Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. Rodney L. Walker, Judge. Super.Ct.No. SWF016334
Dennis L. Cava, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Pamela Ratner Sobeck, Supervising Deputy Attorney General, and David Delgado-Rucci and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
King, J.
I. INTRODUCTION
A jury found defendant guilty as charged of five counts of identity theft (Pen. Code, § 530.5, subd. (a); counts 1, 3, 5, 7, & 9); three counts of telephone fraud (§ 502.7, subd. (a)(5); counts 2, 4, & 6); and one count of attempted telephone fraud (§§ 664, 502.7, subd. (a)(5); count 10). In counts 2 and 4, the jury found that defendant defrauded a telephone company, Verizon, of at least $150,000 and $50,000, respectively, within the meanings of section 12022.6, subdivision (a)(2) and (a)(1). In all counts, the jury found that defendant committed two or more related felonies, a material element of which was fraud or embezzlement, which involved a pattern of related felony conduct and the taking of more than $100,000 within the meaning of section 186.11, subdivision (a)(3). Defendant was sentenced to five years in prison; however, the sentence was suspended pending defendant’s successful completion of formal probation.
All further statutory references are to the Penal Code unless otherwise indicated.
Defendant contends the trial court erroneously: (1) denied his request to substitute retained counsel in place of his court-appointed counsel on the day trial was scheduled to begin; (2) refused his request to allow a recently-severed codefendant, Derek Bloodworth, to testify in his defense unless he waived his right to a speedy trial; (3) admitted hearsay evidence that he was the owner of a red backpack that contained incriminating evidence; (4) instructed the jury on uncharged crimes evidence and flight without sufficient evidentiary support; and (5) committed cumulative, prejudicial error. We find defendant’s hearsay claim meritorious but not prejudicial, and we find each of defendant’s other claims without merit. Accordingly, we affirm the judgment.
II. STATEMENT OF FACTS
The prosecution presented evidence that defendant knowingly participated with his codefendant Derek Bloodworth in a scheme designed to defraud telephone service provider Verizon of hundreds of thousands of dollars. The scheme involved setting up a company, Phone Genius, to operate as a digital telephone service provider for international calls placed over the Internet.
There are two protocols for the transmission of international calls: (1) traditional analog lines with hard-wired networks; and (2) digital links through the Internet. Digital calls placed over the Internet are significantly less expensive than calls placed through traditional analog phone lines. Arbinet is an international telephone call exchange, akin to the stock market. Through Arbinet, telephone service providers purchase and sell international call minutes.
Defendant and Bloodworth registered Phone Genius with Arbinet as a digital telephone service provider. Through Arbinet, Phone Genius offered international calls to Cuba at the lowest price, and was was paid substantial sums of money for these calls. To facilitate the calls, defendant and Bloodworth set up several large capacity telephone lines with Verizon, using the names, social security numbers, and other identifying information of several individuals, without the permission of those individuals.
The fraudulent telephone lines were established in the back room of a computer hardware business, Link Waves, in Temecula. Phone Genius rented the back room space from Link Waves. Defendant and Bloodworth set up their own computer and telecommunications equipment at the Temecula location. They had an Internet Protocol address that Arbinet used to send digital Internet calls to Phone Genius.
In turn, defendant and Bloodworth’s computer equipment converted the digital signal from Arbinet into an analog signal that they then sent out over the fraudulently-obtained Verizon telephone lines to Cuba and other international destinations. Phone Genius received payments from Arbinet for the calls it facilitated, but never paid Verizon for the use of its phone lines to complete the calls. In this way, Phone Genius was able to reap substantial sums from Arbinet while bilking Verizon out of hundreds of thousands of dollars.
Verizon noticed an unusually high volume of international calls coming from the Temecula location and discovered the fraud. When a Verizon investigator went to the Temecula location, he met with the Link Waves owner, who showed him defendant and Bloodworth’s equipment in the back room. The Link Waves owner testified that defendant had installed the equipment.
