Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA307817, Judith Champagne, Judge.
Nancy L. Tetreault, 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, Susan D. Martynec and Robert M. Snider, Deputy Attorneys General, for Plaintiff and Respondent.
TURNER, P. J.
Defendant, Angela Fawn Wallace, appeals from her convictions for grand theft of personal property exceeding the value of $150,000 (Pen. Code, §§ 487, subd. (a), 12022.6, subd. (a)(2)) and attempt to file a false or forged instrument while prosecution for the same conduct was pending. (§§ 115, subd. (a), 803, subd. (b).) Defendant argues the trial court improperly: limited cross-examination; imposed separate punishment for the grand theft and for the filing a forged document convictions; and imposed a consecutive sentence. The Attorney General argues that additional surcharges and fees should have been imposed. We affirm with modifications.
All further statutory references are to the Penal Code unless otherwise indicated.
We view the evidence in a light most favorable to the judgment. (Jackson v. Virginia (1979) 443 U.S. 307, 319; People v. Elliot (2005) 37 Cal.4th 453, 466; Taylor v. Stainer (9th Cir. 1994) 31 F.3d 907, 908-909.) Defendant is a disbarred lawyer who had an office in Inglewood. Beginning in 1995, defendant served as Carol Thomas’s attorney in conservatorship and bankruptcy proceedings. In the course of the representation, Ms. Thomas provided: her social security number and addresses; her birth date; and information regarding property she owned. Ms. Thomas saw defendant’s sisters at the Inglewood law office. One of defendant’s sisters, Jheri Murdock, is a codefendant in this case. Ms. Thomas and her late husband owned a four-plex apartment building on 53rd Street. Mr. Thomas died in the year 2000. In 2001, Ms. Thomas moved to Louisiana. Ms. Thomas arranged to have defendant manage the 53rd Street property. Ms. Thomas told the tenants that defendant would collect the rent. Defendant personally collected the rent from the four tenants on 53rd Street. Ms. Thomas expected defendant to pay the mortgage company. The rent receipts were sufficient to pay the mortgage and water bill. In January 2002, defendant and two companions came to the Super Bowl in Louisiana. They stayed with Ms. Thomas for approximately one week.
In 2002, Ms. Thomas decided to sell the four-plex building. Ms. Thomas contacted Greg Johnson with Remax Pacific Properties. Ms. Thomas had learned that the property was facing foreclosure because the mortgage had not been paid. Ms. Thomas and a bookkeeper were unsuccessful in their efforts to contact defendant. On September 27, 2002, Ms. Thomas paid $19,230.43 to a mortgage company, Fairbanks Capital, for back payments and late fees on the 53rd Street property. Mr. Johnson listed the property for two to three months. The sales price was to be $275,000. Mr. Johnson contacted Ms. Thomas regarding an issue of ownership. Ms. Thomas then learned that her property had been sold.
Maria Gomez was introduced to defendant by Billy Wallace. Ms. Murdock and defendant are Mr. Wallace’s sisters. Prior to trial, Ms. Gomez had only known defendant through telephone conversations. Mr. Wallace and a neighbor told Ms. Gomez the property on 53rd Street was for sale. Ms. Gomez went to the property twice before she bought it. Defendant spoke to Ms. Gomez. Defendant said she would arrange the loan and everything related to the sale. Ms. Gomez signed numerous documents related to the purchase. The documents were brought to her by Mr. Wallace. Defendant called Ms. Gomez and gave instructions on how to sign the documents. Ms. Gomez made a cash down payment of $8,000. The payment and paperwork were taken to defendant. Defendant falsely stated she owned the 53rd Street property. Ms. Gomez acknowledged signing the escrow papers, including a deed of trust, loan application, and occupancy declaration. However, Ms. Gomez testified that no notary was present when the paperwork was signed. One of the documents indicated that Ms. Gomez worked at “L.D.W. Management Consultant at 5712 Coliseum Street.” However, Ms. Gomez had never worked there. Escrow closed on October 31, 2002. Title to the 53rd Street property was recorded in Ms. Gomez’s name on November 1, 2002. The loan was funded on November 1, 2002. Ms. Gomez never moved to the property. At the time of trial, Ms. Gomez still owned the 53rd Street property.
At the time she purchased the property, Ms. Gomez was employed as a hotel housekeeper. Ms. Gomez indicated that she earned $27,000 per year. However, her 2002 earnings statement revealed that she earned approximately $18,000 that year. The mortgage was for approximately $300,000. Ms. Gomez’s mortgage payment was $1,700 per month. Ms. Gomez purchased the property in November 2002. However, Ms. Gomez did not begin to collect rent until January 2003.
Ms. Gomez spoke to a district attorney investigator, Peter A. Parsons. Mr. Parsons asked Ms. Gomez from whom she purchased the 53rd Street property. Investigator Parsons testified, “She told me she purchased the property from Carol Thomas.”
