Opinion
NOT TO BE PUBLISHED
Sonoma County Super. Ct. No. SCR 455809
Judge of the Contra Costa County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Appellant was convicted by jury of four misdemeanor counts of attempting to assist another person in unlawfully obtaining official documents issued by the California Department of Motor Vehicles (DMV) (Pen. Code, §§ 664, 529.7), and of the felony of conspiring with others to unlawfully obtain official DMV documents. (Pen. Code, § 182, subd. (a)(1).) She was sentenced to a term of 16 months in state prison, and appeals her conviction.
She was jointly tried with codefendant and alleged coconspirator Teofilo Palomera, who was also convicted, but who is not a party to this appeal. Another alleged coconspirator, Ubaldo Morales, was also originally jointly charged. The record does not reflect the disposition of his matter.
Assigned counsel has submitted a Wende brief, certifying that counsel has been unable to identify any issues for appellate review. Counsel has also submitted a declaration confirming that appellant has been advised of her right to personally file a supplemental brief raising any points which she wishes to call to the court’s attention. No supplemental brief has been submitted. As required, we have independently reviewed the record. (People v. Kelly (2006) 40 Cal.4th 106.) We find no arguable issues and therefore affirm.
People v. Wende (1979) 25 Cal.3d 436.
Background
Appellant was charged, by first amended information filed on April 21, 2008, with the above offenses. The information alleged 12 overt acts by appellant, codefendant Teofilo Palomera, or former codefendant Ubaldo Morales in support of the conspiracy alleged. Trial commenced on April 21, 2008. The trial evidence is summarized as follows:
Appellant was employed by the DMV as a Motor Vehicle Field Representative from September 2001 through January 2005. Her duties included processing driver’s license applications and renewals. She was assigned to window No. 18 in the Santa Rosa field office. In 2004, the Santa Rosa office manager of DMV, Dolores Colon, received reports of alleged irregularities with appellant’s work. She began to compare work done daily by each technician with the paperwork submitted, and personally checked appellant’s workstation. She found California driver’s license applications (Form DL-44) retained at appellant’s station that should have been sent each day to the Sacramento office for auditing and microfilming. It was also her recollection that the forms at appellant’s workstation lacked the secondary verification required by DMV. Colon photocopied the license applications found at appellant’s work station, leaving the originals.
The application must be signed in the presence of the DMV technician, who is required to confirm documentary evidence of the individual’s legal status. The documentary evidence is then to be further reviewed and confirmed by a second DMV employee.
During her continuing monitoring of appellant over the next several weeks, she found additional unprocessed DL-44 forms at appellant’s workstation. She also observed an individual, whom she later identified as Ubaldo Morales, appearing frequently at appellant’s window, as often as a couple times per week. In addition to seeing Morales at appellant’s window, she also observed him in the DMV parking lot with other individuals holding paperwork in their hands.
She forwarded the information which she collected to DMV Internal Affairs. Investigator Jared Ueda audited appellant’s work activity. He interviewed certain individuals whose driver’s license applications had been processed by appellant, and who appellant had indicated, by computer entry, had provided U.S. birth certificates as evidence of legal residence in California. Some of those individuals testified at trial, including Ofelia Huayanay, Danelia Morales, Jose Ortiz and Ruben Magana.
Ms. Huayanay, a native of Peru, met with appellant’s codefendant, Teofilo Palomera, to seek his assistance in getting a California driver’s license. He told her to bring money (either $1,200 or $1,500), and that he would take her to the DMV “to the lady who was in charge” and that the lady “was going to do the paperwork.” “I just had to put my name, and then that’s all.” She was taken to DMV by Palomera where she was instructed to give her money to a second man. She was taken inside by Palomera directly to appellant’s window. The only information she completed on the DMV form was her name and address. She told appellant that she did not have a social security number, never presented a birth certificate, and did not pay a DMV fee.
