Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA298039, George G. Lomeli, Judge.
Stephen M. Hinkle, 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, Linda C. Johnson and Michael A. Katz, Deputy Attorneys General, for Plaintiff and Respondent.
ZELON, J.
Salvatore Osio contends on appeal that when the trial court admitted into evidence in his criminal trial the deposition transcript of the deceased victim of his financial crimes, the trial court abused its discretion and violated his right of confrontation under the Sixth Amendment to the United States Constitution. He also claims that the prosecutor committed multiple acts of misconduct and that his conviction of grand theft by embezzlement (Pen. Code, § 487, subd. (a) must be reversed because it is a necessarily lesser included offense of a violation of § 368, subdivision (d). We affirm.
Unless otherwise indicated, all further statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
Osio, an attorney, was a friend of Henry and Alicia Waters and the trustee of their living trust. After Henry’s death, Alicia became convinced that Osio was stealing trust funds and filed a petition for an accounting. Osio deposed Alicia during the accounting litigation. She died in 2005.
Because of their shared last name, we refer to the Waterses by their first name for clarity.
After Alicia’s death, Osio was charged with what the information termed grand theft from an elder (§ 368, subd. (d)); grand theft by embezzlement (§ 487, subd. (a)); forgery (§ 470, subd. (d)); and perjury (§ 118, subd. (a)). It was alleged that with respect to the first two counts, the value of the property taken exceeded $50,000 within the meaning of former section 12022.6, subdivision (a)(1).
At trial, over defense objection, the court permitted the prosecution to introduce the transcript of Alicia’s deposition from the accounting proceeding. Osio was convicted as charged and the special allegations were found true. Osio appeals.
DISCUSSION
I. Admission of Deposition Testimony
Osio filed a motion in limine to exclude from evidence the transcript of Alicia’s deposition from the accounting litigation. The trial court admitted the deposition transcript under Evidence Code section 1291, subdivision (a)(2), which provides that “Evidence of former testimony is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and [¶] . . . [¶] The party against whom the former testimony is offered was a party to the action or proceeding in which the testimony was given and had the right and opportunity to cross-examine the declarant with an interest and motive similar to that which he has at the hearing.” Osio claims that the court abused its discretion and that the admission of the testimony violated his confrontation right under the Sixth Amendment to the United States Constitution. We consider each argument in turn.
A. Evidence Code Section 1291, Subdivision (a)(2)
The trial court concluded that Osio’s interest and motive for cross-examination in the civil deposition was similar to his interest and motivation for cross-examination in the criminal trial, explaining that the issue in the probate case was “whether the defendant engaged in any act of misappropriation and/or theft—you can characterize it as you wish—of the deponent’s assets, and that is the crux giving rise to the charges in this case.” The court continued, “the heart of the accounting goes to[,] let’s account for the funds in question that the alleged victim in here is disputing that Mr. Osio supposedly mishandled, so an accounting really goes to the issues in this case of whether or not the funds have been accounted or whether they were misappropriated.” We review the trial court’s ruling for an abuse of discretion. (People v. Sanders (1995) 11 Cal.4th 475, 525.)
We conclude that the trial court did not abuse its discretion. While there is “‘no magic test to determine similarity in interest and motive’” (People v. Ogen (1985) 168 Cal.App.3d 611, 617), a determination of similarity of interest and motive should be based on practical considerations (Wahlgren v. Coleco Industries, Inc. (1984) 151 Cal.App.3d 543, 546 (Wahlgren)), including “‘the similarity of the party’s position in the two cases, the purpose sought to be accomplished in the cross-examination, and whether under the circumstances a thorough cross-examination of declarant by the party would have been reasonably expected in the former proceeding.’ [Citation.]” (Ogen, at p. 617.) A defendant’s interest and motive at a second proceeding is not dissimilar to his interest at a first proceeding within the meaning of Evidence Code section 1291, subdivision (a)(2) simply because events occurring after the first proceeding might have led counsel to alter the nature and scope of cross-examination of the witness in certain ways. (People v. Harris (2005) 37 Cal.4th 310, 333.) Identity of motive and interest in cross-examination is not required; similarity is the question under the Evidence Code. (Ibid.)