Meanwhile, Verizon noticed a similarly high volume of international calls coming from another location in Tampa, Florida. An investigator went to a business, High Velocity, in Tampa and found defendant there. The investigator asked defendant questions about his activities. Defendant said he was there to install equipment, and told the investigator he should speak to Bloodworth. When the investigator asked to take defendant’s photo, defendant ran from the scene.
After defendant fled, the investigator and officials from High Velocity went into the back room where defendant had been working. There, they found a red backpack. The officials told the investigator that the backpack did not belong to them and that defendant had left it there. Inside the backpack, the investigator found a document signed by a person whose name was used to purchase one of the Verizon phone lines for the Temecula location. The document purported to release the individual’s bank records to any inquiring party. The document referred to Arbinet and Phone Genius, and had defendant’s handwriting on it.
III. DISCUSSION
A. Defendant’s Request to Substitute Newly-Retained Counsel in Place of His Court-Appointed Counsel Was Properly Denied
Defendant claims he was denied his state and federal constitutional right to counsel and due process when the trial court refused to allow him to substitute his court-appointed attorney with privately-retained counsel on the day trial was to begin. Under the circumstances, trial court did not abuse its discretion in denying the request.
1. Relevant Background
On the day trial was to begin, defendant’s court-appointed counsel advised the court that defendant wished to hire retained counsel, Jerry Fernandez, to represent defendant at trial. The request was made after both parties had announced ready, the prosecution had one witness traveling from Florida, several other witnesses were under subpoena, and a jury pool was ready to be sent up to the trial department for voir dire.
Defendant offered no reason for the request. Members of his family had arranged to pay Mr. Fernandez on his behalf. In response, the trial court asked Mr. Fernandez whether he was prepared to go to trial that day. Mr. Fernandez replied he was not, but he believed he could announce “ready” following a five-day continuance. The court observed that the prosecutor and appointed counsel had invested considerable time in preparing the case.
The court then asked the prosecutor about the possibility of joining defendant’s trial with that of his previously-severed codefendant, Bloodworth. Bloodworth had been severed in part because he had entered a general time waiver, but defendant had not. The court said it was willing to grant the substitution request and continue defendant’s trial for 30 days, provided defendant would agree to a 30-day continuance and provided further that 30 days was sufficient time to require Bloodworth to go to trial.
Following a recess, it was revealed that Bloodworth had previously disqualified the trial judge under Code of Civil Procedure section 170.6. This, the prosecutor said, was another reason Bloodworth’s trial had been severed. The trial judge observed that the two defendants could still be tried together before a different judge.
At this point, defendant’s appointed counsel told the court that defendant was unsure whether he wanted to substitute counsel or have his appointed counsel try his case. Defendant did not indicate he would agree to a 30-day continuance. The judge ultimately denied the substitution and continuance request.
2. Applicable Law
A criminal defendant has a qualified right to retain counsel of his choice. The right “‘“can constitutionally be forced to yield only when it will result in significant prejudice to the defendant himself or in a disruption of the orderly processes of justice unreasonable under the circumstances of the particular case” [citation].’ [Citation.]” (People v. Ramirez (2006) 39 Cal.4th 398, 422.)
In other words, “courts must demonstrate ‘a “resourceful diligence directed toward the protection of [the right to counsel] to the fullest extent consistent with effective judicial administration.”’ [Citation.] However, a court faced with a request to substitute retained counsel must balance the defendant’s interest in new counsel against the disruption, if any, flowing from the substitution. [Citation.]” (People v. Turner (1992) 7 Cal.App.4th 913, 918-919.) In this context, “other values of substantial importance, for instance that seeking to insure speedy determination of criminal charges, demand recognition.” (People v. Crovedi (1966) 65 Cal.2d 199, 206.)
Still, there are “no mechanical tests for deciding when a denial of a continuance [to obtain retained counsel] is so arbitrary as to violate due process. The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is [made].” (People v. Crovedi, supra, 65 Cal.2d at p. 207; accord, People v. Courts (1985) 37 Cal.3d 784, 791.)
