Opinion
F047243
12-11-2006
THE PEOPLE, Plaintiff and Respondent, v. BOBBIE J. CUMBERWORTH et al., Defendants and Appellants.
Sylvia Whatley Beckham, under appointment by the Court of Appeal, for Defendant and Appellant Bobbie J. Cumberworth. Christine Vento, under appointment by the Court of Appeal, for Defendant and Appellant Ira C. Cooke. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Brian Alvarez and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Ira C. Cooke and Bobbie Cumberworth of conspiracy (Pen. Code, § 182, subd. (a)(1)), grand theft (§ 487, subd. (a)), and commercial bribery (§ 641.3). They argue the judgments must be reversed because of numerous errors at trial.
All further statutory references are to the Penal Code unless otherwise stated.
We agree the trial court erred by (1) admitting evidence that a civil lawsuit that alleged Cooke forged initials on a document had been settled and permitting the prosecutor to argue that Cooke committed forgery; (2) admitting evidence that Bobbie refused to testify before the grand jury, asserting her Fifth Amendment privilege against self-incrimination and the spousal communications privilege; (3) admitting evidence that Bobbies husband, Terence, committed numerous misdeeds unrelated to the charges in this case; and (4) permitting the prosecutor to argue to the jury facts that were not admitted into evidence, which constituted prosecutorial misconduct. We conclude the cumulative effect of these errors requires reversal of the judgment.
We will refer to Bobbie and Terence Cumberworth by their first names, not out of disrespect but to avoid confusion to the reader.
FACTUAL AND PROCEDURAL SUMMARY
Each of the three crimes for which Cooke and Bobbie were convicted arose out of the same relationship. The victim of each crime was Desert Counseling Clinic (DCC). DCC was a nonprofit corporation that provided mental health services throughout Kern County pursuant to contracts it had with the county.
DCC also provided some services in Ventura County and had one contract in Maryland. The vast majority of DCCs revenue was generated in Kern County.
Terence was the chief executive officer of DCC. The evidence suggested he viewed DCC as his own company. He bragged that he hand picked the board of directors and could control them. Terence and some of the board members also had joint business ventures that were separate from, but related to, DCC.
Terence could not drive because legally he was blind, but he could read correspondence if it were printed in a large font.
Bobbie was Terences wife. She is the mother of seven children and taught special education classes for Kern County. She quit her job with Kern County shortly before her relationship with Cooke began.
Cooke was a lawyer and registered lobbyist in Maryland. He met Terence through one of his clients.
Terence had grandiose plans for the expansion of DCC. In 1999 he hired Cooke to assist DCC in obtaining government contracts in Maryland. The relationship between Cooke and DCC continued until May 2002. DCC explored several business opportunities in Maryland. Cooke was involved in numerous meetings and discussions. Except for a single small contract, none of the possibilities came to fruition.
Cooke initially was paid on an hourly basis for the services he provided. In May 2000, Terence proposed that DCC pay Cooke an annual retainer for his services in monthly installments of $5,000. In return, Terence proposed that Cooke hire Bobbie as an independent contractor at the rate of $2,500 per month. Bobbie, in turn, would provide services to DCC in California. Cooke would retain $2,500 per month for the services he provided DCC. Cooke accepted the offer.
Cooke met Bobbie during his dealings with Terence before he (Terence) made the above offer. Cooke found Bobbie to be knowledgeable in the area of special education, an area into which DCC hoped to expand. When Terence made the above offer, he told Cooke that Bobbie was his "arms and legs in California." Cooke did not question Terence because he had worked with Bobbie and he trusted Terence. Cooke also believed DCC intended to set up programs in California similar to programs in Maryland that Cooke had shown to Terence that involved juveniles with special needs.
The arrangement between Cooke, Terence, and Bobbie continued for two years. Throughout this time DCC had serious financial problems, often struggling to meet payroll and pay vendors.
In May 2002, Kern County began an audit of DCC. The primary focus of the audit was to determine if the monies paid by Kern County to DCC were used in a manner consistent with the contracts and various state and federal requirements. In other words, the question was whether DCC used the money received from Kern County on the programs it operated in Kern County. By September 2002, Kern County cancelled its contract with DCC and stopped all payments. DCC ceased operations shortly thereafter.
The payments to Cooke and Bobbie came to light during the subsequent criminal investigation. Count one of the indictment alleged that Bobbie and Cooke conspired with Terence to commit grand theft and/or commercial bribery. Count two alleged that Cooke and Bobbie committed grand theft, while count three alleged they committed commercial bribery. Each count also alleged as an enhancement that the value of the property taken exceeded $50,000 pursuant to section 12022.6, subdivision (a)(1).
Terence was charged with other crimes in a separate prosecution. It appears he eventually pled guilty to a crime or crimes relating to the misappropriation of, or embezzlement of, $750,000 from DCC.
Neither Cooke nor Bobbie disputed the payments, which were well documented. The only issue was whether Bobbie provided services to DCC and whether either Cooke or Bobbie had the specific intent to commit the crimes with which they were charged. Each testified they believed Bobbie earned the money she was paid. At the end of the six-week trial, the jury found Cooke and Bobbie guilty of all charges and found the enhancements true. Each was placed on five years probation, with a conditional one-year jail term suspended. To avoid the one-year jail sentence, Cooke and Bobbie were required to pay restitution.
DISCUSSION
I. Admission of Evidence
Cooke and Bobbie raise numerous issues regarding evidentiary rulings. We review evidentiary objections, including objections that evidence should be excluded as more prejudicial than probative pursuant to Evidence Code section 352, for an abuse of discretion. (People v. San Nicolas (2004) 34 Cal.4th 614, 664; People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.) Where "a discretionary power is statutorily vested in the trial court, its exercise of that discretion `must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. [Citations.] [Citation.]" (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125.) We apply this standard of review to each of the following evidentiary rulings.
A. Evidence of prior lawsuit
Over Cookes objection, the prosecution sought permission from the trial court to impeach Cookes credibility with evidence that (1) a contempt motion was brought against Cooke during his divorce proceedings for failing to pay court-ordered alimony to his second wife; (2) Cooke had an extramarital affair during his second marriage; and (3) Cooke settled a lawsuit that alleged he forged a signature on a document. The trial court sustained Cookes objections to items (1) and (2), but permitted the prosecution to introduce evidence about the lawsuit.
The prosecutor offered to prove that Cooke represented a corporation named Isle of Capri Casinos, Inc. (Isle of Capri) in connection with an attempt to establish legal gaming in the state of Maryland. During the course of that representation, the client was presented with a memorandum of understanding that purported to be a statement of intent between Isle of Capri and another entity necessary to accomplish the clients goal. This document was alleged to have been initialed by Cooke and a representative of the entity with whom Isle of Capri sought to do business. Isle of Capri subsequently sued Cooke and the law firm where he was a partner, alleging the initials of the representative of the entity with whom Isle of Capri sought to do business were forged.
The prosecution based its summary of the facts entirely on the allegations of the complaint. Cooke admitted he was sued, that the lawsuit was defended by the law firms malpractice insurer, and the case was settled without any admission of liability and with a confidentiality clause.