Here, it was well within the discretion of the trial court to conclude that both the criminal trial and the deposition in the accounting proceeding concerned whether Alicia’s funds could be accounted for or whether they had been misappropriated. The accounting action in which Alicia’s deposition was taken was initiated to locate Alicia’s money and financial statements because of her concerns that Osio had taken her money and had refused to respond to her attorney’s requests for documentation. The deposition, noticed and taken by Osio’s counsel, covered such subjects as Alicia’s claimed funds, what financial documentation Osio had given her, and her belief that Osio had stolen her money. As a practical matter, at the deposition in the accounting proceeding Osio sought to determine what exactly Alicia alleged he had taken or mismanaged. This is very similar to his interest in the criminal trial, in which he was accused of theft and embezzlement of Alicia’s trust assets. Osio was on the same side of substantially similar issues in both cases and appears to have had no motive to refrain from thorough questioning in the first. We cannot say that the trial court abused its discretion in concluding that Osio had a motive and interest to examine Alicia at deposition that was similar to his motive and interest in his later criminal trial.
Osio raises a series of unavailing arguments that his interests were not similar. First, he argues that the accounting action was not brought to determine whether he was a thief, but to produce an accounting. While it is of course true that he could not be convicted of theft in probate court accounting proceedings, we cannot disregard the fact that the accounting was sought because of concerns about proper management and documentation of the trust. An accounting action is not a criminal proceeding, but Osio’s interests and motives for cross-examination in both actions were directed at establishing that there was no misappropriation of assets.
Next, Osio argues that Alicia was wrong about a number of her accusations against Osio, that the deposition “served to clarify these matters,” and that the deposition was obviously conducted for discovery purposes to obtain information on Alicia’s finances and claims against Osio. The fact that the deposition was taken for discovery purposes does not change the fact that Osio had an incentive in the accounting proceedings to investigate and thoroughly explore any complaints about the adequacy and propriety of his conduct with respect to the trust. Osio has not demonstrated that he had some different motivation in the accounting deposition, such as a reluctance to cross-examine to avoid the premature revelation of the weakness in the testimony of the witness or in the other party’s case.
Finally, Osio relies on Wahlgren to support his argument that the deposition transcript was inadmissible in the criminal proceedings, but that case does not assist him. In Wahlgren, the plaintiff attempted to introduce at trial the deposition testimony of witnesses from a prior unrelated case; because the deponents were officers of the defendant company the court concluded that the defendant had possessed little or no motive or interest in cross-examining its own witnesses at deposition. (Wahlgren, supra, 151 Cal.App.3d at p. 546 .) Here, the deponent was far from a friendly defense witness whom a defendant would not want to question on the record before trial—she was the very person who sought the accounting and complained of mismanagement or misappropriation of funds, and Osio had noticed the deposition for the very purpose of examining her about her claims. Osio had abundant motivation for thorough questioning of Alicia concerning her complaints about his management or appropriation of trust assets. Osio has not demonstrated any abuse of discretion here.
B. Confrontation Clause
In a separate argument, Osio claims that the introduction of Alicia’s deposition testimony violated his Sixth Amendment right to confront the witnesses against him. The confrontation clause bars admission of testimonial statements made out of court unless the declarant is unavailable, and the defendant has had a prior opportunity to cross-examine the declarant. (Crawford v. Washington (2004) 541 U.S. 36, 59 (Crawford).)
There is no dispute that Alicia was unavailable at the time of trial and that her deposition was testimonial in nature. The central question here for the Crawford analysis is whether Osio had a prior opportunity to cross-examine Alicia. The transcript from the deposition reveals that Osio did have the opportunity to examine Alicia at her deposition; Osio therefore contends that the opportunity to cross-examine was inadequate. He offers no new argument here, merely stating that he was not afforded the right for effective cross-examination for the same reasons that he set forth in his state law arguments.
We reject those arguments. Osio, who was represented by counsel at the deposition his counsel had noticed, had a full opportunity to cross-examine Alicia. He claims that the deposition was “cut short” when Alicia complained that she could not “take it anymore,” but the record does not reflect that Alicia or her counsel discontinued the deposition over Osio’s objection. Instead, after Alicia’s comment, Osio’s counsel said, “I think we got enough,” and chose to conclude the deposition rather than seeking another date to continue it.
