Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County. Super. Ct. No. F06908642 John F. Vogt, Judge.
William G. Prahl, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Marcia A. Fay, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
DAWSON, J.
This is an appeal from judgment after a jury trial. The jury found appellant Robert Ronald Sandoval guilty of one count of grand theft (Pen. Code, § 487, subd. (b)(3)) and three counts of presentation of a fraudulent claim (§ 72). Appellant contends the trial court prejudicially erred in permitting appellant and his character witnesses to be questioned concerning appellant’s 1984 conviction for welfare fraud. He contends he was deprived of the right to be present at his trial when the court conducted preliminary discussions in chambers and in appellant’s absence. He contends the prosecutor committed prejudicial misconduct in argument to the jury. Finally, he contends the evidence was legally insufficient to support the jury’s verdict. We will affirm the judgment.
FACTS AND PROCEDURAL HISTORY
Appellant was a social worker for the Fresno County In-Home Supportive Services Department (IHSS). IHSS provides payment for housekeeping and other services for clients who otherwise might have to move to an assisted living facility. Appellant was an intake worker. His job involved visiting prospective clients in their homes, collecting relevant information, and making an initial eligibility determination. As such, his job required him to be away from the IHSS office to visit new clients all over Fresno County. Appellant was an hourly worker, receiving pay at the rate of $23.45 per hour.
In late September of 2006, appellant became the target of an internal fraud investigation conducted by investigators from the district attorney’s office previously assigned to IHSS. Through surveillance of appellant’s home beginning September 27, 2006, and continuing on 10 further days thereafter, the investigators determined that appellant was either at home or at his father’s house (and on one occasion at a radio station) for periods of time on each of the 11 days on which they conducted surveillance. The total time appellant was observed to be at the three locations was 22 hours.
The surveillance was of the exterior of appellant’s home only. On most occasions the investigators simply observed appellant’s vehicle in his driveway during the hours in question; on one occasion they saw him washing the vehicle in the driveway. On the occasions of appellant’s visits to his father and the radio station, the investigators observed appellant driving to, entering, and leaving the building in question.
By amended information, appellant was charged in count 1 with grand theft, based on theft of pay warrants in excess of $400 (22 hours of time under surveillance at the stated pay rate, for a total of $515.90). Appellant’s submission of three time sheets falsely claiming he was working during those 22 hours constituted the basis for counts 2 through 4, presentation of a fraudulent claim.
At appellant’s jury trial, the prosecution introduced evidence that appellant did not have permission to work at home, that there were no formal or informal county policies that allowed hourly employees to do personal errands on county time, and that appellant had not been visiting applicants for IHSS benefits as shown on his work records for certain dates. The prosecution played an audio tape of appellant’s interview with the fraud investigators in which he admitted some accusations by the investigators and failed to deny others. He said he may or may not have been performing county work on some of the occasions when he was at home, but he could not remember specifically.
At trial, appellant essentially admitted that he was at home when the investigators said he was. He claimed, however, he was writing up denials for ineligible applicants or preparing packets of forms for future client interviews. He thought he was permitted to do this work at home, and he needed to do so because coworkers often distracted him at the office. On one occasion, when the investigators saw him washing his vehicle in his driveway at home, he contended he was permitted to do so by county policy after he had used the vehicle for home visits. He said the visits to his father and the radio station, as well as any time at his own home when he was not performing work for the county, constituted informal leave permitted by custom and practice at IHSS for employees who otherwise kept up with their work. Appellant acknowledged he had been convicted of misdemeanor welfare fraud in 1984. He said he was a college student at the time and, when his wife left him with two children to care for, he obtained welfare aid even though he was ineligible. He testified he later repaid the aid.
Appellant presented witnesses who testified to his reputation for truthfulness and his reputation as a diligent and competent social worker. Of those witnesses, three were asked whether they knew appellant had been convicted of welfare fraud. None of the three knew this, and all three said that information probably would not change their opinion of appellant.
The jury found appellant guilty of all four counts charged in the information. At a sentencing hearing on December 1, 2008, imposition of sentence was stayed and appellant was admitted to two years’ probation.
Appellant filed a timely notice of appeal.
