Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA321704, Michael E. Pastor, Judge. Affirmed.
Law Offices of Edi M. O. Faal and Edi M. O. Faal for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Jason Tran and Dana M. Ali, Deputy Attorneys General, for Plaintiff and Respondent.
ALDRICH, J.
Defendant and appellant Khosro Dowlatshahi appeals from the judgment entered following a jury trial that resulted in his convictions for first degree residential burglary and grand theft. Dowlatshahi was sentenced to a prison term of nine years.
Dowlatshahi contends: (1) the victim’s consent to Dowlatshahi’s entry into his home precludes the burglary conviction; (2) his conviction for grand theft, and the jury’s findings regarding the value of the stolen property, must be reversed because they were based on the uncorroborated testimony of an accomplice; (3) the trial court erroneously failed to instruct that an accomplice’s testimony must be corroborated; (4) his counsel was ineffective; and (5) the trial court erroneously admitted evidence of his prior misconduct. Discerning no error, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. Facts.
a. The “cloned money” scam.
Klee Irwin was the Chief Executive Officer of Irwin Naturals, a vitamin and herbal supplement company that generated approximately $140 million dollars in sales in 2006. Irwin also owned a recording company. During December 2006, one of the recording artists affiliated with Irwin’s label asked Irwin to meet a man named “Mikey,” whom the artist believed would be a good contact for them in the music business. Irwin met with Mikey at the Marina Del Rey Marriott Hotel. The men exchanged pleasantries and telephone numbers.
Approximately 10 days later, Mikey telephoned Irwin and asked to meet him at the Marriott again, because he had an opportunity that Irwin “ ‘simply [had] to see.’ ” When Irwin arrived, Mikey introduced him to appellant Dowlatshahi, who gave his name as “Max.” Irwin accompanied Dowlatshahi and Mikey to a hotel room. Dowlatshahi borrowed a $100 bill from Irwin and stated, “ ‘Come on over here. I will show you what we do.’ ”
Irwin followed Dowlatshahi to the bathroom, where numerous plastic containers, a glass vial containing a green solution, other substances that appeared to be chemicals, and what appeared to be a miniature photocopying machine, were set up. Dowlatshahi placed a second $100 bill in a chemical solution, turning it completely white. He then completed several “steps,” involving dipping the blank bill and what appeared to be Irwin’s bill in several liquids. He then placed both bills in the machine, which emitted a green light. After completing several more steps with the liquids and the bills, Dowlatshahi placed what appeared to be two identical $100 bills in front of Irwin.
When Irwin asked what Dowlatshahi had done, Dowlatshahi explained that he was a chemistry professor and had invented a process called molecular cloning. He averred that “at [the] molecular level,” both bills were identical. Dowlatshahi explained that the new bill was not a counterfeit, but “an exact cloned real bill.” Dowlatshahi invited Irwin to take the bills home, inspect them, and have them examined by an expert. Irwin was intrigued because both bills appeared to have the same serial number.
Dowlatshahi explained that he had been cloning bills for the last 20 years, using the process to support his family. However, he was a compulsive gambler and spent the cash rapidly. The money cloning process was a secret, and people would kill him to obtain the technology. If the government knew about his activities, he averred, he would be in danger “because it is not counterfeiting. It is... molecular cloning.” He told Irwin, “ ‘We only have a small amount of this solution left that allows us to clone this money, and so we need somebody, a wealthy individual, who has cash, who can get us cash, because we need to do one last hurrah, one last cloning series of batches of bills and we need your help.’ ” Dowlatshahi referred to the green solution as the “ ‘developer solution.’ ” He explained that once an ampoule of “developer solution” was opened, it could only be used on one batch of money. Dowlatshahi told Irwin that he could keep one half of all the money cloned.
Using scientific-sounding jargon, Dowlatshahi took pains to distinguish cloning from counterfeiting, explaining that a “loophole” existed because a cloned bill was in every way a real bill, down to the molecular level. According to Dowlatshahi, the counterfeiting laws were designed to prevent people from making and printing new money. Irwin had never heard of cloning money, and he was unfamiliar with counterfeiting. Irwin told Dowlatshahi he was not sure he wanted to be involved with the operation, as it “ ‘seem[ed] weird’ ” and did not “ ‘smell right.’ ” Irwin did not wish to do anything that would be illegal. However, Dowlatshahi seemed intelligent and trustworthy. When Irwin looked at the two bills under a microscope at home, they appeared to be identical. The more he looked at the bills, “the more [he] just was sort of confused and amazed.”
Irwin remained in regular contact with Dowlatshahi, developing a personal relationship with him. During dozens of phone conversations and personal meetings, the men further discussed how the cloning process worked and why it was not illegal. Dowlatshahi regaled Irwin with stories of his life and childhood. Irwin trusted and liked Dowlatshahi, who did not attempt to pressure Irwin to invest in his “cloning” operation. Dowlatshahi also told Irwin that once a bill was cloned, it could not be used to clone money again, but could be switched for a new bill in Las Vegas. Irwin traveled to Las Vegas and discovered that Dowlatshahi was correct.
