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People v. Wood

Court of Appeal of California
Sep 4, 2008
B195384 (Cal. Ct. App. Sep. 4, 2008)

Opinion

B195384

9-4-2008

THE PEOPLE, Plaintiff and Respondent, v. WILLIAM WOOD, Defendant and Appellant.

Sylvia Whatley Beckham, 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, Lance E. Winters, Supervising Deputy Attorney General, Laura J. Hartquist, Deputy Attorney General, for Plaintiff and Respondent.

Not to be Published


William Wood appeals a judgment after his conviction of identity theft (Pen. Code, § 530.5, subd. (a), count one), making a false financial statement (id., § 532a, subd. (1), count three) and false personation of another (id., § 529, subd. 3, count four). We conclude, among other things, that: 1) the trial court properly admitted Woods statements to an investigator about his prior acts of identity theft, 2) there was no prejudicial prosecutorial misconduct, 3) the court did not err by denying Woods motion for new trial based on jury misconduct, 4) it did not abuse its discretion by awarding $44,000 as victim restitution, 5) the award of presentence probation investigation costs must be affirmed, and 6) the abstract of judgment does not conform to the courts oral pronouncement of sentence. The abstract must be corrected. In all other respects, we affirm.

FACTS

George Williams had one credit card on an account he had with a brokerage firm. He did not have a Chase Manhattan Bank credit card and he never applied for one. He never authorized anyone to be a secondary card holder and he did not know Wood.

Williams received a letter from the Chase Manhattan Bank stating that he had applied for a credit card. He notified the bank that he had not made that application. He reported the fraudulent application to various credit reporting agencies and the police.

Sheriffs detective James Fryhoff testified that he contacted the Chase Manhattan Bank. He obtained the application for the credit card which had been made by someone in Williams name. There was a cell phone number on that application. Fryhoff testified that the cell phone account belonged to Wood. The application for the credit card also listed Wood as a secondary card user.

Lorrinda Lepore, a district attorney investigator, testified the she advised Wood that he was under arrest for identity theft. Wood waived his constitutional right to remain silent. He told Lepore that he believed that a friend of his named Ken Knoppee was responsible for the identity theft. He said they "used to do identity theft together." Wood described the procedure. Knoppee provided Wood with identities and Wood gave Knoppee credit card numbers. Wood said that he no longer engaged in that activity. He said Knoppee was angry because Wood would not "get back into identity theft." When Lepore asked Wood for Knoppees phone number, "he hesitated," and then gave her an incomplete number. Lepore asked, "[A]m I going to find anything on your computer." Wood said that he had destroyed the hard drive "due to a virus." Lepore testified that "identity thieves often destroy their hard drives periodically . . . after something is unsuccessful."

Sheriffs detective Kevin Donoghue testified that one of Woods computers had documents containing "other peoples names and identifying information." The identifying information included social security numbers, birth dates, drivers license numbers, phone numbers, checking account numbers and access code numbers.

In the defense case, Wood testified that in 2002 he had been convicted of identity theft and that Knoppee "was part of that." He told Lepore that he was not involved in that activity anymore. Knoppee had used his computer in January. Wood said that he was not in the room when that occurred. His computer contained software that could verify credit card numbers. When Lepore asked him for Knoppees phone number, he was unable to remember the complete number. He was "wheezing" and had not taken his medication.

DISCUSSION

I. Woods Statements to an Investigator about Prior Identity Theft

Wood contends that the court erred by admitting Lepores testimony about his statements that he had committed prior acts of identity theft with Knoppee. We disagree.

We review rulings on the admissibility of evidence to determine whether there was an abuse of discretion. (People v. Memro (1995) 11 Cal.4th 786, 864.) Evidence of a defendants conduct on a prior occasion may be admitted to prove a defendants motive or intent. (Ibid.; Evid. Code, § 1101, subd. (b).) "The least degree of similarity (between the uncharged act and the charged offense) is required in order to prove intent." (People v. Ewoldt (1994) 7 Cal.4th 380, 402.) Evidence of prior bad acts is also admissible to prove opportunity, a plan of action or knowledge. (People v. Miller (2000) 81 Cal.App.4th 1427, 1447.) "[T]he recurrence of a similar result . . . tends (increasingly with each instance) to negative accident or inadvertance or self-defense or good faith or other innocent mental state, and tends to establish . . . the presence of the normal, i.e., criminal, intent accompanying such an act . . . ." (Ewoldt, at p. 402.) "[A]ny prior statement of a party may be offered against him, even though it may not have been against his interest or even may have been self-serving when made." (People v. Mendoza (1987) 192 Cal.App.3d 667, 675.)