Danelia Morales was a native of Mexico and did not have a U.S. birth certificate. On November 8, 2004, she met Ubaldo Morales and Palomera in Bay Point, giving them $2,500 for assistance in obtaining a valid California driver’s license. They then went to the Santa Rosa DMV office, where Ubaldo Morales brought her the forms to be completed. She was instructed to go to appellant’s window. She presented her Mexican passport but not a birth certificate. Appellant told Ms. Morales that it would cost $1,000 to get her driver’s license. Appellant then left the window to talk to one of the men that had accompanied Ms. Morales to Santa Rosa, later returning to complete the paperwork.
Both Ruben Magana and Jose Ortiz are Mexican nationals who testified that they met with men in Bay Point, paid them money to assist in obtaining valid California driver’s licenses, and then traveled to Santa Rosa, where they were instructed to go to appellant’s window. Ortiz paid $1,700 to Palomera, and Magana paid $2,500 to “Usbaldo.” Neither presented a birth certificate to appellant. Appellant processed their paperwork and gave them temporary driving permits. No DL-44 forms for Huayanay, Danelia Morales, Magana or Ortiz were on file with the DMV at the time of the investigation in December 2004.
Magana also asked “Usbaldo” to assist him in getting a commercial driver’s license. Magana paid an additional $800 to obtain the commercial driver’s license. He gave his cell phone to “Usbaldo” to make a telephone call, and later gave DMV Investigator Ueda his phone bill to allow him to check the number called. That phone number was listed to Rosa Lugo, the emergency contact listed by appellant with DMV. Ueda observed vehicles registered to appellant in the driveway of the listed residence for that phone number. Appellant’s phone records were obtained by warrant, and showed nine phone calls to a number listed to Ubaldo Morales, as well as the incoming call from Magana’s phone.
At the close of the prosecution evidence, on May 5, 2005, the court permitted the People to file a second amended information to conform to proof. The second amended information alleged a total of 28 overt acts in support of the conspiracy charge. Appellant objected to the extent that the amended pleading added additional alleged overt acts which appellant contended were not established at the preliminary hearing. Specifically, objection was made to alleged overt acts 1, 4-6, 9-12, 16, 18-20, and 28.
Appellant also made a Trombetta motion to dismiss due to loss or destruction of the original DL-44 forms relating to the four testifying witnesses. The court found that appellant (and her codefendant) had failed to make any threshold showing that the lost documents were exculpatory, or that she had suffered prejudice, or that the investigating officer had acted in bad faith. She also moved for a judgment of acquittal pursuant to Penal Code section 1118.1. Both motions were denied.
California v. Trombetta (1984) 467 U.S. 479 (Trombetta).
Investigator Ueda testified that he did not recall which, if any, of the DL-44 photocopies he had received related to any of the testifying witnesses, but that he had shredded the photocopies of any forms which he did have once his report had been completed, since he felt that the relevant items were attached to his report, and that he no longer needed the others. The prosecutor represented that only one DL-44 form, for Magana, had been received and microfilmed in Sacramento.
Appellant testified on her own behalf. She insisted that she always obtained birth documents from license applicants, and that she always had those documents reviewed by someone authorized to do secondary verification. She stated that her only contact with Ubaldo Morales was a lunch date, and that she had declined his further telephoned requests to date her. When questioned by investigators, she identified a photograph of Morales, but said she could not recall his name.
On May 7, 2008, the jury found appellant guilty on all charged counts. By special verdict form the jury found alleged overt acts 7, 13, 21, 22, 25, 26, and 28 to be true.
On August 25, 2008, appellant was sentenced to the Department of Correction for a mitigated term of 16 months. A timely notice of appeal was filed on October 2, 2008.
Discussion
Sufficiency of the Evidence
The evidence was sufficient to establish each element of the offenses charged against appellant beyond a reasonable doubt. “In resolving sufficiency of the evidence claims, ‘an appellate court reviews the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt.’ [Citation.]” (People v. Gomez (2008) 43 Cal.4th 249, 265.)