Ms. Thomas had not given defendant permission to sell the 53rd Street property. Ms. Thomas had not signed the escrow papers that bore her name and alleged signature and initials. Ms. Thomas had never had her signature notarized on a grant deed. Ms. Thomas was not in Los Angeles on October 24, 2002. Although Ms. Thomas’ personal information, including her social security number, appeared on escrow papers, she had never been involved in the sale of the 53rd Street property. Ms. Thomas had never retained an attorney named Harry J. Pike. Ms. Thomas did not authorize a check in the amount of $153,000 to be paid to Ms. Murdock. Ms. Thomas told Investigator Parsons the property was sold without her permission. When Mr. Parsons interviewed the tenants at the 53rd Street apartments, they all indicated they had paid rent to defendant in November and December 2001 and January and February 2002. Mr. Parsons’ attempts to locate the notary public listed on the grant deed was unsuccessful.
Defendant eventually telephoned Ms. Thomas. When confronted about the sale of Ms. Thomas’ property, defendant began to cry. Defendant apologized to Ms. Thomas. Defendant offered Ms. Thomas $50,000. Later, defendant sent Ms. Thomas five $10,000 cashier’s checks. Ms. Thomas returned the checks to defendant. Ms. Thomas wanted to “buy some time” to contact the authorities. Ms. Thomas contacted the district attorney’s office. Defendant later sent twelve $5,000 cashier’s checks, dated November 22, 2002, to Ms. Thomas. Ms. Thomas brought the checks to the district attorney’s office in Los Angeles.
Defendant and Tina Cole had opened a small business bank account together. The application for the account listed “DBA the Escrow Department” and their names. The bank statement related to this account for the period of November 1 to December 2, 2002. The bank statement reflected a wire transfer into the account on November 1, 2002 from American Title Company in the amount of $165,586.57. The statement also revealed a check written to Ms. Murdock in the amount of $154,781.05, which was endorsed by and paid into the account on November 4, 2002.
First, defendant argues the trial court improperly limited the cross-examination of Ms. Thomas. More specifically, defendant argues her constitutional right to confrontation was denied. Preliminarily, this constitutional contention was not the basis of an objection in the trial court and thus is the subject of waiver, forfeiture, and procedural default. (United States v. Olano (1993) 507 U.S. 725, 731; People v. Panah (2005) 35 Cal.4th 395, 436; People v. Williams (1997) 16 Cal.4th 153, 250; People v. Vera (1997) 15 Cal.4th 269, 274.)
Notwithstanding that waiver, as set forth below, the trial court could reasonably limit the cross-examination in question. The United States Supreme Court has held that a defendant is entitled to present relevant evidence in support of his defense. (California v. Trombetta (1984) 467 U.S. 479, 485; Chambers v. Mississippi (1973) 410 U.S. 284, 302.) However, that right is not unlimited. (United States v. Scheffer (1998) 523 U.S. 303, 308; Chambers v. Mississippi, supra, 410 U.S. at pp. 302-303; People v. Brown (2003) 31 Cal.4th 518, 538; People v. Cromer (2001) 24 Cal.4th 889, 897.) The California Supreme Court has likewise held: “‘As a general matter, the ordinary rules of evidence do not impermissibly infringe on the accused’s [constitutional] right to present a defense. Courts retain . . . a traditional and intrinsic power to exercise discretion to control the admission of evidence in the interests of orderly procedure and the avoidance of prejudice. [Citations.] . . . []’ [Citation.]” (People v. Cudjo (1993) 6 Cal.4th 585, 611, quoting People v. Hall (1986) 41 Cal.3d 826, 834-835; see also People v. Panah, supra, 35 Cal.4th at p. 483 [a trial court is permitted to curtail cross-examination relating to irrelevant matters]; People v. Frye (1998) 18 Cal.4th 894, 946 [“not every restriction on a defendant’s desired method of cross-examination is a constitutional violation . . . the trial court retains wide latitude in restricting cross-examination”]; People v. Jones (1998) 17 Cal.4th 279, 305.) Our Supreme Court further held: “[U]nless the defendant can show that the prohibited cross-examination would have produced ‘a significantly different impression of [the witnesses’] credibility’ ([Delaware v.] Van Arsdall [(1986)] 475 U.S. [673,] 680), the trial court’s exercise of its discretion in this regard does not violate the Sixth Amendment. [Citation.]” (People v. Frye, supra, 18 Cal.4th at p. 946.)