3. Analysis
Defendant’s request to substitute retained counsel and continue the trial for five days was neither timely nor reasonable. First, the request was made on the day trial was scheduled to begin, and granting it would have caused significant disruptions. Defendant’s appointed counsel and the prosecutor were ready for trial, and both of them had spent a considerable amount of time preparing. In addition, one witness was already on his way to California from Florida, other witnesses were under subpoena, and a jury pool was ready to be sent to the courtroom.
Moreover, defendant offered no reasons for his late substitution request other than that his family had hired Mr. Fernandez. He did not indicate he was unhappy with or unable to communicate with his appointed counsel. To the contrary, he remained silent when the trial court observed that appointed counsel had spent a considerable amount of time preparing and had “[done] a good job in working up the case.” He also apparently changed his mind about the request before the trial court denied it.
Given these circumstances, defendant’s substitution and continuance request was properly denied. (People v. Turner, supra, 7 Cal.App.4th at p. 919 [day-of-trial substitution request properly denied when defendant failed to proffer any reasons for the request]; People v. Courts, supra, 37 Cal.3d at p. 792, fn. 4 [citing cases holding that late request to substitute counsel justifies denying the request when there are no compelling reasons to grant it].)
Defendant further argues that the trial court did not properly weigh his right to hire counsel of his choice against the disruptions his day-of-trial substitution and five-day continuance would have caused. He claims the trial court was “most interested in again joining codefendant Bloodworth’s case with [defendant’s], after it had been severed and compelling [defendant] to agree to a [30-]day continuance which he did not want.”
This argument unfairly characterizes the record. The trial court was appropriately interested in saving judicial and other resources by trying defendant and Bloodworth together, provided a joint trial could commence within 30 days. In discussing the possibility of rejoining the cases, the court was suggesting that the economies of trying defendant and Bloodworth together would have justified the disruptions caused by delaying defendant’s trial, even for 30 days. This was a proper weighing of the relevant considerations, including defendant’s interest in having Mr. Fernandez represent him at trial.
Furthermore, defendant either changed his mind about his substitution request or was unwilling to go forward with it if it meant agreeing to a 30-day continuance. Thus, defendant was willing to accommodate Mr. Fernandez’s need for a five-day continuance but unwilling to accommodate any other considerations, including the judicial system’s interest in a speedy resolution of defendant’s case, or the convenience of the court, the prosecution, and the witnesses. In refusing to grant defendant’s substitution request solely on defendant’s terms, the trial court properly understood that defendant’s interests were not the only ones it had to consider.
B. Defendant’s Request to Call Bloodworth as a Defense Witness Was Properly Denied
Defendant next claims that the trial court denied him his constitutional right to call witnesses in his defense by refusing to allow him to call Bloodworth as a defense witness. Given the circumstances, the trial court properly refused to allow Bloodworth to testify.
1. Relevant Background
Defendant and Bloodworth were originally charged in the same information and joined as codefendants. On September 5, 2006, Bloodworth opted to proceed without counsel and was granted pro. per. status. On October 5, defendant’s counsel and the prosecutor declared they were ready to begin defendant’s trial. Bloodworth was not ready, however, and requested severance and a continuance. He also requested a bench trial rather than a jury trial, and entered a general time waiver. Defendant did not enter a general time waiver, and steadfastly insisted on his right to a speedy trial.
Over the prosecutor’s objection, Bloodworth’s severance and continuance request was granted so that defendant could proceed to trial without further delay. Defendant’s trial was scheduled to begin on October 10, and the parties stipulated that October 11 was the last day defendant’s trial could begin. On October 5, after Bloodworth was severed, defense counsel asked the court to order Bloodworth to appear in the trial department on October 10 in the event he would be willing to testify as a witness for defendant. The court did not issue any such order, and told defense counsel to take the matter up with the judge to whom defendant’s case was assigned for trial.
