Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County. Elden S. Fox, Judge. Los Angeles County Super. Ct. No. SA060531
Barbara A. Smith, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Kristofer Jorstad, Deputy Attorney General, Joseph P. Lee, Deputy Attorney General, for Plaintiff and Respondent.
MOSK, J.
INTRODUCTION
A jury convicted defendant and appellant John Kim (defendant) of thirteen counts of offenses relating to identity theft and improperly obtaining, misusing and forging access cards and two counts of possession of a controlled substance. The trial court sentenced defendant to an aggregate prison term of seven years and four months. Defendant argues that he was denied a fair trial and the effective assistance of counsel because he was prevented from introducing evidence that he had been incarcerated for a month and was released only hours before the police searched and discovered incriminating evidence in an apartment that defendant had leased. Defendant asserts that evidence of his incarceration would have shown his lack of dominion and control over the apartment and its contents. For the reasons stated below, we affirm.
An “access card” includes “any card . . . that can be used, alone or in conjunction with another access card, to obtain money, goods, services, or any other thing of value, or that can be used to initiate a transfer of funds . . . .” (Pen. Code, § 484d, subd. (2).) The jury was instructed that a credit, debit or ATM card is an access card. (See CALCRIM No. 1952.) All statutory references are to the Penal Code unless otherwise specified.
BACKGROUND
A. Factual Background
1. The Prosecution Case
On June 7, 2006, detectives of the Beverly Hills Police Department executed a search warrant at an apartment located on South Hoover Street in Los Angeles. Defendant and one of his three alleged accomplices, Gloria Park, were present in the apartment. Police recovered, among other things, four personal computers, five color printers, three scanners, color photocopy paper, clear printer labels, two laminators, several hundred laminating sleeves, glues, spray adhesives, brushes, exacto knives, a glue gun, a paper cutter, a dremel, a sander, a label maker, silver mylar tape, two passports, hundreds of altered credit cards and driver’s licenses, blank and cancelled checks in 15 different names, social security cards in 20 different names, and color copies of driver’s licenses and credit cards made on clear labels. The police also recovered a machine used to process credit card transactions. There were approximately 200 pieces of mail in the apartment in approximately 150 different names, including credit card statements, bank statements and social security statements. None of the mail was addressed in defendant’s name.
Witnesses testified that some of the driver’s licenses, credit cards, checks and other personal items had been stolen. Some of the personal information on some of those items had been altered. Several of the stolen credit cards had been used to make unauthorized charges, and at least one stolen ATM card had been used to make unauthorized withdrawals.
Victim Jimmy Liu testified that his wallet had been stolen while he was traveling in Thailand in 2005. Liu previously had been contacted by police and informed that they had recovered his checkbook. When Liu examined the checkbook, he found that the checks were in his name, but the address and bank account numbers on the checks were not Liu’s. Police in this case had discovered Liu’s driver’s license with Liu’s driver’s license number in the apartment, but the license had been altered to show someone else’s date of birth, description, signature and photograph. The police also recovered laminated sheets with altered copies of Liu’s license.
Police also recovered during the search a small photograph of defendant that was consistent with a DMV photo; four color copies of California driver’s licenses, two of which contained defendant’s photograph; five documents bearing defendant’s name, “John Kim”; several items of men’s clothing, some with the price tags still on them, but no women’s clothing; and a black jacket that contained a document in defendant’s name, “John Kim.” Police found several baggies of methamphetamine powder and, in a locked safe inside the apartment, a water bottle containing the controlled substance gamma hydroxybutyric acid (GHB).
A former manager of the apartment complex, Ana Gomez, testified that defendant rented the apartment, purportedly for his girlfriend. Defendant had identified himself as Jimmy Liu, and had made the first payment in cash. The girl, who identified herself as Kelly, had paid some of the subsequent rent payments with third-party checks. Defendant had a black Porsche automobile, which was at the apartment on a daily basis during March and April of 2006. The apartment was allocated only one parking space; defendant had requested an additional parking space several times, and other residents had complained because defendant had parked his car in their assigned spaces.
2. The Defense Case
Ana Gomez’s successor as manager of the apartment building, Sunh Ouk Lee, managed the building from May to September of 2006. Mr. Lee testified that he had never seen appellant at the apartment. The rent was paid by a girl named Jennifer. A police detective testified that Mr. Lee had said he recognized defendant on the day of the search, but Mr. Lee was not using an interpreter at the time.