The prosecution sought to question Cooke about his representation of Isle of Capri, the subsequent lawsuit, the allegation that he forged the initials, and that the lawsuit subsequently was settled. The prosecutor argued this evidence should be permitted to impeach Cookes credibility because forgery constituted an act of moral turpitude. He also suggested Cooke would not be prejudiced because his conduct in the Isle of Capri matter was sufficiently different from the current charges.
This argument is particularly disingenuous, considering the use the prosecutor made of the allegations during closing argument, discussed post.
When Cooke pointed out that settlement of a civil lawsuit did not establish any wrongdoing, the prosecutor analogized the situation to a defendant who pled guilty to a crime and then argued at a later time that he did not commit the crime but pled to avoid a potential longer jail sentence. The prosecutor acknowledged that Cooke could explain that the matter was settled with no admission of liability, but that response merely went to the weight of the evidence, not admissibility.
The thrust of the prosecutors argument is contained in the following passage: "This is classic conduct involving moral turpitude .... It is much more than a simple, unsupported raw allegation." While acknowledging that allegations are not admissible, the prosecutor argued that the settlement somehow transformed the accusation into fact. "And it is a — a very reasonable and logical conclusion that when somebody settles a case that there is an inference there that they had merit to the claims. And I think its a very basic proposition that goes right along with somebody entering a plea in a case." The prosecutor provided no statutory or case authority, nor could we find any, allowing a civil settlement as impeachment in a criminal case.
The trial court concluded the lawsuit related to the issue of credibility of Cooke and was proper impeachment. This was error. The evidence should not have been admitted.
First, allegations in a civil suit are not facts. An allegation is an assertion by a party to a lawsuit expressing what he or she expects to prove in the action.
Second, settlement of a civil lawsuit is not evidence of wrongdoing. In this case the settlement specifically denied any wrongdoing. Civil lawsuits are settled for a variety of reasons. Among them could be that the defendant recognizes his or her conduct was wrongful and simply wishes to resolve the matter. Another is that the cost of defending a baseless lawsuit may exceed the cost of settling the matter. Or, the plaintiff may realize he or she cannot prevail in the action and may accept a waiver of costs and a waiver of a malicious prosecution action in settlement of the action. Finally, the defendant may decide that a trial in the matter, even if it ended in judgment in his or her favor, might cause more harm than a settlement.
The settlement in this matter was even more complicated because an insurer was involved in the defense of the action. An insurer may settle a matter with, or without, the consent of the insured, and despite the protestations of innocence by the insured.
This plaintiff in the action named Cookes law firm as a defendant. The law firm also was defended by the insurance company. This increased the potential reasons for settlement to an endless number.
Of course, it would be pure speculation to assert the lawsuit against Cooke was settled for any of the above reasons. Similarly, the prosecutors assertion that Cooke settled the lawsuit because he forged the initials was pure speculation. In other words, the settlement of the lawsuit did not establish that the allegations of the complaint were true.
Since settlement of a lawsuit does not establish the allegations of the complaint were true, settlement of a lawsuit cannot lead to a permissible inference of wrongdoing. "A reasonable inference ` "may not be based on suspicion alone, or on imagination, speculation, supposition, surmise, conjecture, or guess work." [Citation.] It must logically flow from other facts established in the action. (Evid. Code, § 600, subd. (b).)" (People v. Austin (1994) 23 Cal.App.4th 1596, 1604.) The settlement of the lawsuit against Cooke and his firm, because it could have occurred for a variety of reasons and on a variety of terms, does not logically lead to the conclusion that Cooke committed wrongdoing. The prosecutors conclusion to the contrary was based on nothing more than conjecture.
Austin was disapproved on other grounds in People v. Palmer (2001) 24 Cal.4th 856, 864-865.
The trial court should have realized the irrelevance of the proffered evidence. Relevant evidence is "evidence, including evidence relevant to the credibility of a witness or a hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Evid. Code, § 210.) As explained above, the allegations of the lawsuit, and the subsequent settlement of the action, did not have any tendency in reason to prove Cookes credibility, or lack thereof, because there was no proof he forged the initials.
The prosecutors analogy of the settlement in this matter to a misdemeanor conviction is apt, although not for the reason urged by the prosecutor, and brings us to the second basis for concluding there was error. In People v. Wheeler (1992) 4 Cal.4th 284, the Supreme Court recognized that since the passage of Proposition 8s "Truth-in-Evidence" provision (Cal. Const., art. I, § 28, subd. (d)), relevant misdemeanor misconduct may be used to impeach a witness in criminal proceedings. (Wheeler, at p. 292.)
The Supreme Court held, however, that a misdemeanor conviction is inadmissible hearsay when offered to impeach a witness, regardless of whether it is offered through testimonial or documentary evidence. (People v. Wheeler, supra, 4 Cal.4th at p. 300.) Instead, it is the underlying conduct itself that is admissible. (Id. at pp. 295-299.) In reaching its holding, the Supreme Court rejected the Peoples argument that the fact of a conviction is relevant for impeachment purposes other than to prove the underlying conduct. "[The legislative] history further shows the Legislatures understanding that a witnesss prior convictions are relevant for impeachment, if at all, only insofar as they prove criminal conduct from which the factfinder could infer a character inconsistent with honesty and veracity. [Citations.] Our reasoning in a line of cases extending from People v. Beagle [(1972)] 6 Cal.3d 441 to People v. Castro [(1985)] 38 Cal.3d 301, has proceeded from the same assumption. [Citations.]" (Wheeler, at p. 299.)
The Supreme Court also has recognized that the business record exception to the hearsay rule permits admission of the fact that a judgment was entered, not the determination of guilt. (People v. Cummings (1993) 4 Cal.4th 1233, 1295, fn. 36.)
Here, the prosecutor offered to prove that Cooke forged the initials on the document through certified copies of the complaint and, apparently, some document that established the case had been settled. As the Supreme Court explained in Wheeler, however, these documents were inadmissible hearsay. While Wheeler involved a criminal conviction, we can conceive of no reason why the rule would be different for a civil matter. Thus, even if Cooke forged the initials on the document, the use of the lawsuit and settlement to establish the underlying facts of the action is prohibited.
We attach no significance to Cookes ultimately testifying to the underlying lawsuit and settlement. Wheeler held such testimony was hearsay. (People v. Wheeler, supra, 4 Cal.4th at p. 300.) Moreover, Cookes testimony was compelled once the trial court concluded the lawsuit and settlement was admissible based on the documents presented by the prosecutor. We will not penalize Cooke for attempting to minimize the damage caused by the trial courts erroneous ruling.
B. Bobbies assertion of her Fifth Amendment privilege
The district attorney convened a grand jury to investigate the collapse of DCC. Bobbie was subpoenaed to testify. The following took place between the district attorney and Bobbie when she appeared before the grand jury:
"QUESTION ...: Maam would you state your full name and spell your last name for the record, please.
"ANSWER: Does that mean my full name? I have a name that Ive dropped. Thats my middle name, Ethel. My full name is Bobbie Ethel Jones Cumberworth.
"QUESTION: Would you spell your last name, please.
"ANSWER: C-u-m-b-e-r-w-o-r-t-h.
"QUESTION: And is the name that you gave us your current legal name?
"ANSWER: Yes, it is.
