Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County. Jon Ferguson, Judge, Super. Ct. No. FVA801133
James M. Crawford, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, James D. Dutton and Charles C. Ragland, Deputy Attorneys General, for Plaintiff and Respondent.
RICHLI, J.
Defendant Danny Bernard Johnson had an old Navy buddy who died of cancer, leaving behind a 15-year-old daughter. Defendant treated this as an opportunity to loot his buddy’s estate, using the buddy’s Social Security number and account numbers and repeatedly forging the buddy’s signature.
A jury found defendant guilty of one count of grand theft (Pen. Code, §§ 484, subd. (a), 487, subd. (a)) (count 1); one count of identity theft (Pen. Code, § 530.5, subd. (a)) (count 2); one count of receiving stolen property (Pen. Code, § 496, subd. (a)) (count 6); two counts of second degree burglary (Pen. Code, § 459) (counts 3 & 7); and seven counts of forgery (Pen. Code, § 470, subd. (a)) (counts 4, 5 & 8-12). As a result, defendant was sentenced to five years four months in prison.
Defendant contends that his conviction on two counts must be reversed because the witness who purported to lay the foundation under the business records exception for the admission of five specified exhibits, which supposedly were crucial to these counts, was not qualified to do so. We will hold that defense counsel forfeited this contention by failing to object to some of the exhibits and by withdrawing his objection to the rest. Separately and alternatively, we will also hold that, even assuming the witness was not qualified, once defendant got on the stand, he laid the foundation himself for the admission of four out of five of the challenged exhibits, and the admission of the fifth was harmless. Accordingly, we will affirm.
I
FACTUAL BACKGROUND
A. The Case Against Defendant.
Defendant first met Dana Boyer in 1986, when they served on the same ship in the Navy. Thereafter, they remained friends.
Boyer died on August 31, 2006. He had an individual retirement account (IRA) with Franklin Templeton Investments. It was in two different funds, the “Income Fund” and the “Utilities Fund.” His daughter Demi, then 15 years old, was the beneficiary. He also had a checking account and a savings account, both with Washington Mutual.
1. Preparatory steps.
On May 26, 2007, someone used Boyer’s Social Security number and account number — but defendant’s email address — to gain online access to Boyer’s IRA.
On July 2, 2007, someone used Boyer’s Social Security number and other personal identifying information to open a Wells Fargo checking account online in Boyer’s name.
2. Burglary (count 3) and forgery (count 8).
On May 29, 2007, someone made an online withdrawal of $14,000 from Boyer’s IRA. As a result, Franklin Templeton mailed a check for this amount to Boyer’s home address, on Gardenia Way in Fontana.
On July 3, 2007, defendant was photographed inside a Wells Fargo branch in Fontana. On that date, someone endorsed the $14,000 check, signing Boyer’s name, and deposited it into the newly opened fraudulent Wells Fargo account.
3. Burglary (count 7).
On May 29, 2007, someone made a telephone transfer of $3,650 from Boyer’s Washington Mutual savings account into Boyer’s Washington Mutual checking account.
The next day, May 30, 2007, someone entered a Washington Mutual branch in Fontana and used fake identification, along with Boyer’s account number, to withdraw $4,170 from Boyer’s checking account.
4. Forgery (count 10).
On June 14, 2007, someone made an online withdrawal of $12,000 from Boyer’s IRA. As a result, Franklin Templeton mailed a check for this amount to Boyer’s home address.
On July 16, 2007, defendant was photographed at an automated teller machine (ATM) at a Wells Fargo branch in Fontana. On that date, someone endorsed the $12,000 check, signing Boyer’s name, and deposited it into the Wells Fargo account, using an ATM at that same branch.
5. Forgery (counts 9 and 11).
On July 2, 2007, someone made an online withdrawal of the remaining balance — $3,373.49 — of the Income Fund portion of Boyer’s IRA. As a result, Franklin Templeton mailed a check for this amount to Boyer’s home address. On July 5, 2007, on its own initiative, Franklin Templeton mailed another check for $14.79, representing accrued dividends on the Income Fund, to Boyer’s home address.
