Opinion
G043448
11-10-2011
THE PEOPLE, Plaintiff and Respondent, v. MARK THOMAS GEORGANTAS, Defendant and Appellant.
Paul R. Ward, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Marilyn George and Meagan J. Beale, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. 06HF1759)
OPINION
Appeal from a judgment of the Superior Court of Orange County, John Conley, Judge. Affirmed.
Paul R. Ward, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Marilyn George and Meagan J. Beale, Deputy Attorneys General, for Plaintiff and Respondent.
Mark Thomas Georgantas appeals from a judgment after a jury convicted him of the unlawful use of personal identifying information, the unlawful acquisition of access card account information, receiving stolen property, and grand theft. Georgantas argues: (1) the trial court erroneously instructed the jury; (2) the court erroneously admitted evidence; (3) insufficient evidence supports his convictions; and (4) there was cumulative error. As we explain below more fully, Georgantas was not prejudiced by any errors, and we affirm the judgment.
FACTS
Georgantas was the founder, chief executive officer, and chairman of the board of directors for a company called Fire on Ice Innovations (the Company) that created fireplace accessories. He created a fireplace insert made of U-shaped gas pipes and tempered glass that when operated displayed fire arising out of broken glass. His girlfriend, Rita Estell (only named member of uncharged conspiracy) was the vice president and head of marketing for the Company, and Courtney Nelson was an employee. Georgantas owned 50 percent of the Company, and investors Avedis Avedissian, Jacob Parseghian, and Norair Agopian owned the other 50 percent of the Company. Georgantas was responsible for the day-to-day operation of the Company. Avedissian rented a home for Georgantas and Estell at 5146 Sunnyslope Avenue, Sherman Oaks, and they held board meetings there.
The Company barely treaded water financially. Georgantas and the office manager, Kristi Gleich, frequently asked the investors to provide additional funding for the Company to pay monthly bills. Avedissian occasionally paid vendors, including the gas burner pipe manufacturer Product Solutions, directly rather than giving Georgantas or Estell money. Gleich sometimes paid bills from her personal account and hoped she would be reimbursed.
In December 2005, a man representing himself as Bill Hengstenberg of Hengstenberg Developments called Product Solutions and placed a verbal purchase order with Jay Keaton for the U-shaped gas burner pipes that the Company used to create its fireplace insert. The caller ordered 60 NG18, 18' gas burner pipes, and 50 NG24, 24' gas burner pipes; the total cost was $1,950. The caller claiming to be Hengstenberg explained to Keaton that he knew Georgantas and used to be involved in the Company but went out on his own. Product Solutions had had difficulty with the Company making payments so Keaton required advance payment. The man claiming to be Hengstenberg gave Keaton a credit card number for a Visa account in Hengstenberg's name. Keaton called the credit card company and obtained approval.
In mid-December 2005, someone picked up the first half of the order and signed the receipt Bill Hengstenberg Developments. A Product Solutions employee believed this first shipment was picked up by an African-American woman. The employee gave the woman the pink copy of the triplicate packing slip. About two weeks later, a woman named Courtney called Product Solutions and asked for directions. A young woman driving an older white van picked up the balance of the order while a man remained in the van. The woman signed the packing slip, "Hengstenberg."
The next month a police officer arrested Georgantas, who was carrying a bag containing a black laptop computer, and another bag with 150 to 200 documents. In his bag, Georgantas had a new Visa credit card in Hengstenberg's name. He had three investigative background reports on Hengstenberg from Detective Consultants, Intelius, and the Salestrom Corporation. Two of the reports were mailed to Georgantas's home on Sunnyslope Avenue. One of the reports was e-mailed to the Company and charged to Estell's credit card. He also had the pink copy of the packing slip. An online order from a company called SpyMatrix was recovered from the computer laptop. Georgantas gave an officer the Sunnyslope Avenue address as his home address. In his bag, Georgantas also had a driver's license, a military identification card, two credit cards, and other identification documents for a Nathan Moreno.
The Visa company later retracted its approval of the $1,950 purchase to Product Solutions because Hengstenberg did not purchase gas burner pipes. Purchase Solutions suffered a loss of the entire amount.
Procedural History & Facts
A second amended information charged Georgantas with unlawful use of personal identifying information (Pen. Code, § 530.5, subd. (a))(count 1), unlawful acquisition of access card account information (§ 484e, subd. (d)) (count 2), receiving stolen property (§ 496, subd. (a)) (count 3), and grand theft (§ 487, subd. (a)) (count 4). The information alleged counts 1, 2, and 4 all occurred on December 16, 2005. Trial
All further statutory references are to the Penal Code, unless otherwise indicated.
Prosecution
The prosecutor offered Hengstenberg's testimony. Hengstenberg explained that in 2004 he and his wife were victims of identity theft. The billing statement for their credit card had charges during the period of November 8 to December 7, 2005, that they did not incur. They lived on Kester Street in Sherman Oaks at that time but someone filed a change of address with the post office to 5146 Sunnyslope. The Hengstenbergs never lived on Sunnyslope Avenue. Hengstenberg did not know Georgantas and was not familiar with the Company before this court case. He never gave Georgantas permission to access or use his personal information. And he never purchased anything from Product Solutions. The Hengstenberg's credit card was used in December 2005 to pay one of the Company's answering service bills in the amount of $659. Their card was also used to purchase various items from SpyMatrix Associates in the amount of $9,327; the items were to be delivered to 5146 Sunnyslope Avenue. Hengstenberg did not authorize these charges to his credit card. Hengstenberg did not authorize the credit card found in Georgantas's possession and it was not mailed to him or ever in his possession.