Here, defendant sought to discredit Ms. Thomas’s testimony in several instances. Ms. Thomas was questioned about her late husband’s ownership of the 53rd Street property as well as the fact that he never deeded the property to her prior to the time that he suffered a stroke. Ms. Thomas also acknowledged that her husband had five children from a previous marriage. The deputy district attorney then objected to the following questions on relevancy grounds: “When did [Mr. Thomas] have the stroke?”; “When Mr. Thomas had his stroke, a conservator had to be appointed for him; correct?”; and “That conservatorship was initially brought by the children and opposed by you; correct?” A sidebar conference followed. Defense counsel explained that the questions went to Ms. Thomas’s credibility. The prosecutor argued: “How she obtained the property, I don’t think there is an issue. When her husband died. Conservatorship? The property is in her name. There has been nothing provided that she obtained this fraudulently. [¶] Anything that happened prior to the sale of the property, any financial issues that she had are irrelevant to this proceeding. The issue is whether or not this property was sold fraudulently. And as to the credibility issue, the fact that Ms. Thomas contested the children’s conservatorship, if that is the case, because I don’t know - - it is irrelevant.”
The trial court ruled: “Naturally, a witness’ credibility is always an issue in the case. I don’t see how her late husband children’s efforts to get a conservatorship is going to shed any light on her credibility. I disagree under 352 that it isn’t going to raise issues that are irrelevant to this matter, confusing and time consuming. [¶] I am going to stick with the court’s ruling.”
Immediately thereafter, defense counsel inquired of Ms. Thomas, “Would it also be fair to say between 1993 and 2001, your properties were in and out of foreclosure?” The prosecutor’s vagueness and relevance objection was sustained. Defense counsel then asked, “What year did you file bankruptcy, Ma’am?” Again, the prosecutor’s relevance objection was sustained. Defendant argues that this line of questioning was relevant because: “[Ms. Thomas’s] answers might have served to reinforce[] the defense theory that Ms. Thomas gave [her] permission to sell the 53rd Street property for a profit of $50,000 to $60,000, then contacted the District Attorney when Mr. Johnson had a buyer and she realized home prices had gone up.” Defendant further argues that the trial court used “too high” a standard of relevance.
The California Supreme Court has held: “‘The trial court has broad discretion in determining the relevance of evidence [citations] . . . .’ [Citation.]” (People v. Smithey (1999) 20 Cal.4th 936, 973, quoting People v. Scheid (1997) 16 Cal.4th 1, 14.) We examine the admissibililty of the proffered evidence utilizing the deferential abuse of discretion standard of review. (People v. Cox (2003) 30 Cal.4th 916, 955 [Evid. Code § 352]; People v. Rodriguez (1999) 20 Cal.4th 1, 9; People v. Alvarez (1996) 14 Cal.4th 155, 201.) In this case, the trial court could reasonably conclude Ms. Thomas’s past financial difficulties and relationships with her stepchildren bore no relevance to the fraudulent sale and related identity theft issues. Moreover, there was no concrete evidence that the property in question was in foreclosure. Although there were some references to “foreclosure,” Investigator Parsons clarified: “It was a threat of foreclosure. It didn’t go into foreclosure.” Indeed, defendant could have produced documentary evidence of any foreclosure rather than eliciting such information from Ms. Thomas. No abuse of discretion occurred. (People v. Rodriguez, supra, 20 Cal.4th at p. 9; People v. Quartermain (1997) 16 Cal.4th 600, 626.) Moreover, the evidence in question could properly be excluded pursuant to Evidence Code section 352. The California Supreme Court has repeatedly held: “Rulings under Evidence Code section 352 come within the trial court’s discretion and will not be overturned absent an abuse of that discretion. [Citations.]” (People v. Minifie (1996) 13 Cal.4th 1055, 1070; People v. Lewis (2001) 26 Cal.4th 334, 374-375; People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125; People v. Cudjo, supra, 6 Cal.4th at p. 609; People v. Hall, supra, 41 Cal.3d at p. 834.) The trial court could properly exercise its discretion to limit such cross-examination as it did.
Evidence Code section 352 provides, “The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.”
The same is true of the subsequent cross-examination of Ms. Thomas regarding her involvement in the management of the 53rd Street property. Ms. Thomas was asked if she paid to have roach infestation taken care of on the property. The prosecutor’s assumption of facts not in evidence objection was sustained. Defense counsel’s further questioning regarding Ms. Thomas’s involvement in the care and maintenance of the 53rd Street property in January 2002 was likewise objected to on relevance grounds. The trial court sustained the objection. The trial court’s ruling was reasonable. Whether Ms. Thomas was involved in the maintenance of the property was not directly relevant to the charges that defendant sold the property without permission. The evidence established that defendant was managing the property with Ms. Thomas’s permission. That role did not give defendant authority to sell the property. The trial court could properly exercise its discretion to limit such cross-examination. Hence, no constitutional violation has occurred.