Eventually convinced that Dowlatshahi was “completely legitimate,” Irwin decided to invest in the cloning operation. Dowlatshahi did not request a specific amount of money from Irwin, but instead allowed Irwin to set the amount as he got “more excited about the opportunity.” Irwin believed that, “if there was a loophole and it wasn’t counterfeiting, and this guy had this... invention that he showed me in front of my own eyes, that it was a once in a lifetime opportunity.” Irwin decided to invest $1.6 million with Dowlatshahi, i.e., $1.5 million that he obtained from his company as a loan, and another $100,000 in cash that he had available.
Dowlatshahi, however, told Irwin that he might not be able to work with him unless Dowlatshahi’s wife, Henrietta Purcell, trusted Irwin. To allow the two to become acquainted, Purcell and Dowlatshahi, along with their son, Amir, breakfasted with Irwin. Purcell explained she was opposed to anyone else becoming involved in the cloning business, and her son’s safety was of paramount importance. The breakfast was a “milestone” for Irwin, as he became more comfortable with the idea of investing after meeting Purcell.
b. The theft of Irwin’s cash.
Irwin arranged with his bank, Alliance Bank, to withdraw $1.5 million in cash in $100 bills. Irwin told the bank the cash was needed for a jewelry auction purchase, and signed a document so stating. On Friday, January 12, 2007, at approximately 4:00 p.m., Irwin, accompanied by Dowlatshahi and Amir, picked up the cash from the bank. The trio left the bank through a back entrance and transported the cash to Irwin’s nearby office.
Before going through with the “cloning,” however, Irwin wished to see Dowlatshahi’s home in order to satisfy himself once and for all that Dowlatshahi was “legitimate.” For that purpose, on Saturday, January 13, 2007, Irwin picked up Dowlatshahi and drove him to what was purportedly Dowlatshahi’s home in Santa Barbara. Dowlatshahi directed Irwin to a lovely, expensive home near the beach, where Purcell and Amir were waiting. Photos of Dowlatshahi and his family were “ ‘all over the place,’ ” and Purcell cooked a delicious brunch for the group. Dowlatshahi showed Irwin a larger machine and performed another operation involving “a lot of... mumbo jumbo” in which a chemical placed on the machine fumed and smoked. Seeing Dowlatshahi’s house “sealed the deal” for Irwin.
Fully convinced that Dowlatshahi and his family were on the up and up, Irwin, assisted by Dowlatshahi, Purcell, and Amir, loaded their vehicles with suitcases and containers. Irwin and Dowlatshahi headed back to Los Angeles to count the money and prepare for the “molecular cloning,” followed by Purcell and Amir approximately one hour later. Irwin retrieved the $1.5 million from his office, and added to that an additional $100,000 he had on hand. Irwin’s family was away on a three-day vacation.
Back at Irwin’s house, Dowlatshahi and Irwin prepared for the “cloning” process. Dowlatshahi provided dry and liquid “chemicals” in different colors, and a variety of containers. Dowlatshahi also had a “big machine type of thing” that resembled a photocopier. Irwin and Dowlatshahi, joined later by Purcell and Amir, began counting and organizing the money on Irwin’s dining room table, which took all day, and continued into the night. Each bill was counted and placed inside a folded black piece of paper. Dowlatshahi brought in “loaves” of white paper in the shape of bills that he said had to be kept frozen. Around midnight, everyone was tired, so Irwin suggested they retire for the night. Dowlatshahi and Purcell departed to stay at their daughter’s Santa Monica home, but Amir spent the night at Irwin’s residence.
The next morning, Dowlatshahi and Purcell returned and the group continued preparing the money while Purcell cooked breakfast. They continued counting and placing bills in the black papers all day. During that period, Irwin’s sister and mother stopped by, but he turned them away. At approximately 4:00 p.m., Irwin went to take a shower and told the others he would return in 20 minutes. He left Dowlatshahi, Purcell, and Amir in the living room.
When Irwin returned downstairs approximately one half hour later, Dowlatshahi, Purcell, and Amir had vanished, along with most of the money, the “cloning machine,” and some of the “cloning” paraphernalia. Irwin called Dowlatshahi’s, Purcell’s, and Amir’s cellular telephones, but received no answer. At that moment, it dawned on Irwin that he was the victim of a well-crafted scam. He took a closer look at the “cloning” paraphernalia and realized it was not genuine. He felt embarrassed and stupid for being caught up with such a questionable endeavor. Wanting to get everything out of his home, he disposed of the paraphernalia in a nearby restaurant dumpster.
Approximately $245,000 was left behind when Dowlatshahi left Irwin’s home.
c. The investigation.
The next morning, Monday, January 15, 2007, Irwin telephoned the Federal Bureau of Investigation (FBI) to report the theft. At the FBI’s suggestion, Irwin also notified the Los Angeles Police Department (L.A.P.D.), which sent uniformed officers to take a report. Because he was embarrassed, wanted to protect his reputation, and did not believe the police would assist him if he told them the truth about the money cloning scheme, Irwin told officers that he had intended to buy diamonds from Dowlatshahi, but that Dowlatshahi had stolen the money. Irwin directed police to the dumpster where he had tossed the containers and chemicals. He falsely told police that Dowlatshahi had wished to test the money for counterfeit bills, and the paraphernalia had been for that purpose. Various items were recovered from the dumpster and identified by Irwin at trial, including a pink and gray insulated bag containing four bundles of white paper, a clear plastic container containing black powder, a set of plastic vials which appeared to contain food coloring, bundles of black paper, and Federal Reserve money bands that had been used to secure the cash.