On July 11, 2007, defendant was photographed inside a Wells Fargo branch in Fontana. On that date, someone endorsed both the $3,373.49 and $14.79 checks, signing Boyer’s name, and deposited them into the Wells Fargo account.
6. Forgery (count 4).
On July 11, 2007, someone wrote a check for $500, payable to defendant, on the Wells Fargo checking account and signed Boyer’s name. The check was then cashed.
7. Forgery (count 5).
On July 13, 2007, someone wrote a check for $2,200, payable to defendant’s wife, on the Wells Fargo checking account and signed Boyer’s name. The check was then cashed.
8. Uncharged forgery.
Sometime between July 5 and July 18, 2007, someone used online access to change the address on Boyer’s IRA, from Boyer’s address on Gardenia Way to defendant’s address on Snowdan Road in Fontana.
On July 18, 2007, someone made an online withdrawal of $5,000 from Boyer’s IRA. As a result, Franklin Templeton mailed a check for this amount to Boyer at defendant’s address.
On July 26, 2007, someone endorsed the $5,000 check by signing Boyer’s name and deposited it directly into defendant’s own account at the Bank of America.
9. Forgery (count 12).
On August 20, 2007, someone made an online withdrawal of $3,194.10 from Boyer’s IRA. As a result, Franklin Templeton mailed a check for this amount to Boyer at defendant’s address.
On August 27, 2007, someone endorsed this check by signing Boyer’s name and deposited it into defendant’s own account at the Bank of America.
10. Receiving stolen property (count 6).
In or before October 2007, the executor of Boyer’s estate finally notified Franklin Templeton that Boyer had died. Realizing that withdrawals had been made after Boyer’s death, Franklin Templeton notified the police. A search of defendant’s garage revealed mail — including Washington Mutual bank statements — addressed to Boyer at his Gardenia Way address.
11. The police interview of defendant.
The police arrested defendant and interviewed him. He admitted having fake identification in Boyer’s name. He was evasive about whether he had taken any money from the Franklin Templeton account. However, he admitted writing checks to himself and his wife on the Wells Fargo account. He also admitted taking about $4,000 from the Washington Mutual account.
At first, defendant claimed that he was trying to save Boyer’s house from foreclosure, explaining that Boyer had asked him to do so, but the house had been foreclosed upon too quickly for him to prevent it.
Defendant then claimed that he had entrusted $12,000 of his own money to Boyer, so that his wife would not know about it. He denied taking any more than his own $12,000.
B. The Defense Case.
Defendant testified on his own behalf. He reiterated that he had entrusted $12,000 of his own money to Boyer. According to defendant, he entered into an agreement with one “Anthony,” who was looking after Boyer’s house after his death, to try to help sell the house before it was foreclosed upon. In exchange, he would receive the $12,000 that was already owed him. Thus, Anthony gave him the Franklin Templeton checks for $5,000 and $3,194.10 and the Wells Fargo checks for $2,200 and $500. Defendant conceded that this did not add up to $12,000, but he claimed that Anthony gave him the rest in cash.
Defendant denied obtaining online access to Boyer’s Franklin Templeton account. He denied receiving the Franklin Templeton checks for $14,000, $12,000, $3,373.49, and $14.79. He denied opening the Wells Fargo account or writing checks on it; he claimed that he was photographed inside the Wells Fargo branch because he sometimes went there to get cashier’s checks. He also denied making the Washington Mutual withdrawal.
Defendant explained that he had mail addressed to Boyer because he had seen it on Boyer’s porch and had taken it so that it would not get stolen. He denied opening it, but he admitted that he could not explain how it had become opened. When asked why he had not returned it, he said, “It must have just got mixed up with some of my things.”