The prosecutor offered the testimony of Investigator Tara Tolan, who was present for Georgantas's testimony at the preliminary hearing as a party admission pursuant to Evidence Code section 1220. The prosecutor presented her with eight pages of the preliminary hearing transcript, which was marked for identification but not admitted into evidence, and with the prosecutor playing the role of defense counsel, and Tolan playing the role of Georgantas, the prosecutor asked Tolan a series of questions spanning approximately six pages of reporter's transcript. As relevant here, the prosecutor asked two questions establishing Georgantas lived at 5146 Sunnyslope Avenue.
The prosecutor also offered Moreno's testimony. Moreno explained his wallet and identification cards went missing in late November or early December 2005. He last saw his wallet the night his car was parked on a driveway in front of a friend's house. A digital camera was stolen from another car parked on the same driveway. The bank called Moreno later and informed him someone was using his credit card. There was evidence Moreno's credit card incurred four charges in early December at various locations throughout Orange County.
Defense
Georgantas's defense was that Michael Sheppard, who was the sales and marketing manager for the Company and did installations, stole Hengstenberg's and Moreno's credit cards. Georgantas asserted Sheppard stole his laptop computer and other equipment from the Company. Georgantas did not initially suspect Sheppard of the thefts but eventually thought he was involved. Georgantas fired Sheppard in December 2005, shortly after the purported burglary. Sheppard, however, denied stealing any checks, computers, inventory, or anything else from the Company. He denied ever using Hengstenberg's name or stealing anything from Moreno. Sheppard claimed a spare laptop computer was stolen during the burglary, not Georgantas's. Sheppard offered testimony explaining how Georgantas recovered the computer laptop to clarify why he had it when he was arrested.
Sheppard suffered prior convictions for three counts of felony grand theft, attempted grand theft, possession for sale of methamphetamine, and issuing checks without sufficient funds. The jury also heard evidence a forged Company check was paid to Sheppard's ex-wife.
Rebuttal
In rebuttal, the prosecutor recalled Tolan and presented her with two additional pages (pages 25 & 26), marked Exhibit No. 53, from the preliminary hearing transcript and they resumed their role playing. The prosecutor asked one question establishing Georgantas moved into 5146 Sunnyslope Avenue in December 2004.
Out of the presence of the jury, defense counsel, relying on Evidence Code section 356, argued an additional portion of page 26 (lines 15-26) should be admitted, where Georgantas stated there was additional mail addressed to other people that was delivered to 5146 Sunnyslope Avenue. The prosecutor replied that portion was not admissible pursuant to Evidence Code section 356 because whether mail addressed to other people was delivered to that address and what Georgantas did with that mail was not connected to when Georgantas moved into that address. The trial court stated the exhibit included "extraneous" and "dynamite" information. The court agreed with the prosecutor and stated, "That's apples and oranges. And you can't get it in because it's - - he is using the admission of a party opponent. I don't see [Evidence Code section] 356 applies to that. I'm very concerned that the jury not see this transcript."
Post-Trial
The prosecutor and defense rested on March 2, 2009. The next day, the trial court released the jury for their lunch recess in the middle of the prosecutor's closing rebuttal argument. Just before the afternoon session began, Georgantas, who was free on bail during trial, fled under the guise of having to use the restroom. After a search of the courthouse, the trial court heard counsel's arguments and considered the matter. The trial court instructed the jury: "The defendant is not present. He will not be present this afternoon. You are not to speculate as to the reason for that. Just treat the case as you would normally."
Without Georgantas present in court, the jury convicted him of all charges. After the trial court denied his new trial motion, the court sentenced Georgantas, who was present in court, to three years and eight months in prison. Because he had sufficient credits to fulfill his prison sentence, the court ordered Georgantas released.
DISCUSSION
I. CALCRIM No. 416, "Evidence of Uncharged Conspiracy"
Georgantas argues the trial court erroneously instructed the jury with CALCRIM No. 416, which was legally erroneous and without factual support, and not with CALCRIM No. 417, "the one and only CALCRIM instruction . . . that explains [the uncharged conspiracy] theory of criminal liability." He raises numerous contentions, each of which we will address below.
A. The Instruction
The trial court instructed the jury with a modified version of CALCRIM No. 416, as follows: "The People have presented evidence of a conspiracy. A member of a conspiracy is criminally responsible for the acts or statements of any other member of the conspiracy done to help accomplish the goal of the conspiracy. [¶] To prove the defendant was a member of a conspiracy in this case, the People must prove that: [¶] 1) The defendant intended to agree and did agree with Rita Estell[] and persons unknown to commit the crimes charged at counts 1, 2, and 4. [¶] 2) At the time of the agreement, the defendant and one or more of the other alleged members of the conspiracy intended that one or more of them would commit the crimes charged at counts 1, 2, and 4. [¶] 3) The defendant or Rita Estell[], or a person unknown or both, or all of them committed at least one of the following overt acts to accomplish the crimes alleged at counts 1, 2, and 4. [¶] Overt acts[.] [¶] 1. Personal identifying information was obtained on Bill Hengstenberg from the company Salestrom Corporation. [¶] 2. Personal identifying information was obtained on Bill Hengstenberg from the company Detectiveconsultant.com. [¶] 3. Personal identifying information was obtained on Bill Hengstenberg from the company Intelius[.] [¶] 4. A representation was made to the company Product Solutions, Inc. that the company Hengstenberg Developments wished to purchase fireplace burners. [¶] 5. Fireplace burners were picked up from Product Solutions, Inc. on or about December 16, 2005. [¶] 6. Fireplace burners were picked up from Product Solutions, Inc. on or about December 28, 2005. [¶] 4) At least one of these overt acts was committed in California. [¶] To decide whether the defendant or another member of the conspiracy committed these overt