Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tuolumne County Super. Ct. No. CRF17539. Eric J. Du Temple, Judge.
Kenneth M. Foley, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Virna L. DePaul, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Vartabedian, Acting P.J., Wiseman, J., and Levy, J.
Appellant Joel Casler was charged with forgery (Pen. Code, 470, subd. (d); count I), perjury (§ 118; count II), grand theft of an automobile (§ 487, subd. (d)(1); count III), unlawful taking or driving of a vehicle (Veh. Code, § 10851, subd. (a); count IV) and theft by false pretenses (532, subd. (a); count V). A jury convicted appellant of perjury but was unable to reach a verdict on the remaining counts. The court declared a mistrial as to those counts, and thereafter appellant pled guilty to misdemeanor unlawful taking or driving of a vehicle and the court dismissed the remaining charges. The court suspended imposition of sentence and placed appellant on five years’ probation, one of the conditions of which was that he serve four months in county jail.
Except as otherwise indicated, all statutory references are to the Penal Code.
On appeal, appellant’s sole contention is that the evidence was insufficient to support his perjury conviction. We will affirm.
FACTS
Prosecution Case
In November 2002, Cindy Baker bought a Ford pickup truck (the truck). At that time, appellant was her boyfriend and the two were living together. Baker’s purchase of the truck was accomplished in the following way. Appellant learned the truck was for sale on the internet and paid the owner for it. Baker sold her car and, with the proceeds, paid appellant for the truck.
Except as otherwise indicated, the “Prosecution Case” portion of the factual statement is taken from Baker’s testimony.
Baker applied to register the truck, and paid the registration and license fees for the vehicle. Baker kept the “original title” document in the home she shared with appellant, in a locked “fire box.” Appellant knew the location of the box and the key to the box.
At some point while appellant and Baker were living together, appellant purchased a beer-and-wine bar, and the couple operated the business in partnership with a third person. In November 2003, appellant and Baker agreed to end their romantic relationship. They agreed further that Baker would continue to work at the bar, and that she would move out of the home the couple shared. The agreement to end the relationship was reached amicably, but on December 3, 2003, approximately one month after Baker had moved out, an incident occurred at the bar in which appellant became “very violent” and “very upset,” and “verbally attack[ed]” Baker.
Tricia Fosdick testified that she is a field representative with the California Department of Motor Vehicles (DMV), and that on December 30, 2003 (December 30), appellant came to DMV, at which time Fosdick helped appellant complete a two-sided DMV printed form entitled “MISCELLANEOUS STATEMENTS OF FACT” (MSF).
Except as otherwise indicated, the remainder of the “Prosecution Case” portion of the factual statement is taken from Fosdick’s testimony.
Fosdick testified she had no independent recollection of the events of December 30. She based her testimony of those events on her “normal procedure.”
The MSF was introduced into evidence. Various statements concerning “[t]he vehicle . . . being transferred” appear on the MSF, preceded by boxes to check or otherwise mark to indicate their applicability. On the front side of the document, in the section labeled “USE TAX EXEMPTION STATEMENT,” the box in front of the statement indicating “Family transfer (received from parent)” is marked. Also on the front, in the section entitled “SMOG EXEMPTION STATEMENT,” it is indicated by a mark in a box, and by the circling of the words “parent” and “child,” that “[t]he vehicle does not require a smog certification for transfer of ownership because[] . . . [i]t is being transferred from/between” a parent and child. On the other side of the form, at the bottom, appears appellant’s signature, a telephone number and the date, December 30, following the printed statement, “I certify under penalty of perjury under the laws of the State of California that the information that I have provided is true and correct.”
There is no dispute the “[t]he vehicle . . . being transferred” is the truck.
A transfer of a vehicle from one family member to another, based on a gift, requires payment of a fee of $15. The transfer of a vehicle between non-family members requires payment of a tax of 7.25 percent. Thus, on a transfer price of $4,000, that tax would be approximately $300. And a gift transfer from one immediate family member to another exempts the transferee from paying a smog fee of approximately $65.
