Filed 12/29/17 P. v. Huerta CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR


THE PEOPLE,
Plaintiff and Respondent,
v.
NICHOLAS PERCY HUERTA,
Defendant and Appellant.

A145956

(Solano County
Super. Ct. No. FCR306468)


I. INTRODUCTION
A jury convicted Nicholas Huerta of felony theft from an elder of property valued more than $950 (Pen. Code, § 368, subd. (d); count 1), misdemeanor forgery (Pen. Code, § 470, subd. (d); counts 2–4), and misdemeanor theft from an elder of property valued less than $950 (Pen. Code, § 368, subd. (d); count 5). The convictions arose from the unauthorized cashing of three checks defendant wrote on a credit card account belonging to his elderly father. The prosecution presented evidence that defendant’s handwriting was on all three checks; that defendant arranged for an acquaintance, Rita Fong, to cash the checks and deliver the money to him; and that defendant later admitted culpability in a jail phone call with his father. During trial, the court allowed the prosecution to present evidence that defendant had previously obtained credit cards in his father’s name without permission and made charges on the accounts. The jury was instructed that it could consider these prior uncharged acts as evidence of defendant’s propensity to commit elder abuse against his father. After the conclusion of evidence, the court refused defendant’s request for an instruction that the jury must determine whether Fong was an accomplice.
Defendant appeals from the judgment, arguing: (1) the admission of the propensity evidence and the accompanying jury instruction (CALCRIM No. 853) violated his due process rights by lessening the prosecution’s burden of proof; (2) the propensity evidence was unduly prejudicial in violation of Evidence Code section 352; and (3) the trial court erred by failing to give the requested accomplice instruction. We affirm.
II. FACTUAL AND PROCEDURAL BACKGROUND
Defendant and Fong were acquaintances who met several years ago through defendant’s friend and Fong’s boyfriend, Joshua Gale. At trial, Fong testified that on three occasions in or around January 2013, December 2013, and January 2014, defendant asked her to meet him at Travis Credit Union in Vacaville, where both Fong and defendant’s father, P.H., had accounts. On each occasion, defendant presented Fong with a check drawn on his father’s credit card account and already written out to her and asked her to cash it and deliver the money to him. Defendant explained that he had obtained money from a settlement with Home Depot, but since he did not have a bank account, the money had been deposited into his father’s account. Defendant told Fong that he needed the money for a car, and the second check had “buy car” written on the memo line. Fong, who is hearing impaired, was familiar with defendant’s handwriting because they had previously communicated in writing, and she recognized defendant’s handwriting on all three checks.
Fong agreed to cash the checks for defendant. She testified that she had no idea the checks were fraudulent at the time she cashed them. On each occasion, defendant remained outside while Fong cashed the check. Fong endorsed the checks and asked the teller if the checks were “good,” and the teller confirmed that they were. After Fong received the money from the teller, she delivered the cash to defendant. On the second and third occasions, defendant told Fong to keep $40 for herself, which she did before giving the remainder to defendant.
On cross-examination, Fong was questioned as to why she was willing to help defendant. She admitted that in January 2013, she had called the police and accused defendant of stealing her son’s cell phone. She explained that, although she was upset at defendant, he apologized and she forgave him, and she thought he had changed and did not want to steal again.
Travis Credit Union employee Cindy Klyberg testified that she was familiar with Fong because Fong was a regular customer whom she had assisted using sign language. Klyberg also knew P.H., another regular customer of the credit union. In December 2013, P.H. approached Klyberg inquiring about his credit card balance. Klyberg researched P.H.’s account history and brought the subject transactions to his attention, but he did not recognize them. Klyberg’s manager inquired further into the specific transactions and saw Fong’s name on the checks. Klyberg contacted Fong and told her that the second and third checks were fraudulent. Fong told Klyberg that defendant had given the checks to her. Fong asked Klyberg to help her file a report with the police department. On December 22, 2013, Fong went to the police department and met with Officer Aaron Dahl. With Klyberg’s assistance, Fong gave a statement to the police that defendant had given her the checks. Fong also gave her consent for the police to access her credit union records. The credit union ultimately took $877 from Fong’s account to cover the fraudulent checks, and she never received the money back.
