Opinion
NOT TO BE PUBLISHED
Superior Court County of Santa Barbara, No. 1184592, Arthur A. Garcia, Judge.
Donna M. Standard, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lawrence M. Daniels, Supervising Deputy Attorney General, William H. Shin, Deputy Attorney General, for Plaintiff and Respondent.
GILBERT, P.J.
A jury found Alan Weatherford Courtney guilty of two counts of theft from an elder or dependent adult (Pen. Code, § 368, subd. (d)), one count of forgery (§ 470, subd. (a)), and four counts of filing a false tax return (Rev. & Tax. Code, § 19705, subd. (a)). The jury also found true that the theft counts each involved over $100,000. (§ 1203.045, subd. (a).) The court imposed a total sentence of five years four months in prison. We affirm.
All statutory references are to the Penal Code unless otherwise stated.
FACTS
Cox and Moran
Courtney was an attorney licensed to practice in California. His mother, Margaret Courtney (Margaret) was trustee of the Onstott Trust. Frank Cox and Betty Moran were beneficiaries of the trust.
In 2000, a cotrustee discovered there were anomalies in the management of the Onstott Trust. The court removed Margaret as trustee. Her successor trustee discovered that Margaret had benefitted from the trust in the amount of $2.9 million.
Cox and Moran initially hired Attorney Morris Getzels to represent them in litigation against Margaret and others relating to the Onstott Trust management. In late 2001, Courtney met with Cox, his daughter, Ineta Kohler, and Moran. During the meeting Courtney offered to help Cox and Moran for free. He said he wanted to "see his mom be put in jail." Kohler did not recall Cox or Moran ever signing a contingency contract to pay Courtney for his services.
On January 2, 2002, Attorney Jill O'Gorman, representing a client in the Onstott Trust litigation, asked Courtney what he was getting out of his representation. Courtney replied, "Nothing. Simply the satisfaction of helping out my elder relatives who have been wronged." The client, who was at the meeting, also heard Courtney make the statement.
In March 2002, Courtney filed an elder abuse action in Ventura County on behalf of Cox and Moran. The complaint named a number of defendants including Courtney's mother, Margaret. The case was consolidated with other Onstott Trust litigation in Santa Barbara. During the litigation, Courtney told Attorney Lawrence Sorensen on at least three occasions that he was not going to charge Cox and Moran for the elder abuse case.
At the end of 2002, Cox and Moran reached a settlement agreement with the Onstott Trust. Under the agreement, the trust would pay Cox and Moran $410,000 and have properties in Arizona and New Mexico transferred to them. Courtney, Cox, Moran and Kohler discussed placing the settlement proceeds in trust for Cox's and Moran's care during their lives, and after they both died, the remainder would be divided equally between Courtney and Kohler.
The trust transferred the Arizona and New Mexico properties. Cox and Moran endorsed settlement checks and returned them to Courtney. Cox and Moran also signed quitclaim deeds transferring the Arizona and New Mexico properties to Courtney and Kohler. The deeds were also returned to Courtney.
In July 2003, Courtney told Kohler he had lost a lawsuit resulting in a $100,000 judgment against him. In fact, the judgment was for $73,000. Kohler felt sorry for Courtney and talked Cox and Moran into giving Courtney $80,000 to help pay for the judgment.
A few days later, Courtney called Kohler and told her he was disgusted with her. He said he was going to take his 50 percent share immediately. Kohler reminded him that the agreement was for him to take his share after Cox and Moran died. Courtney replied, "It's already done."
Courtney sent Cox and Moran checks representing their share of the settlement proceeds after Courtney deducted 50 percent. Courtney withdrew $76,115.48 from the client trust account to satisfy the judgment against him.
Cox and Moran retained an attorney to investigate Courtney's retention of 50 percent of the settlement proceeds. In response to the attorney's letter, Courtney sent the attorney a copy of a retainer agreement dated February 1, 2002. The agreement was purportedly signed by Cox and Moran. It gave Courtney the right to 50 percent of the proceeds from the lawsuit settlement.