Wood made the statement to Lepore after he had been advised of and had waived his constitutional right to remain silent. He made a voluntary and compelling admission about his prior course of conduct that was highly probative to the charged offenses. He mentioned his prior acts of identity theft with Knoppee to exonerate himself. He wanted to direct the investigators attention to his former associate. But as the Attorney General correctly notes, his statements also show his knowledge about how to commit identity theft and his intent to engage in that activity. The trial court found that any prejudicial impact involving Woods statements was substantially outweighed by the probative value of his admissions. Wood has not shown that the court erred by admitting this evidence. (People v. Miller, supra, 81 Cal.App.4th at p. 1447; People v. Mendoza, supra, 192 Cal.App.3d at p. 675.)

Nor has Wood shown how any alleged error was prejudicial. In the defense case, Wood testified that he had a prior conviction for identity theft. He introduced evidence so the jury would know that Knoppee assisted him in committing that crime. The jury did not find Wood to be credible. Given the strength of the prosecutions evidence, Wood has not shown a reasonable probability that the exclusion of his statements to the investigator would change the result.

II. Prosecutorial Misconduct

Wood claims the judgment must be reversed because of prejudicial prosecutorial misconduct. We disagree. Prosecutorial misconduct is shown where the prosecutor made remarks that were "so unfair" that they denied the defendant a fair trial or where he or she used "deceptive or reprehensible methods" to persuade the jury. (People v. Farnam (2002) 28 Cal.4th 107, 167-168.)

A. Violating a Pretrial Order

Wood claims the prosecution committed misconduct by violating a pre-trial order. We disagree. At a pre-trial hearing, the court ruled that Woods statements to Lepore about committing identity theft were admissible. But the prosecution could not make reference to the fact that Wood had a prior criminal conviction in the prosecutions case.

Lepore testified that Wood told her that he and Knoppee had engaged in past identity thefts. Wood claims the prosecutor committed misconduct and violated the pre-trial order by asking Lepore, "And whose . . . name or reality identity did Mr. Wood and Mr. Knoppee use when they previously had done identity theft together?" After an objection, the prosecutor withdrew the question. Here there was no misconduct. The prosecutor asked only for a name, not about any criminal conviction. Moreover, Wood has not shown prejudice. There was no reference to the criminal conviction. Moreover, when Wood testified, he admitted he had a prior criminal conviction for identity theft.

B. Improper Cross-Examination

Wood contends the prosecutor committed misconduct when he asked Wood whether in listening to Lepores testimony, "Did you hear a lie?" The court sustained Woods objection that this was an improper question. The prosecutor then asked, "Did you hear her say something contrary to the facts as you know them?" Wood answered, "Yes."

Wood claims that both questions constituted misconduct. But he waived this issue by not raising a misconduct objection and asking for an admonishment on the first question. (People v. Farnam, supra, 28 Cal.4th at p. 167.) Moreover, he raised no objection of any kind to the second question. But even on the merits, the result is the same. The trial court properly sustained the objection to the first question. (People v. Melton (1988) 44 Cal.3d 713, 745.) But Wood, nevertheless, responded to the second question by providing self-serving testimony about the falsity of Lepores testimony. Given the strong evidence in the prosecutions case, there is no reasonable probability of a different result had the prosecutor not asked these questions. (Ibid.)

C. Violating Discovery Rules

Wood contends the prosecution asked questions about a document that it had not provided to the defense. He claims this was prejudicial misconduct. The Attorney General concedes that the prosecution committed a discovery violation by not delivering a copy of the document to the defense. (Pen. Code, § 1054.1.) But he claims the error was inadvertent, there was no misconduct and the trial court took appropriate action to prevent prejudice to the defense. The Attorney General is correct.

The prosecutor asked Lepore about a handwritten document seized during the search of Woods home which contained the name Jonathan Bao Huyn. It also contained personal information including Huyns date of birth, social security number, drivers license number, address and phone number. Lepore said Wood told her that "hed recently gotten that paper out of a box to get rid of [it]." She said the personal information on the paper involving Huyn was identical to the personal information on a Bank of America document for a person named Jonathan Hunt.

Woods counsel objected claiming that Lepore did not have a copy of the Huyn document and her answer should be stricken. The prosecutor said, "My officer believes she saw it in the discovery packet." Lepore testified the document was attached to it.

