P. v. Harvey

Filed 8/3/06 P. v. Harvey CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

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A jury convicted defendant James Dudley Harvey of perjury (Pen. Code, § 118, subd. (a)),^[1] second degree burglary (§§ 459, 460) and driving with a suspended license (Veh. Code, § 14601.1, subd. (a)). In a trial by court, defendant was found to have served a prior prison term (§ 667.5, subd. (b)).

Sentenced to state prison for four years, defendant appeals contending the trial court erred by (1) failing to instruct the jury, sua sponte, on the offense of making false statements to the Department of Motor Vehicles (Veh. Code, § 20) as a necessarily included offense of perjury, as the latter was charged, (2) failing to appoint separate counsel to investigate whether there was reason to file a new trial motion based upon ineffective assistance of counsel, and (3) imposing a $10 fine pursuant to section 1202.5, subdivision (a). We reject defendant's first two contentions, but find merit in the third.

FACTS

John Eagle, an investigator for the fraud division of the California Department of Insurance, investigated defendant's participation in a scheme involving fraudulent acquisition of insurance checks for settlements on accidents which never occurred.

Eagle reviewed defendant's Department of Motor Vehicles (DMV) file, which showed that commencing September 12, 1991, and continuing through various dates until May 26, 2004, the date of the instant offenses, defendant applied for and obtained driver's licenses and identity cards in the names of James Harvey and Chris Jackson. On the applications (DL44 forms) defendant had checked the box stating he had not previously applied for a license or identity card under a different name. He also signed the applications under penalty of perjury.

Gillman Chan, an employee of the DMV, processed People's Exhibit No. 9 -- defendant's May 26, 2004, application on DMV form DL44 for replacement of a lost California Identification Card. The DL44 form states the applicant is not to sign the form until instructed to do so by an employee and contains the admonition it is being signed under penalty of perjury. The form is signed in the presence of the processor. However, since the form contains the admonition it is being signed under penalty of perjury, Chan does not repeat the advisement when the form is signed.

Antonio Silva, who had worked with defendant at American Automobile Association, and Karen Johnson, the mother of defendant's children, each testified to participating with defendant in a scheme fraudulently to acquire checks from an insurance company. Johnson also testified she had lost defendant's latest identification card bearing the name â€