Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Santa Clara County Super. Ct. No. 210882
Premo, Acting P.J.
I. Introduction
Defendant Betsey Warren Lebbos, a disbarred attorney, was charged by indictment with two counts of unauthorized practice of law. (Bus. & Prof. Code, § 6126, subd. (b).) The jury found her guilty as charged. On appeal, defendant contends that she received ineffective assistance of counsel, that there was insufficient evidence to support the verdict, and that the trial court made several evidentiary and instructional errors. We find no reversible error and affirm the judgment.
Hereafter, all unspecified section references are to the Business and Professions Code.
II. Procedural Background
A multicount indictment was filed against defendant and several others on June 15, 2004. Defendant was charged in count 1 with conspiring to commit the crime of unauthorized practice of law (Pen. Code, § 182; § 6126, subd. (a)) and in counts 3 and 26 with unauthorized practice of law after disbarment (§ 6126, subd. (b)). As to the latter two counts, the indictment alleged that defendant did, as a person disbarred, “advertise and hold herself out as practicing and entitled to practice law.” At the prosecution’s request, the trial court dismissed the conspiracy count against defendant and ordered the indictment amended as to defendant only, renumbering the remaining counts as counts 1 and 2. Count 1 pertained to the period between February 1, 2000 and March 7, 2001 and count 2 pertained to the period between August 20, 2002 and June 3, 2004.
Trial was held early in 2006. The prosecution introduced the testimony of five witnesses who had employed defendant during the time period alleged in count 1. All but one of those witnesses was an attorney who had been suspended from the practice of law and had contacted defendant’s business, Lawyer, Defend Yourself, for assistance with State Bar disciplinary proceedings. The fifth witness was an active member of the State Bar who had been referred to defendant for assistance with a client matter. The prosecution’s theory was that defendant had held herself out as authorized to practice law by advertising services that amounted to the practice of law and by delivering those services to lawyers who were not aware, at least at the outset, that defendant was a disbarred attorney.
As to count 2, the prosecution introduced evidence of the Lawyer, Defend Yourself Web site, which the prosecution argued amounted to an advertisement for legal services.
Defendant’s position on count 1 was that she functioned only as a paralegal employed and supervised by the attorneys for whom she worked. Defendant claimed that she never expressly held herself out as authorized to practice law, that her contracts with her customers specified that her services were paralegal services only, and that a large part of the services she provided, such as her tutoring and law practice management services, were not inherently legal services. Defendant challenged the evidence pertaining to count 2 as insufficient.
The law specifies that a paralegal is someone “who performs substantial legal work under the direction and supervision of an active member of the State Bar of California.” (§ 6450, subd. (a).) The prosecutor maintained that defendant could not engage in legitimate paralegal services if the attorney who was supposedly supervising her was not an active member of the State Bar. This was a legal issue that, for purposes of the jury instructions, the trial court resolved in favor of defendant. (See section No. V., D., 3., below.) The question is not before us in this appeal.
The jury returned a guilty verdict on both counts. The trial court denied defendant’s motion for a new trial and placed her on probation for four years. Defendant has timely appealed.
III. Facts
A. Evidence Pertaining to Count 1
1. Kissinger
Defendant had been disbarred in 1991. At the time of the conduct alleged here she was living in San Jose using the fictitious business name, Lawyer, Defend Yourself. Lawyer, Defend Yourself provided services to attorneys who were subject to disciplinary proceedings before the State Bar.
Michael James Kissinger first learned that he was to be suspended from the practice of law in or about June 2000. Around the same time, he received a brochure from Lawyer, Defend Yourself, which prompted him to call to find out how to deal with State Bar requirements. In particular, Kissinger wanted to know how to comply with the California Rules of Court, former rule 955, now rule 9.20 (rule 9.20), which sets forth the notices a suspended or disbarred attorney must provide and the actions he or she is to take with respect to client papers and fees. At the time, he believed that Lawyer, Defend Yourself was “a group of attorneys who represented lawyers who had problems with the State Bar.” The first person he spoke to when he called identified herself as “Liz.” Kissinger told Liz that he needed a lawyer to tell him how to comply with rule 9.20. Liz instructed him to send her a copy of his agreement with the State Bar and a copy of the court’s order so that Lawyer, Defend Yourself could tell him how to comply. This led Kissinger to believe that Liz was a lawyer. He later learned that Liz and defendant were the same person.
Defendant never told Kissinger that she was a disbarred attorney. Kissinger claimed he did not learn that defendant was a disbarred attorney until he identified her as his “lawyer” when speaking with a State Bar investigator. The investigator informed Kissinger that defendant had been disbarred.
Kissinger received two letters from defendant dated August 18, 2000. One was a contract for services that specified: “the work being performed is paralegal only and under the direction and control of Attorney Michael Kissinger.” Kissinger did not sign the agreement because, he said, he wanted a lawyer. The other letter, also dated August 18, 2000, explained the “ ‘After Care’ ” services Lawyer, Defend Yourself provided to assist the attorney in complying with the terms of his probation. The letter consisted of several pages of generic advice about taking the “Multi-State Professional Responsibility Examination,” submission of quarterly reports, and attending the State Bar ethics program. The letter gave Kissinger deadlines for compliance with various State Bar requirements based upon the actual dates of Kissinger’s suspension. The letter concluded with advice about how to conduct himself and his practice during his suspension.
2. Rosman
Martin Rosman was suspended from practice in or about 1999, while he was serving a federal prison term for mail fraud. In the fall of 2000, Rosman learned about Lawyer, Defend Yourself through an advertisement he saw when researching his State Bar suspension. He sent away for a two-volume set of handbooks produced by Lawyer, Defend Yourself. The cover of both volumes identified “Betsey Warren Lebbos, J.D.” as the author. The title page of the books identified her as “Betsey Warren Lebbos, Esq.” Rosman testified that he understood “Esq.” to be the abbreviation for esquire, “which to me means attorney.”