Travis Credit Union custodian of records Keri Jean Mahaffey-Gignoux testified that three fraudulent checks had been cashed against P.H.’s credit card account in the amounts of $500, $850, and $900, payable to Rita Fong. Mahaffey-Gignoux further testified, based on her training and experience in comparing signatures, that the three checks did not bear P.H.’s actual signature when compared to his signature card, and the three checks appeared to be written by the same individual.
P.H. testified that he was 82 years old at the time of trial and had had a checking account with Travis Credit Union for approximately 20 years. He first realized there was fraudulent activity on his account when he noticed his credit card balance had increased significantly, so he went to the credit union and learned about the checks cashed by Fong. P.H. testified that he did not know Fong and never sold her a car or bought a car from her. Although he and defendant bought cars together, repaired them, and resold them for a profit, P.H. paid for the cars in cash and only accepted cash for the cars. He further testified that he did not write any of the checks to Fong, and he did not give defendant permission to fill out the checks, sign his name on the checks, or write any checks to Fong. Although he sometimes received these checks in the mail attached to his credit card statements, he did not usually use the checks. However, there was no lock on the mailbox where P.H. received the checks attached to his credit card statements. P.H. further testified that his son used to live with him a “couple of years ago” and was living with him “off and on” in December 2013. On cross-examination, P.H. confirmed that he told a police officer in December 2013 that defendant was living out in the Bay Area and that he had not seen his son in a couple of months.
Before trial, the prosecution moved in limine pursuant to Evidence Code sections 1101, subdivision (b), and 1109 to introduce evidence of prior uncharged acts involving defendant’s use of two credit card accounts that were opened in P.H.’s name without his permission. Over defendant’s objection, the evidence was admitted, and P.H. was questioned about this incident. He testified that in January 2013, he was contacted by two companies, Sears and Citibank, claiming he owed money on credit cards. He testified that he did not open those accounts or use those cards to make purchases. He contacted the police department and met with Officer Aaron Love on January 28, 2013. Officer Love testified that P.H. told him he had found on his credit card history a Citibank account and a Sears account that he had never opened. Officer Love asked P.H. if he had given anyone permission to obtain those credit cards, and he said he had not. P.H. further told Officer Love that he approached defendant about the credit cards, defendant told him that the cards came in the mail, and defendant thought they were for him, so he began making charges on those accounts. Ultimately, defendant paid the balances on both credit cards.
A recorded jail phone call between defendant and P.H. was played for the jury and entered into evidence at trial. In closing argument, the prosecutor summarized portions of the call:
“But the defendant he says, ‘So I’ll see you in a couple years maybe, who knows,’ to his father, ‘but that’s the way it goes when you mess around.’ His father says, ‘For what? Messing around for what?’ ‘For them checks and the credit card of yours.’ . . . He continues to say, ‘Well, I’m just going to blame it on Josh. That’s what I’m going to do to try to get out of it.’ He goes on to say—you’ll hear in the jail call, ‘I’m done. It’s over. I’ve got a warrant of $350,000 bail for that stupid fraud stuff with, you know, whatever. So it’s—I’m done. It’s over. Okay. I won’t be getting out of jail. I won’t do nothing for a long time. Tell the lawyer to forget about it. He told me to stay out of trouble.’ ”
After the conclusion of evidence, defendant requested that the court instruct the jury to determine whether Fong was an accomplice. The trial court denied the request, finding that, based on all the evidence, Fong’s acts of taking a check into the credit union knowing that defendant had signed them for his elderly father did not make her an aider and abettor or a coconspirator with intent to defraud.
The jury found defendant guilty on all counts. In a bifurcated trial, the court found true the allegation that defendant had suffered seven prior prison commitments and sentenced defendant to six years in state prison.
Defendant timely appealed. (Pen. Code, § 1237, subd. (a) [appeal from final judgment of conviction].)