"QUESTION: And Mrs. Cumberworth, what is the date of your birth?
"ANSWER: May 20th, 1951.
"QUESTION: And do you have a California drivers license?
"ANSWER: I do.
"QUESTION: And would you give us that number, please.
"ANSWER: [Omitted].
"QUESTION: And what is your current address?
"ANSWER: [Omitted].
"QUESTION: Current phone number?
"ANSWER: [Omitted]. [¶] ... [¶]
"QUESTION: Is there a work number?
"ANSWER: No, sir. Im currently unemployed.
"QUESTION: Is there a work number for your husband?
"ANSWER: No, sir. Hes currently unemployed.
"QUESTION: Mrs. Cumberworth, you have a Fifth Amendment right against self-incrimination, meaning you have the right to not answer questions that are presented to you either by myself or by the grand jury members if you dont want to. Do you understand that?
"ANSWER: Yes, sir.
"QUESTION: And if you decide to waive that Fifth Amendment right against self-incrimination, do you understand that any information you provide in response to our questions could be used against you and/or other individuals in connection with any criminal prosecution that might be brought further on down the road? Do you understand that?
"ANSWER: Yes.
"QUESTION: And you also have the limited right not to testify concerning communications that were made between you and your husband. Do you understand that as well?
"ANSWER: Yes.
[QUESTION]: Having those rights in mind, maam, do you wish — do you wish to waive those rights and proceed by answering our questions here?
"ANSWER: No, I do not.
"QUESTION: On what grounds are you refusing to answer our questions?
"ANSWER: Well, the grounds of spouse communication, and Ive been advised by counsel to refuse to answer because of the Fifth Amendment — privileges of Fifth Amendment.
"QUESTION: Youre invoking both privileges then, the spousal communication and the Fifth Amendment right against self-incrimination?
"ANSWER: Yes, sir.
"QUESTION: And is it your intent then to not answer any of the questions that I have for you today?
"ANSWER: Yes, sir.
"[QUESTION:] And is it your intent not to answer any of the questions that the grand jury might have for you today?
"[ANSWER:] Yes, sir.
"[DISTRICT ATTORNEY:] All right. Thank you."
At trial, Bobbie testified on direct examination that a lot of her papers that dealt with her work for DCC were thrown away to minimize the expense of moving her family from Bakersfield to Baltimore shortly after Terence resigned from DCC. When the family decided to move to North Carolina a short while later, Bobbie found employment teaching home economics. Any remaining papers she had related to her work at DCC were thrown away during that move. At that time, Bobbie did not think she would be charged with any crimes. She knew Terence was under investigation, but did not think the papers would be important for his case.
Before beginning his cross-examination of Bobbie, the prosecutor requested permission from the trial court (out of the presence of the jury) to question her about what occurred when she appeared before the grand jury, specifically her refusal to answer any questions based on her Fifth Amendment right against self-incrimination. His theory was that Bobbie was put on notice when she appeared before the grand jury that not only was Terence a subject of investigation but she also was under investigation. He explained that Bobbie appeared before the grand jury while she lived in Baltimore. Therefore, when she destroyed documents when she moved to North Carolina, she did so knowing those documents would be important to her defense because they proved she earned the money she received from Cooke.
Over Bobbies objection, the trial court permitted the prosecutor to read the above quoted portion of the grand jury proceedings to the jury.
We begin by noting that the prosecutions theory turns the concept of suppression of evidence on its head. CALJIC No. 2.06 explains that if a defendant attempts to suppress evidence by destroying evidence of guilt, the jury could consider that fact as consciousness of guilt. Here, the prosecutor argued that Bobbie destroyed evidence that would have supported her innocence.
For this reason, Bobbie objected when the prosecution requested the trial court instruct the jury with CALJIC No. 2.06. Although we need not reach this issue to resolve this appeal, it appears the trial court erred in granting the prosecutions request.
This evidence was relevant to the issue of work performed, or not performed, by Bobbie for DCC. The prosecution could argue there was no evidence that Bobbie did any work for DCC because it never existed, not because it was destroyed during the two moves. The prosecution also could argue that a cautious person would save any document that might possibly assist his or her spouse, whom he or she knew was under investigation. These documents surely fell within this class of documents and, if they ever existed, Bobbie would have saved them.
Apparently not satisfied with these arguments, the prosecutor sought to establish that Bobbie knew she was a target of the grand jury investigation when she disposed of her records related to DCC. The testimony read into the record failed to do so.
The proceedings before the grand jury, quoted in their entirety above, established that the prosecutor advised Bobbie of her Fifth Amendment right against self-incrimination, and that she invoked that right along with her privilege to refuse to testify against her spouse. (Evid. Code, § 970.) She never was told she was a target of the grand jury investigation. And while a lawyer may understand that invocation of ones Fifth Amendment right is a refusal to say anything that may expose oneself to criminal charges, it is unlikely that Bobbie, who knew that her husband was being investigated as a result of DCCs collapse, attached the same significance to the invocation of her rights as did the prosecutor. It is far more likely that Bobbie simply did not want to say anything that would incriminate her husband. Since the grand jury proceedings were secret, if the prosecutor wanted Bobbie to know she was a target of the investigation, he should have told her so. To suggest that she should have come to that conclusion from their brief exchange would require Bobbie to demonstrate legal sophistication that few laypersons possess.
We now turn to the law. "Under the Fifth Amendment of the federal Constitution, a prosecutor is prohibited from commenting directly or indirectly on an accuseds invocation of the constitutional right to silence. Directing a jurys attention to a defendants failure to testify at trial runs the risk of inviting the jury to consider the defendants silence as evidence of guilt. (Griffin v. California [(1965)] 380 U.S. [609,] 614-615]; People v. Frye [(1998)] 18 Cal.4th [894,] 1019].)" (People v. Lewis (2001) 25 Cal.4th 610, 670.) This prohibition is reflected in Evidence Code section 913, subdivision (a), which prohibits counsel from commenting on the exercise of any privilege, regardless of whether the privilege was exercised in the current proceeding or a previous proceeding. (See also People v. Estrada (1998) 63 Cal.App.4th 1090, 1102-1103 [error to comment that defendant invoked Fifth Amendment right at preliminary hearing of codefendant].)
The prohibition on commenting on the invocation of the right against self-incrimination is not absolute, however. In United States v. Robinson (1988) 485 U.S. 25, the Supreme Court recognized what might best be called the fair comment exception to the Griffin prohibition. Robinson was prosecuted for mail fraud as a result of fraudulently submitted insurance claims. During closing argument his attorney suggested the government was not being fair because it had not allowed him to tell his side of the story. In rebuttal, the prosecutor argued that Robinson had adequate opportunity to explain his position when he gave a statement to the authorities and when he spoke with the insurance investigator, and that he "`could have taken the stand and explained it to you, anything he wanted to." (Robinson, at p. 28.)
"We hold that the prosecutors statement that respondent could have explained to the jury his story did not in the light of the comments by defense counsel infringe upon respondents Fifth Amendment rights. The Court of Appeals and respondent apparently take the view that any `direct reference by the prosecutor to the failure of the defendant to testify violates the Fifth Amendment as construed in Griffin. We decline to give Griffin such a broad reading, because we think such a reading would be quite inconsistent with the Fifth Amendment, which protects against compulsory self-incrimination.... We think there is considerable difference for purposes of the privilege against compulsory self-incrimination between the sort of comments involved in Griffin and the comments involved in this case.