Another police detective testified that he and other officers had arrested two of defendant’s alleged accomplices, Jennifer Yi and Arthur Malveda, outside the apartment building on the day the search warrant was executed. In the car that Yi and Malveda were driving police found a notebook with the name “Jenster,” which name also was found on papers inside the apartment. Police also found counterfeit checks, credit cards and Social Security cards, as well as a zippered pouch containing methamphetamine and a pipe. Yi’s name also was on paperwork found in a stolen car in the apartment’s underground garage. Defendant did not testify.
B. Procedural Background
Defendant was charged with two counts of auto theft (§ 487, subd. (d)(1)); seven counts of identity theft (§ 530.5, subd. (a)); five counts relating to improperly obtaining, misusing or forging access cards (§§ 484E, 484F, 484I); two counts of receiving stolen property (§ 496, subd. (a)); two counts of forging an official seal (§ 472); and two counts of possession of a controlled substance (Health & Saf. Code, §§ 11350, subd. (b); 11377, subd. (a)). The People specially alleged with respect to each count that defendant had one prior prison term (§ 667.5, subd. (b)) and with respect to eighteen counts, that defendant had committed the crimes while released on bail (§ 12022.1). The trial court subsequently struck the section 12022.1 allegation. After the prosecution’s case-in-chief, the trial court granted defendant’s motion to dismiss both counts alleging auto theft, both counts alleging forging an official seal, and one count of receiving stolen property.
Gloria Park, Jennifer Yi and Arthur Malveda were charged with essentially the same crimes in the same information. They were not tried with defendant, and the disposition of the charges against them is not reflected in the record. None is a party to this appeal.
The jury convicted defendant on the fifteen remaining counts, consisting of seven counts of identity theft, five counts relating to access cards, one count of receiving stolen property, and two counts of possession of a controlled substance. The trial court selected count 3—one of the identity theft counts—as the base count, and sentenced defendant to the mid term of two years. The trial court sentenced defendant to concurrent two year terms on six other counts, and to consecutive terms of eight months each on eight counts, for an aggregate prison term of seven years and four months. The trial court struck the prior prison term allegation pursuant to section 1385, and imposed a $600 restitution fine; a $600 parole revocation restitution fine, stayed; and a $20 court security fee. Defendant was given 576 days of presentence credit, consisting of 384 days of actual custody and 192 days of conduct credit. Defendant timely appealed.
DISCUSSION
Defendant contends that he was incarcerated on other charges on May 10 and was released only a few hours before the search of the apartment occurred early on the morning of June 7. The jury, however, was never informed of that fact. Defendant argues that the jury was thus unable fairly to consider defendant’s primary defense that he did not have dominion or control over the apartment in which the contraband access cards and narcotics were discovered. Defendant argues that he was denied the right to a fair trial by the trial court’s rulings concerning evidence of his incarceration and by the ineffective assistance of his trial counsel. Neither of defendant’s contentions has merit.
A. Relevant Background
In presenting defendant’s case to the jury, defense counsel faced a dilemma. The primary connection between defendant and the contraband items seized during the search was that the items had been found in an apartment that defendant had leased and in which defendant was present when the search occurred. Defendant, however, had been incarcerated in the county jail from May 10 to June 6, as reflected in documents described as a surety bond, a supplemental charge record and an excess personal property receipt found in defendant’s possession during the search. Based on his enforced absence from the apartment for nearly a month prior to the search, defendant’s primary trial defense was that he did not have dominion or control over the apartment or the items found within it.
We rely on defense counsel’s description of these documents, as the documents themselves were not offered into evidence or otherwise made part of the record on appeal.
The documents establishing defendant’s incarceration, however, were not in defendant’s true name, John Kim. Defendant had been booked under the alias “Jong Keun Park.” As a result, to establish that defendant had been incarcerated and absent from the apartment for a month prior to the search, defense counsel had to establish that defendant was the person booked and incarcerated under the name “Jong Keun Park.” Doing so, however, entailed a significant risk. According to the prosecutor, police had recovered “many, many documents” from the apartment and from defendant’s possession bearing the name “Jong Keun Park.” But the prosecution could use those documents against defendant only if it could establish that defendant had used the alias “Jong Keun Park.” It appears that the only readily available evidence that defendant had used that name was the fact that defendant had been booked under that name when he was arrested in May 2006.
To establish that defendant was the person who had been incarcerated prior to the search, defense counsel would have to show that defendant had used the name “Jong Keun Park.” But by showing that defendant had used that name, defense counsel would open the door to the admission of adverse evidence tending to show defendant’s dominion and control over the apartment.