III. DISCUSSION
A. Evidence of Prior Instances of Elder Abuse
Evidence that a defendant committed an uncharged offense ordinarily is inadmissible to prove the defendant’s disposition to commit the charged offense. (Evid. Code, § 1101, subd. (a).) However, the Legislature has created exceptions to this rule in cases involving sexual offenses (id. § 1108), domestic violence, elder abuse, and child abuse (id. § 1109, subd. (a)(1)–(3)).
Evidence Code section 1109, subdivision (a)(2), provides in relevant part that “in a criminal action in which the defendant is accused of an offense involving abuse of an elder or dependent person, evidence of the defendant’s commission of other abuse of an elder or dependent person is not made inadmissible by Section 1101 if the evidence is not inadmissible pursuant to Section 352.” (Evid. Code, § 1109, subd. (a)(2).) “ ‘Abuse of an elder or dependent person’ means physical or sexual abuse, neglect, financial abuse, abandonment, isolation, abduction, or other treatment that results in physical harm, pain, or mental suffering, the deprivation of care by a caregiver, or other deprivation by a custodian or provider of goods or services that are necessary to avoid physical harm or mental suffering.” (Id., subd. (d)(1).)
In admitting the evidence of defendant’s prior uncharged acts pursuant to section 1109, the trial court implicitly found the evidence to involve “financial abuse” of an elder. Although “financial abuse” is not defined in section 1109, it is defined in the Elder Abuse and Dependent Adult Civil Protection Act (Welf. & Inst. Code, § 15600 et seq.) in relevant part as when a person “[t]akes, secretes, appropriates, obtains, or retains real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud, or both” or “[a]ssists in” such actions. (Id. § 15610.30, subd. (a)(1)–(2).) A person is deemed to have engaged in such actions for a wrongful use “if, among other things, the person or entity takes, secretes, appropriates, obtains, or retains the property and the person or entity knew or should have known that this conduct is likely to be harmful to the elder or dependent adult.” (Id., subd. (b).) Based on these definitions, the trial court correctly found that defendant’s prior uncharged acts constituted “financial abuse” within the meaning of section 1109, subdivision (d)(1). Given that P.H. never gave defendant permission to open credit cards in his name and accrue debt on those accounts, these acts were sufficient takings or appropriations of the personal property of an elder for a wrongful use.
The jury was given the following instruction pursuant to CALCRIM No. 853 regarding defendant’s prior uncharged acts of elder abuse:
“The People presented evidence that the defendant committed abuse of an elder that was not charged in this case, specifically: identity theft of an elder. Abuse of an elder includes financial abuse.
“An elder is a person residing in California who is age 65 or older.
You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant in fact committed the uncharged abuse of an elder. Proof by a preponderance of the evidence is a different burden of proof from 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 of proof, you must disregard this evidence entirely.
“If you decide that the defendant committed the uncharged abuse of an elder, you may, but are not required to, conclude from that evidence that the defendant was disposed or inclined to commit abuse of an elder, and based on that decision, also conclude that the defendant was likely to commit and did commit forgery and theft from an elder, as charged here. If you conclude that the defendant committed the uncharged abuse of an elder, 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 forgery and theft from an elder. The People must still prove each charge beyond a reasonable doubt.”
1. Constitutionality of Evidence Code Section 1109
Defendant argues that Evidence Code section 1109 and CALCRIM No. 853 are facially unconstitutional and violative of due process because they permit the use of prior crimes as predisposition evidence and lessen the prosecution’s burden of proof. Defendant contends that, based on the wording of CALCRIM No. 853 and the sequence of instructions therein, the jury is permitted to arrive at a conclusion of guilt before beginning the process of deliberating on the elements of the charged offense.
