P. v. Hooks

Filed 9/28/06 P. v. Hooks CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

SIXTH APPELLATE DISTRICT

Defendant Marcus James Hooks was injured and his car was damaged in an automobile accident that was not his fault. At the time the accident occurred, he did not have liability insurance, but he purchased minimum insurance later that day. Under Proposition 213[1] (now Civ. Code, § 3333.4), an injured person is not entitled to damages for pain and suffering (noneconomic damages) if he is not insured at the time of the accident. This case concerns defendant’s claim for damages arising from the accident. Following his conviction of two counts of insurance fraud, defendant appeals, claiming the trial court erred in refusing to permit his expert witness to testify about insurance industry practices and in failing to instruct the jury on mistake of law. We find no errors and affirm his conviction.

FACTUAL BACKGROUND

Viewed in accordance with the usual rules of appellate review (People v. Rodriguez (1999) 20 Cal.4th 1, 11), the evidence established that around 10:30 a.m. on April 15, 2002, defendant was driving his 1988 Acura in the vicinity of the Department of Motor Vehicles on Alma Street in San Jose. The car ahead of him stopped suddenly and the Suburban behind him crashed into the back of his car and pushed it into the car ahead. Defendant’s car suffered major rear-end damage and was towed from the scene. The responding police officer cited the driver of the Suburban for driving too fast for conditions. The police report noted that defendant had no liability insurance. Defendant complained of back pain but refused immediate medical assistance.

Late in the afternoon that same day, defendant went to the office of insurance agent John Anjomi and purchased the minimum amount of liability insurance for the Acura. Defendant gave Anjomi certain information necessary for the insurance application forms, including that he worked at UTC in San Jose as a maintenance worker and that he had not had any automobile accidents or driving convictions within the past three years. Defendant and Anjomi signed the application in several places, and defendant paid Anjomi an insurance premium of $35 plus a broker’s fee. The insurance policy was effective at the time the information was submitted electronically to the insurance company--at 5:47 p.m. on April 15, 2002. Anjomi printed a temporary insurance identification card for defendant and sent the original application with a check covering the premium to the insurance company. The insurance company then sent a bill to defendant with a higher premium required because defendant in fact had several driving violations on his record and did not qualify for a good driver discount. When no further payment was received, the policy was cancelled effective June 2, 2002.

Harold Morrison was an executive claims specialist with the insurance company for the Suburban driver. After receiving the claim, he determined his company was liable. On April 19, 2002, he took a recorded statement from defendant via telephone. Defendant’s car was a total loss and had been towed to Fairgrounds Auto Body. Defendant also claimed damage to the tools in the back of his car. He stated that he was dizzy after the accident, but later felt pain in his “lower lumbar and upper cervical.” He was treated by a chiropractor who found bruising and swelling in those regions. Defendant said he worked at United Technology Chemical Systems as an unpaid firefighter intern, he did auto reconstruction at his home, he was a full-time student at Mission College and he worked part time for an emergency medical response unit. Defendant denied having been in any other automobile accidents.

Morrison then telephoned defendant’s attorney, Daniel Herns, who told Morrison he was representing defendant only on the bodily injury portion of his claim. Morrison paid defendant directly for his car ($4,149.71) and his damaged tools ($1,696.89).

At some point before Morrison called Herns, defendant had talked to Herns, a civil litigation personal injury attorney, about the accident. Herns sent defendant a letter dated April 22, 2002, with a contract for representation to be signed and returned. The letter included authorization forms for medical records and a claim form for lost wages. Although Herns could not remember the precise details of his initial conversation with defendant, he always told prospective clients about allowable damages, including lost wages, as well as noneconomic damages for pain and suffering. Herns routinely explained that to get damages for lost wages, the person would have to be employed and miss time from work. Herns also noted that if a person did not have insurance, he would not take the case because there could be no recovery for noneconomic damages after the passage of Proposition 213. Herns recalled getting the police report at some point and discussing with defendant whether he had insurance coverage the day of the accident. He believed defendant had coverage or he would not have taken his case.