Defense counsel explored several avenues to establish defendant’s incarceration short of having defendant testify. On the second day of trial, during the prosecution’s case in chief, defense counsel asked the trial court if it could take judicial notice of the fact that defendant was incarcerated. The trial court responded, “It depends on what you want me to take judicial notice of and for what reason.” The trial court suggested that defense counsel speak with the prosecutor and enter into a stipulation that defendant was “in jail at a particular time or date.” No stipulation was entered.
Later that same day, defense counsel indicated that she intended to prove defendant’s incarceration through the testimony of Detective Rick Banks. Counsel explained that Detective Banks would testify that he had interviewed defendant, and that during the interview defendant had stated that he did not live in the apartment and had been incarcerated from May 10 until approximately five hours before the search was conducted on June 7. Defense counsel intended to offer the testimony as exculpatory evidence to support defendant’s assertion that he did not have dominion or control over the apartment. The trial court noted that defendant’s assertion was relevant and could be proved through other means, but the proposed testimony of Detective Banks was hearsay offered to prove the truth of defendant’s statements. Because defendant was available to testify and no other exception to the hearsay rule applied, the trial court ruled that defendant could not offer the testimony of Detective Banks regarding defendant’s exculpatory statements.
The next day, still during the prosecution’s case in chief, defense counsel informed the trial court that she intended to introduce the surety bond, supplemental charge record and the excess personal property receipt found in defendant’s possession during the search to establish defendant’s incarceration. Defense counsel requested that the trial court redact information indicating the charge against defendant and that defendant had used the alias “Jong Keun Park.” The trial court asked if the fact that defendant had used another name was relevant. The prosecutor informed the court that there were “many, many documents” found in the apartment and in defendant’s possession with the name “Jong Keun Park” and that the prosecution would seek to introduce evidence that defendant had been booked under that name. The trial court stated that it would not permit the prosecution to introduce such evidence unless the prosecution could prove that defendant personally had given that name to police when he was booked, rather than police obtaining that name from some document found in defendant’s possession. The trial court stated that it would redact the name on the booking form and any reference to the charges for which defendant was incarcerated, unless there was evidence that defendant had given the name. The trial court concluded, “If you [defense counsel] have jail documents to show that your client was in custody, you can establish that.”
During the prosecution’s direct examination of the investigating officer, Detective Alisabeth Albanese, defense counsel informed the trial court that she had reconsidered introducing the surety bond and other documents. She said, “I think that in thinking about it further what I’ve decided to do is that I’m just going to ask Detective Albanese if she was aware that Mr. Kim was absent from the apartment between the date of May 10th and June 7th or June 6th, which she already testified to at prelim that she knew, and just leave it at that.” The trial court indicated that if defense counsel elicited such testimony, it would permit Detective Albanese to explain how she knew that defendant was absent—that is, that defendant was incarcerated in the county jail. The prosecutor argued that such testimony would open the door to proof of defendant’s use of the alias because Detective Albanese’s knowledge of defendant’s incarceration was derived from booking documents bearing defendant’s alias. The trial court stated that if Detective Albanese could verify defendant’s incarceration through business records, she could testify that he had been incarcerated. The trial court nevertheless stated, “I think it should be done by stipulation rather than getting into that the defendant was in custody from X date to X date.” Although defense counsel indicated her willingness to so stipulate, no such stipulation was entered.
Defense counsel’s description of Detective Albanese’s preliminary hearing testimony is not altogether accurate. Detective Albanese had testified that she knew prior to the search that defendant had been arrested, but she did not know the date of his arrest.
When cross-examining Detective Albanese, defense counsel asked whether, at the time defendant was arrested, Detective Albanese was aware that defendant had not been present at the apartment for 28 or 29 days prior to the search. Detective Albanese responded that she was “not aware of the time frame for which you [defense counsel] claim he [defendant] was absent, no.” Defense counsel asked, “So I’m asking you if on June 7th you were unaware that Mr. Kim was not around from May 10th until a certain date very close to the time that you were at the apartment.” Detective Albanese responded, “Well, what I believe you’re asking me, I am familiar with the May 10th date. After that date I don’t know when he was or was not around the apartment.”
Defense counsel returned to this topic later in her cross-examination, asking, “Are you aware that Mr. Kim was not present in that apartment from May 10th until June 6th about seven or eight o’clock at night, or even later, 11:00?” The prosecutor objected on hearsay grounds. The trial court then asked Detective Albanese, “Did you review any business records or documents?” Detective Albanese responded, “Only as to the first date, not the end date.” Detective Albanese stated that she had verified with “an agency” as to the May 10 date, so she was “aware that at least on May 10th the defendant was someplace other than” the apartment.