When Irwin was interviewed again by detectives at the police station, he persisted in repeating the diamond sale story. Irwin took police to the Santa Barbara house, which turned out to be a vacation rental. There, Detective Kevin Jackson discovered a “fake money pack,” a clear plastic jar containing black powder, and a Michael’s receipt memorializing purchase of some of the items. The landlord provided information leading Jackson to Dowlatshahi, Purcell, and Amir. A search of Purcell’s residence revealed a sheath of black paper and a large Lucite box containing “a significant amount of electronic wiring.” When the Lucite box was plugged into an outlet, it made noises and lights flashed.
On February 13, 2007, Irwin told L.A.P.D. detectives about the cloning scheme and admitted he had never intended to purchase diamonds from Dowlatshahi.
On April 25, 2007, Dowlatshahi was stopped by highway patrol officers on a Los Angeles area freeway. Officers recovered $18,000 in $100 bills, as well as $75,000 in casino chips, from Dowlatshahi’s car. A silver suitcase, that Irwin identified as being one of the “cloning machines,” was found in Dowlatshahi’s trunk. A vial containing a green liquid was found inside a foam container in the glove compartment.
Photographs from Alliance Bank’s camera system showed Dowlatshahi, Amir, and Irwin at Alliance Bank on January 12, 2007, when Irwin picked up the cash. Date- and time-stamped photographs obtained from a surveillance camera in use at Irwin’s house showed Dowlatshahi, Purcell, and Amir leaving Irwin’s residence on January 14, 2007, at 5:38 p.m., with a large suitcase.
d. Expert testimony regarding the “green goods” scam and Dowlatshahi’s participation in such a scheme in 1993.
Ronald Weiss was a former special agent with the United States Secret Service, who was familiar with the “green goods” scam. The perpetrator of the scam would typically contact the victim through a broker, who would search for wealthy but gullible individuals. The perpetrator would then show the victim two bills with their serial numbers altered to appear identical. He or she would explain that bills can be “cloned,” but only once per bill. The perpetrator would then develop a trusting relationship with the victim, and ask the victim to put up money for the process in exchange for splitting the proceeds. Once the victim agreed, the money would be delivered to a location where the perpetrator and victim would cut and fold black pieces of paper around the bills. Eventually, when the “chemical solution”–usually a green solution stored in a glass vial–was to be poured onto the stacks of black paper, one of the perpetrators would distract the victim by breaking the vial. While the victim was distracted, the perpetrators would switch the bundle of real bills with a bundle of blank bills. The perpetrators would ask the victim to stay and guard the money while they obtained another vial, but would never return. Alternatively, the perpetrators would leave with the money when the victim left the room for a substantial period of time. Most victims never contacted police for fear that they had been involved in an illegal counterfeiting operation. The “green goods” scam was understood by only a handful of persons in the United States.
In March 1993, Weiss had investigated a case involving Dowlatshahi. Weiss engaged in undercover operations in which he had conversations with Dowlatshahi’s broker, a Mr. Boatwright, regarding Dowlatshahi’s ability to clone money. Boatwright told Weiss that he was representing a doctor who had developed a formula to duplicate money. The doctor was short of funds, however, and needed a “volume of funds in order to duplicate” the money. When Weiss asked why the doctor did not simply duplicate the bills more than once, Boatwright explained that the duplication could only be done once. At a later meeting, Boatwright provided Weiss with two $20 bills that appeared to have identical serial numbers as an example of what “the doctor could perform.” Weiss, an expert in currency, recognized that the serial numbers had been altered. Weiss subsequently met with Dowlatshahi in a Las Vegas casino restaurant. Dowlatshahi asked Weiss if he was a law enforcement agent, but Weiss denied it. Dowlatshahi then explained he was willing to meet with Weiss again to show him the duplication process, for which he needed investors. However, the next meeting never occurred because Dowlatshahi repeatedly changed the location at the last minute.
2. Procedure.
Trial was by jury. Dowlatshahi was convicted of first degree residential burglary (Pen. Code, § 459) and grand theft (§ 487, subd. (a)). The jury further found true allegations that a person other than an accomplice was present in the residence during commission of the burglary (§ 667.5, subd. (c)); Dowlatshahi committed a theft of over $50,000 in a single transaction or occurrence, of property valued at over $100,000 and over $1,000,000 (§ 12022.6, subd. (a)(3)); the manner in which the crime was carried out indicated planning, sophistication, or professionalism; and the crime involved the taking of property of great monetary value. Dowlatshahi’s motion for a new trial was denied. The trial court sentenced Dowlatshahi to nine years in prison. It ordered him to pay victim restitution of $1,342,900, and imposed a restitution fine, a parole restitution fine, and a court security fee. Dowlatshahi appeals.
All further undesignated statutory references are to the Penal Code.
DISCUSSION
1. The fact Irwin consented to Dowlatshahi’s entry into his home does not preclude Dowlatshahi’s conviction for burglary.