"... In the present case it is evident that the prosecutorial comment did not treat the defendants silence as substantive evidence of guilt, but instead referred to the possibility of testifying as one of several opportunities which the defendant was afforded, contrary to the statement of his counsel, to explain his side of the case. Where the prosecutor on his own initiative asks the jury to draw an adverse inference from a defendants silence, Griffin holds that the privilege against compulsory self-incrimination is violated. But where as in this case the prosecutors reference to the defendants opportunity to testify is a fair response to a claim made by defendant or his counsel, we think there is no violation of the privilege." (United States v. Robinson, supra, 485 U.S. at pp. 31-32.)
Robinson was cited by the California Supreme Court in People v. Jones (1997) 15 Cal.4th 119. Jones was convicted of three murders and sentenced to death. Two competency hearings were held prior to the guilt and penalty phases of his trial. At the second competency hearing, Jones contended his diagnosis, paranoid schizophrenia, and the medication he was taking for this condition rendered him incompetent to stand trial. The prosecution contended Jones was malingering by exaggerating his condition. The jury determined Jones was competent to stand trial. (Id. at p. 135.)
Overruled on other grounds in People v. Hill (1998) 17 Cal.4th 800, 822-823 & fn. 1.)
During the competency hearing, the prosecutor elicited from several witnesses that Jones had stated that he refused to speak with the treatment team because his lawyer instructed him not to answer any questions. (People v. Jones, supra, 15 Cal.4th at pp. 168-170.) Jones argued that these questions violated the holding of Doyle v. Ohio (1976) 426 U.S. 610, which extended Griffin to preclude using a defendants silence following the giving of Miranda warnings to impeach his trial testimony. (Jones, at p. 170.)
Miranda v. Arizona (1966) 384 U.S. 436.
The Supreme Court held it was proper to introduce evidence that the defendant consciously chose to remain silent to rebut the defendants assertion that his mental illness rendered him incapable of communicating. (People v. Jones, supra, 15 Cal.4th at p. 172.) "Because defendant had introduced evidence of his uncommunicativeness as alleged proof that he suffered from a mental illness, the prosecution was entitled to impeach or rebut such an inference by presenting to the jury evidence that established a different explanation for defendants lack of communication. The prosecutions ability, in such circumstances, to show the reason for defendants silence should be no less than it would be had the prosecution introduced evidence that defendant had taken a vow of silence or suffered from laryngitis." (Ibid.) "The present case does not involve the type of circumstances to which the rule announced in Doyle, and applied in [Wainwright v. Greenfield (1986) 474 U.S. 284], was intended to apply. Unlike the prosecutions action in Doyle, the prosecution here did not use defendants silence at the time of his arrest to show that his testimony at trial was recently fabricated. Unlike Greenfield, the present case did not involve an attempt by the prosecution to use defendants invocation of his right to remain silent to show that defendant possessed the mental acuity to understand his constitutional rights. Rather, the prosecution introduced the evidence in question to show that defendants silence while incarcerated at the county jail was not probative of the extent of defendants mental illness, as the defense claimed, because—as defendants own statement to one of the psychiatric nurses indicated—defendant simply had chosen not to speak to the psychiatric personnel at the jail. This highly relevant evidence, responding to a claim put forward by defendant, was not rendered inadmissible simply because it revealed that defendant indicated that he chose not to speak in reliance upon his constitutional right to remain silent, rather than for some other reason." (Jones, at p. 174.)
People v. Austin, supra, 23 Cal.App.4th 1596 was cited with approval in Jones. Austin was convicted of several crimes as a result of an undercover drug sting. At trial, one of the officers testified Austin made a spontaneous statement that incriminated him shortly after he was arrested. On cross-examination Austins counsel sought to create the impression that Austin was treated unfairly by the police by not giving him the opportunity to explain the spontaneous statement. On redirect the prosecutor clarified with the officer that Austin was given the opportunity to give a full statement after he was advised of his Miranda rights, and declined to do so. (Austin, at pp. 1610-1611.)
See footnote 6, ante, page 8.
The appellate court found no error. "Griffin and Doyle were cases in which the prosecution sought to take unfair advantage of the defendants silence.... These cases stand for the principle it is fundamentally unfair for the state to afford defendants the right to remain silent and then use that silence against them. It must be remembered, however, the defendants right to remain silent is a shield. It cannot be used as a sword to cut off the prosecutions `fair response to the evidence or argument of the defendant. (United States v. Robinson [, supra,] 485 U.S. 25 [at p.] 32.)" (People v. Austin, supra, 23 Cal.App.4th at pp. 1611-1612.) "In the present case, as in Robinson and Amirault [v. Fair (1st Cir. 1992) 968 F.2d 1404, 1406], defendant Austin sought to create the impression in the jurors minds the police had treated him unfairly by not giving him the opportunity to explain his damaging statement to [the officer] and to use the fact he had invoked his right to remain silent to prevent the prosecutor from countering this impression. The Fifth Amendment protects defendants right to remain silent. It does not protect his effort to exploit his silence by requiring the government also remain silent. Here, the prosecutors purpose on redirect examination of [the officer] was to correct the impression created on cross-examination Austin had not been afforded an opportunity to explain the apparently damaging statement he made to [the officer]. There was no attempt to suggest defendants invocation of his right to remain silent was substantive evidence of guilt or to impeach a defense by bringing out Austins postarrest silence. The rationale of Griffin and Doyle is inapplicable." (Austin, at pp. 1612-1613; see also Amirault, at p. 1406 [proper to comment on postarrest silence where defense counsel argued defendant was not given the right to tell his side of the story]; People v. Champion (2005) 134 Cal.App.4th 1440, 1450-1451 [same].)
These cases establish that a defendants silence, whether invoked pursuant to the Fifth Amendment right against self-incrimination or the defendants rights pursuant to Miranda, generally may not be used by the prosecution to create an inference of guilt. When, however, the defendant or his counsel, through testimony or argument, attempts to use the defendants silence to create a favorable inference, the prosecutor may comment on the defendants silence. To be used in this fashion the defendants silence must be directly relevant to the issue raised by the defendant.
Here, the prosecutor took the reasoning in this line of cases one step further. Bobbie did not attempt to raise an inference that she was treated unfairly because the investigating officers refused to give her the opportunity to tell her side of the story. Nor was invocation of her rights relevant to any other issue in the trial. Instead, she testified she destroyed evidence that would have supported her defense because she did not realize she was a target of the grand jury investigation.
The prosecutor used Bobbies invocation of her Fifth Amendment right against self-incrimination to infer that she must have known she was a target of the grand jury investigation. He then invited the jury to infer that no evidence ever existed because, if it did exist, she would have saved it since she knew she was under investigation.
Bobbies testimony certainly put into issue when she learned she was a target of the grand jury investigation. Admission of her invocation of her Fifth Amendment rights was erroneous, however, for two reasons.