acts, consider all of the evidence presented about the facts. [¶] To decide whether the defendant and one or more of the alleged members of the conspiracy intended to commit the crimes charged at counts 1, 2, and 4, please refer to the separate instructions that I will give you on those crimes. [¶] The People must prove that the members of the alleged conspiracy had an agreement and intent to commit the crimes charged as counts 1, 2, and 4. The People do not have to prove that any of the members of the alleged conspiracy actually met or came to a detailed or formal agreement to commit one or more of those crimes. An agreement may be inferred from conduct if you conclude that members of the alleged conspiracy acted with a common purpose to commit the crime. [¶] An overt act is an act by one or more of the members of the conspiracy that is done to help accomplish the agreed upon crime. The overt act must happen after the defendant has agreed to commit the crime. The overt act must be more than the act of agreeing or planning to commit the crime, but it does not have to be a criminal act itself. [¶] You must all agree that at least one overt act was committed in California by at least one alleged member of the conspiracy, but you do not have to all agree on which specific overt act or acts were committed or who committed the overt act or acts. [¶] You must decide whether the defendant was a member of the alleged conspiracy. [¶] The People contend the defendant conspired to commit the following crimes: [c]ount 1: . . . [section] 530.5[, subdivision](a), [c]ount 2: . . . [section] 484e[, subdivision](d), [c]ount 4: . . . [section] 487[, subdivision](a). You may not find the defendant guilty under a conspiracy theory unless all of you agree that the People have proved that the defendant conspired to commit at least one of these crimes, and you all agree which crime or crimes he conspired to commit. [¶] A member of a conspiracy does not have to personally know the identity or role of all the other members. [¶] Someone who merely accompanies or associates with members of a conspiracy but who does not intend to commit the crime is not a member of the conspiracy. [¶] Evidence that a person did an act or made a statement that helped accomplish the goal of the conspiracy is not enough, by itself, to prove that the person was a member of the conspiracy."
B. Conspiracy as a Theory of Liability
"The doctrine of conspiracy plays a dual role in our criminal law. First, conspiracy is a substantive offense in itself—'an agreement between two or more persons that they will commit an unlawful object (or achieve a lawful object by unlawful means), and in furtherance of the agreement, have committed one overt act toward the achievement of their objective.' [Citations.] Second, proof of a conspiracy serves to impose criminal liability on all conspirators for crimes committed in furtherance of the conspiracy." (People v. Salcedo (1994) 30 Cal.App.4th 209, 215.)
Conspiracy has long been accepted as a valid theory of liability. Over 100 years ago, the California Supreme Court in People v. Kauffman (1907) 152 Cal. 331, 334, agreed about the rules of law governing the criminal liability of each party engaging in an unlawful conspiracy. The Supreme Court stated: "'[W]here several parties conspire or combine together to commit any unlawful act, each is criminally responsible for the acts of his associates or confederates committed in furtherance of any prosecution of the common design for which they combine. In contemplation of law the act of one is the act of all.'"
More recently, the California Supreme Court has reaffirmed that principle. (People v. Prieto (2003) 30 Cal.4th 226, 249 [conspirator could be vicariously liable for a crime committed in furtherance of the conspiracy only if that crime was a natural and probable consequence of the conspiracy]; People v. Belmontes (1988) 45 Cal.3d 744, 788 ["uncharged conspiracy may properly be used to prove criminal liability for acts of a coconspirator"], disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22 (Doolin).)
"Where the prosecutor did not charge conspiracy as an offense, but introduced evidence of a conspiracy to prove liability, the court had a sua sponte duty to give uncharged conspiracy instructions. (Bench Notes to CALCRIM No. 416, p. 200, citing People v. Pike (1962) 58 Cal.2d 70 . . . ; People v. Ditson (1962) 57 Cal.2d 415 . . . .)" (People v. Williams (2008) 161 Cal.App.4th 705, 709 (Williams).)
"We must consider whether it is reasonably likely that the trial court's instructions caused the jury to misapply the law. [Citations.] '[T]he correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction.' [Citations.]" (People v. Carrington (2009) 47 Cal.4th 145, 192.)
C. Georgantas's Arguments
1. CALCRIM No. 416 did not require the jury to find him guilty under that theory.
Georgantas admits CALCRIM No. 416 informs the jury how it would decide whether he was a member of an uncharged conspiracy. He complains, however, CALCRIM No. 416 does not: (1) "explain any theory of liability that might be a consequence of being a coconspirator," and (2) "require[] a jury to decide that question."
CALCRIM No. 416 begins by stating: "The People have presented evidence of a conspiracy. A member of a conspiracy is criminally responsible for the acts or statements of any other member of the conspiracy done to help accomplish the goal of the conspiracy." The instruction then lists the four elements the prosecutor must prove to establish Georgantas was a member of a conspiracy, including the required overt acts. The instruction clearly states that a person who is a member is "criminally responsible," i.e., criminally liable, for acts of conspirators done to complete the conspiracy. And the instructions specifically and repeatedly reference counts 1, 2, and 4 when providing the required elements of a conspiracy.
As we explain above, membership in an uncharged conspiracy is a valid theory of liability, and it is a consequence of intending to and agreeing with coconspirators to commit crimes in furtherance of the conspiracy. Additionally, there is no requirement the jury had to affirmatively decide that question, whether he was guilty under that theory, other than to return its verdicts on the substantive offenses. In other words, the jury did not have to return a finding stating it found Georgantas guilty under the uncharged conspiracy theory of liability.
2. CALCRIM No. 416 reduced the prosecutor's burden of proof by assuming the evidence establishes a conspiracy.
Relying on the first sentence of CALCRIM No. 416, Georgantas first argues CALCRIM No. 416 usurps the jury's role by commenting on the state of the evidence. Williams, supra, 161 Cal.App.4th 705, is instructive.