Although the California Supreme Court has not ruled on the constitutionality of section 1109, it has held that the closely analogous provisions in section 1108 conform with the requirements of due process. (People v. Falsetta (1999) 21 Cal.4th 903, 922.) Many intermediate courts, including our own division, have consistently followed the reasoning of Falsetta in upholding section 1109 against similar due process challenges. (See this court’s decisions in People v. Price (2004) 120 Cal.App.4th 224, 240 and People v. Escobar (2000) 82 Cal.App.4th 1085, 1095–1096; see also People v. Johnson (2010) 185 Cal.App.4th 520, 529; People v. Williams (2008) 159 Cal.App.4th 141, 145–147; People v. Cabrera (2007) 152 Cal.App.4th 695, 704; People v. Brown (2000) 77 Cal.App.4th 1324, 1328–1329, 1334; People v. Jennings (2000) 81 Cal.App.4th 1301, 1309–1310; and People v. Johnson (2000) 77 Cal.App.4th 410, 420.)
Defendant’s specific argument about the sequence of instructions in CALCRIM No. 853 does not compel us to reach a different result. First, defendant’s premise is flawed; CALCRIM No. 853 does not instruct the jury to focus on evidence of defendant’s prior conduct before it considers the evidence underlying the charged crimes. Second, defendant’s argument is based on reading one sentence in isolation: “If you decide that the defendant committed the uncharged abuse of an elder, you may . . . conclude from that evidence that the defendant . . . did commit forgery and theft from an elder, as charged here.” However, the next two sentences clarify that the conclusion that the defendant committed the uncharged acts “is only one factor to consider along with all the other evidence” and “is not sufficient by itself to prove that the defendant is guilty of forgery and theft from an elder.” When the challenged portion is properly read in the context of the instruction as a whole, it is not reasonably likely to cause the jury to prematurely conclude guilt for the charged offense based on the proof of uncharged conduct. (See People v. Reliford (2003) 29 Cal.4th 1007, 1013, 1015–1016.) Moreover, the jury was instructed to consider all of the instructions as a whole, and they were told repeatedly that they could not find defendant guilty of any crime unless they found unanimously that each element of that crime had been proven beyond a reasonable doubt. There is no danger defendant was convicted on a lesser standard. (See id. at pp. 1013–1014.)
Defendant maintains, for purposes of preserving the issue for federal court review, that Falsetta and Reliford were wrongly decided. However, we are bound to follow the decisions of our Supreme Court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Thus, we affirm the continuing viability of the above cases in finding that section 1109 and CALCRIM No. 853 are not facially unconstitutional or violative of due process.
2. Evidence Code Section 352
Evidence Code section 352 “serves as a safety valve for section 1109 that prohibits the admission of uncharged elder abuse evidence whenever its prejudicial impact substantially outweighs its probative value.” (People v. Fruits (2016) 247 Cal.App.4th 188, 201.) “Under section 352, a trial court may in its discretion exclude material evidence if its probative value is substantially outweighed by the probability that its admission will necessitate undue consumption of time, or create a substantial danger of undue prejudice, confusion of the issues, or misleading the jury. . . . We will not overturn or disturb a trial court’s exercise of its discretion under section 352 in the absence of manifest abuse, upon a finding that its decision was palpably arbitrary, capricious and patently absurd.” (Jennings, supra, 81 Cal.App.4th at p. 1314.)
The factors to be considered in conducting the Evidence Code section 352 weighing process are: “(1) whether the propensity evidence has probative value, e.g., whether the uncharged conduct is similar enough to the charged behavior to tend to show the defendant did in fact commit the charged offense; (2) whether the propensity evidence is stronger and more inflammatory than evidence of the defendant’s charged acts; (3) whether the uncharged conduct is remote or stale; (4) whether the propensity evidence is likely to confuse or distract the jurors from their main inquiry, e.g., whether the jury might be tempted to punish the defendant for his uncharged, unpunished conduct; and (5) whether admission of the propensity evidence will require an undue consumption of time. [Citation.] A trial court balances this first factor, i.e., the propensity evidence’s probative value, against the evidence’s prejudicial and time-consuming effects, as measured by the second through fifth factors.” (People v. Nguyen (2010) 184 Cal.App.4th 1096, 1117.)