Dowlatshahi urges that his conviction for burglary cannot stand because, as a matter of law, the evidence showed Irwin consented to his entry into his residence. This contention is meritless.
Dowlatshahi’s new trial motion, which was denied, was brought on this same ground.
A person is guilty of burglary if he or she enters any house or room with the intent to commit a theft or felony therein. (§ 459; People v. Horning (2004) 34 Cal.4th 871, 903; People v. Smith (2006) 142 Cal.App.4th 923, 929.) It is well settled that the “entry need not be a trespass to support a burglary conviction. [Citations.] Thus, a person who enters for a felonious purpose may be found guilty of burglary even if he enters with the owner’s or occupant’s consent.” (People v. Frye (1998) 18 Cal.4th 894, 954, italics added, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22; People v. Horning, supra, at p. 903 [“Defendant also argues that the victim might have invited him into the house. If so, that also makes no difference. ‘One who enters a room or building with the intent to commit a felony is guilty of burglary even though permission to enter has been extended to him personally or as a member of the public.’ ”]; People v. Felix (1994) 23 Cal.App.4th 1385, 1397-1398 & fn. 9.)
A property owner’s consent constitutes a defense under limited circumstances not present here. An owner’s consent to the entry constitutes a defense to a burglary charge only when the accused is the owner of the property, “or when the owner actively invites the accused to enter, knowing the illegal, felonious intention in the mind of the invitee.” (People v. Felix, supra, 23 Cal.App.4th at pp. 1397-1398, second italics added; People v. Salemme (1992) 2 Cal.App.4th 775, 777-778.) “There must be evidence ‘of informed consent to enter coupled with the “visitor’s” knowledge the occupant is aware of the felonious purpose and does not challenge it.’ ” (People v. Felix, supra, at p. 1398.) “This last point is crucial. The occupant must know the person he is inviting into the home intends to interfere with his possessory rights; and the invitee must be able to show the occupant possesses this knowledge. Otherwise, a business could never be burglarized by an employee, nor could a business open to the public ever be burglarized. [Citation.] The invitee’s illegal purpose negates the occupant’s express permission.” (Ibid.)
Dowlatshahi argues that Irwin’s consent to his entry into the house constitutes a defense because Irwin allowed him inside so they could collaborate in a felonious counterfeiting scheme. In support of his contention that Irwin conspired with him to unlawfully duplicate United States currency, Dowlatshahi points to portions of Irwin’s trial testimony that suggested Irwin was aware the “cloning” operation might not be legal. Dowlatshahi’s argument misses the mark. Neither Irwin nor Dowlatshahi was charged with counterfeiting or related crimes. Instead, Dowlatshahi was charged with theft of Irwin’s approximately $1.3 million. The target crime in the burglary was the theft, not counterfeiting, and the jury was so instructed. Irwin consented to Dowlatshahi’s entry into his home to “clone” money. Whether or not he could have been charged with conspiring to counterfeit, Irwin manifestly did not consent to Dowlatshahi’s entry into the home to steal his $1.3 million. Likewise, Dowlatshahi did not enter Irwin’s home with the intent to counterfeit money; he was well aware the “cloning” process was a sham. He entered the home with the intent to steal Irwin’s cash, using the purported cloning as a ruse. The relevant question is not whether Irwin conspired to counterfeit money; instead, the question is whether he consented to Dowlatshahi’s entry into his house, knowing Dowlatshahi intended to steal his $1.3 million. (People v. Felix, supra, 23 Cal.App.4that p. 1398.) Clearly, Irwin did not.
In particular, Dowlatshahi points to the following evidence. (1) Irwin acknowledged Dowlatshahi told him that if the government knew about the cloning, Dowlatshahi’s life would be in danger. (2) Irwin initially stated he did not wish to get involved with the cloning scheme because it “seem[ed] weird” and did not “smell right.” (3) Irwin lied when withdrawing the cash, signing a document stating that that the money was to be used to purchase jewelry. (4) Irwin changed “cloned” money for “clean” money in Las Vegas, in effect “laundering” the “cloned” money. (5) Irwin sent his family on a three-day vacation so they would be out of the way when the “cloning” was taking place, and shooed his mother and sister away when they came to visit. (6) Irwin repeatedly lied to the FBI and the L.A.P.D., stating he had withdrawn the money to buy diamonds. (7) Irwin did not seek advice from two corporate attorneys who worked for him, because “it was a very sort of questionable thing” and he was “smart enough to know [that] there is no attorney who would opine on such a thing.” (8) Irwin admitted the cloning “sound[ed] fishy” and “looked bad,” and he had a suspicion it was illegal. (9) Irwin believed that “Mikey,” who introduced him to Dowlatshahi, had organized crime connections.
The jury was instructed that to prove Dowlatshahi was guilty of burglary, the People were required to prove “1. The defendant entered a building or room within a building; [¶] AND [¶] 2. When he entered a building or room within [a] building, he intended to commit theft. [¶]... [¶] A burglary was committed if the defendant entered with the intent to commit theft.” (Italics added.) The jury was further instructed that the People were required to prove Dowlatshahi took possession of property owned by someone else, without the owner’s consent, intending to deprive the owner of it permanently, and moved and kept the property.