The court told counsel to review the discovery documents. The prosecutor could not find a "Bates stamped" copy of the document. Because the prosecution was unable to confirm that the defense had received a copy, the court struck all testimony relating to the Huyn document. It admonished jurors not to consider the stricken testimony. There is no evidence that the prosecution committed an intentional discovery violation. Striking the prosecutions testimony was a proper sanction for the violation. Wood has not shown deceptive or reprehensible prosecutorial misconduct. (People v. Farnam, supra, 28 Cal.4th at pp. 167-168; People v. Espinoza (1992) 3 Cal.4th 806, 820-821.)

D. Comments During Oral Argument

Wood claims the prosecutor committed misconduct during oral argument by commenting on evidence the defense failed to introduce. The prosecutor said, "[A]lthough the defense is required to furnish no evidence, do you not think that the very able Ms. Zide, my opponent, by now would have gotten together something to show . . . if not now, sometime in the past few years Mr. Ken Knoppee had been living and breathing in Southern California."

There was no misconduct. Wood testified about Knoppee as the perpetrator. The prosecution was entitled to contest this and point out the weaknesses in Woods case. This included the right to comment about his failure "to introduce material evidence or to call logical witnesses." (People v. Ryner (1985) 164 Cal.App.3d 1075, 1085.) Wood contends that because of the prosecutors comments, the jury was led to believe that the burden of proof shifted from the prosecution to the defense. But that is not the case. After Woods counsel objected, the court admonished jurors that the burden of proof remained with the prosecution.

Wood claims the prosecutor disparaged his counsel. "[I]t is improper . . . to resort to personal attacks on the integrity of opposing counsel." (People v. Bell (1989) 49 Cal.3d 502, 538.) During her argument, Woods counsel said, "Remember the founding [fathers] had just been through a pretty difficult period with British troops in their home . . . . [T]hey wanted to make sure that no American citizen in the future was going to be facing the machinery of the state without some pretty strong protections." She said jury deliberations were "similar to the way doctors make a decision whether to amputate a limb." She said that the prosecutions burden of proof was higher than the standard used to determine whether "to remove a child from a home."

The prosecutor said, "Ms. Zide is great, but you got the founding fathers card this time, with the British troops. We got amputating limbs and all the doctors in the room. I dont know if there was a connection between the British shooting at us and the amputation. Right after that she had a child being removed from the home." The prosecutor then told jurors that this issue involved reasonable doubt and he asked them to "[p]lease go [over all] the evidence."

Here Woods trial counsel used emotional and colorful language. The prosecutor responded with wit and artful language of his own. He was trying to make the point that jurors should consider the evidence and not be distracted by the emotional imagery used by the defense. A prosecutor may use "colorful terms" to make a point. (People v. Pinholster (1992) 1 Cal.4th 865, 948.) This did not meet the threshold of being inflammatory, deceptive or reprehensible. (People v. Farnam, supra, 28 Cal.4th at pp. 167-168.)

Wood contends the prosecutor committed prejudicial misconduct by mentioning evidence that had been stricken by the court during trial. We disagree. During his testimony, Wood said that he had been with a friend named Raymond during late January and early February. Woods counsel asked, " All right. Where is he now?" Wood said, "Hes in Iraq." The prosecutor objected and moved to strike the evidence about Raymonds current whereabouts. The court granted that motion.

During oral argument, the prosecutor discussed the weaknesses of the defense case and said, "Nobody had an asthma attack. Thats smoke and fog. [¶] Weve got the patriotism card, too. That witness [Raymond] cant come in, hes gone to Iraq."

Wood claims the reference to Iraq was misconduct because it had been stricken. But ""[t]o preserve for appeal a claim of prosecutorial misconduct, the defense must make a timely objection at trial and request an admonition . . . ."" (People v. Farnam, supra, 28 Cal.4th at p. 167.) Here the defense did not object at trial and waived this claim. This was the type of matter that could have been corrected with an admonition. Moreover, this single reference to Iraq did not rise to the level of being prejudicial misconduct. (Id., at pp. 167-168.) During trial, Wood wanted jurors to know that Raymond was in Iraq. It appears that the prosecutor may have forgotten that he requested the reference to Iraq be stricken.

III. Jury Misconduct

Wood contends that the trial court erred by denying his motion for new trial based on jury misconduct. We disagree.

"In ruling on a request for a new trial based on jury misconduct, the trial court must undertake a three-step inquiry." (People v. Dorsey (1995) 34 Cal.App.4th 694, 703.) "First, it must determine whether the affidavits supporting the motion are admissible." (Ibid.) "If the evidence is admissible, the trial court must determine whether the facts establish misconduct." (Ibid.) "Lastly, assuming misconduct, the trial court must determine whether the misconduct was prejudicial." (Id., at pp. 703-704.)