Although Osio argues that he did not have the same interest or as much at stake in cross-examining a witness in a deposition taken for a civil proceeding as he would in a criminal proceeding, rendering his opportunity for cross-examination inadequate under the confrontation clause, when a defendant had an opportunity to cross-examine a witness at the time of his or her prior testimony, that testimony is sufficiently reliable to satisfy the confrontation requirement, regardless of whether subsequent circumstances bring into question the accuracy or completeness of the earlier testimony. (People v. Wilson (2005) 36 Cal.4th 309, 343.) The federal Constitution guarantees an opportunity for effective cross-examination, not a cross-examination that is as effective as a defendant might prefer. (People v. Carter (2005) 36 Cal.4th 1114, 1172.)
II. Alleged Prosecutorial Misconduct
Osio claims that the prosecutor committed misconduct by appealing to the emotions of the jurors and by improperly shifting the burden of proof. Generally, on appeal, a defendant may not complain of prosecutorial misconduct unless the defendant objected in a timely fashion and requested that the jury be admonished. (People v. Williams (1997) 16 Cal.4th 153, 221 (Williams).) A timely objection is not necessary if it would be futile, and the failure to request the jury be admonished does not forfeit the issue for appeal if an admonition would not have cured the harm caused by the misconduct. (People v. Hill (1998) 17 Cal.4th 800, 820 (Hill).)
A. Alleged Appeals to Emotions and Sympathies
Osio claims that three comments made by the prosecutor in closing arguments constituted misconduct. Specifically, Osio contends that it was misconduct for the prosecutor to say, when describing how correspondence from Osio demonstrated his feelings about Alicia: “Now, mind you, you read those letters—you read those letters, you read those court papers, and it comes through loud and clear. He hates her. He loathes her. He is so vile and mean to her, it’s unbelievable. It’s just scathing the way it rolls off the pages. He is so abusive to her. The hate comes through loud and clear. [¶] You read those, you will absolutely know beyond a shadow of a doubt—in this case it’s only beyond a reasonable doubt, but you’re going to know beyond all possible doubt that he loathes her and wouldn’t do anything. He wouldn’t spit on her if she were on fire.”
Next, Osio complains of this snippet from an argument made by the prosecutor on final closing argument: “I have to prove to you that there is hatred because you just can’t steal money unless you hate somebody. That is just impossible to happen.” Last, he alleges that it was misconduct for the prosecutor to say, also in his final argument, that “You know, bring somebody’s friends in [to testify as to their good character]. Oh, we love him, we love him, we love him. All right. Every time we see some crazy killer who’s gone and killed somebody, the news comes out, they go to the neighbor’s house, they run over to the friend’s house, ‘He was such a nice man, he was always so quiet.’ That neighbor is on every time somebody gets killed. That friend is on every single time.”
According to Osio, these arguments are unfair appeals to sympathy, passion, or emotion and were “irrelevant arguments of an incredibly inflammatory nature.” Osio also claims that these statements were made “over vigorous defense objection,” but when we examine Osio’s citation to the record we observe that the only statement to which a timely objection was raised was the third statement. Moreover, with respect to that third statement, Osio’s counsel did not request that the jury be admonished to disregard the argument. Although his reply brief does make a single-sentence assertion that objections would have been futile because the trial court “made it clear that it would not curb the prosecutor’s argument,” this contention is not borne out by the record, which demonstrates that when the objection to the “crazy killer” comment was made, the trial court directed counsel to move to another topic of argument. Not only does this objection suggest that trial counsel did not believe that objections were futile (as do counsel’s objections made to other aspects of the prosecutor’s argument), but it also clearly shows that the trial court remained receptive to considering Osio’s objections to the prosecutor’s closing arguments. Because Osio has not made any showing that objections or requests for admonitions would have been futile or that admonitions could not have cured the harm caused by the alleged misconduct, the issue of prosecutorial misconduct was forfeited. (Hill, supra, 17 Cal.4th at p. 820.)