People v. Hinton (2006) 37 Cal.4th 839, 885-886, compels rejection of Dowlatshahi’s arguments. There, the defendant, Hinton, was the supplier in a large drug deal. Victim Barnes was brokering the deal, and several other men were the purchasers. Barnes allowed Hinton, Hinton’s accomplice, and the purchasers into Barnes’s motel room to transact the deal. Unbeknownst to Barnes and the purchasers, the packages Hinton provided contained flour, not cocaine. When the purchasers began to test the packages to determine the purity of the purported cocaine, Hinton’s accomplice shot them. (Id. at pp. 848-853.) On appeal, Hinton argued that “the evidence of burglary was insufficient because Barnes, sharing defendant’s felonious intent, had invited defendant into the motel room.” (Id. at p. 885.) Hinton rejected this argument, explaining, “[a]lthough Barnes unquestionably knew of and participated in the drug transaction, the felonious intent underlying burglary-murder and the burglary-murder special circumstance in this case was the intent to rob, and the record contains no evidence that Barnes knew of and endorsed that felonious intent. In particular, there was no evidence that Barnes was aware the packages contained flour, inasmuch as he was in the process of testing the drugs at the time the shooting began. There was also no evidence that he intended to rob [the buyers]. Indeed, Barnes was shot twice and killed in the course of the burglary-robbery. Because there was no evidence that Barnes knew of or endorsed defendant’s intent, there was ample evidence to support the burglary-murder special circumstance. [Citations.]” (Id. at p. 886, italics added, fn. omitted.)
Similarly, here, even if Irwin knew of and endorsed an intent to illegally duplicate or counterfeit money, as Dowlatshahi suggests, there was no evidence whatsoever that Irwin knew of and consented to Dowlatshahi’s theft of Irwin’s money. Accordingly, the fact Irwin allowed Dowlatshahi into his home does not constitute a defense to the burglary.
People v. Thomas (1977) 74 Cal.App.3d 320, cited by Dowlatshahi, does not assist him. In Thomas, the defendant broke the lock on a television shop and removed a few items. When police arrived, he informed them that he was removing the items for safekeeping at the owner’s direction, because the store was “ ‘supposed to be ripped off that night.’ ” (Id. at p. 322.) At trial, the defendant testified that the owner, who was reputed to be a “fence” who dealt in stolen property, had instructed him to remove certain items from the store, and that a van would arrive to transport the items to a different location. (Id. at p. 323.) Thomas reasoned that, if the defendant’s story was credited, he may have been engaged in some criminal activity, but could have not have been guilty of burglary because “an entry into the possessor’s premises for the purpose of carrying out the possessor’s instructions is not burglary.” (Id. at p. 323.) Thomas is clearly distinguishable. Here, Irwin did not instruct Dowlatshahi to steal the cash.
Because Irwin’s consent was immaterial to the validity of the burglary charge, defense counsel did not render ineffective assistance by failing to move to dismiss the charge on the ground the element of unlawful entry was unproven, as Dowlatshahi suggests. A meritorious claim of constitutionally ineffective assistance must establish: (1) counsel’s representation fell below an objective standard of reasonableness; and (2) there is a reasonable probability that, but for counsel’s unprofessional errors, a determination more favorable to defendant would have resulted. If the defendant makes an insufficient showing on either component, the ineffective assistance claim fails. (Strickland v. Washington (1984) 466 U.S. 668, 687; People v. Lopez (2008) 42 Cal.4th 960, 966; People v. Carter (2003) 30 Cal.4th 1166, 1211.) Because Irwin’s consent did not constitute a legal basis for dismissal of the burglary charge, counsel’s performance was not deficient. Defense counsel is not required to make futile motions or to indulge in idle acts in order to appear competent. (People v. Torrez (1995) 31 Cal.App.4th 1084, 1091.)
2. Contentions related to the corroboration of accomplice testimony.
Dowlatshahi contends that because Irwin could have been charged as an accomplice to a counterfeiting conspiracy, he was an accomplice as a matter of law. He asserts that Irwin’s uncorroborated testimony provided the sole basis for his theft conviction and for the jury’s findings regarding the value of the property stolen, and therefore the conviction and findings must be reversed. Further, he posits that the jury should have been instructed that accomplice testimony requires corroboration, and his counsel was ineffective for failing to request such an instruction. These contentions lack merit. Irwin could not have been an accomplice to the theft of his own money, and in any event, ample corroborating evidence was presented.
a. Applicable legal principles.
Section 1111 provides that a conviction cannot be based on an accomplice’s uncorroborated testimony. (People v. Williams (2008) 43 Cal.4th 584, 635.) An accomplice is defined as one “who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given.” (§ 1111; People v. Williams, supra, at p. 636; People v. Brown (2003) 31 Cal.4th 518, 555; People v. Slaughter (2002) 27 Cal.4th 1187, 1202.) In other words, the witness must be a principal in the crime under section 31 (People v. Williams, supra, at p. 636), and must aid or promote the crime with knowledge of the perpetrator’s unlawful purpose and an intent to assist in the commission of the crime. (Id. at p. 637.)