In that case, the court addressed the identical issue we have here—whether the language, "The People have presented evidence of a conspiracy[,]" usurped the jury's function as fact finder and directed the jury to find a conspiracy existed. (Williams, supra, 161 Cal.App.4th at pp. 709-710.) The court explained: "CALCRIM No. 416 does not direct the jury to find that a conspiracy did exist. Instead, it provides an explicit description of the elements of conspiracy that the prosecution must prove . . . . [¶] Further, CALCRIM No. 416 includes clear language explaining that it is for the jury to decide whether the prosecution has proved the elements of conspiracy. . . . Thus, rather than directing the jury to find that a conspiracy existed, CALCRIM No. 416 instructs the jury to decide whether the prosecution proved the elements of a conspiracy as well as whether the defendant was a member of the conspiracy." (Williams, supra, 161 Cal.App.4th at p. 709.)
Georgantas's reliance on People v. Owens (1994) 27 Cal.App.4th 1155 (Owens), is misplaced. There, in a prosecution for continuous sexual abuse of a child (§ 288.5), the trial court instructed the jury the prosecution had introduced evidence "'tending to prove'" there were more than three acts of substantial sexual conduct, and defendant could be found guilty if the proof showed beyond a reasonable doubt and the jury unanimously agreed defendant committed three such acts. (Owens, supra, 27 Cal.App.4th at p. 1158.) The court held the trial court erred in using the phrase "'tending to prove'" because it carried the inference the prosecution had established defendant's guilt and thereby relieved the prosecution of its burden of proving guilt beyond a reasonable doubt. (Id. at pp. 1158-1159.)
Nothing similar occurred in this case. CALCRIM No. 416 did not carry an inference the prosecutor had established Georgantas was a member of the conspiracy or that he committed the offenses. Nor did it relieve the prosecution of its burden of proving guilt beyond a reasonable doubt.
Second, Georgantas asserts CALCRIM No. 416 permits the jury to conclude a conspiracy existed based "on very little evidence." Georgantas cites to the following portion of CALCRIM No. 416: "The People do not have to prove that any of the members of the alleged conspiracy actually met or came to a detailed or formal agreement to commit one or more of those crimes. An agreement may be inferred from conduct if you conclude that members of the alleged conspiracy acted with a common purpose to commit the crime."
Contrary to his claim, CALCRIM No. 416 does not permit the jury to conclude a conspiracy existed on minimal evidence. The complained of language merely states there is no requirement the coconspirators met or methodically planned the conspiracy. It is well established, the details of criminal activity of a concealed crime can be proved by circumstantial evidence, which is as valuable as direct evidence. (People v. Abilez (2007) 41 Cal.4th 472, 504 (Abilez).)
Here, the trial court correctly instructed the jury on the proper use of circumstantial evidence and the prosecutor's burden of proof. CALCRIM No. 224, "Circumstantial Evidence: Sufficiency of Evidence," stated in relevant part, "Before you may rely on circumstantial evidence to conclude that a fact necessary to find the defendant guilty has been proved, you must be convinced that the People have proved each fact essential to that conclusion beyond a reasonable doubt." And CALCRIM No. 220, "Reasonable Doubt," provided in relevant part, "Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt unless I specifically tell you otherwise."
Georgantas provides no compelling reason why the jury would ignore these instructions and adopt some imaginary "method of proof" to determine whether the conspirators had an agreement and intended to commit the charged offenses. We presume jurors are intelligent people capable of understanding the instructions and applying them to the facts of the case. (People v. Carey (2007) 41 Cal.4th 109, 130.)
3. CALCRIM No. 416 allowed the jury to convict him of counts 1, 2, and 4 even if the jury concluded he conspired to commit only one of those counts.
Georgantas cites to the following portion of CALCRIM No. 416, "You may not find the defendant guilty under a conspiracy theory unless all of you agree that the People have proved that the defendant conspired to commit at least one of these crimes, and you agree which crime or crimes he commited[,]" to argue the jury could have convicted him of all the counts if it agreed he committed one of the counts. Based on the entire charge, it was not reasonably likely the jury would have interpreted CALCRIM No. 416 in the manner Georgantas suggests. (People v. McPeters (1992) 2 Cal.4th 1148, 1191, overruled on other grounds in Verdin v. Superior Court (2008) 43 Cal.4th 1096, 1106-1107.)
First, the complained of language is more reasonably interpreted to mean the jury could not convict him of any of the offenses, counts 1, 2, or 4, unless the jury unanimously agreed he committed that offense after concluding beyond a reasonable doubt the prosecutor established all the required elements of the offense. In other words, each juror had to agree the prosecutor proved each of the elements of each count beyond a reasonable doubt for the jury to convict him of that count. We do not interpret the complained of language to mean the jury could convict him of counts 1 and 2 based on the jury's conclusion he committed count 4. Second, the remaining instructions correctly informed the jury the prosecutor bore the burden of proving beyond a reasonable doubt Georgantas committed each statutory element of each separate offense before the jury could find him guilty of those offenses. The trial court correctly instructed the jury on each of the statutory elements it must find to convict him of each of the separate offenses. Thus, under the circumstances of this case, the jury would have certainly understood it was required to find Georgantas had committed each of the requisite elements of the respective offense beyond a reasonable doubt before finding him guilty of that offense. We simply cannot find support for the conclusion the jury convicted him of three separate and different offenses, based on one act.
4. The overt acts were legally invalid bases to convict him of counts 1, 2, and 4.
As to count 1, Georgantas claims the first three overt acts were legally invalid because they were actual violations of section 530.5 and not acts in furtherance of violations of that section, and the last three overt acts were legally invalid because they occurred after count 1 was completed and necessarily could not have furthered commission of that offense. With respect to count 2, Georgantas asserts the first three overt acts were legally valid but the last three overt acts were legally invalid because they occurred after the commission of count 2 and could not have furthered the commission of that crime. And as to count 4, he contends the first four overt acts are legally valid but the last two overt acts were legally invalid because they occurred after the commission of count 4 and could not have furthered the commission of that crime.