DMV employees testified as to suspicious irregularities in appellant’s handling of driver’s license applications through her workstation, including retaining unprocessed applications at her station. Four separate individuals identified appellant as the person to whom they were directed by appellant’s alleged coconspirators for handling of their driver’s license applications, bypassing regular lines, and after paying amounts between $1,200 and $2,500 to obtain the documents. They each testified that they did not have the birth records required as proof to be able to obtain these official DMV documents, and that appellant did not request any. At least one witness, Daniela Morales, testified that appellant indicated that obtaining the document would cost $1,000. Telephone records connected appellant to the coconspirators to whom money was paid. The jury could properly find appellant’s denials and explanations less than credible.
The jury was properly instructed as to the elements of both the misdemeanor offense and felony conspiracy charge, including the necessity for unanimity as to any overt act.
Amendment of the Information
Amendment of the information after plea may be permitted with the consent of the court. (Pen. Code, §1009.) Whether the prosecution should be permitted to amend an information is a matter within the sound discretion of the trial court and its discretion will not be overruled in the absence of a clear abuse. (People v. Massie (1966) 241 Cal.App.2d 812, 819.) No abuse of discretion is shown. Appellant’s sole objection was that the amendment allowed allegation of overt acts not proven at the preliminary hearing. No request for continuance was made to meet evidence of these acts, and we find no indication of any objection when evidence of the overt acts was introduced during the prosecution’s case in chief. Moreover any claimed error was clearly harmless, since the jury found true multiple overt acts (Nos. 7, 13, 21, 22, 25 & 26) as to which no objection was made. (People v. Watson (1956) 46 Cal.2d 818, 836.)
Only overt act No. 28, relating to updating of Ruben Magana’s driver’s license application, was both the subject of appellant’s objection and a jury finding.
The Trombetta Motion was Properly Denied
Law enforcement agencies must preserve evidence only if it possesses exculpatory value “ ‘apparent before [it] was destroyed,’ ” and not obtainable “ ‘by other reasonably available means.’ ” (People v. DePriest (2007) 42 Cal.4th 1, 41-42, citing Trombetta, supra,467 U.S. at p. 489.) Further, there is no impermissible destruction of evidence if material is destroyed in good faith and in accord with normal practices. (Trombetta, supra, at p. 487.) “ ‘[U]nless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.’ ” (People v. Roybal (1998) 19 Cal.4th 481, 510, quoting Arizona v. Youngblood (1988) 488 U.S. 51, 58.) There was no showing that the investigator ever even had copies of DL-44 forms relating to the testifying witnesses in his possession, particularly in light of the fact that the evidence showed that appellant failed to process such forms and concealed them, much less that they contained exculpatory information, and the court did not find any bad faith on the part of the investigator. The trial judge correctly found that appellant did not meet her threshold burden on this issue.
Effective Assistance of Counsel
There is nothing in the record to show that appellant was denied effective assistance of counsel. To establish a violation of the constitutional right to effective assistance of counsel, it must be shown that both the attorney’s performance was deficient when measured against the standard of a reasonably competent attorney and that counsel’s deficient performance resulted in prejudice to defendant in the sense that it “ ‘so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.’ ” (People v. Kipp (1998) 18 Cal.4th 349, 366.)
Appellant’s Sentence Was within the Sound Discretion of the Trial Court.
Appellant was sentenced to a 16-month term in state prison. The trial judge noted, in denying probation, that “[t]his is a corruption in government, something that is more damaging to the community than almost anything else I can imagine.” He denied probation based on the nature of the offense, but imposed the mitigated term based on appellant’s lack of prior record, and other factors presented by the defense at the sentencing hearing.
“Probation is not a matter of right but an act of clemency, the granting and revocation of which are entirely within the sound discretion of the trial court.” (People v. Pinon (1973) 35 Cal.App.3d 120, 123.) The court considered the relevant factors in denying probation. (See Cal. Rules of Court, rules 4.410 & 4.414.) “When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the choice of the appropriate term shall rest within the sound discretion of the court.” (Pen. Code, section 1170, subd. (b); see Cal. Rules of Court, rule 4.420.) No abuse of discretion is shown.
Disposition
The judgment is affirmed.
We concur: Jones, P. J., Needham, J.