On October 10, the trial court denied defendant’s request to substitute counsel, discussed above, and proceeded to hear motions in limine. During the motions in limine, the prosecutor asked that the defense provide him with any discovery it had concerning Bloodworth in the event the defense called him to testify. Defense counsel said he had not taken a statement from Bloodworth and had no discoverable reports to turn over to the prosecution. (§ 1054.3, subd. (a).) Defense counsel explained he had only recently spoken to Bloodworth and learned he was willing to testify for the defense. Defense counsel made an offer of proof that Bloodworth would take “substantial responsibility” for the fraud scheme and say that defendant only had “peripheral involvement.”
The trial court expressed concern that Bloodworth would be incriminating himself, he was self-represented, and charges against him were still pending. The court observed that Bloodworth would have to be admonished, outside the presence of the jury, of his right not to incriminate himself. It also noted that Bloodworth would be subject to cross-examination concerning defendant’s involvement in the fraud scheme, and the prosecutor might have extensive rebuttal testimony to present on this question depending on what Bloodworth said. In view of these concerns, the court told defense counsel that his three-day estimate for trial was too low.
In response, defense counsel told the court he would ask defendant whether he would waive another day to begin his trial. The court observed one more day would not be enough to deal with Bloodworth, and defendant would “have to accommodate the Court.” Trial would begin, the court said, after the pretrial issues had been addressed and the record had been “adequately made and protected.” The prosecution would also be entitled to a “brief continuance” to investigate the matter, prepare for cross-examination, and present new evidence in rebuttal depending on what Bloodworth intended to say.
The prosecutor and defense counsel both asked the court whether it would consider “streamlining” the process by holding a “[section] 402 hearing where [Bloodworth] testifies outside the presence of the jury” in lieu of being interviewed by investigators. The court again expressed concern about the numerous issues Bloodworth’s testimony posed for both Bloodworth, defendant, and the prosecution. The court told the parties there was “a lot to consider” and they should think about the matter and tell the court what they wanted to do.
The court said the parties also had to consider whether Bloodworth was willing to be interviewed before he testified. If he was, the parties should interview him and “see where that leads us.” If he was not, the court would have to “go through a lot of things with him.” The court said it preferred to minimize its involvement and allow the parties to interview Bloodworth before he testified. Either way, the court said, they would not be selecting a jury on the following court day “if Bloodworth is going to be involved in this case in any fashion.”
Following a brief recess, defense counsel told the court that he and the prosecutor both wanted Bloodworth to come into court that afternoon, have the court advise him of his rights, see whether he was willing to testify, and, if so, what he would say. Defendant was willing to waive sufficient time for this to occur, and both sides were interested in moving the matter along as quickly as possible. Still, the prosecutor maintained his objection to the “late discovery” concerning Bloodworth.
The court said it was not comfortable with conducting such a procedure, because it would mean the court would be presiding over a criminal deposition, and that was an “inappropriate procedure.” The court observed that the parties could be delving into lengthy and contentious issues that might take up a substantial amount of court time, and asked why the parties would not interview Bloodworth and record the interview if he was willing to be interviewed. Then they could decide how much of Bloodworth’s testimony was relevant and could be used. The court was willing to trail the matter for these purposes.
Following another recess, defense counsel advised the court that defendant was not willing to waive any additional time for trial but still wanted to call Bloodworth as a defense witness. The court told defendant he could not have it both ways. He either had to go to trial on the following day without calling Bloodworth, or waive time and allow the prosecution time to investigate the matter. Defendant refused to waive any additional time for trial.
Jury selection began on the following day, October 11. On October 16, while the trial was still in progress, the defense filed a motion to allow Bloodworth to testify. The defense argued that defendant should not have been forced to make a Hobson’s choice between his right to a speedy trial and his right to call witnesses to testify in his behalf. It argued that it had not violated any discovery rules (§ 1054.3, subd. (a)), because defendant’s and Bloodworth’s cases were severed only several days before defendant’s trial began. For this reason, defendant had no written statements of Bloodworth to turn over to the prosecution. The motion included an offer of proof that Bloodworth would testify that defendant had “very limited knowledge of the scope of the alleged fraud . . . .”