On November 6, 2002, Morrison sent a letter to Herns asking if Herns was still representing defendant because he believed defendant had no insurance at the time of the accident. Morrison requested a copy of defendant’s liability policy. He knew that most attorneys do not represent uninsured people in bodily injury claims because of the prohibition on noneconomic damages since the advent of Proposition 213. The police report indicated defendant was not insured at the time of the accident.

Herns recalled discussing this issue with defendant after receiving Morrison’s letter. Defendant explained that he had purchased the insurance in the morning on the day of the accident, went back to pay for it later in the afternoon and was insured at the time of the accident. Herns said it did not occur to him to ask defendant about the specific time of day the insurance took effect. At some point, defendant said he did not know he was entitled to damages for pain and suffering. Herns explained the limits of Proposition 213. Herns believed defendant when he said that he was insured at the time of the accident.

On December 30, 2002, Herns sent Morrison a letter stating he would be submitting a demand package. Herns called insurance agent Anjomi’s office to request a copy of defendant’s insurance policy. He received back a fax of the declaration page showing the policy period as “4-15-02 to 4-15-03.” Anjomi reported that in response to Herns’ phone call, he faxed back the declarations page as well as the policy application showing the exact time the insurance coverage was effective. Herns denied receiving a copy of the policy application.

Over the course of the next several days, Herns spoke to defendant several times on the telephone to go over the various forms to be submitted as part of the demand package. On January 7, 2003, Morrison received a demand package which included: a demand letter dated January 3, 2003, requesting a total settlement amount of $17,750, a medical report and bill for $5,035.32, a wage loss verification showing total wages unpaid by “Fair Grounds Collision Repair“ of $3,360, a declarations page from an insurance policy showing a coverage period of “4-15-02 to 4-15-03,” a copy of a temporary identification card for insurance coverage and the recorded statement of defendant talking to Morrison. The remaining amount of the claim (approximately $7,500) was for noneconomic damages. Several days earlier, on January 3, 2003, Morrison had written to Herns requesting a certified copy of defendant’s automobile liability policy with the demand package and pointing out that the police report indicated defendant was uninsured at the time of the accident. The letters crossed in the mail.

Morrison then wrote to Herns on January 22, 2003, and offered to settle the claim for special damages of $8,395.32 (medical expenses and wage loss) only, with no offer for noneconomic damages. The letter noted that it was not intended to generate a counter-offer.

Herns was upset and concerned when he received Morrison’s offer and called to talk to Morrison about why the claim for noneconomic damages was rejected, because this had not happened to any client before. Morrison explained that his boss agreed with the proposed settlement. Herns also called Anjomi to discuss the settlement offer. Anjomi told him that the policy was effective on April 15 about 5 p.m. When Herns called defendant to confront him with this information, defendant admitted that Anjomi was right. Herns then advised defendant that he was lucky to be getting reimbursed for his medical bills and lost wages and that he should accept the offered settlement. Defendant agreed, and the offered amount was paid in settlement to Herns. After paying the medical bill and deducting his costs and fees, Herns sent defendant a check for $528.71.

On April 22, 2005, defendant was charged by amended information with three counts of insurance fraud: count 1, concealing an event affecting the right to an insurance benefit in violation of Penal Code section 550, subdivision (b)(3);[2] count 2, presenting a fraudulent insurance claim in violation of section 550, subdivision (a)(1); and count 3, preparing a false insurance claim in violation of section 550, subdivision (a)(5). It was further alleged that during the commission of the charged offenses defendant was out of custody on bail on a charge of felony insurance fraud. (§§ 550, subd. (a)(1), 12022.1.) It was also alleged that defendant had been convicted of two prior felonies for which he had served prison terms. (§ 667.5, subd. (b).)

Prior to trial in May 2005, defendant admitted the enhancement allegations.