Kohler did not believe Cox and Moran signed any contingency fee agreement. She compared Cox's and Moran's signatures on the quitclaim deeds, and found them identical to their signatures on the contingency fee agreement. Cox had omitted the "r" in Frank from his signature on the deed and the error also appeared on the contingency agreement.
Police seized Courtney's computers pursuant to a search warrant. Detective Perry Kuhl found the Cox and Moran contingency fee agreement in Courtney's server. The agreement was created on June 18, 2003. Kuhl also found images of signatures, blank signature blocks and single letters on Courtney's computer. Kuhl opined that the images were indicative of someone practicing copying and pasting a small amount of writing from a larger document.
Nicholas Leonard, a questioned documents expert, compared signatures from the fee agreement and the quitclaim deed. He found the signatures on the fee agreement altered slightly, but that most positions of the signatures lined up exactly. He opined the signatures on the fee agreement were cut-and-pasted with slight alterations from the quitclaim.
Phillips
Rexford Phillips was 79 years old. He and his wife owned a home in Solvang. The home was subject to a homestead declaration filed by Phillips and his wife.
In 1998, Phillips was sued for fraud by Gary Dalluge. In 1998, Phillips and his wife transferred their home to the Phillips Family Limited Partnership (PFLP).
In 2001, Dalluge obtained a judgment of $1.5 million against Phillips. Phillips retained Courtney to represent him during judgment collection proceedings.
Courtney recommended that the Phillipses assign their interest in PFLP to a company Courtney owned, called Knightsbridge Partners, Inc. The Phillipses agreed, believing the transfer would protect their home against Dalluge's judgment. Courtney prepared the documents.
In preparing Phillips for a debtor's examination, Courtney advised Phillips not to say anything about Courtney's ownership of Knightsbridge. He repeated this advice on a number of occasions. When asked about Knightsbridge at a 2002 debtor's examination, Phillips said he met a "Harry" or "Larry" from Knightsbridge in Nevada. He again lied about meeting "Harry" or "Larry" at the preliminary hearing in this case. Phillips explained that he lied because Courtney advised him not to disclose that Courtney owned Knightsbridge.
Eventually, the Phillipses' home was sold in execution on the judgment. Prior to the sale, Courtney wrote to the sheriff's department instructing it to forward the $125,000 homestead money to Courtney's office, payable to Courtney in trust for the Phillipses. Phillips did not authorize Courtney to write the letter. Phillips believed the homestead money would be sent to him.
Phillips waited for approximately 30 days after the sale before calling Courtney. When Phillips called to inquire about the homestead money, Courtney said he knew nothing about it, and did not care because he was no longer Phillips's attorney.
Phillips asked Attorney Mark Wietstock to find out what happened to the money. Wietstock contacted Courtney who confirmed that he had the money. Courtney told Wietstock that the money had been transferred from his client trust account to Knightsbridge at Phillips's request. Courtney told Wietstock that Knightsbridge was an entity under the exclusive control of Phillips.
When Phillips learned that the money had been sent to Knightsbridge, he realized that Courtney had taken the money. Phillips contacted the sheriff's department and spoke with Deputy William Honeycutt. Honeycutt asked Courtney about the money. Courtney told him that after deducting $11,000 in attorney fees, and depositing $10,000 into escrow at Phillips's request, he disbursed the rest to Knightsbridge as requested by Phillips. Courtney told Honeycutt that Phillips is the general partner in Knightsbridge, and that Courtney had nothing to do with the company. Records show the escrow to which Courtney referred was for the purchase of a property by Courtney and his wife. Later, Courtney told Honeycutt that he wrote 11 checks to Knightsbridge from his client trust account. Phillips picked up the checks. The checks cleared his trust account, but he does not know who cashed them.