The court and counsel again discussed the matter at length during the trial, and the court again ruled that Bloodworth would not be allowed to testify. The court reiterated that defendant had made his choice. By refusing to waive his right to a speedy trial, he was depriving his counsel of the opportunity to investigate what Bloodworth would say and provide appropriate discovery to the prosecution.
Defense counsel acknowledged that the situation involving Bloodworth was “exceedingly rare.” That is, it was rare, if not unprecedented, that a self-represented defendant’s trial would be severed on the eve of a codefendant’s trial, and the self-represented defendant was willing to testify for the other defendant. The court called it a “remarkable development” that required some time and effort to investigate and provide appropriate discovery on.
2. Applicable Law and Analysis
Defendant maintains that the trial court erroneously ruled that Bloodworth could not testify. He first argues that the defense violated no discovery statutes and the court could not compel him to waive his right to a speedy trial. We agree that the defense did not violate any discovery statutes, and that the trial court could not compel defendant to waive his right to a speedy trial.
Indeed, the trial court did not fault the defense for any “late discovery” concerning Bloodworth and did not rule that the defense violated any discovery statutes. (§§ 1054.3, 1054.7.) Nor did it compel defendant to waive his right to a speedy trial. This, however, is not the issue.
The question, rather, is whether the trial court abused its discretion in conditioning defendant’s right to call Bloodworth as a defense witness on defendant’s willingness to waive time to allow the prosecution a reasonable opportunity to obtain discovery on Bloodworth’s potential testimony before the trial began. We conclude that, under the circumstances, the trial court properly refused to allow Bloodworth to testify.
“‘A trial court has inherent as well as statutory discretion to control the proceedings to ensure the efficacious administration of justice.’ [Citations.]” (People v. Gonzalez (2006) 38 Cal.4th 932, 951; Pen. Code, § 1044; Evid. Code, § 765.) Penal Code section 1044 states: “It shall be the duty of the judge to control all proceedings during the trial, and to limit the introduction of evidence . . . with a view to the expeditious and effective ascertainment of the truth regarding the matters involved.”
Here, the trial court did not arbitrarily rule that Bloodworth could not testify. Instead, it conditioned his testimony on the defense and prosecution having a reasonable opportunity to discover what he had to say, determine how much of his testimony was relevant and admissible, and adequately prepare for the testimony. This was a reasonable exercise of the court’s inherent and statutory authority to control the proceedings. Allowing Bloodworth to testify without allowing the parties to discover and prepare for his testimony risked wasting substantial amounts of the court’s, the prosecutor’s, and the jurors’ time with midtrial continuances.
Defendant argues there is “no sound reason why codefendant Bloodworth could not have been brought to the court and a hearing held like both the prosecutor and defense counsel suggested, without [defendant] being compelled to waive his right to a speedy trial.” He argues, “[a]nother alternative was for the court to commence the jury trial and hold the hearing after jury selection.” We disagree.
As the trial court recognized, conducting such a procedure would likely have wasted a substantial amount of the court’s time. As the court said, the parties were likely to delve into issues with Bloodworth that required additional time to investigate and consider. The procedure also would have required the court to act as a referee in a criminal deposition. As the court recognized, it was not required to conduct such a procedure or use its time in this manner.
In sum, the trial court properly ruled that defendant could not have it both ways. Given the late discovery of Bloodworth’s willingness to testify, defendant rightly had to choose between waiving his right to a speedy trial and going to trial without Bloodworth testifying for him. He made his choice by opting to go to trial without further delay.
C. The Hearsay Evidence That Defendant Owned the Red Backpack Was Erroneously Admitted But Harmless
Defendant next argues that the trial court erroneously allowed Verizon investigator Curtis Cooke to testify that officials from High Velocity in Florida told him that defendant was the owner of the red backpack that Cooke and the officials found in a back room, after defendant fled from the scene.