“Accomplice testimony... must be corroborated because it is inherently suspect” in that accomplices usually testify in “ ‘hope of favor or the expectation of immunity.’ ” (People v. Narvaez (2002) 104 Cal.App.4th 1295, 1304.) The “ ‘usual problem’ ” with accomplice testimony is that “ ‘it is consciously self-interested and calculated.’ ” (People v. Williams (1997) 16 Cal.4th 153, 245.) The defendant bears the burden of proving that a witness is an accomplice by a preponderance of the evidence. (People v. Frye, supra, 18 Cal.4th at pp. 967-968.) Where the only evidence linking the defendant with the crime is uncorroborated accomplice testimony, the conviction cannot stand. (See People v. Belton (1979) 23 Cal.3d 516, 526-527; People v. Verlinde (2002) 100 Cal.App.4th 1146, 1157; § 1111.)
Whenever the testimony given is sufficient to warrant a conclusion that the witness was an accomplice, the trial court must sua sponte instruct the jury to determine whether the witness was an accomplice. (People v. Zapien (1993) 4 Cal.4th 929, 982.) If the evidence establishes that the witness was an accomplice as a matter of law, the jury must be so instructed. (Ibid.) In either case, the trial court also must also instruct that the testimony of an accomplice is to be viewed with distrust, and that the defendant cannot be convicted on the basis of the accomplice’s testimony unless it is corroborated. (Ibid.)
b. Because Irwin was not an accomplice to the theft of his own money, the corroboration requirement is inapplicable.
Applying the foregoing principles here, it is readily apparent that Irwin could not have been an accomplice to the offenses charged against Dowlatshahi in the cause in which the testimony was given, i.e., the theft of Irwin’s own money. The crime of theft requires that: (1) the defendant took possession of personal property owned by someone else; (2) the defendant did so without the owner’s consent; (3) when the defendant took the property, he or she intended to deprive the owner of it permanently; and (4) the defendant moved the property, even a small distance, and kept it for any period of time, however brief. (People v. Catley (2007) 148 Cal.App.4th 500, 505; § 484; CALCRIM No. 1800.) For Irwin to be liable as an accomplice, i.e., subject to prosecution for the crimes, he would have had to have “acted ‘with (1) knowledge of the unlawful purpose of the perpetrator;... (2) the intent or purpose of committing, encouraging, or facilitating the commission of the offense, [and] (3) by act or advice aid[ed], promote[d], encourage[d] or instigate[d] the commission of the crime.’ [Citation.]” (People v. Brown, supra, 31 Cal.4th at p. 558; People v. Williams, supra, 43 Cal.4th at p. 636.)
Irwin could not have acted with the knowledge Dowlatshahi intended to steal his $1.3 million, and with the intent of encouraging or facilitating commission of the theft of his own money. (See People v. Williams, supra, 43 Cal.4th at p. 636.) As the People point out, it would be impossible to find Irwin was an accomplice to the theft of his own money. Dowlatshahi’s argument to the contrary rests on the assumption that Irwin “could have been charged” as an accomplice to a conspiracy to counterfeit or related “currency crimes.” This argument, however, misses the mark. Even assuming for purposes of argument that Irwin could have been charged with a conspiracy to counterfeit, neither he nor Dowlatshahi were charged with counterfeiting or currency crimes in the instant matter. Therefore, Irwin could not have been “liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given.” (§ 1111, italics added; see People v. Howard (2008) 42 Cal.4th 1000, 1022.) “Section 1111 ‘serves to ensure that a defendant will not be convicted solely upon the testimony of an accomplice because an accomplice is likely to have self-serving motives.’ [Citations.] One of those ‘self-serving motives’ would be to shift blame to someone else.” (People v. Howard, supra, at p. 1022, fn. omitted.) Here, neither Irwin nor Dowlatshahi were tried for counterfeiting, and therefore Irwin had no motive to shift blame to Dowlatshahi.
Because Irwin was not and could not have been an accomplice to the charged crimes, there was no requirement that his testimony be corroborated. Likewise, there was no requirement that the court instruct the jury regarding the corroboration requirement, or that it must view an accomplice’s testimony with distrust. Further, defense counsel did not render ineffective assistance by failing to request such an instruction, or by failing to argue the lack of corroboration to the jury. Because there was no legal basis for the instruction at issue, and no corroboration requirement to argue to the jury, counsel’s performance was not deficient. (See People v. Lopez, supra, 42 Cal.4th at p. 966; People v. Torrez, supra, 31 Cal.App.4th at p. 1091.)
c. Sufficient corroborating evidence was presented.
In any event, even assuming for purposes of argument that Irwin could have been considered an accomplice, there was ample corroborating evidence. Corroborating evidence may be slight, entirely circumstantial, and entitled to little consideration when standing alone. (People v. Williams, supra, 43 Cal.4th at p. 638; People v. Slaughter, supra, 27 Cal.4th at p. 1204; People v. McDermott (2002) 28 Cal.4th 946, 986; People v. Narvaez, supra, 104 Cal.App.4th at p. 1303.) Although the corroborating evidence must implicate the defendant in the crime and relate to proof of an element of the crime, “it need not be sufficient to establish all the elements of the crime.” (People v. Williams, supra, at p. 638; People v. Slaughter, supra, at p. 1204.) Nor must the evidence corroborate the accomplice as to every fact to which he or she testifies. (People v. Williams, supra, 16 Cal.4th at p. 680.)