Rosman eventually spoke with defendant on the telephone and told her about his “legal troubles and so forth” and that he “needed some help in trying to retain my license to practice law.” Defendant did not tell Rosman during their first conversation that she was a disbarred attorney. Rosman knew very little about the law pertaining to State Bar suspensions; defendant sounded knowledgeable to him. He understood that Lawyer, Defend Yourself would assist him either by supplying the books, from which he could prepare the necessary papers, or by actually preparing the briefs in opposition to the proceedings. Rosman hired defendant to prepare the briefs, agreeing to pay $3,950 for those services. He thought that the contract price “would have been something that a lawyer would have charged.”
Rosman signed a contract with defendant on November 13, 2000. Defendant’s letter transmitting the contract to Rosman, stated, “We provide prompt, efficient, and comprehensive services to assist you in knowing what your issues are, how to handle them, what law is on your side, and how to strategize a resolution that is the most favorable for you and at the least cost while preparing all your pleadings for you.” The contract itself specified that Lawyer, Defend Yourself was to render “paralegal services” in connection with his State Bar matter, “including but not limited to” the preparation of an opposition to summary disbarment, motion to dismiss, petitions for review, “Settlement Conferences Statements and Letters, Position Statements and Proposals,” and the final disposition with terms. The contract reiterated that the work being performed is “paralegal only and under the direction and control of Attorney Martin Rosman.” Rosman thought the references to “paralegal” were “odd” but does not recall ever discussing the issue with defendant. Originally, Rosman thought defendant was to be representing him but after he received the contract, he realized that his name, not defendant’s, was to appear on the papers to be filed. Rosman could not recall if defendant ever revealed her status to him; he thought she might have, “[m]aybe at the very end” of their association.
3. Halperin
Ivan Warren Halperin was suspended from practice in 1999. He learned about Lawyer, Defend Yourself through a brochure he received in the mail immediately after his suspension was published. Referring to the State Bar’s requirement that disciplined attorneys timely comply with all probation requirements, the brochure informed Halperin that he could not rely upon information from the State Bar, “So come to us. [¶] We know what you must do.” The contact information gave street addresses and an email address with the name, “Liz16.” Defendant’s name did not appear on the brochure.
Halperin contacted Lawyer, Defend Yourself and spoke to Liz about looking for someone to help him with the notices and filings required by the State Bar. Liz did not volunteer that she was a disbarred attorney. Liz seemed knowledgeable about State Bar issues and suggested “sort of a plan of attack to put everything together.” During their second conversation Halperin was aware that Liz was actually Betsey Warren Lebbos. He asked her about her background and she told him then that she had been disbarred; she also expressed some “very colorful opinions” about the State Bar. Halperin ultimately decided to hire an attorney to represent him and did not pursue the matter with defendant.
4. Domingo
Socrates Domingo was suspended from practice in or about January 2002. He contacted Lawyer, Defend Yourself after seeing an ad in a law journal. Following a telephone discussion with “Liz,” Domingo sent her copies of all the communications he had received from the State Bar along with copies of certain court records. In his letter, which is addressed to “Liz,” Domingo stated, “I’d like you to review the facts of my case . . . in the light of Weber, current state of the law and your research on the matter. I want to hear your honest opinion on my chances of fighting for sanctions less than summary disbarment.” Domingo eventually decided to forego a challenge to his disbarment. He received at least two letters from Liz encouraging him to continue with his defense.
5. Glassey
Attorney Hoa Glassey practiced in the area of mental health, immigration, and family law. She needed help with a difficult family law issue and, since she was new to the practice of family law, she looked around for a paralegal or research attorney to help her. Someone referred her to defendant, describing defendant as having been in practice for awhile. Glassey called defendant believing she was an attorney. Defendant never told her she had been disbarred. Glassey signed an agreement dated September 8, 2000, agreeing to pay Lawyer, Defend Yourself the “reduced hourly rate of $50” for preparation of points and authorities in opposition to a forum non conveniens motion and related research. Nothing in the contract referred to paralegal services.
Defendant instructed Glassey to prepare two declarations to accompany the points and authorities defendant would draft. Upon receipt of the declarations, defendant decided they were inadequate and rewrote them herself. Glassey did not receive the finished product until October 6, 2000, the same day she had planned to file it. Glassey looked it over and edited parts of it but since the courier was waiting to take it to court, Glassey just signed it, thinking, “well, she is an attorney so it shouldn’t be any problem.” On October 11, 2000, Glassey received correspondence from defendant, advising Glassey to seek a continuance and giving her advice about what to say to the court should she go to the hearing.
6. Evidence of Uncharged Misconduct
Pursuant to Evidence Code section 1101, subdivision (b), the trial court permitted the testimony of Ellen Anne Pansky, who described an incident that occurred prior to the time periods alleged in the indictment. Pansky is an attorney who specializes in representing attorneys in disciplinary proceedings before the State Bar. In or about 1997, she was informed by her client, Ann Hill that Hill had been contacted by someone who identified herself as Liz Riley. Riley had discussed Hill’s State Bar case with Hill and gave her advice as to how it should be handled. She advised Hill to ask for a continuance of the hearing and questioned her about arguments that might be made. Pansky disagreed with Riley’s recommendation and, assuming Riley was an attorney, objected to Riley’s contacting Pansky’s client. Pansky telephoned Riley at the number Hill had given her and voiced her objection. Riley responded that she thought it was perfectly fine for her to contact Hill and to give Hill information and advice concerning the State Bar proceedings. Pansky told Riley that the rules of professional conduct prohibited lawyers from initiating contact with prospective clients who were represented by another attorney. At first, Riley debated the point, arguing that it was her First Amendment right to contact Hill. It was not until the “very, very end of the conversation” that she told Pansky that she was not a lawyer, so the rule did not apply to her.
At the end of December 1997, Pansky received a letter from defendant. Pansky knew of defendant, having once had contact with her in connection with the Lawyer, Defend Yourself handbook. Defendant’s letter to Pansky referred to the conversation Pansky had with Liz Riley and seemed to indicate that defendant was planning on communicating with Pansky’s clients on matters for which Pansky was representing them. Pansky wrote back, instructing defendant and anyone affiliated with Lawyer, Defend Yourself to refrain from such contact.