First, the "[c]ommission of the target offense in furtherance of the conspiracy satisfies the overt act requirement. [Citation.]" (People v. Jurado (2006) 38 Cal.4th 72, 121-122 [because jury found "defendant committed the murder itself in furtherance of the conspiracy, and because substantial evidence supports that finding, the overt act requirement is satisfied"].) Second, Georgantas's attempt to carve up the overt acts temporally to argue some overt acts were invalid as to some offenses because the overt act occurred after the offense is unpersausive. The prosecutor did not charge Georgantas with conspiracy as a substantive offense. Instead, the prosecutor proceeded against him on the uncharged conspiracy theory of liability. The purpose of the conspiracy was to commit counts 1, 2, and 4. All the overt acts were done to accomplish the purpose of the conspiracy, which was to obtain the pipes. Georgantas concedes there were some valid overt acts as to all the offenses but tries to parse them based on the time they occurred. This is unconvincing when the purpose of the conspiracy was to commit all the counts and there were at least three valid overt acts that applied to all three counts. (See ibid. [defendant not prejudiced by jury's consideration of invalid postoffense overt act allegation because valid finding of single overt act sufficient to support conspiracy conviction].)
5. CALCRIM No. 416 erroneously instructed the jury on uncharged conspiracy with persons unknown.
First, Georgantas asserts there was no evidence he and a coconspirator shared a common purpose. Based on the entire record, there was evidence Georgantas and a coconspirator shared a common purpose. The evidence demonstrated the Company was having financial difficulty and investors regularly had to provide additional funding to pay monthly bills. The evidence also demonstrated Product Solutions manufactured U-shaped gas burner pipes the Company used to manufacture its fireplace insert. That the Company may not have been the sole purchaser of the pipes is inconsequential. The jury heard testimony Avedissian, a part owner of the Company, dealt directly with Product Solutions. There was testimony a person claiming to be Hengstenberg called Product Solutions and ordered the same type of pipes the Company used to manufacture the fireplace insert. The jury also heard testimony that the packing slip from the first pick up and Hengstenberg's credit reports were later found in Georgantas's computer briefcase. This was sufficient circumstantial evidence for the jury to reasonably conclude Georgantas and a coconspirator shared the common purpose of using Hengstenberg's personal information and access card account information to obtain U-shaped gas burner pipes from Product Solutions to benefit the Company.
Second, Georgantas claims the prosecutor failed to produce evidence the unnamed coconspirators were unknown to the prosecution. Specifically, he claims "a trial court should not instruct the jury on 'persons unknown' as coconspirators without the [prosecutor] establishing a foundation that demonstrates to the court some good faith reason why they could not identify the hypothetical persons." Georgantas cites to no authority, and we found none, that requires a prosecutor to produce evidence the prosecutor made a good faith effort to identify all coconspirators and could not. The only requirement for admission of third party culpability evidence is that the evidence be relevant and not unduly prejudicial or confusing. (People v. McWhorter (2009) 47 Cal.4th 318, 367-368.) Georgantas does not argue the third party culpability evidence was irrelevant, unduly prejudicial, or confusing. The prosecutor's theory of the case was Georgantas conspired with Estell and other unknown persons to commit counts 1, 2, and 4. If the jury found that theory unlikely because the prosecutor could not establish who were the other coconspirators, the jury was free to reject the prosecutor's theory.
Finally, Georgantas contends the trial court should have instructed the jury as to who was not a potential coconspirator. Again, he cites to no authority and we found none that stands for the proposition the trial court must instruct the jury on who is not a coconspirator. The prosecutor proceeded against Georgantas on the uncharged conspiracy theory of liability. The prosecutor's theory was Georgantas conspired with Estell and other unknown persons to commit counts 1, 2, and 4. The prosecutor obviously could not name those conspirators unknown to him, and was not required to specify which persons, if any, he did not believe were members of the conspiracy. As to Georgantas's claim the prosecutor's failure to specify who was and was not a conspirator resulted in a lack of notice and deprived him of his right to present a defense, we disagree. Georgantas had adequate notice of the charges and the prosecutor's theory of the case.
6. The trial court should have instructed the jury with CALCRIM Nos. 417 and 418
Georgantas argues the trial court could have avoided the multiple errors in CALCRIM No. 416 by instructing the jury with CALCRIM No. 417 and to a lesser extent CALCRIM No. 418. We conclude the trial court had no sua sponte duty to instruct the jury with these instructions. There is nothing about CALCRIM No. 416 that requires the court to give CALCRIM Nos. 417 or 418 sua sponte. That the Bench Notes for CALCRIM Nos. 417 and 418 require a court to give CALCRIM Nos. 415 or 416 when CALCRIM Nos. 417 or 418 is given, does not prove the opposite. CALCRIM No. 417 involves the situation in which there is an issue whether a defendant is liable for an independent criminal act by a coconspirator. (People v. Flores (1992) 7 Cal.App.4th 1350, 1363.) Georgantas points to no evidence of an independent criminal act by a coconspirator. CALCRIM No. 418 concerns the situation where a trial court admits a coconspirator's statement under Evidence Code section 1223 (application of hearsay rule to conspirator's statements) to incriminate a defendant. (People v. Herrera (2000) 83 Cal.App.4th 46, 63.) Again, Georgantas points to no evidence in the record where a coconspirator made an out-of-court statement incriminating him. The trial court did not have a sua sponte duty to instruct the jury with CALCRIM Nos. 417 and 418. Thus, the trial court properly instructed the jury with CALCRIM No. 416, and Georgantas's claim his federal and state constitutional rights were violated is meritless.