Osio cites to three locations in the record that evidence these purported objections to the prosecutorial misconduct alleged on appeal. The first objection was made to challenge the prosecutor’s characterization of Osio’s testimony about Alicia’s relatives in Mexico and of the testimony given by Osio’s character witnesses; it did not pertain to the comments here alleged to constitute misconduct. The second objection was to the “crazy killer” remark, but counsel did not ask that the jury be admonished. The third objection was a motion for mistrial made after closing arguments. Osio made that motion on the vague grounds that “There was appeal to sympathy and prejudice throughout this, especially as it relates to wealth, and also the reference to the Mexican relatives.” Here, the only specific assignments of misconduct made in connection with the mistrial motion (comments about wealth and the Mexican relatives) are not the comments about which Osio complains on appeal.
Even had Osio not forfeited these issues, however, we discern no misconduct here. While prosecutors are properly held to a higher standard of conduct than other attorneys because of the unique nature of their duties to represent the interests of the state and to ensure that justice is adequately served (Hill, supra, 17 Cal.4th at p. 820), prosecutors nonetheless possess wide latitude to vigorously argue and fairly comment on the evidence—including reasonable inferences and deductions from that evidence—and may refer to matters of common experience. (Williams, supra, 16 Cal.4th at p. 221.)
The first comment, concerning how Osio’s letters to Alicia demonstrated that he loathed her, was well within the prosecutor’s latitude for argument. A defendant’s anger toward the victim is relevant to prove a motive for a crime. (People v. Mendoza (2007) 42 Cal.4th 686, 697-698.) Prosecutors are entitled to draw reasonable inferences from the evidence (People v. Zambrano (2007) 41 Cal.4th 1082, 1153-1154), and they may fairly use colorful language in closing arguments to explain their view of the evidence. (People v. Rundle (2008) 43 Cal.4th 76, 163 (Rundle).) We have reviewed the letters and other trial exhibits, and we agree with the trial court that they are susceptible to the interpretation that they reflect a dislike of Alicia. The prosecutor’s description of the language that Osio had used was a legitimate argument, based on the evidence, that Osio hated Alicia, giving him a motive for his alleged crimes against her. Arguing that Osio was motivated by hatred is not the same as appealing to the jury’s passion and prejudice.
The second comment, the prosecutor’s statement that “I have to prove to you that there is hatred because you just can’t steal money unless you hate somebody. That is just impossible to happen,” was also permissible argument when placed in context. The prosecutor, responding after Osio’s closing argument, deprecated the defense arguments by describing them dismissively, then asserting that they were irrelevant to Osio’s guilt: “The defendant didn’t hate Alicia. And besides, it’s 1998. The Waters’ trust, look at that. Clearly, he didn’t hate her. And that is reasonable doubt because, you know, you have to really—I have to prove to you that there is hatred because you just can’t steal money unless you hate somebody. That is just impossible to happen. [¶] You’ll notice when you get the elements of the crime, hatred is not element 5. There is not a little asterisk there that you may only find him guilty if somebody hated him; if you hated him, if the victim hated him, or somebody in some relationship like that. [¶] But when you read those letters, you will get a feeling he really disliked her. And yes, I characterize it as hate. And I think when you go back there and you read what he had to say and everything he did to her, you’re going to come to the conclusion it was hate. But that’s not an element of the crime.” Read in context, this argument is not susceptible of interpretation as an appeal to the passions, prejudices, or emotions of the jury. It is a strongly-worded argument that at the end of the day, whether the jury believed that Osio hated Alicia was not the determinant of whether Osio was guilty of the charged crimes. This is well within the permissible scope of argument.
Finally, Osio argues that with the final comment the prosecutor “likened appellant to a crazed murderer” and appealed to jury prejudices. We do not construe the comment as equating Osio with a crazed murderer, nor do we believe that any reasonable juror would have done so. Rather, the prosecutor was attacking the probative value of character witness testimony by appealing to the common experience of seeing friends and neighbors of a violent criminal express surprise that such a quiet person would have committed a brutal act. The prosecutor made a permissible reference to common knowledge and experience in service of the larger argument that the jury should consider unpersuasive the character witnesses offered by Osio. (See People v. Dennis (1998) 17 Cal.4th 468, 522 [counsel may make harsh and vivid attacks on witness credibility and may make arguments from the evidence that testimony is unsound, unbelievable, or false].)