Here, there was considerable corroborating evidence. Bank surveillance photographs showed Dowlatshahi, Amir, and Irwin at Alliance Bank on January 12, 2007, when Irwin picked up the cash. Date- and time-stamped photographs obtained from Irwin’s home surveillance camera showed Dowlatshahi, Purcell, and Amir leaving Irwin’s residence on January 14, 2007, with a large suitcase, at the time Irwin testified he was showering. A vial containing green liquid was found in Dowlatshahi’s glove compartment. A silver suitcase containing a mechanical device, identified by Irwin as, or similar to, Dowlatshahi’s “cloning machine” was found in Dowlatshahi’s vehicle’s trunk. Dowlatshahi was in possession of $18,000 in $100 bills, and $75,000 in casino chips, when arrested. Various items were retrieved by police from the dumpster and identified by Irwin as “cloning” paraphernalia used by Dowlatshahi, including an insulated bag containing bundles of white paper, a clear plastic container containing black powder, a set of plastic vials which appeared to contain food coloring, and bundles of black paper. Federal Reserve money bands that had been used to hold the cash were also retrieved from the dumpster. A bank form documented the withdrawal of $1.5 million in $100 notes on January 12, 2007. A jar with black powder and a bundle of fake money was found at the Santa Barbara house, and a unique Lucite box wired to emit sound and light was found at Purcell’s residence. All this evidence connected Dowlatshahi to the crime, corroborated aspects of Irwin’s testimony, and related to proof of the elements of the crime. (See People v. Williams, supra, 43 Cal.4th at p. 638.) Corroborative evidence is sufficient “ ‘ “if it tends to connect the defendant with the crime in such a way as to satisfy the jury that the accomplice is telling the truth.” ’ ” (People v. Brown, supra, 31 Cal.4th at p. 556; People v. Frye, supra, 18 Cal.4th at p. 966; People v. Zapien, supra, 4 Cal.4th at p. 982; People v. Verlinde, supra, 100 Cal.App.4th at p. 1163.) The corroborating evidence presented fulfilled these requirements.
Likewise, there was no instructional error requiring reversal. Even if Irwin had been an accomplice as a matter of law, “ ‘[f]ailure to instruct pursuant to section 1111 is harmless if there is sufficient corroborating evidence.’ ” (People v. Williams, supra, 43 Cal.4th at p. 636; People v. Brown, supra, 31 Cal.4th at p. 556; People v. Verlinde, supra, 100 Cal.App.4th at p. 1163.) As the corroborating evidence was ample, any purported instructional error was necessarily harmless.
3. The trial court did not err by admitting Agent Weiss’s testimony regarding Dowlatshahi’s attempt to perpetrate a similar scam in 1993; any purported error was harmless.
Prior to trial, the defense moved in limine to exclude Agent Weiss’s testimony regarding Dowlatshahi’s involvement in the 1993 “money cloning” or duplication scheme, as detailed ante. The People argued the evidence was admissible under Evidence Code section 1101, subdivision (b) to show a common plan, scheme, or motive. The trial court ruled Weiss’s testimony was “extraordinarily relevant. It goes directly to the specific intent requirement in count[s] 1 and 2, as well as in the allegations. It goes to issues of motive. It goes to issues of modus operandi and common plan and scheme.” The court noted that the misconduct had a “very specific signature,” as evidenced by the fact that “[i]t is not very often that a court is confronted with a hundred-dollar [bill] cloning machine.” The court further concluded that under Evidence Code section 352, the probative value of the evidence outweighed any prejudicial impact.
Dowlatshahi contends Weiss’s testimony about his activities in 1993 was unduly prejudicial and should have been excluded under Evidence Code section 1101. We discern no error.
a. Applicable legal principles.
Evidence that a defendant committed misconduct other than that currently charged is generally inadmissible to prove he or she has a bad character or a disposition to commit the charged crime. (Evid. Code, § 1101, subd. (a); People v. Kelly (2007) 42 Cal.4th 763, 782; People v. Kipp (1998) 18 Cal.4th 349, 369; People v. Scheer (1998) 68 Cal.App.4th 1009, 1017.) However, such evidence is admissible if it is relevant to prove, among other things, motive, opportunity, intent, knowledge, preparation, identity, or the existence of a common design or plan. (Evid. Code, § 1101, subd. (b); People v. Catlin (2001) 26 Cal.4th 81, 145; People v. Ewoldt (1994) 7 Cal.4th 380, 400.) “ ‘The admissibility of other crimes evidence depends on (1) the materiality of the facts sought to be proved, (2) the tendency of the uncharged crimes to prove those facts, and (3) the existence of any rule or policy requiring exclusion of the evidence.’ [Citation.]” (People v. Steele (2002) 27 Cal.4th 1230, 1243; People v. Kelly, supra, at p. 783.)