Bank records show $125,000 deposited in a Knightsbridge account, less $11,000 posted to Courtney's business account. Courtney is listed on the account as president of Knightsbridge.
William Shea, special agent with the California Franchise Tax Board, testified Courtney used the funds in the Knightsbridge account to pay for his personal expenses, including a swimming pool, paying off his credit cards, and funding personal investment accounts.
Tax Counts
Shea testified he reviewed the 2003 and 2004 tax returns for Courtney and his wife as well as Courtney's law firm. Shea determined that Courtney benefited $204,500 from Cox's and Moran's accounts. He also determined that Courtney, his wife and his law firm underreported $186,115.48 in gross receipts. Shea also determined that in 2004 Courtney underreported income for himself, his wife and his law firm by $113,489.75.
Defense
Courtney testified on his own behalf. He said he met with Cox, Moran and Kohler in January 2002 to discuss how Cox and Moran could get more money from the Onstott Trust. He discussed filing an elder abuse case. He was initially reluctant to take the case because he knew nothing about elder abuse law and did not want to sue his parents. He later agreed to take the case based on a 50 percent contingency fee agreement. He sent the agreement to Kohler, Cox and Moran, and received a signed copy back in the mail. He denied forging the signatures.
Courtney denied he advised Phillips to lie at a debtor's examination. He said he first heard of Knightsbridge when Phillips mentioned it at a debtor's examination. Phillips requested that Courtney open an account in Knightsbridge's name.
Courtney spent $10,000 of the homestead money on a property that he and Phillips agreed to invest in together. He placed the balance of the money in the Knightsbridge account at Phillips's request. Phillips understood that Courtney would use the money to get his residence back for him. Courtney used the money for his own benefit because he was using the money as an advance for future fees.
DISCUSSION
I
Courtney contends the prosecutor committed misconduct.
A prosecutor's misconduct arises to federal constitutional error when it is so egregious that it infects the trial with such unfairness as to amount to a denial of due process. (People v. Espinoza (1992) 3 Cal.4th 806, 820.) Misconduct that does not render a criminal trial fundamentally unfair is prosecutorial error under state law only if it involves the use of deceptive or reprehensible methods to attempt to persuade the court or jury. (People v. Harrison (2005) 35 Cal.4th 208, 242.)
(a)
Courtney argues it was misconduct for the prosecutor to refer to "rich man's justice" during voir dire.
The prosecutor asked a juror if he had heard the term "rich man's justice." The juror said he had. The prosecutor explained that some people, such as doctors and lawyers, have risen above average people, and that may cause jurors to require proof "way beyond a reasonable doubt." The juror replied he could understand how such a feeling could exist, but that he could get beyond that.
One of the purposes of voir dire is to expose possible biases of potential jurors. (Ovando v. County of Los Angeles (2008) 159 Cal.App.4th 43, 58.) The reference to "rich man's justice" was clearly aimed at undercovering possible bias, and would be understood by any reasonable juror as such. There was no misconduct.
(b)
Courtney argues the prosecutor committed misconduct when he told the jury during closing argument that Courtney hated his mother. Courtney claims the purpose of the argument was to appeal to the jury's passion and prejudice.
During closing argument the prosecutor told the jury: "He [Courtney] hated his mother. He was looking for an opportunity to get back at her, and that's why [Cox and Moran] talked about, 'I'm going to do this for free because I want to get back at my mother.'"
The prosecutor's argument was not an appeal to passion and prejudice. The central question was whether Courtney agreed to take the case for free. The argument that Courtney hated his mother supports the prosecution's point that Courtney so agreed. He wanted revenge against his mother. The argument was not misconduct.
(c)
Courtney complains that the prosecutor sought to arouse the jurors's passions by using the term "son of a bitch" during closing argument.