At trial, in addition to the primary witnesses discussed above, several other witnesses testified. John Sanchez testified that he owned the business named Fairgrounds Collision Center from 1999 to 2004. He stated that defendant had worked on his own cars on the premises of the business but that he was not an employee and had never been paid wages. His brother Christopher Sanchez who also worked at the Fairgrounds Collision Center testified that even though his name was on the wage loss verification form, he had not signed or ever seen the form.

Defense witnesses included John Anjomi, who testified that many insurance clients lie about their driving records and buy only the minimum insurance. A document examiner testified that she was unable to determine if the signatures on the insurance documents were actually defendant’s. An investigator for the district attorney’s office testified that Christopher Sanchez told her he did not remember signing the wage loss verification form, but was uncertain if the signature was his. He also said he thought defendant was an employee of his brother’s business. According to the investigator, Herns told her that the first time he learned that defendant might not be insured at the time of the accident was on November 6, 2002, when he received Morrison’s first letter.

On May 18, 2005, the jury found defendant not guilty of count 1 and guilty of counts 2 and 3. On June 15, 2005, defendant was sentenced to state prison for a term of five years consecutive to a five year prison term for a separate offense, for a total prison term of 10 years.[3]

Defendant timely appeals.

DISCUSSION

I. Exclusion of Evidence of Industry Practices

Defendant first contends that the trial court abused its discretion and violated his constitutional right to present a defense when it excluded evidence of insurance industry practices. The Attorney General disagrees, asserting that the proposed evidence was irrelevant as well as cumulative.

A. Background

Defendant sought to call James Roberts, a civil litigation attorney, to testify as an expert witness about the meaning and application of Proposition 213. The court required an offer of proof as to how this testimony would differ from other testimony in the case, and a hearing under Evidence Code section 402 was held. Roberts’ proposed testimony included standards of practice in the personal injury litigation field, such as the practice of attorneys handling automobile accident cases of requesting compensation from insurance companies for pain and suffering, even though the client might not be eligible for such damages. Proposition 213 placed the burden on insurance companies to prove that a claimant was not insured and thus not entitled to damages for pain and suffering. Although the trial court concluded that Mr. Roberts qualified as an expert, the court excluded the evidence as irrelevant to the issues raised.

B. Legal Principles

“Only relevant evidence is admissible [citations], and all relevant evidence is admissible unless excluded under the federal or California Constitution or by statute. [Citations.]” (People v. Scheid (1997) 16 Cal.4th 1, 13; Evid. Code, §§ 350, 351.) Relevant evidence is defined as evidence “having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (Evid. Code, § 210.) “[T]he general rule in criminal cases might be stated as whether or not the evidence tends logically, naturally, and by reasonable inference to establish any fact material for the prosecution or to overcome any material matter sought to be proved by the defense. [Citation.]” (People v. Slocum (1975) 52 Cal.App.3d 867, 891.) The trial court has broad discretion in determining the relevance of evidence. (People v. Scheid, supra, at p. 14.)

Standards for our review of the trial court’s determination are also well-settled: “Broadly speaking, an appellate court applies the abuse of discretion standard of review to any ruling by a trial court on the admissibility of evidence. (People v. Alvarez [(1996)] 14 Cal.4th [155,] 201; accord, People v. Rowland (1992) 4 Cal.4th 238, 264.) Speaking more particularly, it examines for abuse of discretion a decision on admissibility that turns on the relevance of the evidence in question. (E.g., People v. Alvarez, supra, 14 Cal.4th at p. 201; People v. Clair [(1992)] 2 Cal.4th [629,] 670-671.) That is because it so examines the underlying determination as to relevance itself. (E.g., People v. Alvarez, supra, 14 Cal.4th at p. 201; People v. Rowland, supra, 4 Cal.4th at p. 264.) Evidence is relevant if it has any tendency in reason to prove a disputed material fact. (Evid. Code, § 210.)” (People v. Waidla (2000) 22 Cal.4th 690, 717-718.)