DISCUSSION
1. Impeachment With 1984 Misdemeanor
Appellant was convicted in 1984 of misdemeanor welfare fraud, Welfare and Institutions Code section 11483. He moved in limine to prohibit the prosecutor from using the misdemeanor for impeachment at the trial on the current charges. He contended the misdemeanor was remote in time, that he had not suffered any convictions in the intervening years, and that welfare fraud was very similar to the charges in the present case. Accordingly, he contended use of the misdemeanor to impeach him on cross-examination and to impeach his character witnesses would be unduly prejudicial under Evidence Code section 352. The trial court denied the motion, concluding prohibition of such impeachment would create a false aura of veracity for appellant.
In this court, appellant contends the trial court abused its discretion in permitting the prosecutor to impeach appellant and his witnesses with the prior misdemeanor. Respondent contends the trial court did not abuse its discretion because remote convictions are not “automatically inadmissible for impeachment”; the prior crime and the present charges were “not ‘nearly identical’”; and the trial court permitted appellant to testify about extenuating circumstances involved in the prior misdemeanor.
He also contends the prosecutor improperly used the conviction, instead of the underlying conduct, as the basis for impeachment. (See, e.g., People v. Chatman (2006) 38 Cal.4th 344, 373.) He did not object on that basis in the trial court, however, and this contention is waived. (Evid. Code, § 354.) In any event, in light of our conclusion on the issue of prejudice, any such contention concerning the form of the impeachment would be unavailing.
Respondent has not cited any case (and our own research has not disclosed such a case) in which a 22-year-old misdemeanor has been admitted to impeach a defendant in circumstances where there are no subsequent convictions. (See People v. Harris (1998) 60 Cal.App.4th 727, 739 [discussing remoteness in the context of predisposition evidence: “Although there is no bright-line rule, 23 years is a long time”].) In People v. Mendoza (2000) 78 Cal.App.4th 918, 925, on which respondent relies, the court permitted impeachment with 18-year-old felonies, but noted that the defendant had intervening convictions for other crimes of moral turpitude. Accordingly, the court held, “the remoteness factor would not mitigate against admission of the priors.” (Id. at p. 926, citing other similar cases.)
Further, while respondent is correct that the prior misdemeanor and the present charges are not identical-the prior misdemeanor involving a violation of the Welfare and Institutions Code specifically addressing fraudulently obtaining welfare benefits and the present crimes involving more generic fraud under the Penal Code-all of the charges involve the core circumstances of obtaining county funds through false pretenses. Under the rationale of People v. Beagle (1972) 6 Cal.3d 441, 453, such close similarity between the past conduct and the present charges weighs against admitting the prior misdemeanor for impeachment purposes.
We conclude the trial court abused its discretion in admitting evidence of the prior misdemeanor in this case. The error, however, was not prejudicial. (See People v. Golston (1986) 188 Cal.App.3d 346, 354, applying People v. Watson (1956) 46 Cal.2d 818, 836.)
Appellant admitted (both to the investigators and in his trial testimony) that he had been at home during the times claimed by the prosecution. When interviewed by the investigators two weeks after the events, he claimed he did not remember what he had done at home on the dates in question. He acknowledged that he may have been working or may have been napping. By the time of trial, some two years later, appellant implausibly claimed to know he was working on specific case files on specific dates he was at home. In addition, appellant’s explanation of the details of his work at home-how long the tasks required, how he came to have the necessary information to write reports without having violated applicant privacy rights-made no sense. No reasonable jury could have determined that appellant acted without fraudulent intent in submitting timesheets that claimed he was working on the occasions in question.
Despite his trial testimony in which he claimed to have been working at home, he also claimed (both in the interview and at trial) that it was informally permitted not to work during recorded work hours, so long as his allotment of work got done. Every other witness, including one presented by appellant, disagreed that there was any such policy or practice permitting informal-but paid-time off. In addition, appellant specifically acknowledged that he was not working when he visited his father during certain of the hours he reported as work hours. He specifically admitted leaving false client-contact logs on his desk (such logs were required by policy in order to advise his supervisors which client he was visiting) when he was not visiting any client. In light of this evidence, no reasonable jury could have accepted appellant’s claim that he acted innocently and in good faith. On this state of the evidence, it is not reasonably probable the jury would have returned verdicts more favorable to appellant if appellant’s prior misdemeanor had been excluded.
As defense counsel accurately stated in his closing summary to the jury: “The defense theory is that the social workers as testified to by [appellant] was taking work home, supervisors knew about it and all they were concerned about was, get the work done, and they were also allowed to do little personal things on county time.”
The jury was instructed on the claim-of-right defense, based on Penal Code section 511, with CALCRIM No. 1863. That instruction provides, in part: “The claim-of-right defense does not apply if the defendant attempted to conceal the taking at the time it occurred or after the taking was discovered.”