The prosecution also introduced evidence of a letter dated October 22, 1999, addressed to Robert Speas, Esquire, which was found during the search of defendant’s residence. In the letter, which purports to have been written by defendant, defendant directs the recipient to fax his response “to the attention of Liz Riley.”
7. Other Evidence
James Thomas Boyden rented a room from defendant from 1999 until approximately the spring of 2000. During that time he once helped stuff Lawyer, Defend Yourself brochures into pre-addressed envelopes. He believed most of the envelopes were addressed to attorneys based upon his observation that the addressees’ names included the designation, “esquire.”
Financial information pertaining to the Lawyer, Defend Yourself business was recovered in a March 7, 2001 search of defendant’s residence. Included within that information were entries showing payments from Halperin, Kissinger, Rosman and Glassey. The search also revealed various types of business equipment, boxes of Lawyer, Defend Yourself brochures, and brochures stuffed into envelopes that were sealed and addressed as if for mailing. One such brochure advertised that Lawyer, Defend Yourself “secured the first reversal and remand for a new trial ever issued by the Review Department of the State’s Bar Court.” Under a section entitled “What do we do?” the brochure’s bulleted list stated:
“We prepare your response to an investigation letter.
“We formulate the winning strategy.
“We provide you with the winning briefs and motions.
“We organize and prepare the discovery campaign.
“We prepare the Pre-Trial and Settlement Conference Statements.
“We prepare all of your pleadings for you.
“We meet all of your deadlines.”
The brochure did not contain defendant’s name but included the “Liz16” email address. None of the brochures entered into evidence mentioned paralegal services.
During a recent deposition taken in connection with a separate legal matter, defendant admitted that she had adopted the name Liz Riley and that she used the name as if Liz Riley were a separate person affiliated with Lawyer, Defend Yourself. The reason she did so, she said, was to deflect the many telephone callers who wanted to speak with Betsey Warren Lebbos, the author of the Lawyer, Defend Yourself handbook.
B. Evidence Pertaining to Count 2
Defendant engaged Mark Jonathan Bohrn to create a Web site for Lawyer, Defend Yourself. Bohrn gleaned the content for the Web site from conversations he had with defendant and from the information contained in the several Lawyer, Defend Yourself brochures she provided for his use. He transferred much of the brochure content to the Web site verbatim. Bohrn’s first draft of the Web site contained the phrase, “expert legal advice” in the body of the site and in the title bar. The title bar is the bar at the top of the Web site. In 2002, when Bohrn was working on the site, search engines typically used the information in the title bar to pick up information about the Web site. Bohrn composed the title bar for the Lawyer, Defend Yourself Web site to read: “Lawyer, Defend Yourself, expert legal advice on California State Bar ethics issues.” In so doing, he was “trying to compress what this business was all about in the fewest words that would matter to somebody looking for it.” He obtained his understanding of what the business was all about from what he had read in the Lawyer, Defend Yourself brochures and from his conversations with defendant.
Defendant reviewed the drafts of the Web site and made suggestions about content. She asked that Bohrn remove her name from the site and replace it with the name of the business, Lawyer, Defend Yourself. She had him change the word “clients” to “customers.” And she had him remove the words “legal advice” or “expert legal advice” from the body of the Web site. Defendant did not ask Bohrn to remove the phrase from the title bar. Copies of the Web site, printed from Netscape and Internet Explorer browsers in 2003 and 2004, showed that the title of the Web site still read, “Lawyer defend yourself expert-legal advice on CA State Bar ethics issues.”
IV. Contentions
1. Trial counsel provided ineffective assistance by failing to object to a material variance between the indictment and the proof at trial;
2. The evidence was insufficient to support a finding that defendant advertised or held herself out as authorized to practice law;
3. The trial court abused its discretion in allowing the introduction of evidence pursuant to Evidence Code section 1101, subdivision (b);
4. The trial court abused its discretion in excluding defendant’s lay witnesses and in limiting the testimony of her expert;
5. The trial court erred by giving instructions that were ambiguous, superfluous, and misled the jury with respect to the elements of the crime with which she was charged.
V. Discussion
A. Ineffective Assistance
In her first argument, defendant maintains that her trial counsel was ineffective for failing to object to a material variance between the language of the indictment and the evidence. In brief, defendant claims that the indictment charged her with advertising or holding herself out as authorized to practice law when the evidence, the court’s instructions, and the prosecutor’s argument, permitted a finding that defendant actually engaged in the unauthorized practice of law, which defendant claims is a separate crime.
The Fifth Amendment of the United States Constitution protects a defendant from being convicted of an offense different from that which was included in the indictment returned by a grand jury. (Stirone v. United States (1960)361 U.S. 212, 217, citing Ex parte Bain (1887) 121 U.S. 1, 10.) “[A] variance occurs when the charging terms are unaltered, but the evidence offered at trial proves facts materially different from those alleged in the indictment.” (United States v. Helmsley (2nd Cir. 1991) 941 F.2d 71, 89.) Variances are not grounds for reversal absent a showing of prejudice. (Ibid.)
To demonstrate constitutionally ineffective assistance of counsel, defendant must show that counsel’s performance was unreasonable when measured by prevailing professional norms and that there is a reasonable probability that but for counsel’s acts or omissions, the result of the proceeding would have been more favorable to the defense. (Strickland v. Washington (1983)466 U.S. 668, 687-688.) Defendant cannot make the necessary showing here because there was no material variance between the indictment and the evidence so that counsel had no basis for an objection.
The indictment alleged in count 1: “The Grand Jury of the County of Santa Clara, State of California, hereby accuses Betsey Warren Lebbos of a felony, namely: a violation of Business & Professions Code section 6126 [subdivision] (b) [Unauthorized Practice of Law After Disbarment, Resignation, Suspension or Involuntary Enrollment as Inactive Member], in that on or about and between February 1, 2000 and March 7, 2001, in the County of Santa Clara, State of California, the said defendant, who did, as a person disbarred, thereafter advertise and hold herself out as practicing and entitled to practice law.” (Second set of bracketed information in original, italics added.) Count 2 made the same allegations with respect to the period between August 20, 2002 and June 3, 2004.