B. Burden of Proof
Osio claims that the prosecutor attempted to shift the burden of proof through commentary on evidence not produced by Osio in his defense. In his defense, Osio had called an expert witness named Jim Berger, a senior partner in a firm that specializes in auditing, taxation, and consulting, including forensic examination. Berger testified concerning bank drafts in general; whether a specific bank draft (Exhibit 20) appeared facially valid or invalid; guaranteed investment contracts; whether a specific guaranteed investment contract appeared to be facially valid or invalid; and broker relationships and transactions. On cross-examination, Berger testified that he could have performed an audit to determine whether Exhibit 20, the bank draft, was valid, but that he did not do so; he also did not trace money in bank or brokerage accounts for Osio.
In closing argument, the prosecutor said, “Jim Berger. Counsel says that the defense in a criminal case has no burden of proof, and he’s right. The defense can sit through a trial, not ask one question, not call one witness, not produce one piece of evidence. [¶] You know how the defense is always accusing me, ‘He didn’t tell you quite the whole story?’ Well, one thing we prosecutors can do when the defense presents evidence and calls witnesses is we can comment upon their failure to call logical witnesses or to introduce material evidence. [¶] Now, Jim Berger. I mean, the greatest guy ever. ‘I’m the absolute financial whiz. All I do, as I’ve retired now, I’ve got my business, all me and my partners do is we trace money. We fly all over. I fly to Chicago. I fly to Washington. I fly here, there, and everywhere. That’s what I do, I trace money.’ And he’s right there. [¶] Now, you’ve heard how I traced the money, showing the defendant stole it. We subpoenaed every bank record that we could trace his money to, and we got them, and he stole this money. [¶] And here is Mr. Berger, right here, retained, called to the stand, sitting right here in front of all of you. And as counsel pointed out on redirect, he didn’t trace the money not because he wasn’t able to do it, but because he wasn’t asked to do it. He’s sitting right here in front of you.”
The prosecutor continued, “Mr. Spaustat [Alicia’s attorney in the accounting action] said, you know, that bank note, that was bull. ‘I went to the bank. They wouldn’t honor that thing at all.’ And here sits Mr. Berger. You heard us, we’re telling you that he stole that money. There sits Mr. Berger. And wow, you know, if there is some online account that we don’t know about, how easy is that to fix? [¶] ‘I’m Jim Berger, I can trace anything, and let me tell you, ladies and gentlemen, I found that money. It wasn’t stolen. I know it looked bad for a while, but rest assured, I know where it went, and let me prove it to you,’ and he probably could have had it set up on PowerPoint or something like that. We didn’t get that, did we? We did not get that. And that, I can comment upon.”
According to Osio, with this argument the prosecutor suggested that Osio had to prove something or present a reasonable explanation for damaging evidence, thereby shifting the burden of proof to the defense. We disagree. The prosecutor emphasized that the defense has no burden of proof. His comments about the expert witness were an argument that given that Osio had elected to offer evidence and present a witness with expertise in forensic accounting, if the application of that stated expertise would have supported Osio’s innocence in this case, surely Osio would have elicited that logical and material evidence. A prosecutor may comment on the failure of the defense to introduce material evidence (People v. Brown (2003) 31 Cal.4th 518, 554), and the prosecutor did so here.
III. Count 2 as a Lesser Necessarily Included Offense of Count 1
Osio was charged in count 1 with what the information termed grand theft from an elder (§ 368, subd. (d)), and in count 2 with grand theft by embezzlement (§ 487, subd. (a)). He was convicted of both offenses, and the sentence on count 2 appears to have been stayed pursuant to section 654. Osio claims that the conviction on count 2 should be reversed because count 2 is a lesser necessarily included offense of count 1. We conclude that under the principles set forth by the California Supreme Court in People v. Reed (2006) 38 Cal.4th 1224 (Reed), Osio may properly be convicted of both offenses.