C. Analysis

According to defendant, in order to prove him guilty on count 2, the prosecution needed to prove that he presented inaccurate information, knowing it was false, with the specific intent to obtain money that he was not entitled to receive. Defendant asserts that it is a defense to an allegation of intent to defraud that the accused acted in the good faith belief that his conduct was justified. (See People v. Webb (1999) 74 Cal.App.4th 688, 694.) And that “one can ‘knowingly’ present a false claim without specific intent to defraud, for example by presenting false data to support a claim in the good faith belief that the information is correct . . . .” (People v. Booth (1996) 48 Cal.App.4th 1247, 1253.)

Defendant explains that he needed the expert witness testimony to demonstrate that most personal injury attorneys submit claims for noneconomic damages without knowing whether the client is entitled to such damages or not, and thus, by submitting a claim for such damages, he did not have the requisite specific intent to defraud the insurance company. He notes that the jury found him not guilty on count 1, concealing an event affecting the right to an insurance benefit, or lying about his driving record in order to obtain insurance at a rate to which he was not entitled.

In count 3, defendant was charged with preparing a false insurance claim through his submission of a false wage loss verification claim. As the Attorney General points out, the expert witness’s testimony would not have been relevant to this count. And this same claim was one of two theories supporting count 2. In that count, defendant was charged with a violation of section 550, subdivision (a)(1), that he “[k]nowingly present[ed] or cause[d] to be presented any false or fraudulent claim for the payment of a loss or injury, including . . . under a contract of insurance,” either directly or as an aider or abettor. The prosecution relied on two different theories for the violation: that defendant caused a document to be prepared with false information for an insurance claim either by submitting the wage loss form when there were no lost wages, or by submitting the demand letter, which included noneconomic damages, to which he was not entitled because he was not insured at the time of the accident. The jury was instructed with CALJIC No. 17.01, that all jurors must agree which of the two acts was committed in this count. As the jury convicted defendant of one of the acts by convicting him on count 3, it is logical that the jury used the false wage loss verification claim as the act necessary to violate count 2. As noted above, the expert witness’s testimony was not relevant to this claim.

Even if the other alleged act (submitting a claim for noneconomic damages) was at issue, the jury heard general testimony about this aspect of insurance coverage and practices from both Harold Morrison, the claims specialist, and Daniel Herns, defendant’s attorney.

Moreover, the facts surrounding this particular insurance claim differed from the norm, in that the insurance claims specialist’s initial request to defendant’s attorney was to provide proof of defendant’s insurance policy because of his concern that defendant was uninsured. Attorney Herns testified that he did not accept uninsured clients and he had relied on defendant’s representations that he had coverage at the time of the accident. Any testimony from expert witness Roberts as to the usual practices of personal injury attorneys in submitting claims for noneconomic damages and leaving the burden of proof of coverage to the insurance company would have had little bearing on this particular case. And Roberts certainly could not have testified to defendant’s state of mind in submitting his claim. We conclude his testimony would have been of marginal relevance and essentially cumulative.

The trial court’s ruling on the relevance and thus the admissibility of the expert witness’s proposed testimony was well within the trial court’s discretion, and we see no abuse of that discretion.

As to defendant’s further claim, that the trial court’s exclusion of his expert witness’s testimony violated his constitutional right to present a defense, we disagree with this characterization. First, as noted above, we find no error. Second, “ ‘[a]s 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.]

It follows, for the most part, that the mere erroneous exercise of discretion under such ‘normal’ rules does not implicate the federal Constitution. Even in capital cases, we have consistently assumed that when a trial court misapplies Evidence Code section 352 to exclude defense evidence, including third-party-culpability evidence, the applicable standard of prejudice is that for state law error, as set forth in People v. Watson (1956) 46 Cal.2d 818, 836 (error harmless if it does not appear reasonably probable verdict was affected). [Citations.]” (People v. Cudjo (1993) 6 Cal.4th 585, 611; see also People v. Rodriguez, supra, 20 Cal.4th 1, 10, fn. 2.)