Section 6126, subdivision (b) provides: “Any person who has been involuntarily enrolled as an inactive member of the State Bar, or has been suspended from membership from the State Bar, or has been disbarred, or has resigned from the State Bar with charges pending, and thereafter practices or attempts to practice law, advertises or holds himself or herself out as practicing or otherwise entitled to practice law, is guilty of a crime punishable by imprisonment in the state prison or county jail. . . .” A 2002 amendment to section 6126, subdivision (b) expanded the crime to acts that were merely “attempts to practice” law. (Stats. 2002, ch. 394 (S.B. 1459).) The amendment is not pertinent to the charges in this case.
Defendant maintains that her trial counsel should have objected to any evidence that did not pertain to the advertising or holding out charge as defendant perceives it. Specifically, defendant faults counsel for failing to object to the testimony of witness Glassey and all the evidence pertaining to defendant’s substantive efforts on behalf of various attorneys. This evidence, she claims, was not evidence of advertising or holding out and, therefore, might have allowed the jury to find her guilty based upon a finding that she had practiced law but had not held herself out as authorized to do so. Defendant maintains that the only relevant evidence was evidence of the brochures and the Web site. We reject the argument. Under the circumstances of this case, defendant’s substantive efforts on behalf of the persons who retained her were, in effect, the same thing as holding herself out as authorized to practice.
In re Cadwell (1975) 15 Cal.3d 762, 768-769 (Cadwell), described how an attorney might impliedly hold himself out as authorized to practice. Cadwell involved a suspended attorney working as a law clerk to attorney Blanchard. In the course of this employment, Cadwell did the initial interview with the client, Rocha. He discussed settlement of the real property dispute and other issues with opposing counsel, Crowley, and obtained Rocha’s signature on a letter approving the settlement he had negotiated with Crowley and advising Rocha about the return of his wife’s personal papers. (Ibid.) Cadwell then sent Crowley a letter that read, “ ‘I am enclosing copy of your . . . letter which . . . Rocha has signed signifying his approval. This office concurs . . . .’ and the letter was signed ‘Lester L. Blanchard [¶] By’ Cadwell.” (Id. at p. 769.) Cadwell never told Rocha or Crowley that he was not an active member of the Bar nor was his name ever qualified by the words “Legal Assistant” or similar designation. (Id. at pp. 768-769.)
Cadwell defended his actions, arguing, in effect, that he had been performing paralegal services under Blanchard’s supervision. He had merely got the information from the client then discussed the case with Blanchard, obtaining his direction on how to proceed. Cadwell then simply did “ ‘the mechanical work’ ” of effecting the settlement. (Cadwell, supra, 15 Cal.3d at p. 769.) The Supreme Court rejected the defense, concluding, “Although during the conversation and in the letter Cadwell did not expressly represent himself to be Rocha’s attorney, in neither the conversation nor the letter did Cadwell inform Crowley that Cadwell was not Rocha’s attorney and was instead a legal assistant, and the contents of the conversation and letter impliedly represented that Cadwell was an attorney representing Rocha.” (Id. at p. 770.) Cadwell had also held himself out to Rocha as authorized to practice when he discussed Rocha’s problems with him at Blanchard’s law office and failed to inform Rocha that Cadwell was a legal assistant and could not lawfully practice. (Id. at p. 771, fn. 3.) Thus, by performing services that constituted the actual practice of law, Cadwell impliedly held himself out as authorized to practice since his silence in the circumstances allowed Crowley and Rocha to believe he was. A disbarred attorney may not “knowingly create, or leave undisturbed, a false impression” that he or she is authorized to practice law. (Arm v. State Bar (1990) 50 Cal.3d 763, 775.)
The practice of law “ ‘includes legal advice and counsel, and the preparation of legal instruments and contracts by which legal rights are secured.’ ” (Crawford v. State Bar (1960) 54 Cal.2d 659, 667.) There is no question that analyzing a case, creating a strategy, and preparing the legal arguments to advance a cause are all properly defined as legal services. These are the services defendant provided to the five prosecution witnesses who had hired her. All five witnesses, at least initially, believed defendant was an attorney. Kissinger believed that Lawyer, Defend Yourself was a group of attorneys. Rosman purchased the Lawyer, Defend Yourself books and noted that defendant used the honorific, Esq., which he understood to indicate she was an attorney and her fees were consistent with what a lawyer would charge. Domingo contacted defendant to obtain a legal opinion about his case. Glassey believed defendant was a retired attorney. Halperin contacted defendant to find out his obligations because he was unfamiliar with the law. In none of these cases did defendant inform the customer at the outset that she was not authorized to practice law. Only when Halperin asked, during the second telephone contact, did defendant explain that she was disbarred. In every other case, defendant’s substantive efforts were performed allowing the recipients to believe they were receiving services from an attorney, thereby impliedly holding herself out as authorized to practice law. Accordingly, this evidence was relevant and did not create a material variance and counsel was not ineffective in failing to object.
At the close of the prosecution’s case defendant moved for acquittal under Penal Code section 1118.1, arguing that even if the evidence was sufficient to show that she had actually practiced law, it was insufficient to support a finding that she had advertised or held herself out as authorized to practice law. The trial court denied the motion. Defendant faults her trial counsel for failing to correct a statement the trial court made in making that ruling. The trial court described the evidence in support of the charges and found that that the evidence was sufficient to show that defendant either held herself out as authorized to practice or that she did not hold herself out as authorized to practice but actually did practice law. Defendant maintains that counsel should have responded to the ruling by pointing out that defendant was not charged with the latter crime. Such an objection would not have been successful in obtaining acquittal since the court found there was substantial evidence to support a conviction of the crime as charged by the indictment. (See People v. Veitch (1982) 128 Cal.App.3d 460, 466, in deciding a Penal Code section 1118.1 motion, the trial court asks whether there is any substantial evidence of the existence of each element of the offense charged.)