Later during her cross-examination of Detective Albanese, defense counsel requested a sidebar conference and remarked to the trial court, “I’m not sure what we have to do in terms of—what we were going to do about establishing that Mr. Kim was gone between the 10th [of May] and the 6th [of June].” The trial court told counsel that she could “do it with a business record.” The prosecutor remarked that the business record relating to defendant’s incarceration had defendant’s alias on it because that was the name under which defendant was booked. The trial court observed that, if defense counsel wanted to use a business record to establish defendant’s incarceration, it would have to include defendant’s alias. “You want this document to reflect your client,” the trial court stated, “and it’s got a different name on it . . . . [¶] . . . How are you going to establish that it’s him?” The trial court observed, “The problem that you have is apparently he’s booked under a different name than the one he has, so you sort of put yourself between a rock and a hard place, because there may be other documents that are recovered from the residence that has his name on it also that connects this name to this client.”
Defendant did not offer into evidence any records relating to defendant’s incarceration. The documents discovered by police bearing the name “Jong Keun Park” also were not offered or admitted into evidence.
B. Defendant Was Not Denied a Fair Trial
Defendant argues that he was denied a fair trial because “the prosecutor was allowed to use the release papers in the alias found in [defendant’s] jacket against appellant, to show that appellant had documents in the apartment . . . [y]et the defense could not use the same documents for their favorable import, that he was alibied for the month before the search . . . .” Defendant’s argument, however, is not supported by the record. First, the trial court made no ruling preventing defendant from using any document to establish his incarceration—defendant chose not to introduce into evidence any such documents, apparently because of the adverse consequences of doing so. Second, contrary to defendant’s assertion, the prosecution was not permitted to introduce into evidence the document recovered from defendant’s jacket. That document was one of six documents excluded by the trial court pursuant to defendant’s objection under Evidence Code, section 352. The trial court permitted Detective Albanese only to testify that documents bearing defendant’s name (John Kim) were recovered from the apartment. The documents themselves were not offered or received into evidence or disclosed to the jury. Third, also contrary to defendant’s assertion, the document about which Detective Albanese testified did not bear defendant’s alias, “Jong Keun Park.” As Detective Albanese stated, the jacket found in the apartment “contained a document in the name of the defendant, John Kim.” (Italics added.) No documents bearing the name “Jong Keun Park” were offered or received into evidence. There is thus no basis in the record for defendant’s assertion that he was precluded by the trial court from presenting his defense or was otherwise denied a fair trial.
Defendant repeatedly mischaracterizes as “jail release papers” the document found in defendant’s jacket and referred to by Detective Albanese in her testimony. Although jail release papers—that is, the surety bond, supplemental charge record and the excess personal property receipt—were found in defendant’s possession during the search, those papers bore defendant’s alias, not his true name, and were not used by the prosecutor for any purpose. The six documents bearing defendant’s true name and about which Detective Albanese testified—including five documents recovered from a filing cabinet drawer and one document recovered from defendant’s jacket—were described by the prosecutor to the trial court as “relating to probation . . . .”
C. Ineffective Assistance of Counsel
Defendant argues that he was denied the effective assistance of counsel because, during the latter stages of the trial, “it was clear the defense needed to concede the point regarding the alias on official records, to alibi appellant for the month before the offenses.” Defendant contends that “[t]he only reasonable defense strategy was to give a little on this point, [and] to secure the admission of this crucial evidence [of defendant’s incarceration].”
On direct appeal, the burden is on defendant to demonstrate that he is entitled to relief because of his counsel’s ineffective assistance. (In re Lucas (2004) 33 Cal.4th, 682, 721; see Strickland v. Washington (1984) 466 U.S. 668, 687-688.) To do so, defendant “‘“‘must first show counsel’s performance was “deficient” because his “representation fell below an objective standard of reasonableness . . . under prevailing professional norms.” [Citations.]’”’” (In re Hardy (2007)41 Cal.4th 977, 1018;accord, People v. Ledesma (1987) 43 Cal.3d 171, 216.) “In determining whether counsel’s performance was deficient, a court must in general exercise deferential scrutiny.” (People v. Ledesma, supra, 43 Cal.3d at p. 216.) “‘A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.’ [Citation.] In particular, ‘a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action “might be considered sound trial strategy.”’ [Citations.]” (Darden v. Wainwright (1986) 477 U.S. 168, 185-186.) If an attorney’s decision has “some rational support founded on reasonable, sound, legal principles and fully developed facts,” then “[t]he decision not to raise a defense . . . may be fully justified on the basis that it was made deliberately as a matter of trial strategy or tactics. Such decision, whether wise or unwise, when viewed with benefit of hindsight, may not be second-guessed or disturbed by the reviewing court.” (People v. Corona (1978) 80 Cal.App.3d 684, 706.)