After discussing the Cox and Moran case, the prosecutor turned to a discussion of the Phillips case. The prosecutor stated: "Next, we're going to prove to you that Rex Phillips would never have transferred any of his homestead money to Mr. Courtney for any reason ever. You only have to depend on what the defense says he was, and that's a greedy son-of-a-bitch, so to speak, and that's all we have to agree to, and we will know he never would have done that."
Courtney believes it is ambiguous as to whether the prosecutor was referring to him or Phillips as the "son of a bitch." But the context makes it clear that the prosecution was calling neither Courtney nor Phillips a "son of a bitch." Instead, the prosecutor was referring to the defense's characterization of Phillips as a "greedy son of a bitch." The prosecution's point was that given the defense's characterization of Phillips, Courtney's claim that Phillips transferred the homestead money to him is not credible. There was no prosecutorial misconduct.
(d)
Courtney argues the prosecutor committed misconduct by using perjured testimony.
At trial, Phillips admitted he lied under oath during a debtor's examination and the preliminary hearing in this case. The lie concerned meeting someone named Larry or Harry in Las Vegas regarding Knightsbridge. He said he lied under Courtney's instructions to avoid disclosing that Courtney owned Knightsbridge. Courtney claims that in spite of Phillips's acknowledgement that he lied, he reiterated the lie on cross-examination by the defense.
The following colloquy took place between defense counsel and Phillips on cross-examination:
"Q All right. On one of the debtor's examinations, did you talk about a person by the name of Larry?
"A Yes....
"Q Okay. And what was the gist of what you testified to about Larry?
"A Well, Mr. Erwin was persistent in wanting to know who the limited partners were, and the general partners, I think, he asked about. And I told him that that was all handled in Nevada. And then he pursued it, and I told him that I talked to -- which at this point, I don't remember if it was Larry or Harry, and I don't remember what I said about that to him, but that we talked about Knightsbridge with either it was Larry or Harry.
"Q Was that Larry or Harry from Knightsbridge?
"A I don't remember that. I remember -- whether I talked about -- to a Larry or a Harry about Knightsbridge, because we were all there up in Nevada, and we were excited, and we talked to a lot of people in the casino there.
"Q Okay, but let me ask you this. When you testified in the debtor's examination about this Larry or this Harry connected with Knightsbridge, was that the truth?
"A When I testified that, Harry or Larry, I don't remember whether I... talked to him about Knightsbridge or talked to him that he was from Knightsbridge. But if it was from Knightsbridge, it was an attempt to follow what Mr. Courtney wanted. He didn't want me to mention him as being the owner of Knightsbridge.
"Q All right. But if it was a Harry or a Larry from Knightsbridge, that wasn't true, was it?
"A No, that wouldn't have been true.
"Q That's because you didn't talk to a Harry or a Larry from Knightsbridge at any time, correct?
"A That right.
"Q Okay. And so then at some point you must have realized that your testimony at the debtor's examination was first under oath, correct?
"A Yes....
"Q And then you must have realized at some point that what you were saying under oath was not the truth, correct?
"A Well, yes...."
Some of Phillips's testimony on cross-examination may be a bit garbled. But as a whole, his testimony on cross-examination makes it quite clear that he lied under oath about meeting Larry or Harry in Nevada. The prosecution had nothing to do with any perjury Phillips may have committed, and properly disclosed any past perjury. There was no misconduct.
II
Courtney claims he received ineffective assistance of counsel at trial.
A criminal defendant is constitutionally entitled to the effective assistance of counsel. (People v. Ledesma (1987) 43 Cal.3d 171, 215.) This means an attorney must act with reasonable competence as defendant's "'diligent conscientious advocate.'" (Ibid.) To establish abridgement of this constitutional right, defendant must demonstrate counsel's deficient performance and a reasonable probability the result would have been different but for counsel's failings. (In re Sixto (1989) 48 Cal.3d 1247, 1257.)