The People argue that the statement qualified under the contemporaneous statements exception to the hearsay rule, because it was offered to explain why the officials gave the backpack to Cooke. (Evid. Code, § 1241.)
We reject the People’s argument and conclude that the hearsay statement was erroneously admitted. Still, the evidence that defendant owned the backpack was harmless in view of the other evidence that defendant was aware of and played a significant role in the fraud.
1. Relevant Background
Verizon investigator Curtis Cooke testified that he went to the offices of High Velocity in Tampa, Florida, on August 1, 2005, and questioned defendant about his activities there. Cooke explained he went to the offices after officials from High Velocity called him and told him defendant was on the premises. Curtis had previously contacted the officials after he discovered that a high volume of calls were being conducted through phone lines installed on the premises.
Cooke told defendant he was there to investigate phone lines at the location which appeared to have been fraudulently obtained. Cooke asked defendant about the phone line accounts, how they were set up, and with what information. He also asked defendant who employed him and who paid him. Defendant told Cooke he would have to direct his questions to Bloodworth, and that he was only there to install equipment. Cooke then asked defendant whether he could take his photo. At this point, defendant fled from the offices, and Cooke photographed him running from the scene.
After defendant fled the offices, officials from High Velocity took Cooke into a back room where they said defendant had been working. There, Cooke and the officials found a disconnected router in a box, ready to be shipped. They also found a red backpack lying on top of an equipment rack where the router had been. The officials told Cooke that the red backpack did not belong to them and had been left there by defendant. Cooke unzipped the backpack. At this point, defense counsel objected on hearsay grounds. The court ruled it was leaving the answer in, although they were “getting into hearsay here.”
Cooke next testified that inside the backpack he found a BellSouth agreement. Cooke took a photo of the agreement. The agreement was in the name of BellSouth business customer “RG Fireline.” “Dely Rowland” was listed as the owner of the business. The agreement purported to allow an inquiring party access to information and records concerning the customer’s bank account at Bank of America. The agreement referred to Arbinet and Phone Genius, and was dated August 1, 2005, the same date Cooke and defendant were at the location. The agreement had defendant’s handwriting on it.
2. Applicable Law and Analysis
Evidence Code section 1241 codifies the contemporaneous statements exception to the hearsay rule. The statute provides that a statement is not made inadmissible by the hearsay rule if it: (1) is offered to explain, qualify, or make understandable conduct of the declarant; and (2) was made while the declarant was engaged in such conduct. (Evid. Code, § 1241.) The statute admits statements by a declarant that accompany his or her equivocal or ambiguous conduct and that tend to explain and make that conduct understandable. (1 Jefferson, Cal. Evidence Benchbook (Cont.Ed.Bar 3d ed. 2007) Spontaneous & Contemporaneous, § 1312, p. 212; see, e.g., Orella v. Johnson (1952) 38 Cal.2d 693, 696.)
The People argue that the High Velocity officials’ act of giving the red backpack to Cooke was equivocal, because it was not clear why the officials gave Cooke the backpack. They maintain that the officials’ hearsay statement that the backpack belonged to defendant was admissible as a contemporaneous statement, because the statement explained why they gave the backpack to Cooke.
This argument is tenuous. It presumes that the act of giving Cooke the backpack was an act of significance that was ambiguous and required explanation. But the act of giving the backpack to Cooke had no independent significance apart from the fact that it belonged to defendant. If every hearsay statement were admissible solely because it accompanied or explained the significance of a contemporaneous act, there would be little significance to the hearsay rule. (Evid. Code, § 1200.)
We therefore reject the People’s argument that the officials’ statement to Cooke that defendant owned the backpack was admissible under the contemporaneous statements exception to the hearsay rule.
3. No Prejudice
Still, defendant has not shown a reasonable probability that he would have realized a more favorable result had the officials’ statement not been admitted. (People v. Valdez (1997) 58 Cal.App.4th 494, 511 [applying Watson standard of reversible error to erroneous admission of hearsay evidence].)