In addition, defendant did not assert a violation of his constitutional rights below. As the Supreme Court explained in People v. Alvarez (1996) 14 Cal.4th 155, 186), “ ‘It is, of course, “the general rule“ ‘--to which we find no exception here--’ “that questions relating to the admissibility of evidence will not be reviewed on appeal in the absence of a specific and timely objection in the trial court on the ground sought to be urged on appeal.” ‘ [Citations.] There was neither a ‘specific’ nor ‘timely’ objection below predicated on the Sixth Amendment’s confrontation clause.” (See also Evid. Code, §§ 353, 354.) Defendant disagrees that he should be prohibited from raising a constitutional claim that was not asserted below and points to the recent case from our Supreme Court, People v. Partida (2005) 37 Cal.4th 428. But the Partida court’s holding was narrow: “[T]o the extent defendant asserts a different theory for exclusion [of evidence] than he asserted at trial, that assertion is not cognizable. But he primarily argues that the court erred in admitting the evidence because it was more prejudicial than probative under Evidence Code section 352, which was precisely his trial objection, and which was the basis for the Court of Appeal’s finding of error. Defendant also argues that this error had the legal consequence of violating his due process rights. This he may do.” (Id. at pp. 438-439.) Here, it is arguable whether defendant’s claim of error in the trial court’s ruling not to admit the testimony could be expanded to include a claim of constitutional violation. However, such an error “results in a due process violation only if it makes the trial fundamentally unfair. [Citations.]” (Id. at p. 439.) In this case, we concluded there was no error under state law, and thus there is no possibility of a fundamentally unfair trial.

II. Jury Instructions Regarding Specific Intent to Defraud

Defendant also contends that the trial court failed in its duty to instruct the jury on mistake negating the specific intent to commit fraud. He claims that his mistake of law, i.e. that he did not know that the law prevented him from collecting damages for his pain and suffering, was a defense to the charge of fraud because it negated his specific intent to defraud the insurance company by claiming he was insured at the time of the accident.

A. Background

The trial court instructed the jury on the elements of the alleged crime of fraud in count 2 according to CALJIC No. 15.40: “Every person who, with specific intent to defraud, either directly and actively, or aids and abets to knowingly present or causes to be presented any false or fraudulent claim for the payment of a loss or injury, including payment of a loss or injury under a contract of insurance, is guilty of a violation of Penal Code [section] 550[, subdivision] (a)(1), a crime.

In order to prove this crime, each of the following elements must be proved: One, a person either directly and actively or aided and abetted, knowingly presented or caused to be presented any false or fraudulent claim for the payment of a loss or injury, including payment of a loss or injury under a contract of insurance; and two, that person acted with the specific intent to defraud.”

The instruction on count 3 was similar: “Every person who, with specific intent to defraud, either directly and actively or aids and abets, solicits, or conspires with any person to knowingly prepare, make or subscribe any writing, with the intent to present or use it, or to allow it to be presented in support of any false or fraudulent claim is guilty of a violation of Penal Code [section] 550[, subdivision] (a)(5), a crime.

In order to prove this crime, each of the following elements must be proved: One, a person either directly and actively or aided and abetted, knowingly prepared, made, or subscribed any writing with the intent to present or use it or to allow it to be presented in support of any false or fraudulent claim; and two, that person acted with specific intent to defraud.”

The jury was further instructed: “An intent to defraud is an intent to deceive another person for the purpose of gaining some material advantage over that person or to induce that person to part with property or to alter that person’s position to his injury or risk and to accomplish that purpose by some false statement, false representation of fact, wrongful concealment or suppression of truth, or by any other artifice or act designed to deceive.” (CALJIC No. 15.26.) The court also instructed on the definition of “knowingly” and on the union of act and specific intent: “The word ‘knowingly’ means with knowledge of the existence of the facts in question. Knowledge of the unlawfulness of any act or omission is not required. In the crimes charged, there must exist a union or joint operation of act or conduct and a certain specific intent in the mind of the perpetrator. Unless this specific intent exists, the crime to which it relates is not . . . committed.

The specific intent required is included in the definitions of the crimes set forth elsewhere in these instructions.” (CALJIC Nos. 1.21, 3.31.)