II
THE ADMISSION OF EXHIBITS 7 THROUGH 11
Defendant contends that witness Ivan Nieto was not qualified to lay the foundation for the admission of Exhibits 7 through 11 under the business records exception.
A. Additional Factual and Procedural Background.
Nieto testified that he had worked at the Fontana branch of Bank of America for two and a half years, first as a teller, and then, for about a year, as a teller operation specialist. A teller operation specialist supervised tellers regarding operations. The only persons above him at his branch were the manager and assistant manager.
Nieto testified that Bank of America kept records of customer deposits and withdrawals in the regular course of business, usually on the same day they were made. He was then asked:
“Q Now, showing you Exhibit Number 7.... [¶] Do you recognize [it]?
“[DEFENSE COUNSEL]: Your Honor, objection. Foundation. Expertise. I would like to do a voir dire on this witness as to his qualifications.
“THE COURT: At this point, that will be denied. You can do that on cross-examination. [¶] As far as foundation, the question that’s currently before this witness, that will be overruled.”
Nieto then proceeded to identify and describe Exhibits 7 through 11. Exhibit 8 and 10 were Franklin Templeton checks for $5,000 and $3,194.10, respectively. Exhibits 7 and 10 were Bank of America statements in defendant’s name, showing that $5,000 and $3,194.10 had been deposited into his own account. Exhibit 11 was an internal Bank of America document, also showing that $3,194.10 had been deposited into defendant’s own account.
The forgery of Exhibit 10 — the $3,194.10 check — was charged as count 12.
On direct, Nieto testified that he was one of Bank of America’s custodians of records. On cross-examination, however, he testified:
“Q (BY [DEFENSE COUNSEL]:)... [Y]ou said you were a custodian of the records, right?
“A Not exactly.”
Nieto then admitted that he was not “familiar with how Bank of America’s documents are created.” He had not had any formal training on how Bank of America keeps its records. The prosecutor had faxed the exhibits to him before trial; he had recognized them based on his familiarity with Bank of America documents in general. He had not compared them to the originals.
When Nieto finished testifying, defense counsel moved to strike all of his testimony on the ground that he did not qualify as a custodian of records: “By his own admission, he said not really. I’m not really a custodian, and I don’t really know how the records are kept, and I don’t have any responsibility for keeping those records.” The trial court overruled the objection.
The next day, defense counsel renewed his objection to Nieto’s testimony; he also argued that the testimony did not satisfy the requirements of the business records exception. The trial court said it would reserve ruling until it had reviewed a transcript of Nieto’s testimony.
At the close of its case in chief, the prosecution moved all of its exhibits into evidence. Defense counsel objected to Exhibits 7 and 9, based on lack of foundation. The trial court again reserved ruling.
Defendant then took the stand. He admitted that Exhibits 7 and 9 were his bank statements, that they appeared to be accurate, and that they correctly reflected that he had deposited $5,000 on July 26, 2007, and $3,194.10 on August 27, 2007. He also specifically admitted that he had deposited Exhibits 8 and 10.
Thereafter, defense counsel withdrew his objection to Exhibits 7 and 9; he conceded, “[S]ome of those exhibits, they got in another way.” However, he renewed his objection to Nieto’s testimony: “[H]is conclusions and his testimony is [sic] what I’m objecting to.” The trial court ruled only that “sufficient foundation was laid for the admissibility” of Exhibits 7 through 11.
B. Analysis.
We begin by emphasizing the precise scope of defendant’s one and only appellate contention: It is that the trial court erred by admitting Exhibits 7 through 11, not that the trial court erred by admitting Nieto’s testimony.
The People therefore respond that (among other things) defense counsel forfeited this contention by failing to object to Exhibits 7 through 11 at trial. Although the point requires some discussion, ultimately we agree.