If the trial court was mistaken when it stated that defendant could be convicted absent a finding that she advertised or held herself out as authorized to practice, the mistake was not prejudicial to the defense. As we shall explain, the jury instructions and the prosecutor’s argument made it quite clear that defendant could not be guilty unless the jury found that she had advertised or held herself out as authorized to practice law.
Defendant’s last charge of ineffective assistance pertains to the instructions. After the close of all the evidence, defense counsel requested an instruction (which the trial court refused) informing the jury that defendant was not charged with the “actual unauthorized practice of law.” Defendant argues that counsel should have followed the court’s ruling on this request with an objection to the variance between the indictment and the court’s proposed instruction. This objection would have been futile because, as we explain in section D, below, the instructions were consistent with the charges set forth in the indictment.
Since there was no material variance between the pleading, the proof, and the jury instructions, counsel cannot have been ineffective for failing to raise the objections defendant claims should have been raised.
B. Substantial Evidence
Defendant next claims that the evidence was insufficient to support her conviction of either count 1 or count 2. We address the challenge by examining the whole record in the light most favorable to the judgment, presuming in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. We affirm the judgment if the record discloses substantial evidence such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Kraft (2000) 23 Cal.4th 978, 1053.)
Count 1 alleged that defendant advertised or held herself out as authorized to practice law during the period February 1, 2000 through March 7, 2001. Witnesses Rosman, Domingo, Kissinger, and Glassey each testified that defendant provided services to them during the pertinent time period. For the reasons described in the preceding section, their testimony was evidence of defendant’s holding herself out as authorized to practice law. Defendant argues that all of the witnesses who contacted her for assistance in State Bar proceedings, except for Kissinger, testified that they knew defendant was a disbarred attorney. The argument misrepresents the evidence. Only Halperin testified that he learned that defendant was a disbarred attorney, and then only after asking her directly about her background.
Other evidence to support the count 1 conviction is found in defendant’s use of the title, “Esq.” on the title page of the Lawyer, Defend Yourself books. As Ross, Halperin and Bohrn testified, “Esq.” is commonly used as an honorific for attorneys. Defendant’s brochures contained statements such as: “We do your briefs and answer your questions for you,” “Out source professional responsibility issues. Bring in an expert to assist you,” and “Only two attorneys have been exonerated of all charges in nine years. Attorney Richard Murphy is one of the two attorneys. Lawyer, Defend Yourself prepared his strategy, pleadings, approach, and Lawyer, Defend Yourself structured his result.” The services advertised involve the practice of law. (See Crawford v. State Bar, supra,54 Cal.2d at pp. 667-668.) None of the advertisements stated that the services were not provided by an attorney or that they were rendered under the supervision of an attorney. Thus, the brochures alone implied that defendant, doing business as Lawyer, Defend Yourself, was authorized to practice law.
Count 2 alleged conduct occurring in the period between August 20, 2002 and June 3, 2004. Evidence to support this count was supplied by Bohrn, who created the Lawyer, Defend Yourself Web site, which was available on the Internet by August 20, 2002. The title bar of the site, “Lawyer defend yourself-expert legal advice on CA State Bar ethics issues,” expressly advertised that Lawyer, Defend Yourself offered legal advice. Furthermore, the language in the title bar reflected what Bohrn thought the company’s message should be based upon his interpretation of defendant’s brochures and Bohrn’s talks with defendant. In effect, therefore, defendant had held herself out to Bohrn as authorized to practice law.
In sum, the evidence was sufficient to support a guilty verdict on both counts.
C. Evidentiary Rulings
We now turn to defendant’s challenges to the trial court’s rulings on the admissibility of evidence. We apply the abuse of discretion standard to our review of these rulings. (People v. Waidla (2000) 22 Cal.4th 690, 725.)
Evidence Code section 1101, subdivision (a) prohibits evidence of a person’s character, including evidence of character in the form of specific instances of uncharged misconduct, to prove the conduct of that person on a specified occasion. Subdivision (b) clarifies: “Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or whether a defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith believe that the victim consented) other than his or her disposition to commit such an act.” (Evid. Code, § 1101, subd. (b).)
The trial court found that Pansky’s testimony was admissible under Evidence Code section 1101, subdivision (b), to prove “opportunity, knowledge and intent as well as common scheme or plan.” The trial court held that under People v. Ewoldt (1994) 7 Cal.4th 380, 402-403, the evidence was admissible because it was sufficiently similar to the charged acts and was not so remote in that it occurred only three years prior to the first of the acts charged. The court also allowed the prosecution to introduce the October 22, 1999 letter addressed to Robert Speas, holding that the letter’s reference to Liz Riley “gives rise to a reasonable inference that the use of the name Liz Riley is to deceive people into believing there are two different people. . . . [¶] And on the basis that it shows the intent to deceive with respect to the nature of the operation and her participation in it, I think it’s relevant under [Evidence Code] section 1101 [subdivision (b)].” Defendant complains that both these rulings were error. Defendant argues that neither the Pansky testimony nor the Speas letter logically tended to prove a material element of the People’s case. We disagree.
The People sought to prove that defendant had held herself out as authorized to practice law by showing that defendant solicited attorneys for the purpose of providing them with legal services and knowingly allowed them to persist in the false impression that she was authorized to provide such services. Pansky testified that defendant actively sought out her client, offered the client legal advice, and did not apprise the client that she was not an active member of the bar. Defendant debated with Pansky her right to contact the client in spite of the rules of professional conduct, without informing Pansky, until the very last minute, that the rules did not apply to her because she had been disbarred. Her failure to disclose her status at the outset of that conversation tends to support the prosecution’s theory that her failure to disclose her status to the other prosecution witnesses was not inadvertent. Both Pansky’s testimony and the Speas letter are evidence of defendant’s use of a pseudonym, which allows for the inference that defendant sought to disguise her identity as a disbarred attorney, allowing her to offer legal advice without prompting the attorneys she solicited to look more carefully into her background. Thus, the challenged evidence is relevant to the question of whether defendant “knowingly” allowed her customers and potential customers to persist in the false impression that she was authorized to practice law.