First, as explained above, the inference sought by the prosecutor was not a reasonable one. She was not told at the grand jury hearing she was being investigated, and she had ample reason not to testify because she knew her husband was a target of the investigation. She invoked her rights on the advice of counsel, with no evidence that counsel knew she was being investigated or that she had any relationship to DCC other than as the wife of Terence. A prudent attorney under these circumstances likely would instruct the client to refuse to answer any questions to avoid implicating her husband, especially, as in this case, where the attorney was retained at the last minute. The prosecutors suggestion to the contrary was unreasonable because the inference argued was based on supposition and guesswork.
The second reason the trial court erred was because admitting Bobbies invocation of her Fifth Amendment right to refuse to testify created a significant danger that the jury would use the information in a prohibited manner. The Griffin/Doyle line of cases precludes a prosecutor from referring to a defendants invocation of his or her right to silence because the jury is likely to infer guilt from the invocation of the right to remain silent. That risk increased in this trial because the trial court failed to admonish the jury at the time it heard the testimony that it could use Bobbies invocation only for the prosecutors stated purpose of determining whether she knew she was a target of the grand jury investigation when she disposed of the documents.
Finally, the trial court erred because the prosecutors stated purpose could have been accomplished without referring to Bobbies invocation of her Fifth Amendment rights. The prosecutor could have pointed out Bobbie knew a grand jury investigation into the collapse of DCC was going on, she had been subpoenaed to testify, and she had consulted with an attorney before her testimony. The inference from these facts was as strong, if not stronger, than that obtained by reading Bobbies "testimony" from her grand jury appearance to the jury.
C. Evidence of other bad acts
The collapse of DCC was a newsworthy event in Kern County. The extensive investigation led to this indictment against Cooke and Bobbie and a separate indictment against Terence.
Prior to trial, Cooke and Bobbie both requested an order precluding any testimony that Terence committed wrongdoing while at DCC specifically related to his seeking reimbursement for personal expenses. Cooke and Bobbie argued the evidence was irrelevant since the only issue was the money DCC paid to Cooke, which was then returned to Bobbie, and the prejudicial impact of the evidence greatly exceeded its probative value.
The prosecutor argued the evidence was relevant because Bobbie was involved in the process of making sure that Terence was reimbursed for his expenses. This evidence was deemed relevant by the prosecutor because it showed Bobbies involvement with DCC. Second, the prosecutor argued the evidence was admissible under Evidence Code section 1101, subdivision (b) to show she had the intent to defraud DCC.
The trial court denied the motion because it "appears to the Court on a weighing basis that its part of the — part of the entirety of the process here, and its an appropriate reference."
As a result of this ruling, a significant amount of time in trial was spent on Terences activities at DCC. Several witnesses testified that Terence sought reimbursement from DCC for expenses that were personal or that never were incurred. The two primary witnesses were Shane Gautreaux and Martin Hansen.
Gautreaux was Terences executive assistant for approximately one and one-half years. Gautreaux eventually transferred to another position because she was uncomfortable working with Terence. She explained that he became "tyrannical," she was prohibited from questioning his authority, and he acted as if DCC were his company. He instructed her not to question the business expenses he submitted to her. She also was uncomfortable working for Terence because she knew some of the business expenses he was claiming were personal expenses, and others were not related to the DCC contract to which they were being charged.
The contract between DCC and Kern County required that the county be charged for only those expenses directly related to providing the contracted services, plus any other charges provided for in the contract (presumably such as overhead). Gautreaux contended that Terence would charge unrelated expenses to the Kern County contract.
She recalled a situation where Terence obtained reimbursement for an airline ticket for which he obtained a refund. Terence also instructed Gautreaux to create invoices purported to be from a fictional company. Terence would then seek reimbursement for these fictional expenses. Terence also requested DCCs board of directors reward him with a $25,000 bonus.
Terence informed Gautreaux that when he turned in his expense account he would tell the accounting department she had the documentation for the claimed expenses. When the accounting department came to collect the documentation, Gautreaux was instructed to tell the accounting department that Terence had failed to give her the documentation.
Martin Hansen testified that Terence took an interest in ensuring Cooke was paid on a regular basis. Terence also told Hansen that DCC was his (Terences) company, he had hand selected the board of directors, and he could control them. Terence also complained he was not being compensated fairly by DCC.
Hansen testified that Terence was reimbursed for a vacation trip to Las Vegas that Terence and Bobbie took with Hansen and his wife. Terence also insisted on reviewing all documentation that was requested by the Kern County auditors and would tell Hansen which documents could be given to the auditors and which should be withheld. Terence told employees they would be fired if they did not back him up during the audit.
Other witnesses testified to similar behavior by Terence, including DCCs hiring of several Cumberworth children, use of DCC employees by other entities in which Terence had an ownership interest, conflicts of interest involving Terence and the board of directors, and money invested, and lost, by DCC employees in Terences investment ideas.
Gautreaux was the only witness who testified that Bobbie had any involvement in the above matters. She explained that most of the expenses for which Terence sought reimbursement were charged to the Cumberworths personal credit card. The account statement separated purchases made by Bobbie from purchases made by Terence. Terence regularly sought reimbursement for charges made on the account by Bobbie. Bobbies direct involvement was limited to bringing the credit card bill into the office or bringing documentation for incurred expenses into the office. Bobbie also would call and request that an expense check be issued shortly before the credit card bill was due. Bobbie told Gautreaux the expense check should be in the same amount as the credit card bill.
Gautreaux also claimed there were occasions when Bobbie would submit receipts that were for personal expenses. The only example she could give was one occasion when Bobbie gave Gautreaux a credit card statement that included charges for her sons automobile insurance. Gautreaux told Bobbie that DCC could not reimburse the Cumberworths for their sons automobile insurance. Bobbie stared at Gautreaux for about 10 seconds and then stated she would discuss the matter with Terence. Bobbie also provided a receipt on one occasion for an expense for which Gautreaux believed the Cumberworths had received a credit.
After reviewing the entire record of the trial, we think the trial was tainted by Terences wrongdoing. The only disputed issue in this trial was whether Cooke and Bobbie acted with the necessary criminal intent during the course of the relationship between DCC and Cooke. Clearly, Terences activities at DCC that were not related to DCCs contract with Cooke did not have any relevance to this issue. Not only was the evidence irrelevant, the extensive amount of time spent developing this evidence significantly outweighed its probative value. (Evid. Code, § 352.)
The only potential relevance of Gautreauxs testimony about Bobbie would be if it were admissible pursuant to Evidence Code section 1101. This section begins with the general rule that evidence of a persons character is inadmissible to prove his or her conduct on a specific occasion. (Evid. Code, § 1101, subd. (a).) Subdivision (b) of this section, however, permits evidence that a person committed a specific act if it is relevant to prove some fact (such as motive, intent, or knowledge) and is not offered to prove his or her disposition to commit such an act.
The prosecutor argued before trial the evidence was relevant to the issue of Bobbies intent to commit the crimes with which she was charged.
Grand theft requires the specific intent permanently to deprive the owner of his or her property. Commercial bribery requires the specific intent to injure or defraud the victim, in this case DCC. Cooke and Bobbie based their defense, at least in part, on the assertion that each had a good faith belief that Bobbie earned the money she received from Cooke.