Defendant argues that CALJIC No. 1.21, defining “knowingly,” should not have been given because it conflicted with his potential defense of a mistake of law. He explains that the prosecution’s theory was that he submitted a claim for noneconomic damages (pain and suffering) when he knew he was uninsured and therefore was not entitled to such damages. Defendant maintains that the prosecution was obligated to prove that he knew he was not entitled to such damages in order to show that he acted with a specific intent to defraud. The Attorney General responds that there was no evidence of such a defense by defendant and that in any event, the jury resolved any issue of mistake against defendant in the verdict on count 3. Defendant further asserts that he was not required to object to CALJIC No. 1.21 or to propose any additional instructions because the trial court had a sua sponte duty to instruct on his defense.

B. Analysis

It is well established that “ ‘ “in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citations.] The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury’s understanding of the case.” [Citation.]’ “ (People v. Breverman (1998) 19 Cal.4th 142, 154.)

It is also well established that “a trial court’s duty to instruct, sua sponte, or on its own initiative, on particular defenses is more limited, arising ‘only if it appears that the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant’s theory of the case.’ [Citations.]” (People v. Barton (1995) 12 Cal.4th 186, 195.) Thus, a trial court has no duty to instruct the jury on a defense unless it is supported by substantial evidence. (People v. Curtis (1994) 30 Cal.App.4th 1337, 1355.) Substantial evidence in this context has been explained as “ ‘evidence sufficient to deserve consideration by the jury, i.e,. evidence from which a jury composed of reasonable [persons] could have concluded that the particular facts underlying the instruction did exist. [Citation.]’ “ (People v. Strozier (1993) 20 Cal.App.4th 55, 63.)

We further note that error in failing to instruct may be harmless. “[A] failure to instruct where there is a duty to do so can be cured if it is shown that ‘the factual question posed by the omitted instruction was necessarily resolved adversely to the defendant under other, properly given instructions.’ [Citation.]” (People v. Stewart (1976) 16 Cal.3d 133, 141.)

As discussed above, in finding defendant guilty on count 3, the jury concluded that defendant knowingly prepared a false claim for lost wages with a specific intent to defraud. This false wage claim was also one of two acts put forth as the fraudulent claim charged in count 2, for the crime of submitting a fraudulent claim for payment of a loss under a contract of insurance. Therefore, the factual question as to whether defendant made a false wage claim was resolved adversely to defendant under the properly given instruction on count 3.

Furthermore, the record reflects no substantial evidence from which defendant was entitled to claim a good faith mistake of law that negated his specific intent to defraud on the other possible act charged in count 2, submitting a false claim that he had liability insurance at the time of the accident. In his reply brief, defendant points to evidence in support of his defense: that Attorney Herns was uncertain as to exactly what he told defendant about Proposition 213, and that it was reasonable for defendant to rely on his attorney to know the law, to properly investigate and to make an appropriate claim. We do not view this as sufficient “evidence” from which a jury could have concluded defendant was unaware that he was uninsured and not entitled to noneconomic damages. According to attorney Herns, even if he could not recall the specific details of his conversations with defendant, he always informed his clients about the general terms and restrictions of Proposition 213. And Herns relied on defendant’s repeated statements that he had insurance coverage at the time of the accident. Defendant also asserts that testimony from his expert witness would have supported his good faith mistake of law defense, but his proposed witness could not testify about defendant’s state of mind. Nor would his testimony have differed from that of Herns or Morrison on the requirements of Proposition 213. If the evidence to support a theory of defense is minimal or insubstantial, a court need not instruct on its effect. (See People v Rodriguez (1997) 53 Cal.App.4th 1250, 1269.)