Neither bit of evidence was particularly inflammatory. Defendant’s conduct in contacting Pansky’s client was much the same as her soliciting with mailed brochures. The Speas letter was very similar, in form and content, to the other letters in evidence. In sum, the trial court did not abuse its discretion in admitting the evidence.
2. Defendant’s Lay Witnesses
According to the prosecution’s in limine motion, the defense planned to introduce a number of witnesses who would testify that they had utilized defendant’s services knowing that defendant was a disbarred attorney and that defendant had never held herself out to them as authorized to practice law. The trial court excluded the evidence, concluding that the proposed evidence “appears to this Court to clearly be efforts to prove conduct of the defendant with regard to the People’s witnesses in conformity with her conduct on prior or other occasions with different witnesses. As such, it is clearly character evidence within the prohibition of Evidence Code Section 1100 [sic], and on that ground, would be disallowed.” The court found that the evidence would not satisfy the test for true habit and custom and, therefore was not admissible under Evidence Code section 1105. The court also rejected the argument that the evidence was admissible to impeach the testimony of the prosecution’s witnesses. The court offered to allow defendant to introduce evidence of her good character through reputation or opinion evidence but her counsel declined the offer for “strategic” reasons.
Defendant claims that the evidence was relevant to rebut the prosecution’s theory that Lawyer, Defend Yourself was a sham business intended to avoid the proscriptions of section 6126 and that the evidence would have shown that Lawyer, Defend Yourself offered an array of services that could not be considered unauthorized practice. For this point the evidence was unnecessary. The prosecution conceded that much of what defendant did, such as tutoring for the ethics exam or distribution of her handbook, did not amount to the practice of law.
Defendant also claims that evidence of the instances in which she did disclose her status to her customers was relevant to show that she routinely did so. She argues that there is nothing in the Evidence Code that would make this evidence inadmissible. This is incorrect.
Evidence Code section 1101, subdivision (a) makes inadmissible evidence of a person’s character, whether in the form of an opinion, reputation, or specific instances of conduct, when offered to prove his or her conduct on a specified occasion. Defendant’s evidence falls squarely within this prohibition. Defendant acknowledges as much, but argues that subdivision (b) of Evidence Code section 1101 allows such evidence if it is relevant to prove a common design or plan. But Evidence Code section 1101, subdivision (b), provides that “[n]othing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact . . . other than his or her disposition to commit such an act.” That is, the subdivision applies to evidence of prior acts of misconduct. By its terms the subdivision does not apply to the evidence defendant sought to introduce--evidence that she acted lawfully on prior occasions.
Defendant argues that the evidence should have been admissible to “rebut the prosecution’s theory of a plan or pattern of conduct on [defendant’s] part to violate the statute of practicing law without a license.” But evidence that defendant acted lawfully in connection with six or eight people tends to rebut the prosecution’s evidence only in the manner prohibited by Evidence Code section 1101, subdivision (a), i.e., with specific instances of lawful conduct offered to prove that defendant’s conduct on the occasion at issue. That is inadmissible.
Defendant also points out, without further argument, that Evidence Code section 1102 allows a criminal defendant to introduce opinion or reputation evidence of good character to show relevant conduct. That is so, but the proposed testimony of defendant’s lay witnesses did not take the form of opinion or reputation and defendant expressly declined to offer such evidence. To be sure, the Law Revision Commission Comment to Evidence Code section 1102 states that the section “codifies the general rule under existing law which precludes evidence of specific acts of the defendant to prove character as circumstantial evidence of his innocence or of his disposition to commit the crime with which he is charged.” (Cal. Law Revision Com. com., 29B, Pt.3 West’s Ann. Evid. Code (1995 ed.) foll. § 1102, p. 480.)
In sum, the trial court did not abuse its discretion in excluding the evidence that defendant had acted lawfully on prior occasions.
3. Expert Opinion
Defendant wanted to introduce the testimony of expert witnesses Lise Pearlman, former judge of the State Bar court, and attorney Craig Smith, director of a paralegal program at the University of California. These experts would have testified about the role of a paralegal and how a paralegal might cross the line between legitimate assistance to an attorney and the unauthorized practice of law. The trial court refused to allow testimony concerning “what paralegals can lawfully do” because the court was going to instruct the jury in the pertinent law so that expert testimony would be “nothing more than duplicative and potentially in conflict with the instructions on the law that would be given by the Court.” For the same reasons, the court refused to allow the expert witnesses to testify about how paralegal work relates to California law regarding paralegal and attorney conduct. The court did allow testimony from one expert “regarding filing of briefs, memoranda, Points and Authorities and so forth” because it may be helpful to the trier of fact given that such matters “are outside the k[e]n of the ordinary lay juror.” The court cautioned, however, that the experts “are not to in any way venture into the area of whether any conduct described in this case is or is not engaging in the practice of law, holding oneself out as authorized to engage in the practice of law, or is paralegal work versus practice of law. That is the decision that this jury is being asked to make and it will be limited to the jury.”
Of the two prospective witnesses, defendant chose Pearlman. Pearlman was allowed to describe the State Bar disciplinary process, the filing of motions and the use of points and authorities and declarations. The court also permitted Pearlman to describe the general function of paralegals in the practice of law, and to explain that paralegals assist attorneys, interview witnesses, do research, prepare draft points and authorities, keep track of documents and look for evidence, all the while “with the attorney taking responsibility for the ultimate product.”