People v. Watson (1956) 46 Cal.2d 818, 836.
Cooke properly testified that he found defendant at the High Velocity offices and that defendant admitted he was installing equipment there. Further, defendant’s answers to Cooke’s questions about the phone lines were evasive. He also fled the scene when Cooke asked to take his photo, indicating he had a consciousness of guilt concerning his activities at the High Velocity offices. (§ 1127c.) None of this evidence had anything to do with whether defendant owned the backpack.
In addition, the BellSouth agreement that Cooke found inside the backpack had defendant’s handwriting on it. One of the phone lines at the Temecula location was set up in the name of the company and individual whose name appeared on the BellSouth agreement. This raised a permissible inference that defendant was involved in obtaining the fraudulent phone lines for the Temecula location, and was also admissible notwithstanding whether defendant owned the backpack. Other evidence showed that defendant made substantial cash withdrawals from a Union Bank account in defendant’s name and into which Arbinet had transferred substantial sums of money.
In sum, other evidence strongly indicated that defendant knew of and played a substantial role in the fraud at the Temecula location. The erroneous admission of the hearsay statement that defendant owned the red backpack was therefore harmless.
D. The Jury Was Properly Instructed on Uncharged Crimes Evidence (CALCRIM No. 375)
Judicial Council of California Criminal Jury Instructions (2006-2007).
Defendant next claims the trial court erroneously instructed the jury that it could consider “uncharged crimes” evidence, specifically, that defendant was “involved in other states or other areas of this state in activity similar to the crimes charged in this case.” (CALCRIM No. 375.) He argues there was insufficient evidence to support the instruction, because Cooke’s testimony was “too vague and speculative to warrant an instruction pursuant to CALCRIM No. 375, as it related to the California charges against [defendant].” We conclude there was sufficient evidence to warrant the instruction.
CALCRIM No. 375 told the jury: “The People presented evidence that the defendant may have been involved in other states or other areas of this state in activity similar to the crimes charged in this case. [¶] You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant in fact committed the acts. Proof by a preponderance of the evidence is a different burden of proof than proof beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if you conclude that it is more likely than not that the fact is true. [¶] If the People have not met this burden, you must disregard this evidence entirely. [¶] If you decide that the defendant committed the acts, you may, but are not required to, consider that evidence for the limited purpose of deciding whether or not: [¶] The defendant was the person who committed the offenses alleged in this case. [¶] The defendant acted with the specific and/or general intent in each of the crimes charged in this case. [¶] The defendant had a motive to commit the offenses alleged in this case. [¶] The defendant had a plan or scheme to commit the offenses alleged in this case. [¶] In evaluating this evidence, consider the similarity or lack of similarity between the uncharged acts and the charged offenses. [¶] Do not consider this evidence for any other purpose. [¶] If you conclude that the defendant committed the acts, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of any of the charged offenses. The People must still prove each element of every charge beyond a reasonable doubt.” (Italics added.)
We first observe that the charged crimes were based on defendant’s knowledge of and participation in the crimes allegedly perpetrated from the Temecula offices of Phone Genius. Defendant was not charged with any crimes based on his activities in Florida or any other locations; however, the evidence that he was involved in similar activity in Florida was the basis for giving CALCRIM No. 375.
A trial court has a duty to instruct the jury sua sponte on the general principles of law relevant to the issues raised by the evidence. (People v. Breverman (1998) 19 Cal.4th 142, 154.) Evidence that a defendant committed “a crime, civil wrong, or other act” is admissible “when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident . . .) other than his or her disposition to commit such an act.” (Evid. Code, § 1101, subds. (a) & (b).)
CALCRIM No. 375 specifically told the jury that it could consider the evidence of defendant’s activities in Florida and other locations on the issues of identity, motive, and common plan or scheme. This was proper.
See footnote 3, ante.