Based on information provided orally by appellant, Fosdick filled out the front side of the MSF, making all the marks that appear there. Fosdick explained the MSF and what she had indicated by her marks. Thereafter, appellant signed the document in Fosdick’s presence.
Fosdick was unable to complete the transaction on December 30, because Cindy Baker’s signature was needed on the front of the document entitled, “STATE OF CALIFORNIA CERTIFICATE OF TITLE” (title document), in the section of that document indicating mileage on the vehicle. Fosdick explained this to appellant, and appellant left. Before he left, appellant paid the $15 transfer fee. By January 5, 2004, the DMV had received all documents that were needed for the transfer of ownership, and the transfer was deemed completed on that date.
The title document was admitted into evidence.
David Fabiano, an investigator with DMV, testified he spoke with appellant and appellant told him the following: Appellant “submitted the registration documents to DMV for transfer.” When asked why Baker’s signature on the title document did not seem to match her signature on other DMV documents, appellant stated that at the time Baker signed the title document she was angry and intoxicated, and because she had a cast on her right hand, she signed with her left hand. Appellant did not remember “filling out” the MSF. Baker was his ex-girlfriend, not his parent or child as indicated on the MSF. Appellant was not aware he paid only $15. He thought he paid $300.
Baker testified to the following. On January 28, 2004, Baker parked her truck in a parking lot near the building where her niece worked and entered the building to visit with her niece. Shortly thereafter, Baker was told her truck was no longer parked outside. Baker went outside and confirmed that the truck was missing. She called the police, and was told that appellant had just called and stated that Baker would be calling, and that “the truck wasn’t stolen, it was in [appellant’s] name . . . .”
Defense Case
Appellant purchased a bar in August 2002, and he and Baker ran the business together, in partnership with a third person. In October 2002, appellant bought a truck on Ebay, for use in connection with the bar. He paid for the truck, and he had Baker register it because he was too busy to do so. He did not learn until the fall of 2003 that Baker had registered the truck in her name.
Except as otherwise indicated, the “Defense Case” portion of the factual statement is taken from appellant’s testimony.
Alicia Enzi testified that at some point in 2003, while she and Baker were friends, Baker told her that she (Baker) was going to have surgery, she was frightened at the prospect and “she was going to make sure everything was in [appellant’s] name before in case anything happened to her.” Barbara Stanesic testified that she was acquainted with Baker, and that in June or July 2003, Baker told her that she (Baker) was going to “transfer” the truck to appellant.
On one occasion in the winter or spring of 2003, Baker “[gave appellant] title to the truck.” On this occasion, appellant and Baker argued. Baker became very angry, went into the bedroom, “came out with the DMV envelope” and “threw it at [appellant].”
Appellant went to the DMV on December 30. He “explained to [Fosdick] what the situation was.” He told Fosdick that the truck belonged to him and that “it never was supposed to be registered to [Baker].” Fosdick “filled out some paperwork” and “handed [appellant] several papers and told [him] sign, sign, sign.” Appellant “signed three or four things” and “gave her what money she asked for . . . .” Appellant signed his name, wrote the date and his telephone number. He signed some papers before handing them back to Fosdick. He did not complete a “Statement of Facts” before handing the documents to her. He never told Fosdick the transferor of the truck was his mother, nor did he tell Fosdick the truck was a gift. Fosdick did not “show” appellant the front side of the MSF and “never went over with [appellant] what sections were checked on [the front side of that document].” After he signed the papers, appellant left the DMV.
Appellant brought the title document with him to the DMV on December 30. The document was completed, except for the mileage numbers, which appellant filled in at the DMV that day, when directed by Fosdick to do so. Baker had already signed her name to the title document. Appellant did not do so.
Appellant returned to the DMV on January 5, 2004.
DISCUSSION
As indicated above, appellant contends the evidence was insufficient to support his conviction of perjury.
