Opinion
C083541 C084717
08-01-2018
THE PEOPLE, Plaintiff and Respondent, v. DEBORAH CARTER, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 15F02774)
Deborah Carter was initially charged with several counts of insurance fraud and failing to appear. A jury deadlocked on the insurance fraud counts but found her guilty of failing to appear. She was later retried and found guilty of the insurance fraud counts.
On appeal, defendant contends in her original trial the court erred in denying her motion for acquittal (Pen. Code, § 1118.1) on the insurance counts. She also contends substantial evidence did not support her failure to appear conviction in that there was no evidence she was on bail or had been charged with a felony. The People concede error as to the failure to appear conviction. We agree with the People and will reverse the failure to appear conviction.
Undesignated statutory references are to the Penal Code.
BACKGROUND
Defendant was initially charged with five counts: three counts of insurance fraud (§ 550, subds. (a)(1), (5), and (b)(1); counts 1-3); and two counts of failure to appear while released on bail (§ 1320.5; counts 4 & 5).
The insurance fraud counts arose from a car accident: a van hit a small sedan driven by defendant's husband. Defendant claimed she was sitting in the front passenger seat at the time of the accident. As a result of the accident, defendant submitted an injury claim to the insurance company for the van. The sole contested issue was whether defendant was inside the sedan when it was hit. The accident occurred outside a day sanctuary for homeless people. Two witnesses testified to the accident: a security guard and a street monitor.
The security guard testified he was sitting on a front porch when he saw the sedan pull up in front of the women's facility. He saw a "young lady" exit the sedan and walk into the women's facility.
Defendant was 55 years old at the time of the accident.
A van was also parked outside. The guard watched the van being loaded before it started to pull out. As the van moved, the sedan approached, stopping right behind the van. The van then backed into the sedan. After the accident, the security guard saw the same young lady come from the direction of the women's facility and yell at the van driver.
At trial, the guard was asked if he saw the young lady in the courtroom and said, "It's been so long, no." The guard also testified he did not know how many people were in the sedan when he first saw it.
A street monitor also testified to seeing the accident. He saw the sedan parked in front of the women's facility. Because the sedan was not supposed to be parked there, he approached and told the man in the driver's seat to move the car. The monitor saw no one but the driver inside the sedan.
The street monitor then went into the kitchen. He recalled being in the kitchen for two minutes at most. When he came out, he saw a van had backed into the sedan — he did not see the actual collision.
He then saw a very upset woman coming out of the woman's facility. She was yelling and waving her arms, saying the car was a rental.
After the prosecution rested, the defense moved for acquittal on all counts. Counsel argued that as to counts 1, 2, and 3, the prosecution failed to present evidence disputing defendant's claim she was in the car. As to counts 4 and 5, counsel argued the prosecution had failed to show a willful failure to appear. The trial court granted the motion as to count 5 and denied it as to counts 1 through 4.
The jury thereafter found defendant guilty on count 4, failure to appear, but deadlocked on the three insurance fraud charges, and the court declared a mistrial. The court then found defendant had incurred a prior prison term.
Defendant was retried and found guilty on all three insurance fraud counts. The trial court imposed a six-year aggregate term consisting of the five-year upper term on count one along with a one-year enhancement for defendant's prior prison term. Five-year terms were imposed on counts two and three and stayed under section 654. A two-year middle term on count four was imposed and run concurrently.
DISCUSSION
I
Motion for Acquittal
Defendant contends the trial court erred in denying her motion for acquittal on the insurance fraud counts at the close of the People's case-in-chief. She argues insufficient evidence supported them, reasoning the only evidence she was not in the car came from the street monitor who was in the kitchen during the accident. Further, the security guard's description of the "young lady" exiting the car did not match her description as she was 55 at the time. We disagree.
In reviewing whether the evidence at the time of the motion for acquittal was sufficient to support a finding of implied malice, we apply the same standard as when reviewing the sufficiency of the evidence to support a conviction, that is, " ' "whether from the evidence, including all reasonable inferences to be drawn therefrom, there is any substantial evidence of the existence of each element of the offense charged." ' [Citation.] 'The purpose . . . is to weed out as soon as possible those few instances in which the prosecution fails to make even a prima facie case.' [Citations.] The question 'is simply whether the prosecution has presented sufficient evidence to present the matter to the jury for its determination.' [Citation.] The sufficiency of the evidence is tested at the point the motion is made. [Citations.] The question is one of law, subject to independent review. [Citation.]" (People v. Stevens (2007) 41 Cal.4th 182, 200.)
In turn, the basic substantial evidence test is well settled, requiring that " 'we review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.' " (People v. Abilez (2007) 41 Cal.4th 472, 504; see People v. Raley (1992) 2 Cal.4th 870, 891 [substantial evidence " ' "reasonably inspires confidence" ' "].)
Here, substantial evidence supports the denial of the section 1118.1 motion for acquittal as to the insurance fraud counts. The security guard saw a "young lady" exit the sedan for the women's facility just before the accident. And just after the accident, he saw the same young lady walk to the van from the women's facility. That testimony accords with the street monitor's testimony that just before the accident, no one but the driver was inside the sedan. And just after the accident an upset woman came from the women's facility.
From that, a jury could reasonably conclude defendant left the sedan just before the accident and returned just after. The fact that the security guard referred to the woman as a "young lady," the fact he could not identify the woman in the courtroom, and the fact the street monitor was in the kitchen during the accident did not preclude a jury from reasonably concluding from the evidence as a whole that defendant was not in the sedan during the accident.
Accordingly, the trial court did not err in denying the motion for acquittal.
II
Failure to Appear Conviction
Defendant challenges her conviction for failure to appear. She argues denying her motion for judgment of acquittal was error because no evidence showed she had been released on bail when she failed to appear. She also argues insufficient evidence supports her conviction because no evidence showed she had been charged with or convicted of a felony when she failed to appear. The People concede error, agreeing there was insufficient evidence defendant had been charged with a felony. We accept the People's concession and will reverse the failure to appear conviction.
Because we reverse on this count, we do not address defendant's third contention, which pertains to the same count, that the trial court improperly deprived her of her right to have the jury determine every element of the failure to appear charge.
Section 1320.5 punishes the willful failure to appear in court, where a defendant (1) is charged with or convicted of a felony, (2) is released on bail, and (3) was required to appear at a specific date and time. (§ 1320.5; CALCRIM No. 3001.)
Here, the People concede insufficient evidence supported a finding defendant had been charged with a felony for which she failed to appear. Having reviewed the record, we accept the People's concession and will therefore reverse defendant's conviction for failure to appear.
The People note defendant testified she had a January 6, 2016 preliminary hearing and failed to appear. The People postulate that because preliminary hearings are for felony cases, defendant must have been released on bail for a felony charge. But the People concede a jury was unlikely to have understood that legal distinction. --------
DISPOSITION
The conviction for failure to appear (Pen. Code, § 1320.5; count 4) is reversed. The trial court is directed to prepare an amended abstract of judgment and to forward a certified copy to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
/s/_________
HOCH, J. We concur: /s/_________
HULL, Acting P. J. /s/_________
RENNER, J.