“‘[T]o be relevant on the issue of identity, the uncharged crimes must be highly similar to the charged offenses.’ [Citation.] The similarity, considering the degree of similarity and the number of common marks, should amount to a signature.” (People v. Catlin (2001) 26 Cal.4th 81, 111.) Evidence of motive is sufficient if it shows a direct, logical nexus between uncharged and charged crimes. (People v. Demetrulius (2006) 39 Cal.4th 1, 15.) And, “[i]n order to be relevant as a common design or plan, ‘evidence of uncharged misconduct must demonstrate “not merely a similarity in the results, but such a concurrence of common features that the various acts are naturally to be explained as caused by a general plan of which they are the individual manifestations.”’” (People v. Catlin, supra, at p. 111, quoting People v. Ewoldt (1994) 7 Cal.4th 380, 402.)
The uncharged crimes or “other acts” evidence met each of these requirements. Defendant admitted to Cooke he was installing phone equipment at the Florida location. Another Verizon investigator, Raymond Cannon, testified that similar phone equipment was installed at the Temecula location. Cooke and Cannon both testified that phone lines at both locations were fraudulently obtained, and were used to facilitate a high volume of calls to Cuba and other international locations. None of the bills for the phone services at the Temecula location were paid, and several persons, whose identifying information was used to establish phone lines in Temecula, testified they gave no one permission to use their identifying information. In addition, defendant’s handwriting was on the BellSouth agreement that Cooke found in the backpack at the Florida location. That agreement was in the name of Dely Rowland, whose identifying information was used to purchase phone lines for the Temecula location.
In sum, there was ample evidence to support the given version of CALCRIM No. 375 on identity, motive, and common plan or design. Indeed, there were striking similarities between defendant’s activities in Florida and the means by which the fraud was perpetrated at the Temecula location. Defendant’s arguments to the contrary are unpersuasive.
E. The Jury Was Properly Instructed on Flight (CALCRIM No. 372)
Defendant further contends that the jury was erroneously instructed on flight with CALCRIM No. 372, based on Cooke’s testimony and the photo showing defendant fleeing from the High Velocity offices in Tampa. He argues there was insufficient evidence to support giving the flight instruction because there was no evidence he fled a “crime scene.” We reject this claim.
CALCRIM No. 372 told the jury: “If the defendant fled after (he) became aware that he was suspected of involvement of similar activity to that charged here while in the State of Florida, that conduct may show that he was aware of his guilt. If you conclude that the defendant fled after the Florida confrontation, it is up to you to decide the meaning and importance of that conduct and how, if at all, it may relate to this case. However, evidence that the defendant fled cannot prove guilt by itself.”
Section 1127c provides that the trial court “shall” instruct on flight when there is evidence that the defendant fled “immediately after the commission of a crime, or after he is accused of a crime that has been committed.” (Italics added.) The evidence showed that defendant ran away from Verizon investigator Cooke at the offices of High Velocity in Florida, after Cooke told defendant that phone lines installed at that location had been fraudulently obtained, and immediately after Cooke asked defendant for permission to take his photo.
This evidence was sufficient to support the instruction on flight. Defendant’s argument that the evidence showed only that defendant did not want his photo taken, and that defendant was not necessarily involved in identity theft in Florida, are unpersuasive. “To obtain the instruction, the prosecution need not prove the defendant in fact fled, i.e., departed the scene to avoid arrest, only that a jury could find the defendant fled and permissibly infer a consciousness of guilt from the evidence.” (People v. Bonilla (2007) 41 Cal.4th 313, 328.) This requirement was met here.
F. No Cumulative Error
Lastly, we reject defendant’s claim that the cumulative effect of the trial court’s errors requires reversal. (People v. Hill (1998) 17 Cal.4th 800, 844-845.) As discussed, defendant has demonstrated only one evidentiary error—that is, the erroneous admission of the hearsay evidence that defendant owned the red backpack that Cooke found in the Florida offices of High Velocity. For the reasons discussed, this error was harmless, and no other errors compounded its effect.
IV. DISPOSITION
The judgment is affirmed.
We concur: Ramirez P.J., McKinster J.