Defendant argues that she should have been allowed to introduce expert opinion on how a paralegal might cross the line between legitimately assisting an attorney and practicing law without a license. This, she claims, was necessary to prove that she had been properly functioning as a paralegal. But just like any other evidence, expert opinion must be relevant to be admissible. (Evid. Code, § 350.) Evidence that defendant had been performing services that paralegals are allowed to perform was not directly relevant to an issue in this case. As defendant has repeatedly argued in this appeal, the issue was whether defendant had expressly or impliedly held herself out as authorized to practice law. To the extent defendant sought to defend against the charges by proving that her conduct was a legitimate, paralegal service, the expert opinion she proffered was duplicative of the instructions the trial court was to give. “[T]he calling of lawyers as ‘expert witnesses’ to give opinions as to the application of the law to particular facts usurps the duty of the trial court to instruct the jury on the law as applicable to the facts, and results in no more than a modern day ‘trial by oath’ in which the side producing the greater number of lawyers able to opine in their favor wins.” (Downer v. Bramet (1984) 152 Cal.App.3d 837, 842.) The law applicable to the present case is the law that describes that which constitutes the unauthorized practice of law. What constitutes legitimate paralegal practice and the unauthorized practice of law is a legal question upon which the trial court would instruct the jury. The trial court did not abuse its discretion in excluding the testimony.
D. Instructions
Defendant makes several claims of error pertaining to the jury instructions. In connection with her ineffective assistance claim she maintains that there was a material variance between the charges in the indictment and the jury instructions. She also argues that the instructions were ambiguous in that the court prefaced its description of the crimes with the remark that defendant was “charged with the unauthorized practice of law,” that the court’s definition of the practice of law allowed the jury to convict defendant for giving generic advice, that the trial court improperly defined “paralegal,” and that the court should not have instructed the jury in the language of the Rules of Professional Conduct, rule 1-311.
In testing the adequacy of instructions we must decide whether the trial court fully and fairly instructed on the applicable law. (People v. Martin (2000) 78 Cal.App.4th 1107, 1111-1112.) Claims that a jury instruction is ambiguous are scrutinized for a “reasonable likelihood that the jury misconstrued or misapplied the words” of the court’s instruction. (People v. Clair (1992) 2 Cal.4th 629, 663.) “ ‘ “[A] single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge.” ’ [Citations.] If the charge as a whole is ambiguous, the question is whether there is a ‘ “reasonable likelihood that the jury has applied the challenged instruction in a way” that violates the Constitution.’ ” (Middleton v. McNeil (2004) 541 U.S. 433, 437; see also People v. Huggins (2006) 38 Cal.4th 175, 192.) In determining how the jury must have understood the instructions, it is often helpful to examine the arguments of counsel. (See People v. Kelly (1992)1 Cal.4th 495, 526-527.)
1. Instructions Pertaining to “Unauthorized Practice”
The jury instructions, in pertinent part, were as follows:
“The indictment in this case charges that[:]
“Count One. On or about and between February 1, 2000 and March 7, 2001, in the County of Santa Clara, State of California, the crime of unauthorized practice of law, in violation of Business and Professions Code Section 6126 [subdivision] (b) was committed by Betsey Warren Lebbos who did, as a person disbarred, thereafter advertise and hold herself out as practicing and entitled to practice law. [¶] . . . [¶]
“Count Two. On or about and between August 20, 2002 and June 3rd, 2004, in the County of Santa Clara, State of California, the crime of unauthorized practice of law in violation of Business and Professions Code Section 6126 [subdivision] (b) was committed by Betsey Warren Lebbos who did, as a person disbarred, thereafter advertise, and hold herself out as practicing and entitled to practice law.
“The defendant is charged in the Indictment with a crime of unauthorized practice of law after disbarment in violation of California Business and Professions Code Section 6126 [subdivision] (b).
“Every person who has been disbarred and thereafter practices or attempts to engage in the practice of law or who advertises or holds herself out as practicing or entitled to practice law is guilty of a violation of California Business and Professions Code Section 6126 [subdivision] (b), a crime.
“In order to prove this crime, the People must prove each of the following elements:
“One. The defendant had been disbarred.
“And Two. The defendant thereafter advertised or held herself out as practicing or otherwise entitled to practice law.”
Defendant complains that, in stating that defendant was charged with the crime of “unauthorized practice of law,” the trial court might have led the jury to believe it could convict her without finding that she had advertised or held herself out as authorized to practice. This argument also relates to defendant’s contention that there was a material variance between the indictment and the charge to the jury. We find no material variance and no ambiguity.
The instruction clearly indicates that, in order to prove the crime as charged, the People must prove that defendant “advertised or held herself out as practicing or otherwise entitled to practice law.” The instruction does not allow a guilty verdict absent proof of advertising or holding out. Accordingly, there is no material variance between the indictment and the instructions.
To the extent there is an ambiguity created by mentioning that defendant was charged with “unauthorized practice,” there is no reasonable likelihood the jury was misled. The prosecutor’s argument repeatedly stressed evidence that defendant had advertised or held herself out as authorized to practice: “So in summary, as to Count One, is that we have defendant sending out brochures, selling these books with Betsey Warren Lebbos, Esquire, on them, in her brochures and letters she is offering advice, strategy and to prepare motions and briefs and petitions and that she gave legal advice over the telephone customized to the caller’s situation.” Counsel went on to cite each of the witnesses who had testified about their relationship with defendant, noting that at no time did defendant disclose to Kissinger or Domingo that she could not practice law, that Halperin, Domingo, and Rosman all purchased books “with the Betsey Warren Lebbos, Esquire, in them,” and that “[p]retty much everyone testified that the defendant did not disclose that she was a disbarred attorney at the outset, which leaves the implication that she is entitled to practice law.” Counsel never suggested that the jury could find defendant guilty for simply practicing law without a license. Given the minimal ambiguity in the instruction and the prosecutor’s careful description of what the jury was required to find, the jury could not reasonably have misunderstood the instruction as defendant claims.
2. Instructions Defining the Practice of Law
Defendant next claims that the court erred in its definition of the practice of law. In pertinent part, the court instructed the jury as follows:
“The practice of law includes giving any kind of advice, explanation, opinion, or recommendation to a person about that person’s possible legal rights, remedies, defenses, options and selection of forms or strategies. It also includes the preparation of legal documents by which any legal rights are secured. [¶] It does not include education or tutorial services on law office management, trust account maintenance or ethics.”
Defendant claims that the instruction should have explained that “any kind of advice” did not refer to generic advice that does not pertain to a particular person’s legal rights. We reject the claim because that is almost precisely what the instruction does say--the practice of law includes giving “advice . . . to a person about that person’s possible legal rights.”