Georgantas incorrectly claims CALCRIM No. 416, not CALCRIM No. 418, is designed in part to be used to evaluate a defendant's liability for a coconspirator's statements under the hearsay rule. As the Bench Notes to CALCRIM No. 418 make clear, CALCRIM No. 418 is the appropriate instruction for evaluating a coconspirator's statement that incriminates a defendant.
II. Count 4-False Pretenses
Georgantas argues the following: (1) CALCRIM No. 1804, "Theft by False Pretenses," permitted the jury to convict him on a legally erroneous theory; (2) the trial court erroneously failed to instruct the jury the prosecutor was required to present evidence corroborating Keaton's testimony; and (3) there was no evidence corroborating Keaton's testimony. We address each of his arguments below.
A. CALCRIM No. 1804, "Theft by False Pretense"
Georgantas argues the trial court instructed the jury on theories of corroboration that were not relevant to the case and were potentially misleading. Assuming there was error, Georgantas was not prejudiced.
CALCRIM No. 1804 stated: "The defendant is charged in count 4 with grand theft by false pretenses in violation of . . . section 484. [¶] To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant knowingly and intentionally deceived a property owner or the owner's agent by false or fraudulent representation or pretense; [¶] 2. The defendant did so intending to persuade the owner or the owner's agent to let the defendant or another person take possession and ownership of the property; [¶] 3. The owner or the owner's agent let the defendant or another person take possession and ownership of the property because the owner or the owner's agent relied on the representation or pretenses; [¶] and [¶] 4. When the defendant acted, he intended to deprive the owner of the property permanently. [¶] You may not find the defendant guilty of this crime unless the People have proved that: [¶] A. The false pretense was accompanied by either a writing or false token; [¶] or [¶] B. There was a note or memorandum of the pretense signed or handwritten by the defendant; [¶] or [¶] C. Testimony from two witnesses or testimony from a single witness along with other evidence supports the conclusion that the defendant made the pretense. [¶] Property includes money, labor, and real or personal property. [¶] A false pretense is any act, word, symbol, or token the purpose of which is to deceive. [¶] Someone makes a false pretense if, intending to deceive, he does one or more of the following: [¶] 1. Gives information he knows is false; [¶] or [¶] 2. Makes a misrepresentation recklessly without information that justifies a reasonable belief in its truth; [¶] or [¶] 3. Does not give information when he has an obligation to do so; [¶] or [¶] 4. Makes a promise not intending to do what he promises. [¶] Proof that the representation or pretense was false is not enough by itself to prove that the defendant intended to deceive. [¶] Proof that the defendant did not perform as promised is not enough by itself to prove that the defendant did not intend to perform as promised. [¶] A false token is a document or object that is not authentic, but appears to be, and is used to deceive. [¶] . . . [¶] An owner or an owner's agent relies on false pretense, if the falsehood is an important part of the reason the owner or agent decides to give up the property. The false pretense must be an important factor, but it does not have to be the only factor the owner or agent considers in making the decision. If the owner or agent gives up property some time after the pretense is made, the owner or agent must do so because he or she relies on the pretense. [¶] An agent is someone to whom the owner has given complete or partial authority and control over the owner's property." (Italics added; § 532, subd. (b).)
Although the instruction includes three theories of corroboration, Georgantas splits the third theory into two separate theories to create four: 1. The false pretense was accompanied by either a writing or false token; 2. There was a note or memorandum of the pretense signed or handwritten by the defendant; 3. Testimony from two witnesses; or 4. Testimony from a single witness along with other evidence supports the conclusion that the defendant made the pretense.
Georgantas first asserts there was no evidence supporting any theory except the last. He then attacks the language of all but the second theory.
With respect to the first theory, Georgantas cites to case law and a subsequent revision to the instruction to argue the instruction should have stated "a false writing and a false token," the instruction should be further revised to make clear the false writing must be used to deceive, and the instruction did not specify a false token did not include the false use of a valid token. As to the third theory, he asserts the instruction "does not make clear that the two witnesses must both testify they personally saw or heard someone induce the transaction by a pretense." With respect to the last theory, he claims the instruction fails to specify that the one witness saw or heard the pretense.
People v. Henning (2009) 173 Cal.App.4th 632, 643 (Henning).
CALCRIM No. 1804 now states "the false pretense was accompanied by either a false writing or false token."
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Recognizing one court has disapproved of the version of CALCRIM No. 1804 the trial court gave in this case, we conclude there was error but Georgantas was not prejudiced. As in Henning, supra, 173 Cal.App.4th at page 643, there was "abundant, indeed overwhelming corroborating" evidence. The evidence of the offense of grand theft by false pretense was a man who represented himself to be Hengstenberg purchased over the telephone U-shaped gas burner pipes from Keaton at Product Solutions using a credit card in Hengstenberg's name. Keaton testified a man representing himself as Hengstenberg called him and placed a verbal purchase order for the pipes using a Visa credit card in Hengstenberg's name. Hengstenberg testified he neither purchased the pipes nor authorized anyone to use his credit card. Keaton's testimony was certainly sufficient direct testimony the caller committed grand theft by false pretense.
As for the corroborating evidence, the jury heard evidence that when Georgantas was arrested he had Hengstenberg's credit card, Hengstenberg's credit reports, and a packing slip from Product Solutions given to the person who picked up Hengstenberg's purported order of pipes. This was certainly overwhelming corroborating evidence connecting Georgantas with the commission of the crime. Further, as part of owner of the Company, Georgantas stood to benefit from the pipes along with the other investors. Based on this evidence, the jury could reasonably conclude Georgantas was part of a conspiracy where one of its members called Product Solutions, represented himself as Hengstenberg, and purchased pipes on behalf of Hengstenberg Developments.