Defendant argues that the evidence of prior uncharged acts was “excessive” and dissimilar to the charged offense because it did not show that a crime had been committed, in light of the fact that defendant admitted to using the credit cards and eventually paid the balances. In prior offenses, defendant used credit cards in his father’s name that he had taken out of his father’s mailbox without his father’s permission. In the present case, the jury could conclude from the evidence that defendant wrote checks in his father’s name that were attached to credit card statements defendant had taken out of his father’s mailbox without his father’s permission. Defendant’s contention that his prior conduct was not criminal is quite dubious; his claim that he thought the credit cards were his to use is belied by the fact that they were in his father’s name. And evidence that, when caught, defendant admitted that he had used his father’s credit cards and later paid off the charges hardly makes his conduct any less criminal. (See Pen. Code, § 530.5, subds. (a) [identity theft], (e) [mail theft].)
More importantly, “[t]he weighing process under section 352 depends upon the trial court’s consideration of the unique facts and issues of each case, rather than upon the mechanical application of automatic rules.” (Jennings, supra, 81 Cal.App.4th at p. 1314.) Considering the unique facts and issues of this case, the trial court reasonably concluded that the uncharged and charged acts were similar: Both involved defendant stealing comparable financial instruments (credit cards and checks attached to credit card statements) belonging to the same victim from the same mailbox. The uncharged conduct was not remote or stale in time; defendant used the credit cards at or around the same time as the first act of check fraud in January 2013 and within a year of the second and third acts of check fraud in December 2013 and January 2014, respectively. It was not arbitrary, capricious, or absurd for the trial court to conclude that the prior uncharged acts were sufficiently similar to the charged offenses and therefore had probative value. (Id. at pp. 1314–1315.)
Defendant argues the evidence of prior uncharged acts was likely to confuse or distract the jury because there was a lack of direct evidence implicating defendant in the current check fraud, and thus, there was a significant risk that the jury would give too much weight to the uncharged acts. Defendant also claims there was risk of jury confusion because the propensity evidence was presented in an integrated fashion with the evidence of the charged offense. We are not persuaded by these arguments. There was indeed compelling evidence directly implicating defendant in the check fraud: Fong’s testimony, which, in conjunction with the testimony of the credit union employees and P.H., was the main focus of the prosecution’s case. Given the discrete nature of the uncharged offenses relating to P.H.’s credit cards, as well as the fact that only one additional witness (Officer Love) was called to testify, we find no merit in defendant’s contention that this evidence was likely to create a substantial danger of confusing or distracting the jury or constituting an undue consumption of time. Nor were the prior offenses so inflammatory that the jury would be likely to convict defendant on the current charges only because of his past conduct.
We conclude the trial court did not abuse its discretion in admitting the evidence of the prior acts related to P.H.’s credit cards because the evidence tended in reason to show that defendant had a propensity for using his father’s financial instruments, adopting his father’s identity, and enriching himself at his elderly father’s expense, while the potential undue prejudice claimed by defendant was neither likely nor substantial. (See Nguyen, supra, 184 Cal.App.4th at p. 1117.)
B. Failure to Instruct That Fong Might Be an Accomplice
Defendant argues the trial court should have instructed the jury under CALCRIM No. 334 to determine whether Fong was an accomplice because there was sufficient evidence that her role in the crime was more significant than she suggested. Defendant argues that he was prejudiced by the trial court’s failure to give an accomplice instruction because Fong’s uncorroborated testimony was the only evidence implicating him in the crime, and thus he was convicted solely based on uncorroborated accomplice testimony.
“A conviction can not be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof. An accomplice is hereby defined as one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given.” (Pen. Code, § 1111.)
“The court need give [jury instructions on accomplice status] only where there is substantial evidence that the witness was an accomplice.” (People v. Boyer (2006) 38 Cal.4th 412, 466–467.) “ ‘[W]here, as a matter of law, the witness is not an accomplice, the court does not err in refusing to charge that he is or in refusing to submit the issue to the jury. But where it is for the jury to determine whether or not the witness is an accomplice, the court should so charge, and should instruct as to what constitutes an accomplice. [Citations.]’ ” (People v. Cisneros (1973) 34 Cal.App.3d 399, 413–414.)