As the Attorney General points out, the trial court’s instruction is consistent with the definition provided by the Supreme Court: “[T]he practice of law ‘in a larger sense . . . includes legal advice and counsel and the preparation of legal instruments and contracts by which legal rights are secured although such matter may or may not be depending in a court.’ ” (Crawford v. State Bar of Cal., supra,54 Cal.2d at p. 667, quoting People v. Merchants Protective Corp. (1922) 189 Cal. 531, 535.) There is no reasonable possibility that the instruction’s use of the phrase “any kind of advice” would have misled the jury to convict defendant for engaging in speech protected by the First Amendment, as defendant argues. The phrase is plainly limited by the succeeding prepositional phrase: “about that person’s possible legal rights.” Further, the prosecutor had conceded in her opening statement that some of the things defendant did, such as publishing books and giving tutorials, did not amount to the practice of law. In her closing argument she emphasized that defendant’s brochures and letters advertised that defendant offered “advice, strategy and to prepare motions and briefs and petitions and that she gave legal advice over the telephone customized to the caller’s situation.” (Italics added.) The combined effect of the instruction and the prosecutor’s descriptions of the evidence is such that no reasonable jury would have believed it could find defendant guilty for merely publishing generic advice and opinions that were not customized to the particularized legal needs of an individual.
3. Instructions Defining “Paralegal” and Attorney Duties when Employing Disbarred Attorneys
Defendant challenges the trial court’s definition of “paralegal” and its instruction in the language of the Rules of Professional Conduct, rule 1-311, arguing that the instructions misled the jury as to the elements of the offense, thereby depriving her of her rights under the Fifth and Fourteenth Amendments of the United States Constitution.
The first challenged instruction was as follows:
“A paralegal is a person who holds herself out to be a paralegal and is qualified by education, training or work experience, who either contracts with or is employed by an attorney and who performs substantial legal work under the direction and supervision of an active member of the State Bar.
“The law does not prohibit an attorney who is not an active member of the State Bar from obtaining paralegal assistan[ce] in his or her own case.
“Tasks that are performed by a paralegal include, but are not limited to, case planning and management, legal research, interviewing clients, fact gathering, drafting and analyzing legal documents, collecting and compiling and utilizing technical information to make an independent decision and recommendation to the supervising attorney.
“A paralegal may not engage in these activities on behalf of a client without the direct supervision of the attorney.”
Defendant maintains that the trial court’s definition of “paralegal” was given in the terms now contained in section 6450. Since that section was not effective until January 1, 2001, after defendant committed most of the acts for which she was on trial, defendant claims that use of the language contained in that section violates the ex post facto clause of the California and United States Constitutions. (Cal. Const. art. I, § 9; U.S. Const. art. I, § 10.) The argument is illogical. The ex post facto prohibition protects against the application of a statute that inflicts greater punishment than was allowed at the time of the commission of the crime. (Collins v. Youngblood (1990) 497 U.S. 37, 42-43; People v. Grant (1999) 20 Cal.4th 150, 156.) Defendant was not charged or punished under section 6450.
Defendant also maintains that the paralegal instruction was ambiguous because it specified that a paralegal must work under the supervision of an active member of the State Bar and also stated that an attorney who is not an active member of the State Bar could lawfully obtain paralegal assistance for his or her own case. To the extent the juxtaposition of these two statements created an ambiguity, the ambiguity is chargeable to the defense. The trial court included the latter part of that instruction at defendant’s request and over the prosecutor’s objection that it was not a correct statement of the law. If defendant believed the instruction required further clarification, “it was incumbent upon [her] to request it.” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1140.) “Normally, a defendant is held to waive the right to appeal alleged errors by failing to make an appropriate objection in the trial court.” (People v. Arredondo (1975) 52 Cal.App.3d 973, 978.) The waiver doctrine is appropriate here, particularly since defendant gives us no suggestion as to what she believes the trial court should have done to clear up the ambiguity.
The trial court also instructed the jury in the language of the California Rules of Professional Conduct, rule 1-311, which sets forth the requirements an attorney must follow when employing a disbarred attorney. The instruction was:
“An active member of the State Bar may employ, associate professionally with, or aid a disbarred, suspended, resigned, or involuntarily inactive member to perform research, drafting, clerical activities, including:
“One. Legal work of a preparatory nature such as legal research, assemblage of data or other necessary information, drafting of pleadings, briefs and other similar document.
“Two. Direct communication with the client or third parties regarding matters such as scheduling, billing, updates, confirmation of receipt or sending of correspondence and messages.
“And three. Accompanying an active member in attending a deposition or other discovery matter for the limited purpose of providing clerical assistance to the active member who will appear as the representative of the clients.”
Defendant’s concern pertaining to this instruction is that it was superfluous and not relevant to the factual issues the jury was to decide. Defendant concedes that superfluous jury instructions are generally harmless. (People v. Von Villas (1992) 11 Cal.App.4th 175, 238.) Nevertheless, defendant argues that the instruction was not harmless because it created a substantial risk of misleading the jury as to the elements of the offense. She complains, in effect, that the instruction allowed the jury to find her guilty merely by finding that she had been employed by attorneys who were not active members of the bar. We cannot fathom how the jury would have been misled in that regard. The instructions clearly spelled out what the jury was to decide.
In any event, we conclude that it is not reasonably probable that, had the instructions on paralegals or Rules of Professional Conduct, rule 1-311 been omitted or revised in some manner suitable to defendant, the jury would have returned a more favorable verdict. The instructions as a whole clearly and correctly advised the jury that it was to determine whether defendant had been disbarred (which was uncontested) and whether she had advertised or held herself out as authorized to practice law. The prosecution’s entire case focused upon the various ways in which defendant held herself out as entitled to practice law. Thus, there is no reasonable likelihood that the jury applied the challenged instruction in a way that violates the Constitution (Middleton v. McNeil, supra,541 U.S. at p. 437) so that the errors, if any, were not prejudicial.
VI. Disposition
The judgment is affirmed.
WE CONCUR: McAdams, J., Duffy, J.