The trial court found that the evidence supporting the motion was inadmissible. Wood has not shown error. The documents attached to the motion included a declaration from Juror 12 and an e-mail from that juror to Woods trial counsel. The e-mail was not a sworn document nor was there any declaration attached to it. The court noted that it was not even a complete e-mail message. The other document, Juror 12s declaration, was also deficient. The declaration did not contain the date it was executed. A valid declaration must contain the date of execution. (Code Civ. Proc., § 2015.5; Dodge v. Free (1973) 32 Cal.App.3d 436, 444; People v. United Bonding Ins. Co. (1966) 240 Cal.App.2d 895, 896, fn. 2.) But even on the merits, the result is the same.

The trial court found that many of Woods claims about jury misconduct were not supported by the record or were based on speculation. Wood has not shown that the court erred. During the motion for new trial, Woods counsel claimed that the jury verdict was based on racial bias. But Juror 12 did not claim that there was any racial bias. Her declaration did not identify any racial comments made by jurors, nor did she state that Woods race was even mentioned during deliberations. The trial court properly found that there was no evidence to support this claim.

In her declaration, Juror 12 said, "I believe this was a case of a `rush to judgment." She said, "Most jurors wanted to get this over with." "Jurors clearly had their minds made up before we even entered the jury deliberation room." She claimed there was a "Lets get this over with atmosphere." But the trial court noted that her claims about the jurys alleged impatience were not consistent with the facts. The jury deliberated for more than five and one-half hours. It requested a "read-back" of trial testimony. The court correctly found her statement about most jurors wanting "to get [the case] over with" to be inadmissible speculation as she was "attributing to other jurors something which she cant know." Juror 12 said that one juror had in fact said, "Lets get this over with." But the court correctly found that this one statement was not misconduct. It noted that this is the type of remark "that is made in jury deliberation rooms throughout this country . . . on a daily basis."

In his motion, Wood claimed that the other jurors had discussed this case with each other before deliberations. But this was speculation. In her declaration, Juror 12 conceded that "[w]hether they had discussed the case with each other contrary to the courts directions I do not know." (Italics added.)

She also suggested that the other jurors acted improperly by repeatedly "focusing on the failure of the defense to provide evidence." But Wood presented a defense case and he testified. The jury was entitled to consider the "the failure of the defense to introduce material evidence or to call logical witnesses." (People v. Ryner, supra, 164 Cal.App.3d at p. 1085.)

Juror 12 said that Juror 6 said that he was going to leave the next day and would not come back for jury duty. But this was not evidence of misconduct. The trial court noted that when he was selected, the court ruled that Juror 6 had to be excused by a certain date and that an alternate would be seated. The court said he was simply repeating something known "by every juror."

Some of Juror 12s claims of juror misconduct involved the jurors reasoning in evaluating the evidence. For example, she claimed that some jurors believed that Wood "was having an affair based on the content of the emails in evidence." She said another juror "speculated that [Wood] was going to wait for the credit card to be delivered and then steal it out of the mailbox as part of her reasoning." But `"[A] verdict may not be impeached by inquiry into the jurors mental or subjective reasoning processes . . . ."" (People v. Steele (2002) 27 Cal.4th 1230, 1261.) "Not all thoughts `by all jurors at all times will be logical, or even rational, or, strictly speaking, correct. But such [thoughts] cannot impeach a unanimous verdict; a jury verdict is not so fragile." (Id., at p. 1262.)

Juror 12 claimed that she wanted to vote not guilty, but was pressured by other jurors to change her vote. But the trial court found she was impeached by her sworn testimony in court. It noted that the jurors were individually polled and Juror 12 said her guilty vote was her "own true and correct verdict." Moreover, her statements about why she changed her vote were also inadmissible to impeach the verdict. (People v. Peavey (1981) 126 Cal.App.3d 44, 51.)

The trial court found, however, that a juror mentioned a matter that was not based on the evidence. One juror said he saw Wood drive out of the parking lot in a Lexus. It is improper for a juror to receive "information about a party or the case that was not part of the evidence received at trial." (People v. Nesler (1997) 16 Cal.4th 561, 578.) But "[w]hen juror misconduct involves the receipt of information about a party . . . from extraneous sources, the verdict will be set aside only if there appears a substantial likelihood of juror bias." (Ibid.) From our review of the record, the strength of the prosecutions case, the nature of the juror indiscretions and its impact, we conclude there was no prejudicial jury misconduct. (People v. Ryner, supra, 164 Cal.App.3d at p. 1084.)