“ ‘An accomplice must have “ ‘guilty knowledge and intent with regard to the commission of the crime.’ ” [Citation.]’ ” (Boyer, supra, 38 Cal.4th at p. 467.) “[A]n aider and abettor is chargeable as a principal only to the extent he or she actually knows and shares the full extent of the perpetrator’s specific criminal intent, and actively promotes, encourages, or assists the perpetrator with the intent and purpose of advancing the perpetrator’s successful commission of the target offense.” (People v. Snyder (2003) 112 Cal.App.4th 1200, 1220, original italics.) “A person may aid and abet a criminal offense without having agreed to do so prior to the act. [Citations.] In fact, it is not necessary that the primary actor expressly communicate his criminal purpose to the defendant since that purpose may be apparent from the circumstances.” (People v. Nguyen (1993) 21 Cal.App.4th 518, 531–532.)
We agree with the trial court that there was insufficient evidence of Fong’s guilty knowledge and intent to justify an accomplice instruction. Fong testified that she did not know the checks were fraudulent at the time she cashed them, and there was no contrary evidence. Defendant argues that Fong’s guilty knowledge can be inferred from her recognition of defendant’s handwriting on the checks. We disagree because the mere presence of defendant’s handwriting on the checks did not prove Fong’s knowledge that defendant wrote the checks out without his father’s permission. Fong was given an innocent explanation for why the checks were written out to her (i.e., defendant lacked a bank account, so his Home Depot settlement money was deposited into his father’s account), and she asked the teller to confirm that the checks were “good” before proceeding to cash them. All of the uncontroverted evidence pointed to Fong’s lack of guilty knowledge and intent in cashing the checks for defendant. As soon as she learned the checks were fraudulent, Fong reported the fraud to the police.
Defendant suggests that Fong was an accomplice because she had no other reason to help defendant after he stole her son’s phone. However, Fong testified that defendant apologized to her and she forgave him. Furthermore, even if Fong had lingering animosity against defendant, we believe this would reduce, not increase, her incentive to aid and abet his crimes.
Finally, if error occurred, it was harmless. “Even where accomplice instructions were required, we have found no prejudice where, in fact, the witness’s testimony was sufficiently corroborated. [Citation.] ‘ “Such [corroborative] evidence ‘may be slight and entitled to little consideration when standing alone. [Citations.]’ ” [Citation.] “Corroborating evidence ‘must tend to implicate the defendant and therefore must relate to some act or fact which is an element of the crime but it is not necessary that [such] evidence be sufficient in itself to establish every element of the offense charged.’ [Citation.]” [Citation.]’ ” (Boyer, supra, 38 Cal.4th at p. 467.) The evidence “is sufficient if it tends to connect the defendant with the crime in such a way as to satisfy the jury that the accomplice is telling the truth.” (People v. Fauber (1992) 2 Cal.4th 792, 834–835.)
We find sufficient corroborating evidence in defendant’s own statements to his father during the jail phone call. Defendant’s statements that he “ ‘mess[ed] around’ ” with “ ‘them checks and the credit card of yours’ ” could be reasonably construed as admissions that he committed the acts for which he was charged. The jury could also consider defendant’s prior uncharged acts as propensity evidence against him. Taken together, the evidence of defendant’s propensity to steal his father’s identity and financial instruments along with his own inculpatory statements tended to connect him with the commission of the charged offense in a way that would have reasonably satisfied the jury that Fong was telling the truth. (Fauber, supra, 2 Cal.4th at pp. 834–835.) We accordingly find that any error in failing to instruct the jury on Fong’s accomplice status was harmless. (Boyer, supra, 38 Cal.4th at pp. 467–468.)
IV. DISPOSITION
The judgment is affirmed.





_________________________
KENNEDY, J.*


We concur:


_________________________
RUVOLO, P. J.


_________________________
REARDON, J.






















* Judge of the Superior Court of California, County of Contra Costa, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.