2. In-Chambers Discussions of In Limine Motions
When the case was assigned to Judge Vogt by the master calendar judge, the judge met in chambers with counsel to review the evidence likely to be presented by the prosecution and to discuss informally in limine motions to be presented by both sides. Thereafter, the trial convened in open court, in appellant’s presence, to “memorialize these things, ” as stated by the court. Defense counsel then presented his motion to preclude the prosecution from questioning appellant or his witnesses about the prior welfare fraud misdemeanor. After a full hearing on the motion, during which defense counsel made an offer of proof to the court concerning the circumstances of the misdemeanor and appellant’s legally blameless life thereafter, and during which the court asked questions and counsel presented alternative arguments on the issue, the court stated, “I think that the rulings that I indicated in chambers are the ones I’m going to go with here.” The court then ruled that the prior misdemeanor could be used to impeach appellant and his character witnesses.
Appellant contends the foregoing sequence of events deprived him of the right to be present at all critical stages of his trial. Further, he contends this constitutes “structural” error, requiring automatic reversal of his conviction.
Appellant was not denied constitutional or statutory rights. Even if the chambers conference were taken to be such a denial, the denial was cured by the subsequent proceedings in open court. And even if the error were somehow viewed as a viable appellate issue, we would conclude that appellant has not demonstrated any prejudice arising from his absence from the chambers conference.
“Broadly stated, a criminal defendant has a right to be personally present at certain pretrial proceedings and at trial under various provisions of law, including the confrontation clause of the Sixth Amendment to the United States Constitution, the due process clause of the Fourteenth Amendment to the United States Constitution, section 15 of article I of the California Constitution, and [Penal Code] sections 977 and 1043.” (People v. Cole (2004) 33 Cal.4th 1158, 1230.)
Under the decisions, a “‘defendant’s right to be present depends on two conditions: (1) the proceeding is critical to the outcome of the case, and (2) the defendant’s presence would contribute to the fairness of the proceeding. [Citations.] Thus a defendant may ordinarily be excluded from conferences on questions of law, even if those questions are critical to the outcome of the case, because the defendant’s presence would not contribute to the fairness of the proceeding.’” (People v. Kelly (2007) 42 Cal.4th 763, 781-782, quoting People v. Perry (2006) 38 Cal.4th 302, 312.) The Supreme Court has “routinely” held in-chambers and sidebar discussions of legal questions do not require the presence of the defendant. (People v. Kelly, supra, at p. 782.)
In the present case, the matter under discussion in chambers was the legal question of admitting appellant’s prior misdemeanor conviction. As far as the record reflects, in making its tentative ruling, the trial court accepted as true defense counsel’s representations about the circumstances underlying the misdemeanor. Appellant has made no showing that this preliminary proceeding was of such a nature that his “presence would contribute to the fairness of the proceeding.” (People v. Perry, supra, 38 Cal.4th at p. 312.) Accordingly, appellant had no right to be present at the conference. (People v. Cole, supra, 33 Cal.4th at p. 1230.)
Further, the entire issue of admitting evidence of the prior misdemeanor was re-argued in appellant’s presence in open court. It is clear from the reporter’s transcript that this hearing was no mere formality. There was significant give-and-take between counsel and the court, and a full discussion of appellant’s contentions. Once again defense counsel made a full offer of proof concerning the circumstances of the prior misdemeanor and appellant’s life since its commission. If appellant had any further information to provide to his attorney, he had every opportunity to do so. Accordingly, even if we were to conclude appellant was improperly excluded from the chambers conference, we would conclude that the further proceedings in open court cured any impropriety and afforded appellant a full chance to be present for, and participate in, the in limine motion proceedings. (People v. Cole, supra, 33 Cal.4th at p. 1232.)
Similarly, appellant has not shown he was prejudiced by his absence from the chambers conference. Instead, he wrongly argues his exclusion requires automatic reversal of his conviction. Any trial court error in this area is evaluated for harmlessness. (People v. Ayala (2000) 24 Cal.4th 243, 268.) Appellant had a full hearing on the merits of his in limine motion, the hearing occurred in his presence, and admission of the prior misdemeanor for impeachment did not prejudice appellant. As a result, any error in excluding appellant from the chambers conference was harmless under both Chapman v. California (1967) 386 U.S. 18 and People v. Watson, supra, 46 Cal.2d 818, 836. (See People v. Ayala, supra, 24 Cal.4th at p. 269.)