If the appellate record does not reveal the reasons for counsel's action or omission, generally the conviction must be affirmed. (People v. Ledesma, supra, 43 Cal.3d at p. 218.) "'[U]nless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, these cases are affirmed....'" (Ibid.) If the record shows an informed, tactical reason for counsel's action or omission, the conviction also must be affirmed. (People v. Bunyard (1988) 45 Cal.3d 1189, 1215.)
(a)
Failure to Object
Courtney argues that in numerous instances his counsel failed to object to the prosecutor's leading questions. But Courtney does not show that the witnesses' testimony would have been substantially different had the questions been asked in the proper form.
Courtney argues his counsel failed to object to a lack of foundation for the prosecution's expert's testimony. But Courtney fails to show that the foundation would not have been laid had the objection been raised.
Courtney argues his attorney failed to object to the relevance of evidence that Phillips's wife filed for bankruptcy because of the judgment levied against her. Courtney claims the line of questioning was intended to invoke sympathy for Phillips. But Courtney was trying to save the Phillipses from the effects of the judgment by recommending bankruptcy. Even if the evidence would have engendered some sympathy for Phillips, it does not reflect badly on Courtney. There is no reasonable probability Courtney would have obtained a better result had the evidence not been admitted. Moreover, the evidence is relevant to show the Phillipses were following Courtney's recommendations. It rebuts Courtney's suggestion that Phillips was directing matters.
Courtney argues his attorney failed to object to the relevance of Phillips's testimony about his experiences after his wife died. Phillips testified that after the death of his wife, she contacted him through strange noises and voices in his head. If anything, the evidence supported the defense's argument that Phillips is delusional and should not be believed. There was no reason for Courtney's counsel to object to favorable evidence.
Courtney argues that the first 13 pages of Kohler's testimony are completely irrelevant. Suffice it to say, his brief fails to state what the testimony was, why it was irrelevant or how it was prejudicial.
(b)
Search Warrant
Courtney argues his attorney failed to challenge the search warrant affidavit. He claims Detective Ruby Wolfe's affidavit omitted critical information.
Detective Wolfe omitted that Phillips did not appear to be dealing with "a full deck." But Wolfe testified she signed the affidavit only after concluding Cox and Moran's allegations against Courtney were similar to Phillips's complaint.
When the claim of incompetence of counsel involves the failure to make a motion to suppress, a defendant must show that reasonably competent counsel would have made such a motion and that the motion would be successful. (See People v. Frye (1998) 18 Cal.4th 894, 989.) Here the information provided by Phillips was corroborated by other information provided in the affidavit. Thus, even if Wolfe had included her impression of Phillips's mental state, the magistrate had a substantial basis for issuing the warrant. Courtney has failed to demonstrate that a motion to suppress would have been successful.
(c)
Moran's Blindness
Courtney argues his counsel acted incompetently when he failed to inquire into Moran's blindness.
Susan Paulsen testified she notarized two quitclaim deeds for Moran, one for a property in Arizona, another for a property in New Mexico. Paulsen said she witnessed Moran's signature on both deeds and verified Moran's identity by her driver's license and taking her thumb print. When shown a copy of the deeds, Paulsen said she had no doubt that she had notarized Moran's signature. Neither party inquired of Paulsen whether Moran could see.
That does not mean, however, that the subject of Moran's vision was left unexplored. Kohler testified that Moran "really couldn't read documents, " so Kohler had to explain the deeds to Moran before she signed them.
III
Courtney contends the trial court erred in admitting telephone answering machine recordings.
Phillips provided the prosecution with two telephone answering machine recordings of Courtney's voice. In the first recording, Courtney suggests that a lawsuit should be filed. Phillips answers, "[W]ell you're the attorney." The prosecution offered the recording to rebut Courtney's testimony that Phillips was dictating the transactions to avoid a judgment lien sale of Phillips's residence. In the second recording, Courtney and Phillips are discussing the upcoming debtor's examination. Phillips asks Courtney, "[W]hat do I tell him about this set up that we have?" Courtney replies, "I'll be working on that." The prosecution offered the recording to corroborate Phillips's testimony that Courtney told him to lie about Knightsbridge, and to rebut Courtney's testimony that he did not tell Phillips to lie.