The least degree of similarity between the crimes is needed to prove intent. (People v. Kelly, supra, 42 Cal.4th at p. 783; People v. Steele, supra, 27 Cal.4th at p. 1244; People v. Ewoldt, supra, 7 Cal.4th at p. 402.) “In order to be admissible to prove intent, the uncharged misconduct must be sufficiently similar to support the inference that the defendant ‘ “probably harbor[ed] the same intent in each instance.” [Citations.]’ [Citation.]” (People v. Ewoldt, supra, at p. 402.) The recurrence of a similar result tends to establish criminal intent. (People v. Kelly, supra, at p. 783.) Evidence of a common plan to prove a specific intent is admissible even though there is no issue as to appellant’s identity. (People v. Nieves (1969) 2 Cal.App.3d 562, 567; People v. Haslouer (1978) 79 Cal.App.3d 818, 827-828.)
A greater degree of similarity is required to prove the existence of a common design or plan; there must be “ ‘not merely a similarity in the results, but such a concurrence of common features that the various acts are naturally to be explained as caused by a general plan of which they are the individual manifestations,’ ” rather than a series of similar, spontaneous acts. (People v. Ewoldt, supra, 7 Cal.4th at p. 402; People v. Kelly, supra, 42 Cal.4th at p. 784.) The plan “need not be unusual or distinctive.” (People v. Ewoldt, supra, at p. 403.)
Even if the evidence of other crimes is relevant to prove matters besides the defendant’s character or disposition, it is inadmissible unless its probative value is substantial and is not outweighed by the probability that its admission would create a serious danger of undue prejudice, of confusing the issues, or of misleading the jury. (People v. Kipp, supra, 18 Cal.4th at p. 371; People v. Ewoldt, supra, 7 Cal.4th at p. 404; People v. Scheer, supra, 68 Cal.App.4th at p. 1018.) Because evidence relating to uncharged misconduct may be highly prejudicial, its admission requires careful analysis. (People v. Ewoldt, supra, at p. 404.) We review the trial court’s ruling for abuse of discretion. (People v. Waidla (2000) 22 Cal.4th 690, 724; People v. Kipp, supra, at p. 369.)
b. Application here.
No abuse of discretion is apparent in the instant case. The 1993 incident shared features in common with the charged offenses sufficient to support the inference that both incidents were manifestations of a common design or plan to con victims using a similar money cloning or duplication scheme. (See People v. Balcom (1994) 7 Cal.4th 414, 427.) In both instances, Dowlatshahi used a broker to set up the scam. In both, it was claimed that Dowlatshahi was a scientist who had developed a process to clone or duplicate money, but was short of cash and needed an investor. In both, the mark was presented with bills that appeared to have identical serial numbers, but which had been altered. In both, he was told his cash was needed because a bill could only be duplicated once. The scam was highly unique and distinctive. Indeed, Weiss, an expert, testified that the scam was understood by only a handful of persons in the United States. Contrary to Dowlatshahi’s argument, the fact that no cloning demonstration or vial of green liquid was involved in the 1993 incident is immaterial; the evidence showed the scam never progressed to that point, presumably because Dowlatshahi correctly suspected Weiss was a law enforcement agent. The remaining similarities, however, are compelling.
Given the similarities between the two instances, the 1993 incident was highly probative to prove both that the crime occurred, and Dowlatshahi’s intent. To prove theft, the People were required to show, inter alia, that Dowlatshahi intended to permanently deprive Irwin of his property. (See CALCRIM No. 1800.) Likewise, to prove burglary, the People were required to show Dowlatshahi entered a building with the intent to commit theft. (CALCRIM No. 1700.) Evidence that Dowlatshahi attempted to perpetrate the same scam previously was highly probative on this issue. (See, e.g., People v. Kelly, supra, 42 Cal.4th at p. 787; People v. Balcom, supra, 7 Cal.4th at p. 425 [although an uncharged offense need not possess unusual or distinctive characteristics to be relevant to establish a common design or plan, the presence of unusual or distinctive shared characteristics increases the probative value of the evidence].)
Even more significant, Dowlatshahi’s use of the same unique scam in 1993 was highly probative to show the instant crime occurred. “Evidence that the defendant possessed a plan to commit the type of crime with which he or she is charged is relevant to prove the defendant employed that plan and committed the charged offense. ‘... [E]vidence that the defendant has committed uncharged criminal acts that are similar to the charged offense may be relevant if these acts demonstrate circumstantially that the defendant committed the charged offense pursuant to the same design or plan he or she used in committing the uncharged acts.’ ” (People v. Balcom, supra, 7 Cal.4th at p. 424.) Here, Dowlatshahi’s defense was that the crime never happened, and that Irwin was a liar who had hoped to take money from his own corporation and falsely blame Dowlatshahi. Evidence showing the crime occurred was, therefore, highly probative.
Moreover, even assuming arguendo that the evidence should have been excluded, no reversible error is apparent. The erroneous admission of evidence requires reversal only if it is reasonably probable that appellant would have obtained a more favorable result had the evidence been excluded. (Evid. Code, § 353, subd. (b); People v. Earp (1999) 20 Cal.4th 826, 878; People v. Avitia (2005) 127 Cal.App.4th 185, 194.) As is evident from our detailed discussion of the facts ante, the evidence against Dowlatshahi was overwhelming. Evidence regarding the 1993 incident was but a small part of the People’s evidence. There is no probability that Dowlatshahi would have received a more favorable result had the testimony regarding the 1993 incident been excluded.
DISPOSITION
The judgment is affirmed.
We concur: KLEIN, P. J., CROSKEY, J.