3. The Prosecutor’s Jury Argument
Appellant misrepresents the record in order to argue that the prosecutor committed misconduct in his argument to the jury. Further, appellant wholly ignores the fact that defense counsel did not object to the prosecutor’s statements and did not request that the court admonish the jury concerning the statements, thereby waiving the misconduct claims. (See People v. Cole, supra, 33 Cal.4th at p. 1201.) We will address appellant’s argument only briefly.
Appellant says that on two occasions the prosecutor stated to the jury that appellant had been undercharged. Appellant says the prosecutor implied there was additional evidence of guilt not before the jury as “part of a subtle scheme to portray appellant as a bad or morally reprehensible person.”
In fact, on each occasion, the prosecutor specifically referenced appellant’s testimony as a basis upon which the jury could conclude that appellant had been at home for a longer period of time than was reflected in the prosecution’s calculations. The prosecutor stated, “[We charged] $514. It ought to be more, just according to [appellant]’s testimony, ” noting that appellant admitted he was already home at the time some of the surveillance started. The prosecutor did not suggest he had additional evidence that had not been put before the jury, and he did not commit misconduct.
Later, the prosecutor addressed defense counsel’s attempts to reduce the amount of worktime appellant spent at home. He prefaced this discussion by stating: “[I]f you sit down and look at [defense counsel’s] calculations and compare them to the evidence, you’ll find that we didn’t under-we didn’t overcharge him. We undercharged him. I’ll give you the best example.” Taken out of context, a prosecutor’s use of the words “undercharge” and “overcharge” might suggest that the severity of charges or the number of counts was in issue. In the present context, however, the prosecutor was obviously referring to the arithmetic computation of the threshold for felony grand theft in the single count that was actually charged. In this context, the prosecutor was merely suggesting that the evidence before the jury did not permit the type of reduction in minutes of worktime suggested by the defense in an effort to drive the questioned wages below that threshold of $400. This was not misconduct.
In the third instance, appellant characterizes the prosecutor as having stated that appellant “had a history of untruthfulness and that his improper billings extended over years rather than just weeks.” In reality, the prosecutor was referring to the fact that appellant offered a far more specific explanation of his actions when testifying at trial two years after the surveillance than he had when interviewed two weeks after the surveillance. Questioning whether it was reasonable to believe that appellant had better recall at trial than at the interview, the prosecutor stated: “I mean, we’re only talking about a few weeks. We’re not talking about years.” We conclude the prosecutor did not imply that appellant’s criminal activity extended over a period of years; the prosecutor did not engage in misconduct.
4. Sufficiency of the Evidence
Appellant makes a cursory argument that the evidence is legally insufficient to support his conviction on any of the four charges against him. While appellant expends several pages laying out the legal standards for judging a claim of insufficiency of the evidence, his entire argument concerning the present case is as follows:
“The evidence is overwhelming that that [sic] appellant filed his timesheets with a good faith and possibly unreasonable belief that the county’s work policy did not preclude him from working at home. This evidence constituted the good faith claim of right that appellant was entitled to rely upon as a defense. The officers that conducted the surrevillance [sic] on appellant had no way of knowing if he indeed was working on IHSS business when he was inside his home and out of their view. The quantum of evidence in this case is simply not legally sufficient to justify either a grand theft conviction or three separate convictions for filing a false claim. This case warrants a reversal.” (The argument is repeated verbatim, complete with typographical errors, in appellant’s reply brief.)
Appellant’s argument ignores the adverse inferences the jury was entitled to draw from appellant’s efforts to conceal his whereabouts through the use of the falsified client contact sheets. It ignores the fact that the jury was entitled to reject appellant’s explanations as unreasonable and patently false. It ignores the fact that there was no evidence that the county had any policies or informal practices that permitted paid time off for personal errands or for working at home. It ignores the fact that there was no evidence, other than appellant’s bald claim, that would support a conclusion that appellant actually believed there was such a policy or practice.
In presenting an insufficient evidence claim on appeal, an appellant is not entitled to ignore the adverse evidence, nor to ignore the negative inferences the jury could have drawn from the evidence. (See Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881.) The evidence, taken as a whole, amply supports the jury’s verdict on the four counts of the amended information. (See People v. Johnson (1980) 26 Cal.3d 557, 576.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: LEVY, Acting P.J.GOMES, J.