Section 118, subdivision (a) defines the offense of perjury, in relevant part, as follows: “Every person who . . . certifies under penalty of perjury in any of the cases in which the testimony, declarations, depositions, or certification is permitted by law of the State of California under penalty of perjury[,] and willfully states as true any material matter which he or she knows to be false, is guilty of perjury.” The perjury charge here arose out of appellant’s execution of the certification under penalty of perjury on the MSF. Specifically, as the court instructed the jury, appellant was accused of making two false statements, viz., that the transfer of ownership of the truck to appellant was (1) a transfer between family members, and (2) exempt from smog certification requirements because it was a transfer from parent to child.
To review a conviction for the sufficiency of evidence, “ ‘[T]he court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence--that is, evidence which is reasonable, credible, and of solid value--such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’ ” (People v. Davis (1995) 10 Cal.4th 463, 509.) Generally, “unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction.” (People v. Young (2005) 34 Cal.4th 1149, 1181.) However, for the crime of perjury, section 118, subdivision (b) (section 118(b)) adds a requirement that proof of the element of falsity by testimony of one witness must be corroborated by other evidence: “No person shall be convicted of perjury where proof of falsity rests solely upon contradiction by testimony of a single person other than the defendant. Proof of falsity may be established by direct or indirect evidence.”
Appellant bases his challenge to the sufficiency of the evidence supporting his perjury conviction on the corroboration requirement of section 118(b). He contends that the conviction cannot stand because it was based solely on the uncorroborated testimony of a single witness, DMV employee Tricia Fosdick. “[T]he fact that [the MSF] is not written in his handwriting and was not acknowledged by him as having been reviewed before being signed,” appellant argues, “is fatal to his conviction since the only witness to say that he gave that information and reviewed it before signing was [Fosdick].” There is no merit to this contention.
There is no dispute the transfer in question was not a transfer between relatives of any degree, and therefore the statements set forth above are false. There is also no dispute appellant knew the transfer did not involve family members, and that the statements in question are material. Finally, there is no dispute appellant signed the certification on the MSF.
The crucial point in dispute is whether at the time appellant signed the MSF, there were markings on the front indicating the vehicle was being transferred from a parent to a child. Appellant testified there were no such markings on the front of the MSF when he signed it. Thus, in essence, appellant testified that he did not make the statements in question. And, he argues, because the only evidence to the contrary was Fosdick’s uncorroborated testimony, under section 118(b), the evidence was insufficient to support his perjury conviction.
However, section 118(b) requires corroboration for the falsity of the statements, not for the proposition that the statements were in fact made. Therefore, the corroboration requirement of section 118(b) was not applicable to the issue of whether appellant made the statements in question. Under the general rule that the testimony of a single witness is sufficient to establish a fact, Fosdick’s testimony was sufficient to establish that fact. (People v. Young, supra, 34 Cal.4th at p. 1181.) And, as indicated above, substantial evidence supports each of the other elements of the offense. Therefore, appellant’s challenge to the sufficiency of the evidence supporting his perjury conviction fails.
On this point, we find instructive People v. Trotter (1999) 71 Cal. App.4th 436. In that case the defendant, convicted of perjury, argued on appeal that the trial court erred in failing to instruct the jury as to the section 118(b) corroboration requirement. The evidence was undisputed as to the following: the defendant sold a truck to William Hodges; defendant told Hodges he had won the truck in a card game from a person who called himself Robert Cuff; the certificate of title that the defendant provided to Hodges bore the signature “ ‘Robert G. Cuff’ ” as the person who “ ‘releases interest in the vehicle’ ” to the defendant; the actual owner of the truck was Gerald Robert Cuff; and the signature on the certificate of title was not his. (Trotter, at p. 438.) “The prosecution’s position was that the perjury consisted of appellant’s presentation of the truck’s certificate of title to the DMV after forging the name ‘Robert G. Cuff’ as ‘signature of registered owner,’ thereby certifying under penalty of perjury that he was the truck’s registered owner.” (Id. at p. 439.)