On the present record, we cannot say that defense counsel objectively was unreasonable in choosing to forego proof of defendant’s incarceration to avoid admission of the “many, many documents” found in the apartment bearing defendant’s alias. First, the documents that the prosecution was precluded from presenting to the jury because of its inability to establish defendant’s use of the alias are not part of the record on appeal. Those documents might have been damning both in their quantity and in their content, and might have proved far more damaging to defendant’s case than foregoing his “alibi” defense. In the absence of contrary affirmative evidence in the record, we must presume that defense counsel made a rational assessment of the risks and benefits of the choices available to her. (See People v. Lucas (1995) 12 Cal.4th 415, 436-437.)
Second, the record supports the notion that defense counsel reasonably could have determined that proving defendant’s incarceration would have done defendant’s case more harm than good. Proving defendant’s incarceration, as noted above, would have opened the door to the admission of documents bearing defendant’s alias, thus providing additional evidence linking defendant with the apartment. Proving defendant’s incarceration also would have informed the jury both that defendant recently had been incarcerated and that he had used an alias—prejudicial facts that otherwise would not come before the jury.
Moreover, defendant overstates the exculpatory value of the evidence of his incarceration. Defendant’s incarceration did not provide him with a true alibi, in the sense that his custodial status negated the possibility that he had committed the crimes charged. Rather, evidence of defendant’s incarceration merely would have given him a basis to argue that he was not responsible for the contraband access cards or the narcotics discovered in the apartment. Such an argument, although relevant, might not have been particularly compelling in the circumstances of this case. Defendant offered no evidence to dispute that he leased and had daily access to the apartment for two months prior to his incarceration. The victims who testified all stated that their access cards had been stolen months or years prior to defendant’s incarceration, and thus were available to defendant and could have been brought into the apartment prior to defendant’s arrest on May 10. The narcotics, too, could have been brought into the apartment prior to defendant’s arrest or after his release.
Furthermore, the jury was instructed on aiding and abetting liability. Evidence that defendant leased the apartment using a false name, had frequent access to the apartment over a period of two months, and that false identifications bearing defendant’s photograph were found in the apartment was strong evidence that, even if defendant was not the direct perpetrator of his accomplices’ crimes, defendant aided and abetted those crimes and thus was liable for those crimes as a principal. (§ 31; People v. McCoy (2001) 25 Cal.4th 1111, 1116-1117.) Evidence that defendant had been absent from the apartment due to his incarceration would have had little value in rebutting evidence of his guilt on an aiding and abetting theory.
Finally, even without evidence of defendant’s incarceration, there was sufficient evidence from which defense counsel could (and did) argue that defendant lacked dominion and control over the apartment. Defense counsel argued that, to convict defendant of all but one of the charges, the jury had to find that “Mr. Kim was somehow in possession of the equipment and the cards and even the drugs” found in the apartment. Defense counsel argued that there was no evidence that defendant lived in the apartment; to the contrary, the evidence showed that defendant’s three alleged accomplices all had access to the apartment, and that Gloria Park and Jennifer Yi were living there. Furthermore, defense counsel argued, when Arthur Malveda and Jennifer Yi were arrested outside of the apartment building, they had contraband access cards and narcotics in their possession, which supported the conclusion that they were also responsible for the contraband access cards and narcotics found in the apartment. Defense counsel pointed out that no mail addressed to defendant at the apartment’s address had been found. Defense counsel concluded by telling the jury to “check each charge, and in doing so you will see that, really, without holding Mr. Kim responsible for possessing this apartment you can’t find him guilty of any of these charges.”
For the foregoing reasons, defense counsel reasonably could have concluded evidence of defendant’s incarceration was not strong enough to justify the significant risks posed by introducing such evidence. Accordingly, defense counsel’s decision to forego presenting evidence of defendant’s incarceration was not necessarily objectively unreasonable. For purposes of his direct appeal, defendant has failed to establish that the performance of his attorney was constitutionally deficient. (In re Hardy, supra, 41 Cal.4th at p. 1018.) Defendant’s claim that his trial counsel “rendered ineffective assistance of counsel . . . must properly await resolution on a fully developed factual record in a habeas corpus proceeding.” (People v. Snow (2003) 30 Cal.4th 43, 118.)
DISPOSITION
The judgment is affirmed.
We concur: ARMSTRONG, ACTING P. J., KRIEGLER, J.