B. CALCRIM No. 301, "Single Witness's Testimony"
In a related argument, Georgantas argues the trial court failed to properly instruct the jury on the corroboration requirement. We disagree.
The form CALCRIM No. 301 states: "Except for the testimony of ______, which requires supporting evidence, the testimony of only one witness can prove any fact. Before you conclude that the testimony of one witness proves a fact, you should carefully review all the evidence." CALCRIM No. 301's Bench Notes require a trial court to instruct the jury with the first sentence if the testimony of an accomplice or other witness requires corroboration, including cases where a defendant is charged with obtaining property by false pretenses.
Here, the trial court instructed the jury with CALCRIM No. 301 but omitted the first sentence. Assuming this was error, as we explain above there was overwhelming corroborating evidence connecting Georgantas with the commission of count 4, and any error was harmless.
III. Trial Court's Evidentiary Rulings
Georgantas asserts the trial court made numerous erroneous evidentiary rulings. We will address each in turn.
Evidence Code section 350 states: "No evidence is admissible except relevant evidence." Relevant evidence is "evidence . . . 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.) Although "'there is no universal test of relevancy, the general rule in criminal cases [is] whether or not the evidence tends logically, naturally, and by reasonable inference to establish any fact material for the prosecution[.]'" (People v. Freeman (1994) 8 Cal.4th 450, 491.)
Evidence Code section 352, however, authorizes a trial court to exclude relevant evidence. "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." (Evid. Code, § 352.) For purposes of Evidence Code section 352, prejudice means "'evidence that uniquely tends to evoke an emotional bias against a party as an individual, while having only slight probative value with regard to the issues. [Citation.]'" (People v. Heard (2003) 31 Cal.4th 946, 976.) We review a trial court's rulings for an abuse of discretion.
A. Georgantas's Preliminary Hearing Testimony
Relying on Evidence Code section 356, Georgantas argues the trial court erroneously excluded additional portions of his testimony from the preliminary hearing. We disagree.
In the event a statement is admitted in evidence that constitutes part of a conversation or correspondence, the opponent is entitled to have placed in evidence all that was said or written by or to the declarant in the course of such conversation or correspondence, provided the other statements have some bearing upon, or connection with, the admission or declaration in evidence. (Evid. Code, § 356.) "'"It is an elementary rule of law that when admissions of one on trial for the commission of a criminal offense are allowed in evidence against him, all that he said in that connection must also be permitted to go to the jury, either through cross-examination of the witness who testified to the admissions or through witnesses produced by the accused. The fact that declarations made by the accused were self-serving does not preclude their introduction in evidence as a part of his whole statement, provided they are relevant to, and were made on the same occasion as the statements introduced by, the prosecution."' [Citations.]" (People v. Stallworth (2008) 164 Cal.App.4th 1079, 1098.)
Here, the trial court properly excluded Georgantas's testimony from the preliminary hearing that mail addressed to other people was delivered to 5146 Sunnyslope Avenue, and testimony concerning what he did with that mail. The prosecutor offered Georgantas's preliminary hearing testimony to establish if and when he moved into that address. Although Evidence Code section 356 does apply to a party admission, the court did not rule solely on that basis. The court also concluded the evidence was not relevant. That mail addressed to other people may have been delivered to that address and what Georgantas did with that mail was not connected to when he moved to that address. Thus, the court properly excluded this evidence because it was irrelevant.
B. Exhibit Nos. 54A -54I
Georgantas argues the trial court erroneously admitted Exhibit Nos. 54A to 54I because they were not properly authenticated and they were hearsay. As we explain below, he forfeited appellate review of these contentions.
Georgantas's defense was he did not have the laptop computer when Hengstenberg's personal information was acquired and the fraudulent purchases with Hengstenberg's credit cards were made. In rebuttal, the prosecutor sought to admit evidence demonstrating the computer laptop was used for the Company's business throughout December 2005. The prosecutor offered Exhibit Nos. 54A through 54I for this purpose. After an Evidence Code section 402 hearing, the trial court mused any concerns about their relevancy or authenticity went to the weight of the evidence and not its admissibility. Defense counsel replied, "I'm not even going to argue that because I agree that that is the issue." Defense counsel did, however, object to admission of Exhibit Nos. 54C and 54I pursuant to Evidence Code section 352. The trial court ruled admission of Exhibit Nos. 54C and 54I were not unduly prejudicial.
First, Georgantas only objected to admission of Exhibit Nos. 54C and 54I, and any objection to admission of the other exhibits is forfeited. (People v. Alexander (2010) 49 Cal.4th 846, 905.) In his opening brief Georgantas concedes as much when he says he "objected to admission of some of the documents[.]" Second, he did not object to admission of any of the exhibits based on the grounds they were unauthenticated or they were hearsay and his claim as to the exhibits he did object to is also forfeited. (Ibid.)
Georgantas asserts that if we conclude he forfeited appellate review of this issue, he received ineffective assistance of counsel. "If defendant fails to show that he was prejudiced by counsel's performance, we may reject his ineffective assistance claim without determining whether counsel's performance was inadequate. [Citation.]" (People v. Sanchez (1995) 12 Cal.4th 1, 40-41, disapproved on other grounds in Doolin, supra, 45 Cal.4th at pp. 393-394.) As we explain, there was sufficient evidence of Georgantas's guilt as to all counts, and had the trial court excluded the exhibits, it is not reasonably probable the result of the proceeding would have been different. The most damning evidence was found in Georgantas's briefcase when he was arrested, and not on the computer laptop. Finally, even were we to address the merits of his claim, the exhibits were not included in the record on appeal, and we are therefore unable to review his claim. (People v. Clifton (1969) 270 Cal.App.2d 860, 862.)