IV. Victim Restitution

Wood contends that the courts order awarding victim restitution in the amount of $44,000 was arbitrary and irrational. We disagree.

"A trial courts determination of the amount of restitution is reversible only if appellant demonstrates a clear abuse of discretion." (People v. Akins (2005) 128 Cal.App.4th 1376, 1382.) "No abuse of discretion is shown simply because the order does not reflect the exact amount of the loss, nor must the order reflect the amount of damages recoverable in a civil action." (Ibid.) "In determining the amount of restitution, all that is required is that the trial court use a rational method that could reasonably be said to make the victim whole, and may not make an order which is arbitrary or capricious." (Ibid.)

Williams testified that he was a financial consultant and a stockbroker with a Series 7 license. He could lose his license if he had personal financial irregularities. Because he was a victim of identity theft, he experienced substantial losses. He had a $90,000 income in 2004, but it dropped to $33,200 in 2005, and $29,100 in 2006. Over an 18-month period, he spent four to six hours a week checking with creditors, credit agencies and employers, gathering information for the prosecutor and attending court hearings. He estimated that his financial loss caused by the identity theft was between $70,000 to $75,000. He lost 400 hours from his work. He estimated his hourly rate to be between $150 per hour to $375 an hour.

Wood correctly notes that Williams testimony was not entirely consistent. But we must draw all reasonable inferences in support of the judgment. (People v. Rodriguez (1999) 20 Cal.4th 1, 11.) The trial courts award of $44,000 was not excessive and fell well within the range of the courts discretion.

V. Presentence Probation Investigation Costs

Wood contends that the trial court committed reversible error by ordering him to pay $1,552 as presentence probation investigation costs. (Pen. Code, § 1203.1, subd. (b).) He claims the court had no authority to make this award because there was no evidence of his financial ability to pay. We disagree.

The Probation Department provided Wood with a personal financial statement form. It requested him to complete it so it could determine his ability to pay costs. But Wood did not cooperate with the Probation Department. He did not complete the form. He did, however, tell his probation officer that he is a "self-employed Microsoft Engineer." During trial, he testified that he had worked for "entertainment companies" such as CNN and TNT and had received a "certificate as a Microsoft certified system engineer."

At the sentencing hearing, the court found that Wood had the ability to pay $1,552 in costs for the presentence probation investigation. Wood neither objected nor did he claim that he lacked the ability to pay these costs. He did not object to the probation report, which concluded that he had the ability to pay, and he did not request to present evidence. The trial court told counsel that it did not think there was a need to "set any further hearings." Woods trial counsel agreed. From this the court could reasonably infer that the defense was not contesting its findings on ability to pay. In light of this, Wood may not raise the ability to pay issue for the first time on appeal. (People v. Whisenand (1995) 37 Cal.App.4th 1383, 1394-1395.) But even so, he is also estopped to assert error because of his refusal to cooperate with the probation department on the ability to pay issue. Moreover, he has not shown why someone with his training and work experience as a Microsoft "certified system engineer" at CNN and TNT would not have the ability to pay $1,552.

VI. The Abstract of Judgment

Wood and the Attorney General claim that the abstract of judgment must be corrected because it is inconsistent with the courts oral pronouncement of sentence. We agree. The abstract of judgment must "conform to the oral judgment pronounced" in court. (People v. Boyde (1988) 46 Cal.3d 212, 256.) In sentencing, the court imposed the midterm of two years on count one and a consecutive one-year term pursuant to section 667.5, subdivision (b). On the remaining counts (three and four), the court did not impose a one-year term pursuant to section 667.5, subdivision (b). The abstract of judgment incorrectly reflects that for counts three and four the court imposed and stayed the section 667.5, subdivision (b) enhancement. The abstract must be corrected to be consistent with the courts oral pronouncement of sentence.

We have reviewed Woods remaining contentions and we conclude that he has not shown any other reversible error.

The abstract of judgment is ordered to be corrected as set forth in point VI. In all other respects, the judgment is affirmed.

We concur:

YEGAN, J.

COFFEE, J.


Summaries of

People v. Wood

Court of Appeal of California
Sep 4, 2008
B195384 (Cal. Ct. App. Sep. 4, 2008)
Case details for

People v. Wood

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. WILLIAM WOOD, Defendant and…

Court:Court of Appeal of California

Date published: Sep 4, 2008

Citations

B195384 (Cal. Ct. App. Sep. 4, 2008)