When Nieto was first asked about Exhibits 7 through 11, defense counsel objected based on lack of foundation and requested permission to examine Nieto on voir dire. The trial court basically postponed ruling; it indicated that it would allow the prosecution to attempt to lay the necessary foundation, and it would allow defense counsel to cross-examine regarding foundation. Defendant does not argue that this was error. It was not. “‘A trial court has inherent as well as statutory discretion to control the proceedings to ensure the efficacious administration of justice.’ [Citations.]” (People v. Gonzalez (2006) 38 Cal.4th 932, 951; see also Evid. Code, § 765; Pen. Code, § 1044.) It did mean, however, that defense counsel would need to renew any objection after Nieto testified.
And defense counsel did renew his objection. First, he renewed it after Nieto testified. At that time, however, he objected only to Nieto’s testimony, not to the exhibits themselves. In this appeal, defendant never contends that Nieto’s testimony was inadmissible. Moreover, once Exhibits 7 through 11 themselves were in evidence, it would not appear that Nieto’s testimony regarding them was independently prejudicial.
Admittedly, the next day, when he renewed his objection again, his argument did, to some extent, address the exhibits. The trial court, however, indicated that it would reserve its ruling.
And defense counsel never asked it to rule again. At one point, he did object to Exhibits 7 and 9; however, defendant then went on to admit that Exhibits 7 and 9 were his bank statements, and defense counsel expressly withdrew this objection. Accordingly, even assuming Nieto was not qualified to lay the foundation for the admission of Exhibits 7 through 11, defense counsel forfeited the error in admitting them.
Separately and alternatively, and again assuming Nieto was not qualified, it does not follow that the exhibits were inadmissible or that their admission was prejudicial.
Defendant admitted that he deposited the checks, Exhibits 8 and 10. Moreover, a Franklin Templeton employee duly authenticated Exhibits 44 and 45, which were identical to Exhibits 8 and 10, and they were admitted without objection. Accordingly, the trial court did not err by admitting Exhibits 8 and 10. They were not hearsay; under the operative fact doctrine (see generally People v. Fields (1998) 61 Cal.App.4th 1063, 1068-1069), they were admissible to show that defendant forged Boyer’s name to a check drawn on Boyer’s IRA.
Defendant also admitted that Exhibits 7 and 9 were his bank statements and that they correctly reflected his deposit of Exhibits 8 and 10. Accordingly, the trial court did not err by admitting Exhibits 7 and 9. They were hearsay, but they became admissible under the adoptive admissions exception. (Evid. Code, § 1221.)
Finally, Exhibit 11 was merely cumulative in light of Exhibits 9 and 10 and defendant’s admissions regarding them. Accordingly, even assuming the trial court erred by admitting it, the error could not possibly have been prejudicial.
We therefore conclude that defendant has not shown that the admission of Exhibits 7 through 11 was reversible error.
III
DISPOSITION
The judgment is affirmed.
We concur: McKINSTER, Acting P.J., KING, J.
Defendant seems to think that the forgery of Exhibit 8 — the $5,000 check — was charged as count 3. Not so. Admittedly, in closing argument, the prosecutor did say, “Let’s look at Count 3”; he then proceeded to discuss Exhibit 8. However, the prosecutor clearly misspoke; he was mistakenly referring to the elements of count 1 (grand theft) as separate counts. For example, he said “Count 2” was that “the property was taken without the owner’s consent” and “Count 3” was the intent to permanently deprive. Thus, in context, the prosecutor was arguing that Exhibits 8 and 10 were some evidence of the intent to permanently deprive element of count 1.
Actually, the forgery of Exhibit 8, the $5,000 check, was not separately charged. Because Exhibits 8 and 10 were both deposited into defendant’s own Bank of America account, rather than into the Wells Fargo account in Boyer’s name, they did tend to tie him to the misappropriation of all of the Franklin Templeton checks. Also, as the prosecutor argued, they were some evidence of defendant’s overall scheme of grand theft. However, Exhibit 8 — and Exhibit 7, the bank statement showing that it was deposited into defendant’s account — were not necessary to support any particular count. If they had been excluded, the result would almost certainly have been the same.