C. Sheppard's Prior Conviction
Georgantas claims the trial court erred by sanitizing one of Sheppard's prior convictions by ruling it could be referred to as only a theft offense and not an identity theft offense. Not so.
Before trial, Georgantas's defense counsel informed the trial court his defense was Sheppard and his ex-wife and daughter were responsible for the charged offenses. The prosecutor moved in limine to prevent Georgantas from inquiring whether Sheppard was convicted of identity theft because it was improper propensity evidence. The court ruled: "I'm leery of using the [section] 530.5 [identity theft]. I'm going to sanitize it as to felony involving theft."
Although the trial court did not express its reasons on the record for sanitizing Sheppard's prior identity theft conviction, based on counsel's argument, it is certainly reasonable to conclude the trial court was concerned that because Sheppard was previously convicted of identity theft, the jury would rely on that evidence to conclude he was the perpetrator in this case. In other words, the trial court was concerned the jury would use this as improper propensity evidence and the policy considerations of Evidence Code section 352 weighed against its admission. Sheppard's prior convictions were relevant as to his credibility and the jury heard evidence he was convicted of multiple theft offenses. The jury was not misled about Sheppard's criminal history of crimes of moral turpitude. (People v. Mendoza (2000) 78 Cal.App.4th 918, 925.) Finally, the court's sanitizing of Sheppard's prior theft conviction did not infringe Georgantas's constitutional right to present a defense or prevent him from explaining his theory to the jury. (People v. Hawthorne (1992) 4 Cal.4th 43, 58 [ordinary evidentiary rules do not impermissibly infringe on accused's right to present defense].)
IV. Sufficiency of the Evidence
Georgantas contends insufficient evidence supports his convictions. We disagree.
"'On appeal we review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578 . . . ; see also Jackson v. Virginia (1979) 443 U.S. 307, 317-320 . . . .) The standard of review is the same in cases in which the People rely mainly on circumstantial evidence. [Citation.] "Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court which must be convinced of the defendant's guilt beyond a reasonable doubt. '"If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment."' [Citations.]" [Citation.] "'Circumstantial evidence may be sufficient to connect a defendant with the crime and to prove his guilt beyond a reasonable doubt.'"' [Citation.]" (Abilez, supra, 41 Cal.4th at p. 504.)
A. Count 3-Receiving Stolen Property
Georgantas contends there was no evidence Moreno's property was stolen. Not so.
The elements of the offense of receiving stolen property are: (1) the property was stolen; (2) the defendant knew it was stolen; and (3) the defendant had possession of it. (In re Anthony J. (2004) 117 Cal.App.4th 718, 728.) Here, there was sufficient circumstantial evidence from which the jury could reasonably conclude beyond a reasonable doubt that Moreno's wallet was stolen from his car. Moreno testified he realized his wallet was gone in late 2005. When the prosecutor asked "of course you're never 100 percent certain of these things, but do you believe you know where it was left?" Moreno responded, "Yes. I left it in my car." The jury also heard evidence that the same night Moreno's wallet went missing from his car, someone stole a digital camera from another car parked on the same driveway.
Georgantas relies on Moreno's testimony that when he did not have his wallet and he thought he may have misplaced it, and the prosecutor's statement no one is ever certain of these things, to assert it is equally plausible Moreno lost his wallet. That there may have been evidence that could reasonably lead to the conclusion Moreno lost his wallet does not warrant a reversal of the judgment. And the prosecutor's statements or questions are certainly not evidence. There was sufficient circumstantial evidence Moreno's wallet was stolen from his car, and when officers arrested Georgantas he had the contents of Moreno's wallet in his possession.
B. Counts 1, 2, and 4
Georgantas claims there was not sufficient evidence he shared a common purpose with unknown persons to commit the offenses. We disagree. As we explain above, the Company was having financial difficulties and investors regularly paid monthly bills. Product Solutions manufactured U-shaped gas burner pipes that the Company used to manufacture its fireplace insert. Avedissian, a part owner of the Company, dealt directly with Product Solutions. A person claiming to be Hengstenberg called Product Solutions and ordered the same type of pipes the Company used to manufacture the fireplace insert. Months after the pipes were picked up and signed for, Georgantas was found with the packing slip from the first pick up and Hengstenberg's credit reports. This was sufficient circumstantial evidence for the jury to reasonably conclude Georgantas and coconspirators shared the common purpose of using Hengstenberg's personal information and access card account information to obtain U-shaped gas burner pipes from Product Solutions to benefit the Company and ultimately themselves.
C. Count 4
Georgantas argues there was not sufficient evidence corroborating Keaton's claim of false pretense. Again, we disagree. As we explain above, when Georgantas was arrested, he had Hengstenberg's credit card, Hengstenberg's credit statements, and a packing slip from Product Solutions given to the person who picked up the Hengstenberg order of the pipes. Based on this evidence, the jury could reasonably conclude Georgantas was part of a conspiracy one of whose members called Product Solutions, represented himself as Hengstenberg, and purchased pipes. Georgantas and the other owners of the Company stood to benefit from the theft of the pipes in manufacturing the fireplace insert that would later be sold to the public.
V. Cumulative Error
Georgantas contends the cumulative effect of the errors requires reversal. As we explain above, any error in the jury instruction was harmless beyond a reasonable doubt. Georgantas was not prejudiced by any errors. Based on the entire charge, it is not reasonably likely the trial court's instructions caused the jury to misapply the law. Therefore, his claim the cumulative effect of the errors was prejudicial has no merit.
DISPOSITION
The judgment is affirmed.
O'LEARY, J.
WE CONCUR:
BEDSWORTH, ACTING P. J.
ARONSON, J.