We note that there is some inconsistency between the reporter’s transcript and the minute order from the sentencing hearing. It appears that the court may have inadvertently failed to state on the record that the sentence on count 2 was stayed pursuant to section 654 but that this oversight was remedied in the minute order, which twice states that the sentence on count 2 was stayed. While ordinarily we look to the transcript as the governing record of the proceedings, here, where the parties understand the sentence to have been stayed and where it is incontestable that the sentence on count 2 must be stayed under section 654 in order for Osio’s sentence to be legally authorized, for the purposes of this appeal we, like the parties, treat the minute order as the correct record of the sentence imposed.
California case law includes “two alternative tests to determine whether a lesser offense is necessarily included in a greater offense. Under the elements test, we look to see if all the legal elements of the lesser crime are included in the definition of the greater crime, such that the greater cannot be committed without committing the lesser. Under the accusatory pleading test, by contrast, we look not to official definitions, but to whether the accusatory pleading describes the greater offense in language such that the offender, if guilty, must necessarily have also committed the lesser crime.” (People v. Moon (2005) 37 Cal.4th 1, 25-26.) In Reed, supra, 38 Cal.4th at page 1231, the California Supreme Court held that while both tests are to be used when deciding whether a defendant may be convicted of an uncharged crime, courts may consider “only the statutory elements in deciding whether a defendant may be convicted of multiple charged crimes.”
Osio claims that the violation of section 487, subdivision (a) (count 2) is a lesser included offense of the violation of section 368, subdivision (d) (count 1) under both the elements test and the accusatory pleading test. The Attorney General argues that count 2 is not a lesser included offense of count 1 under the elements test, but that under the accusatory pleading test count 2 is a lesser included offense of count 1 and must be stricken. In light of the Supreme Court’s opinion in Reed, supra, 38 Cal.4th 1224, the accusatory pleading test is inapplicable because both offenses were charged in the information.
We therefore analyze Osio’s claim under the statutory elements test alone. The Supreme Court has most recently set forth this test as follows: “Under the elements test, a court determines whether, as a matter of law, the statutory definition of the greater offense necessarily includes the lesser offense.” (People v. Parson (2008) 44 Cal.4th 332, 349.) “[W]e look to the two statutes to determine whether in the defendant’s commission of the greater offense, his or her actions necessarily would satisfy all of the elements of the lesser offense.” (Rundle, supra, 43 Cal.4th at p. 143.) The offense of grand theft by embezzlement (§ 487, subd. (a)) is not a necessarily included lesser offense of a violation of section 368, subdivision (d) under the elements test, because it is entirely possible to violate section 368, subdivision (d) without committing grand theft. While Osio is correct that acts constituting grand theft, if committed against an elder or dependent adult (at least under circumstances in which the perpetrator knew or reasonably should have known that the victim is an elder or a dependent adult), violate both section 487, subdivision (a) and section 368, subdivision (d), the fact remains that section 368, subdivision (d) may be violated by a variety of acts other than grand theft, such as forgery, fraud, or identity theft. (See Parson,at p. 349 [assault is not a lesser included offense of robbery because robbery can be committed by force or fear, not only by force].)
While it appears that the Legislature was attempting to create an enhanced criminal offense—some kind of theft plus, forgery plus, or identity theft plus—when the underlying crime was committed against a person who the perpetrator knew or should have known was an elder or dependent adult, by enacting this statute in this form the Legislature created an offense that can be committed by engaging in any of a range of underlying criminal offenses. As long as we are restricted to the elements test and unable to consult the pleadings, in light of the language of section 368, subdivision (d), none of the individual underlying criminal offenses qualifies as necessarily included lesser offenses to the catch-all greater offense.
Because section 368, subdivision (d) may be violated without violating section 487, subdivision (a), the greater crime here may be committed without committing the lesser crime of grand theft. We cannot say that for Osio to have violated section 368, subdivision (d) “his . . . actions necessarily would satisfy all of the elements of the lesser offense” of grand theft. (Rundle, supra, 43 Cal.4th at p. 143.) A lesser offense, certainly; but not necessarily this lesser offense. Therefore, grand theft is not a lesser necessarily included offense of a violation of section 368, subdivision (d), and Osio was properly convicted of both offenses. This determination has no impact on Osio’s total sentence.
DISPOSITION
The judgment is affirmed.
We concur: PERLUSS, P. J., WOODS, J.