The defendant challenged the court’s failure to instruct the jury with CALJIC No. 7.23 (6th ed. 1996), which states: “ ‘The falsity of defendant’s statement[s] may be established by direct or circumstantial evidence. However, the defendant may not be convicted of perjury where the only proof of the falsity of the statement[s] is the testimony of one witness which contradicts defendant's statement[s].’ ” (People v. Trotter, supra, 71 Cal. App.4th at p. 439.)
In rejecting the defendant’s argument that the court erred in failing to instruct on the section 118(b) corroboration requirement, the court stated: “The question for the jury was whether appellant was the party who forged Cuff’s signature on the certificate of title, thereby falsely representing himself under penalty of perjury as the registered owner of the stolen truck. [¶] We agree with the People that no error occurred, because the corroboration instruction (CALJIC No. 7.23) was not required under the circumstances of this case. The focus of the corroboration requirement in the perjury statute is on the falsity of the statement, and not the identity of the perjurer. The corroboration requirement for perjury applies only ‘where proof of falsity rests solely upon contradiction by testimony of a single person other than the defendant. . . .’ [¶] The corroboration requirement assumes that the defendant has made a statement under oath, and the issue for resolution is the veracity of that statement. In the instant case appellant admits submitting to the DMV the certificate of title with the forged signature of Cuff thereon. He concedes that Cuff's signature is a forgery, but denies that he was the party forging the signature, or being aware of the forgery. . . . [¶] Since the false nature of the signature under penalty of perjury on the certificate of title was not disputed and therefore not in issue, CALJIC No. 7.23 was not required.” (People v. Trotter, supra, 71 Cal. App.4th at pp. 440-441.)
Thus, the Trotter court distinguished, for purposes of section 118(b), questions of (1) the falsity of statement in question and (2) the “identity of the perjurer.” (People v. Trotter, supra, 71 Cal. App.4th at p. 440.) The latter question was, in essence, the question of whether the defendant made the statement which, the parties agreed, was false. By claiming another person, not he, forged Cuff’s signature, appellant asserted he did not make the forged statement and was not aware it was a forgery. The court in Trotter held the corroboration requirement did not apply, and therefore no jury instruction on the that requirement was mandated, because the falsity of the statement was not in issue.
Similarly, in the instant case, the falsity of the statements in question is undisputed and the only issue is whether appellant made those statements. Therefore, as in Trotter, the section 118(b) corroboration requirement does not apply.
Appellant likens the instant case to People v. Di Giacomo (1961) 193 Cal.App.2d 688, in which the court of appeal reversed the defendant’s conviction of perjury. In that case, the defendant issued a check payable to a probate estate and later deposited the check in his own account, at which time the check bore what purported to be the signature of Rita Burney, the widow of the deceased. Appellant claimed Burney agreed to loan him the proceeds of the check and, pursuant to that agreement, endorsed the check with her signature. Burney, however, claimed she did not sign her name on the check.
Appellant was charged with grand theft and forgery, and at trial on those charges he testified, “I did not write the name Rita Burney on [the check].” (People v. Di Giacomo, supra, 193 Cal.App.2d at p. 692.) That statement formed the basis of the perjury charge. The prosecution sought to prove the falsity of the statement through the testimony of (1) Burney and (2) three handwriting experts who testified that, in their opinion, the defendant signed Burney’s name to the check. In reversing the conviction, the court held that Burney’s testimony was not sufficiently corroborated “when measured by the rule particularly prescribed by statute for perjury cases.” (Id. at p. 698.)
Thus, unlike the instant case, in Di Giacomo there was no dispute the defendant made the statement claimed to be false. He made the statement that he did not write Burney’s name on the check in open court at his earlier trial on forgery and theft charges. It was the falsity of that statement that the court held was insufficiently corroborated. Therefore, Di Giacomo is inapposite. As demonstrated above, substantial evidence supports appellant’s perjury conviction.
DISPOSITION
The judgment is affirmed.