Apparently, Courtney is arguing that the recordings are made inadmissible by section 632. Section 632, subdivision (a) makes it a crime to "intentionally and without the consent of all parties" record a confidential communication. Subdivision (d) of the section provides that no evidence obtained as a result of a recording made in violation of the section is admissible.
The prosecution made a motion in limine to admit the recordings into evidence. Phillips testified that he did not intentionally record the conversations. He said his answering machine automatically continues to record if the line is picked up after the outgoing message. Moreover, the answering machine gave a distinctive beep at the end of the outgoing message that would alert Courtney that the message was being recorded. The trial court could reasonably conclude that the recording was not intentional, and that Courtney impliedly consented to the recording. Thus, the recordings were admissible.
IV
Courtney contends the trial court erred in admitting business records.
Courtney claims that the business records were admitted pursuant to affidavits by the custodian of the records, which affidavits were defective. But the records were admitted pursuant to a stipulation between the parties. Any defect has been waived.
V
Courtney contends the trial court erred in allowing prejudicial evidence over his relevancy objection.
During the prosecution's direct examination of Kohler, he elicited from her that she spent much of her life taking care of people including her polio-stricken father, a dying husband and Cox and Moran. Kohler also testified that she had to provide monetary support for Moran. On appeal, Courtney claims the only purpose for such evidence was to falsely portray Kohler as a victim, and that the evidence was not relevant to any offenses with which Courtney was charged.
But Courtney ignores his counsel's opening statement. Courtney's counsel stated that Kohler was greedy; that the only asset Kohler had was Cox and Moran; and that "she robbed Frank and Betty of every dime they had." In short, Courtney's counsel alleged Kohler's greed led her to lie about Courtney having no fee agreement.
The evidence to which Courtney objects is relevant to rebut the allegations Courtney's counsel made in his opening statement. The trial court did not err in admitting the evidence.
VI
Courtney contends the judgment is not supported by substantial evidence.
Courtney asserts that Kohler and Phillips are not credible. He also challenges the credibility of expert opinion and documentary evidence.
Courtney misapprehends our limited role in reviewing the evidence on appeal. In reviewing the sufficiency of the evidence, we view the evidence in a light most favorable to the judgment. (People v. Johnson (1980) 26 Cal.3d 557, 578.) We discard evidence that does not support the judgment as having been rejected by the trier of fact for lack of sufficient verity. (People v. Stewart (2000) 77 Cal.App.4th 785, 790.) We must affirm if we determine that any rational trier of fact could find the elements of the crime beyond a reasonable doubt. (Johnson, at p. 578.)
Courtney's argument amounts to nothing more than that we must reweigh the evidence, judge witnesses not to be credible, and view the evidence in a light most favorable to him. We have no power to do so. Courtney has failed to carry his burden of showing a lack of substantial evidence.
VII
Finally, Courtney contends the trial court in his first trial erred in failing to grant defendant's motion to dismiss under section 1118.1.
Section 1118.1 requires the trial court to enter a judgment of acquittal where the evidence is insufficient to sustain a conviction. The trial court at the first trial denied Courtney's section 1118.1 motion, but declared a mistrial at Courtney's request when the jury failed to reach a verdict.
Courtney cites no authority that the denial of a section 1118.1 motion in the first trial is a proper subject for this appeal. Moreover, we have no transcript of the first trial from which to determine whether there was a lack of substantial evidence. That the jury failed to reach a verdict does not show a lack of substantial evidence. The denial of Courtney's 1118.1 motion is simply not cognizable in this appeal. It follows Courtney's double jeopardy argument based on the denial of his 1118.1 motion is without merit.
The judgment is affirmed.
We concur: YEGAN, J., COFFEE, J.