The question, therefore, was whether Gautreauxs testimony about Bobbies participation in the expense reimbursement process had any tendency in reason to prove Bobbie intended wrongfully to deprive DCC of its money. Gautreaux testified, in summary, that (1) Bobbie made charges on a personal credit card that Terence also used for business expenses; (2) Bobbie occasionally brought in documentation regarding expenditures made by Terence; (3) Bobbie occasionally called to request a check for the business expenditures made by Terence; (4) Bobbie occasionally asked the check be in the amount of the credit card invoice; and (5) on one occasion Bobbie submitted an invoice for her sons automobile insurance that Gautreaux refused to include in Terences expense report.
The difficulty with Gautreauxs testimony is that too much information was missing. It was not improper to use a personal credit card for personal expenses. There was nothing wrong with Bobbie bringing documentation of Terences business expenses into the office. There was nothing wrong with Bobbie requesting a check intended to reimburse Terence for business expenses. Gautreaux did not testify that on those occasions Bobbie requested a check for expenses that she (Bobbie) knew there were personal expenses included in the request. There was nothing wrong with requesting a check in the amount of the credit card invoice if they were all business expenses, or if the total business expenditures for which reimbursement was sought equaled or exceeded the amount of the credit card invoice. There was no testimony to the contrary. None of this testimony could lead to a reasonable inference that Bobbie sought to injure or defraud DCC.
Gautreaux testified that Bobbie sought reimbursement for personal expenses on only one occasion — when she brought in a credit card invoice that included her sons insurance bill. Gautreaux did not explain how she knew the item in the invoice was for Bobbies sons insurance, or how she knew the expense was not reimbursable. Her son worked for DCC, and Gautreaux did not testify that she knew the terms of his employment with DCC. Several employees had automobile allowances that may or may not have included insurance expense.
Neither the evidence regarding Bobbie nor the irrelevant evidence about Terence should have been admitted. The result of the trial courts erroneous ruling was to cast the long shadow of Terences malfeasance over these proceedings.
D. Expert testimony
Edward Johnston, the assistant auditor/controller/clerk for Kern County, testified for the prosecution. He began his career in the auditors office. He explained that when the audit team from Kern County arrived at DCC, the records were incomplete. When DCC failed to cooperate, it was informed by letter that all payments would be stopped unless complete records were provided. The records slowly began coming in at that time. Kern County payments to DCC were stopped because DCC was unable to document the costs they were assigning to the county contract. This audit eventually led to a criminal investigation.
The prosecutor then posed some hypothetical questions to Johnston based on two sets of circumstances. The basic question was which set of circumstances would present the most difficulty to the auditor when looking for theft. The first factual predicate was based on the chief executive officer of a corporation issuing unauthorized checks directly to his wife. The second factual predicate was based on the chief executive officer sending unauthorized checks to an independent contractor, who in turn sent some of the money back to the chief executive officers wife.
Predictably, Johnston opined that it would be more difficult to discover the theft of funds in the second factual scenario, describing that as a "classic kickback scheme set up with the intent to defraud a company of resources." The trial court overruled the objections of both Cooke and Bobbie and denied Bobbies motion for a mistrial. Both Cooke and Bobbie assert the trial court erred in permitting this testimony.
Experts are permitted to give opinions on subjects that are sufficiently beyond common experience that the opinions would assist the trier of fact. (Evid. Code, § 801, subd. (a).) It certainly did not require the assistance of an expert to determine which of the two hypothetical questions posed by the prosecutor would be more difficult to discover.
Johnstons opinion went beyond answering the question posed when he added that the scheme was set up with the intent to defraud a company of resources. This, of course, was the main, or ultimate, issue in this case.
"Otherwise admissible expert opinion testimony which embraces the ultimate issue to be decided by the trier of fact is admissible. (Evid. Code, § 805.) This rule, however, does not permit the expert to express any opinion he or she may have. (Piscitelli v. Friedenberg (2001) 87 Cal.App.4th 953, 972.) `"Undoubtedly there is a kind of statement by the witness which amounts to no more than an expression of his general belief as to how the case should be decided .... There is no necessity for this kind of evidence; to receive it would tend to suggest that the judge and jury may shift responsibility for decision to the witnesses; and in any event it is wholly without value to the trier of fact in reaching a decision." (Summers v. A.L. Gilbert Co. (1999) 69 Cal.App.4th 1155, 1182-1183.)" (People v. Killebrew (2002) 103 Cal.App.4th 644, 651.)
Johnstons comment clearly was his opinion on how the case should be resolved and should have been excluded. There were no facts in the hypothetical question on which such an opinion could have been based. Johnston failed to consider whether the wife worked for the independent contractor and thus earned the money she was paid. Moreover, it was far too tempting for the jury to give significant weight to this comment because of Johnstons superior knowledge of the malfeasance that occurred at DCC due to his involvement in the audit and investigation into the collapse of the company. This testimony should not have been permitted.
II. Prosecutorial Misconduct
The parties also contend the prosecutor committed misconduct during his closing argument.
A. Reference to other trials
When discussing reasonable doubt during his rebuttal argument, the prosecutor made the following comment:
"The standard is as the Court — as Judge Kelly will instruct you, which is a reasonableness standard, reasonableness. Thats all it is. And, ladies and gentlemen, on that subject, I would submit to you people are convicted all the time in this courthouse, in most courthouses throughout the state and the country on a lot, lot less evidence than we have in this case, a lot less persuasive and convincing evidence than we have in this case. So the standard, I would submit to you, definitely has been met, and it probably is met well over the reasonableness standard."
The People admit the prosecutor was "skating on thin ice" when he made this comment, but assert it was proper argument. It was not.
A prosecutor commits misconduct when he or she refers in closing argument to facts that are not admitted into evidence. (People v. Hill, supra 17 Cal.4th at pp. 827-828.) "[S]uch practice is `clearly ... misconduct [citation], because such statements `tend[] to make the prosecutor his own witness — offering unsworn testimony not subject to cross-examination. It has been recognized that such testimony, "although worthless as a matter of law, can be `dynamite to the jury because of the special regard the jury has for the prosecutor, thereby effectively circumventing the rules of evidence." [Citations.] [Citations.] `Statements of supposed facts not in evidence ... are a highly prejudicial form of misconduct, and a frequent basis for reversal. [Citation.]" (Id. at p. 828.)
Here, the prosecutor told the jury, based on what he claimed to be his personal experience, that it must convict Cooke and Bobbie because the jury had more persuasive evidence before it than other juries that had reached guilty verdicts. There was no evidence to support this assertion of fact.
B. Forgery of legal documents
In his rebuttal argument, the prosecutor attacked Cooke using the settlement of the Isle of Capri lawsuit discussed above.
"Let me talk now about the idea of Defendant Ira Cookes involvement in this forgery incident. Ladies and gentlemen, forgery is a conduct involving moral turpitude. It is a conduct involving dishonesty is what that means. And that is extremely relevant and appropriate for you folks to consider in evaluating this case.
"Its not my opinion. Its the law in the state of California that says when you have a person who committed an act of dishonesty, an act amounting to a crime of moral turpitude, even if its just the equivalent of a —"
At this point Cookes counsel objected. The prosecutor then offered to clear up any confusion by referring to CALJIC No. 2.20 (believability of a witness). After reading a portion of the instruction, the prosecutor resumed his comments.