Defendant relies on the cases of People v. Urziceanu (2005) 132 Cal.App.4th 747 and People v. Vineberg (1981) 125 Cal.App.3d 127, for his assertion that a mistake of law is a defense when it negates the existence of the defendant’s specific intent. But in each case, the defendant presented evidence in support of his mistake of law defense: In Urziceanu, the defendant was charged with various crimes concerning the cultivation and sale of marijuana, with the jury finding him guilty only of the crime of conspiracy to sell marijuana. One of defendant’s primary arguments had been that the Medical Marijuana Program Act and the Compassionate Use Act supplied him with a defense and the trial court should have instructed the jury on his defenses of mistake of law and the vagueness of the Compassionate Use Act. The reviewing court concluded that evidence existed to support defendant’s good faith mistake of law, which although not a defense to the crime of selling marijuana, was a defense to the conspiracy to commit that crime. The court noted that the defendant had presented evidence that he contacted law enforcement officers and other public officials and attempted to cooperate with them to ensure that his organization met the requirements of the Compassionate Use Act. (People v. Urziceanu, supra, at pp. 766, 774-779.) Similarly, in Vineberg, the defendants presented evidence that they believed they had the right to appropriate the property of another. However, they presented no evidence to show that their belief was in good faith. The reviewing court concluded: “In the absence of some evidence from which it can be inferred that defendants’ alleged belief in the lawfulness of their conduct was in good faith, the court was under no duty to instruct the jury that a good faith mistake of law constituted a defense to the action.” (People v. Vineberg, supra, 125 Cal.App.3d at p. 138, fn. omitted; see also People v. Stewart, supra, 16 Cal.3d 133, 138.)

Here, defendant presented no evidence that he believed his conduct was lawful or that such a belief was held in good faith. We conclude that the trial court had no duty to instruct on a mistake of law defense.

III. Other Arguments

Defendant raises two final arguments, both dependent on our review finding error in the previous two arguments: ineffective assistance of counsel and cumulative prejudice. Neither has merit.

A. Ineffective Assistance of Counsel

Defendant argues that his trial counsel was ineffective because he failed to assert federal constitutional grounds for the admission of the expert witness testimony, i.e., his right to present a defense, and because counsel failed to object to the standard jury instructions given or to request special jury instructions on his defense of mistake of law.

“The constitutional standard for determining whether counsel has failed to provide adequate legal representation is by now well known: First, a defendant must show his or her counsel’s performance was ‘deficient’ because counsel’s ‘representation fell below an objective standard of reasonableness

. . . under prevailing professional norms.’ [Citations.] Second, he or she must then show prejudice flowing from counsel’s act or omission. [Citations.] We will find prejudice when a defendant demonstrates a ‘reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ [Citations.]” (People v. Gurule (2002) 28 Cal.4th 557, 610.)

Here, we have concluded there was no error in the trial court’s refusal to admit the testimony of defendant’s expert witness and no error in the jury instructions. Defendant received effective assistance of counsel and a fair trial.

B. Cumulative Prejudice

Defendant further contends that he was prejudiced by the cumulative errors, even if no error by itself warranted reversal. He claims that the cumulative impact of the assigned errors above went to the heart of his defense and thus “r[o]se by accretion to the level of reversible and prejudicial error.” (People v. Hill (1998) 17 Cal.4th 800, 844.)

The Attorney General acknowledges that in a close case cumulative errors could lead to such prejudice that a defendant is entitled to a reversal of his or her conviction. (See People v. Bunyard (1988) 45 Cal.3d 1189, 1236; see also People v. Hill, supra, 17 Cal.4th at p. 844.) But in order to reverse a judgment, there must be a clear showing of a miscarriage of justice. (Ibid.)

Here we have concluded there were no errors and no showing of a miscarriage of justice. (See People v. Coffman and Marlow (2004) 34 Cal.4th 1, 129.)

DISPOSITION

The judgment is affirmed.

Duffy, J.

WE CONCUR:

Mihara, Acting, P.J.

McAdams, J.

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[1] Added by Initiative Measure (Prop. 213, § 3, approved Nov. 5, 1996, effective November 5, 1996.)

[2] All further statutory references are to the Penal Code unless otherwise stated.

[3] The five year term on the present convictions included one year for count 2 (one-third of the midterm), two years for the on-bail enhancement (§ 12022.1), and one year for each of the two prior prison term enhancements (§ 667.5, subd. (b)). The midterm on count 3 was stayed. (§ 654.)