Second, defendant argues that the trial court improperly imposed separate punishment for each of her convictions pursuant to section 654, subdivision (a). We disagree. We review the trial court’s order imposing multiple sentences in the context of a section 654, subdivision (a) question for substantial evidence. (People v. Osband (1996)13 Cal.4th 622, 730-731; People v. Downey (2000) 82 Cal.App.4th 899, 917; People v. Oseguera (1993) 20 Cal.App.4th 290, 294; People v. Saffle (1992) 4 Cal.App.4th 434, 438.) The trial court has broad latitude in determining whether section 654, subdivision (a) applies in a given case. (People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312; People v. Herrera (1999) 70 Cal.App.4th 1456, 1466.) In conducting the substantial evidence analysis we view the facts in the following fashion: “We must ‘view the evidence in a light most favorable to the respondent and presume in support of the order the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]’ (People v. Holly (1976) 62 Cal.App.3d 797, 803.)” (People v. McGuire (1993) 14 Cal.App.4th 687, 698; see also People v. Jones (2002) 103 Cal.App.4th 1139, 1143; People v. Green (1996) 50 Cal.App.4th 1076, 1085.) Multiple criminal objectives may divide those acts occurring closely together in time. (People v. Hicks (1993) 6 Cal.4th 784, 788-789; People v. Harrison (1989) 48 Cal.3d 321, 336; People v. Davey (2005) 133 Cal.App.4th 384, 390.)
Section 654, subdivision (a) states, “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. . . .”
In this case, the trial court could find defendant had two clear objectives. Defendant and Ms. Cole opened a small business bank account together. The application for the account listed their names and “DBA the Escrow Department.” Defendant then: conducted business as an escrow company; forged and falsified the escrow documents and a grant deed; and transferred ownership of the 53rd Street property to Ms. Gomez, who was defendant’s brother’s girlfriend. By doing so, defendant was able to continue her control of the 53rd Street property. The deed in Ms. Gomez’s name was recorded on November 1, 2002. These acts constituted the elements of attempting to file a false document conviction. Defendant received the proceeds of the sale in the amount of $165,586.57 and transferred $154,781.05 to Ms. Murdock. Ms. Murdock was defendant’s sister. These separate and distinct acts support defendant’s grand theft conviction. The trial court could reasonably conclude that defendant had separate objectives in the commission of each crime and sentence her separately for each offense.
Third, defendant argues for the third time before this court that the imposition of a consecutive sentence in this case as in her prior cases (BA227516 and BA237166) violated the United States Supreme Court holding in Cunningham v. California (2007) 549 U.S. 270, 275, because she was not afforded a jury determination of facts justifying the consecutive sentence. Defendant concedes that the California Supreme Court has held that there is no federal constitutional right to a jury trial relating to aggravating factors used to impose consecutive sentences. In People v. Black (2007) 41 Cal.4th 799, 821-823, our Supreme Court held: “Cunningham [v. California, supra, ], however, does not undermine our previous conclusion that imposition of consecutive terms under section 669 does not implicate a defendant’s Sixth Amendment rights.” We are bound by Black. (People v. Birks (1998) 19 Cal.4th 108, 116, fn. 6; Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Finally, following our request for further briefing, the Attorney General argues that the trial court should have imposed an additional $20 state court security fee pursuant to section 1465.8, subdivision (a)(1) (People v. Crittle (2007) 154 Cal.App.4th 368, 371; People v. Schoeb (2005) 132 Cal.App.4th 861, 865-866) and a $2 state surcharge pursuant to section 1465.7, subdivision (a) as to the section 1202.5 crime prevention fine. (People v. McCoy (2007) 156 Cal.App.4th 1246, 1256-1257; People v. Taylor (2004) 118 Cal.App.4th 454, 456-457.) Further, defendant must pay a $3 state court construction penalty as to the $10 section 1202.5 crime prevention fine pursuant to Government Code section 70372, subdivision (a). (People v. McCoy, supra, 156 Cal.App.4th at p. 1257; People v. Taylor, supra, 118 Cal.App.4th at pp. 458-459.) The trial court is to personally insure the abstract of judgment is corrected to fully comport with the modifications we have ordered. (People v. Acosta (2002) 29 Cal.4th 105, 110, fn. 2; People v. Chan (2005) 128 Cal.App.4th 408, 425-426.)
The judgment is modified to impose: an additional $20 court security fee pursuant to Penal Code section 1465.8, subdivision (a)(1); a $2 state surcharge pursuant to Penal Code section 1465.7, subdivision (a) as to the section 1202.5 crime prevention fund fine; and a $3 state court construction penalty as to the section 1202.5 fine pursuant to Government Code section 70372, subdivision (a). Upon issuance of the remittitur, the superior court clerk shall forward an amended abstract of judgment to the Department of Corrections and Rehabilitation. The judgment is affirmed in all other respects.
We concur: ARMSTRONG, J., MOSK, J.