"So Im not going to read all these, ladies and gentlemen, but if you go down, the second to the last one says past criminal conduct of a witness amounting to a misdemeanor. Okay? Im not saying anybody was convicted of a crime, not convicted of a felony or convicted of a misdemeanor. It doesnt matter whether or not they were convicted of it. Whats important in this, ladies and gentlemen, is whether or not they did the conduct which amounted to — which was the equivalent of a misdemeanor."
At this point Cookes counsel again objected and a conference was held outside the presence of the jury. The trial court began the conference by chastising Cookes counsel for objecting during the prosecutors closing argument. The trial court concluded its comment to Cookes counsel with the following:
"Now, Im not going to allow any more of it. Its not going to be good for your clients interest for the Court to get in the middle of these things in front of a jury, but if its necessary I will. I have in the past when it gets to that point on other matters, and I will again if its necessary, but I dont feel comfortable in getting in the middle of this before a jury; and, therefore, I want to admonish you, [Cookes counsel], dont [object to the prosecutors argument] again. They may do this in Maryland, but they dont do it in California. And its not fair to the other side. Its not fair to the jurors. They have been disrupted completely now from a line of argument."
When the parties returned to the courtroom, the trial court instructed the jury as follows:
"The sidebar conference has been concluded, and I would make [a] brief comment to the jurors. [¶] [The prosecutor] was arguing relative to one of the jury instructions which you will have read to you by me which has to do with the subject of believability of a witness. This is designed to provide you as jurors with the standards and the considerations that you should make as it related in appropriate cases to believability of a witness.
"Now, [the prosecutor] has argued here at this stage of the process as to the testimony of Mr. Cooke and an element of his background. For your information, this matter has been discussed before this trial started with counsel in pretrial proceedings. We have completely, I thought, exhausted this subject in those proceedings. The Court has made rulings previously as it relates to what is allowable, and thats what the attorneys are required to follow. What I determine to be the law is what they must follow. We got into it again with this objection by [Cookes counsel].
"So — so that its clear to you folks, this should not have any impact on your judgment in this case, the fact that theres been a dispute again about this subject, this time in front of you.... [W]hen we reviewed these jury instructions on Monday we again visited this subject matter at some length, so disregard the delay thats been experienced by this process.
"And I have directed [the prosecutor] to go back to the beginning of this paragraph and just argue and proceed. The — for the record, the objection that was interposed by [Cookes counsel] is denied."
The prosecutor then resumed his comments.
"Ladies and gentlemen, the point Im talking about in this is just so you folks know, this isnt, you know, my personal opinion that this type of evidence is relevant. The law of the state of California says its relevant and may be and even should be considered by you folks.
"Its kind of common sense too. When somebody engages in a certain type of conduct which requires a certain type of intent and that intent is ... criminal or improper in nature, it makes sense that that person harbors the same type of intent on a latter occasion. Okay?
"And in this case the facts are that a client — actually a former client of Ira Cookes, who was Isle of Capri Casinos, if you recall the testimony, made a claim against Ira Cooke involving an accusation that Ira Cooke forged some legal documents. And Ira Cooke settled those claims.
"Now, I suppose, ladies and gentlemen, according to [Cookes counsel], the reason a person — the reason Ira Cooke settled the claims against him involving the accusation for forgery was because they had absolutely no merit, you know, they were bogus, it was a bogus claim, it had no merit, it was all made up, thats why he settled it. Okay?
"So you can see whats happening here, ladies and gentlemen. Theres a claim against Ira Cooke for forgery, he settled that claim, and that incident can be used by you in evaluating the believability of Ira Cooke. Thats what the law says, and thats the point." (Italics added.)
As explained above, the trial court erred in permitting the prosecutor to admit evidence of the settled lawsuit to be introduced into evidence. The prosecutor compounded this error in closing argument by using the evidence in an improper manner. The sole purpose for admission of the evidence was to impeach Cookes credibility. In the italicized portion of the argument quoted above, the prosecutor stepped over this line and used the settlement of a civil suit as evidence of Cookes intent to defraud DCC. This was wrong.
The prosecutor also misstated the evidence by asserting that Cooke had committed forgery. There was no evidence that Cooke committed forgery. The only evidence that was introduced was that Cooke was sued by a former client, the complaint alleged a signature was forged, and the suit was settled. As explained above, to jump to the conclusion that Cooke committed forgery is pure speculation, not a reasonable inference that could be drawn from the evidence.
In his initial closing argument, the prosecutor was even more blunt. "The final thing Ill have to say about Ira Cooke, ladies and gentlemen, on the issue of commercial bribery is do you think that a person who is willing to forge a legal document regarding one of his clients would also be willing to send kickbacks to somebody? Do you think that a person who has the intent and the willingness to forge a legal document regarding a business deal with one of his clients would also have the same intent and willingness to engage in a little kickback scheme? I would submit to you absolutely, absolutely. And that is the type of person that Ira Cooke is. Thats the way he does business. And ... he crossed the line. He crossed the line on the forgery incident. He crossed the line in this case, ladies and gentlemen." Cooke did not object to this part of the argument. Any claim of misconduct, therefore, has been waived. It is relevant to the issue of prejudice, however, since, as explained in section I.A., ante, it should not have been admitted in the first instance.
III. Miscarriage of Justice
A judgment shall not be set aside because evidence was erroneously admitted unless, after an examination of the entire cause, we conclude there has been a miscarriage of justice. (Cal. Const., art. VI, § 13.) A miscarriage of justice occurs if it is reasonably probable that the defendant would have received a more favorable result had the error not occurred. (People v. Breverman (1998) 19 Cal.4th 142, 149.)
"When the issue `focuses on comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion. [Citations]" (People v. Harrison (2005) 35 Cal.4th 208, 244.)
In this case, we must determine if the above errors in the admission of evidence lead us to conclude it is reasonably probable that Cooke and Bobbie would have received a more favorable result had the errors not occurred, or if there is a reasonable likelihood the jury applied the complained-of remarks in an objectionable manner. We conclude reversal is required under both standards of review.
As stated above, the main issue at trial was the intent with which Cooke and Bobbie acted. Both argued there was no intent to defraud DCC. Cooke emphasized that he earned the money he was paid by DCC, and he believed Bobbie was earning the money he was paying her. Bobbie testified that she performed work for DCC under the direction of her husband, Terence. She accepted the money she was paid because she believed she earned it. Several witnesses testified to Terences dynamic personality and his tendency to keep information to himself. This combination led Cooke and Bobbie to believe the arrangement was above board.
The jury was instructed the defendants would not have the required mental state to commit the charged crimes if they acted in ignorance or in the honest belief that certain facts existed, or if they had a good faith belief that he or she had a right to the money received from DCC.
To obtain a conviction, therefore, the prosecutor was required to convince the jury that Cooke and Bobbie knew they were involved in a scheme to defraud DCC. He utilized the secrecy with which the transaction was conducted, as well as the obvious appearance of impropriety produced by the transfer of DCC funds to Cooke and then back to Terence and Bobbie.
