prosecutor] is not going to argue that this is his lynch pin, but I think it goes to the weight rather than admissibility, and I am going to go ahead and admit it over your objection.”
Jourdan now contends that the court prejudicially erred in admitting the evidence “because the prosecution failed to establish an adequate foundation that the author of the challenged document was, in fact a coconspirator.” He argues that, because there was no showing of who the author of the document was, there was no showing that its author was participating in the alleged conspiracy. Because there was no showing that the author was participating in the alleged conspiracy, the document could not be considered a statement in furtherance of the conspiracy. And, admission of the prejudicial hearsay violated his constitutional right to confrontation of witnesses.
The Attorney General argues that the court properly admitted exhibit No. 29 under the coconspirator’s exception to the hearsay rule, as well as under a theory that it was circumstantial evidence of the ties between Jourdan and the other coconspirators.
We apply the abuse of discretion standard in reviewing the trial court’s determination to admit or exclude hearsay evidence. That standard applies to questions about the existence of the elements necessary to satisfy the hearsay exception. (People v. Poggi (1988) 45 Cal.3d 306, 318-319; People v. Martinez (2000) 22 Cal.4th 106, 120.)
“Hearsay evidence is of course generally inadmissible. (Evid. Code, § 1200.) Hearsay statements by coconspirators, however, may nevertheless be admitted against a party if, at the threshold, the offering party presents ‘independent evidence to establish prima facie the existence of . . . [a] conspiracy.’ [Citations.] Once independent proof of a conspiracy has been shown, three preliminary facts must be established: ‘(1) that the declarant was participating in a conspiracy at the time of the declaration; (2) that the declaration was in furtherance of the objective of that conspiracy; and (3) that at the time of the declaration the party against whom the evidence is offered was participating or would later participate in the conspiracy.’ [Citation.]” (People v. Hardy (1992) 2 Cal.4th 86, 139.)
“A conspiracy is shown by ‘evidence of an agreement between two or more persons with the specific intent to agree to commit a public offense and with the further specific intent to commit such offense, which agreement is followed by an overt act committed by one or more of the parties for the purpose of furthering the object of the agreement.’ [Citation.]” (People v. Longines (1995) 34 Cal.App.4th 621, 625-626.) “ ‘Only prima facie evidence of a conspiracy is required to permit the trial court to admit evidence under the coconspirator’s exception. This fact need not be established beyond a reasonable doubt, or even by a preponderance of the evidence. [Citation.] The conspiracy may be shown by circumstantial evidence and “the agreement may be inferred from the conduct of the defendants mutually carrying out a common purpose in violation of a penal statute.” ’ [Citations.]” (Id. at p. 626.)
We find that the prosecution presented substantial evidence from which the trial court could have found a prima facie showing of a conspiracy to commit identity theft. Plunkett gave Cady a skimming device, which she used to record access-cardholder information. Plunkett downloaded that information into his laptop computer and used it to make counterfeit access cards and driver’s licenses. The counterfeit cards were used to buy various items by him and/or Bivens, Jourdan, and Ogbechie; some of the items were sold on eBay by him and these coconspirators; and some of the gains from the sales were shared by the coconspirators.
Although independent evidence of a conspiracy was presented, the prosecution still had to present prima facie evidence that the document constituting exhibit No. 29 was a statement made in furtherance of that conspiracy. “[W]hether statements made are in furtherance of a conspiracy depends on an analysis of the totality of the facts and circumstances in the case” and thus “no rigid rules exist in this area.” (People v. Hardy, supra, 2 Cal.4th at p. 146.)
We find that the prosecution presented substantial evidence from which the trial court could have found that the paycheck stub in Jourdan’s name was a statement made in furtherance of the conspiracy. Substantial evidence supports a finding that Plunkett created the paycheck stub. It was found in his room and he was one of the founders of BCD Ventures, the listed payor. Substantial evidence also supports a finding that the document was prepared in furtherance of the conspiracy. The paycheck stub contained information that could have been used by Jourdan, along with a fraudulent driver’s license with the same Modesto address, to fraudulently obtain and/or use an access card in Jourdan’s name. Lastly, substantial evidence supports the finding that, at the time the document was prepared, Jourdan was acting in furtherance of the conspiracy. The document appeared to have been prepared on or around October 15, 2003, by which time Jourdan had already participated in the conspiracy, as evidenced by Cady’s testimony. At the very least, that a fraudulent driver’s license with Jourdan’s picture on it but in the name of Latrell Williams, and numerous access cards in the name of Latrell Williams, together with evidence that fraudulent purchases had been made in the name of Latrell Williams, supported the trial court’s finding that Jourdan was then or soon would be participating in the conspiracy.
We find that the trial court did not abuse its discretion in admitting the paycheck stub as evidence of a statement made in furtherance of the conspiracy. Accordingly, defendant has not shown that the admission of the paycheck stub violated his constitutional right to confrontation of witnesses against him. (Chapman v. California, supra, 386 U.S. 18.)
Cumulative Error
Jourdan contends that two errors occurred in this case, both of which impaired the defense by allowing the jury to consider evidence that should not have been admitted. He further argues that the aggregate prejudicial effect of the errors was greater than the sum of the prejudice of each error standing alone. (See People v. Hill (1998) 17 Cal.4th 800, 845.) As we have found no error or abuse of discretion by the trial court in admitting the challenged evidence, no cumulative error is shown.
Bivens’s Appeal
As stated above Bivens has asked this court to consider the following six “issues.” (1) “Grace’s testimony had numerous holes and flaws. Mainly concerning the color of the car and the times of the pickup and drop off of the black box, which I was clearly unable to do because of my work schedule. She also was totally incorrect on describing the heights of the individuals that approached her at the restaurant compared to Bioseh and myself.” The jurors were the sole judges of the believability of witnesses. (See CALJIC No. 2.20.)
(2) and (3) Regarding the conviction for using counterfeit access cards (§§ 484g, subd. (a), 487): “It was never brought up or proven that I went out and used a credit card or account information to obtain money goods, or services.” Regarding the conviction for making counterfeit access cards (§ 484f, subd. (a)): “It was also never brought up or proven that I was making counterfeit cards.” Bivens was found by the jury to be guilty of conspiracy to make and use counterfeit access cards as charged in count 1, each member of a criminal conspiracy is liable for each act of his coconspirators, and the act of one coconspirator pursuant to or in furtherance of the common design of the conspiracy is the act of all coconspirators. (See CALJIC No. 6.11.)
(4) “The judge gave me a harsher sentence for allegedly committing perjury with [sic] absolutely any proof.” The court stated that it was denying probation due to defendant’s lack of remorse, not due to any finding of perjury.
(5) “My probation report came back with just probation and the judge discriminated against me by not following it.” Although the original probation report recommended probation, a supplemental memorandum recommended that probation be denied and that a sentence of six years in state prison be imposed, which is the sentence defendant received.
(6) “I understand that there was an issue of me not knowing what was going on in the apartment. Well my roommate had told me that he was purchasing merchandise with his wholesale license, which made it look legal to me. My roommate also knew my work schedule and would constantly call me in order to see when I was coming back to the apartment, so he could clean up whatever he had going on before I arrived.” Again, the jurors were the sole judges of defendant’s in-court testimony.
Pursuant to People v. Wende (1979) 25 Cal.3d 436 and People v. Kelly (2006) 40 Cal.4th 106, we have independently reviewed the entire record and have concluded that there are no arguable issues on appeal relating to Bivens.
DISPOSITION
The judgments are affirmed.
WE CONCUR: MIHARA, J., MCADAMS, J.