The prosecutors job, however, was eased considerably by the trial courts evidentiary rulings. Because the trial court admitted the evidence about the lawsuit in which Cooke was involved, the prosecutor argued that Cooke had a propensity to commit bad acts, and this scheme was merely another example of his character. The trial courts comments after Cookes objection to this line of argument served only to emphasize the prosecutors remarks.
Because the trial court permitted the prosecutor to introduce evidence of Terences abuses of power at DCC, the jury was more likely to infer that Bobbie, his wife, admitted her guilt when she invoked her Fifth Amendment right against self-incrimination. The introduction of Terences abuses also cast a pall over the entire trial, creating a substantial risk of inflaming the jurys passions.
The prosecutors misconduct in arguing facts not in evidence invited the jury to use those "facts" to convict Cooke and Bobbie and was an obvious attempt to appeal to the jurys passions in an improper manner.
There were at least two other instances where the prosecutor argued facts with no evidentiary support. He placed great emphasis on the IRS Form 1099 issued by Cooke to Bobbie for the payments made to her. The prosecutor argued this was another example of fraud by Cooke. There was no testimony about the propriety or impropriety of issuing an IRS Form 1099 under the circumstances present in this case. We reject the prosecutors assertion that the proper use of IRS Form 1099 is common knowledge.
Second, the prosecutor argued that Cooke formed, or contemplated forming, a company with Terence. The prosecutor argued that Cookes motive in participating in this kickback scheme was to keep Terence happy so he could make money with this new company. No witness testified about this new company referred to by the prosecutor. We need not, and do not, rest our decision on these matters, but merely point them out to demonstrate the lengths the prosecutor was willing to go to obtain a conviction.
We need not decide whether any single error would require the reversal of the judgment because we are convinced that the cumulative effect of these errors resulted in a miscarriage of justice. The prosecutor stepped over the line in his arguments to the jury and placed great reliance on the evidence erroneously admitted. The invitation to the jury to use this information in an improper manner is too great to ignore or deem harmless.
IV. Substantial Evidence of Commercial Bribery
Our decision to reverse the judgment does not relieve us of our obligation to address Bobbies argument that the conviction for commercial bribery is not supported by substantial evidence. If she is correct, double jeopardy principles would prevent retrial on this count. (People v. Hill, supra, 17 Cal.4th at p. 848.)
Our review of the sufficiency of the evidence is deferential. We "`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. [Citation.]" (People v. Hillhouse (2002) 27 Cal.4th 469, 496; People v. Superior Court (Jones) (1998) 18 Cal.4th 667, 681.) We focus on the whole record, not isolated bits of evidence. (People v. Slaughter (2002) 27 Cal.4th 1187, 1203.) We presume the existence of every fact the trier of fact reasonably could deduce from the evidence that supports the judgment. (People v. Kraft (2000) 23 Cal.4th 978, 1053.) We will not substitute our evaluations of a witnesss credibility for that of the trier of fact. (People v. Koontz (2002) 27 Cal.4th 1041, 1078.)
Commercial bribery, as pertinent to this case, occurs when (1) "Any employee ... solicits, [or] accepts ... money ... from a person other than his or her employer ... corruptly and without the knowledge or consent of the employer, in return for using or agreeing to use his or her position for the benefit of that other person," or (2) when "any person ... offers or gives an employee money" in return for the employee using or agreeing to use his or her position for the benefit of the person offering the money. (§ 641.3, subd. (a).)
Bobbie argues that (1) since she did not pay anyone any money, (2) she did not offer to use her position for the benefit of any other person, and (3) she did not meet the statutory definition of an employee (§ 641.3, subd. (d)(1)), or employer (§ 641.3, subd. (d)(2)), she could be liable under the statute only under the theory of aiding and abetting or as a coconspirator. The essence of her argument, as we understand it, is that the commercial bribery was complete when Terence made the proposal to Cooke, and Cooke agreed to the arrangement. The testimony established that Bobbie was not present when the agreement was made. She argues, therefore, that since the crime was complete when the agreement was reached, she could not have aided and abetted the crime.
Recognizing that there are few cases citing section 641.3, and no cases discussing this precise issue, Bobbie cites section 68. This statute and its companion, section 67, criminalize the conduct of offering or paying a bribe to a public employee, or the conduct of a public employee in soliciting or accepting a bribe. She then cites two cases which she contends support her argument.
While sections 67 and 68 appear to be analogous to section 641.3, the cases cited by Bobbie do not resolve this issue. Combined, these two statutes criminalize four distinct acts: (1) offering a bribe; (2) soliciting a bribe; (3) accepting a bribe; or (4) paying a bribe.
One of the cases cited by Bobbie is People v. Brigham (1945) 72 Cal.App.2d 1. Brigham was an examiner for the Department of Motor Vehicles. He was charged with offering to provide a drivers license in exchange for payment. Brigham argued the trial court erred by refusing to give accomplice instructions. He theorized the person to whom he offered to sell a drivers license was an accomplice. Since this individual testified at trial, accomplice instructions should have been given.
The appellate court rejected the argument. "Section 68 of the Penal Code, the violation of which appellant was adjudged guilty, is concerned with the bribe seeking executive or ministerial officer, employee of the state, county or city, etc. There is nothing in the language, when analyzed, to suggest any intention to include the victim as an offender. Here the culprit is the bribe seeker. And, the crime is complete when the individual described in the section `asks, receives, or agrees to receive any bribe. No action on the part of the victim, such as payment, delivery or otherwise, is necessary to complete the offense." (People v. Brigham, supra, 72 Cal.App.2d at pp. 6-7.)
We agree with Brighams holding, but it does not address the issue in this case because it addresses only soliciting of a bribe by a government official.
Similar to sections 67 and 68, section 641.3 is violated if someone (1) offers, (2) solicits, (3) accepts, or (4) pays a bribe in the private sector with the intent of either obtaining a benefit (the payor), or using his or her position as an employee to bestow a benefit (the payee). In this case, under the prosecutions theory, Terence violated the statute by soliciting a bribe from Cooke, and by accepting the payments from Cooke. According to the prosecution, Cooke violated the statute by paying the bribe. If Cooke had not paid money to Terence, he would not have violated the statute.
Bobbies argument focuses only on Terences action in soliciting a bribe and ignores the prosecutions theory that Terence also violated the statute by accepting money from Cooke (through payments to Bobbie), and that Cooke violated the statute by making the payments to Terence (through Bobbie).
Since the prosecution charged only one count of violating section 641.3, it obviously conceded the course of conduct in this case was a continuing crime, not separate incidents. Bobbies focus on the continuing nature of the crime is thus erroneous.
The issue is whether Bobbie aided and abetted Cookes payment of money to Terence or Terences receipt of the money from Cooke. Clearly she did. She accepted checks from Cooke and deposited them into the joint checking account held in her name and the name of her husband. The jurys conclusion that the payments by Cooke were a bribe, and that Bobbie aided and abetted this criminal conduct, was amply supported by the evidence presented by the prosecution. The prosecution will, therefore, be permitted to prosecute the commercial bribery charge against Bobbie if it chooses to retry the matter.
DISPOSITION
The judgments are reversed.
We Concur:
HARRIS, Acting P.J.
DAWSON, J.