P. v. Scott

Filed 2/7/07  P. v. Scott CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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  This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

            APPEAL from a judgment of the Superior Court of San Diego County, Laura Palmer Hammes and David J. Danielsen, Judges.  Affirmed.

            In the present case (San Diego Super. Ct. no. SCD183946), a jury convicted Mark Anthony Scott of four counts of forgery (Pen. Code,^[1] §  470, subd. (d); counts 1-4) and two counts of grand theft (§  487, subd. (a); counts 5 & 6), arising out of two real estate transactions for which Scott was the real estate agent.  Scott then waived a jury trial and admitted he had suffered a prior serious felony conviction which constituted a strike under the Three Strikes law (§§  667, subds. (b)-(i), 1120.12).  Three weeks later, Scott pled guilty in San Diego Superior Court case number SCD194748 for failure to appear while on bail (§  1320.5) and pled guilty in San Diego Superior Court case number SCD186986 to writing a check on nonsufficient funds (§  476a, subd.(a)).  The trial court sentenced Scott to a total prison term of 10 years, consisting of seven years, four  months for this case plus 16 months consecutive for each of the other two cases.

            Scott appeals only from the current case, contending he was denied his federal constitutional right to due process because the court erroneously denied his motion to sever the forgery counts from the theft counts, erroneously excluded evidence under Evidence Code section 352 relevant to his defense, and erroneously admitted inconclusive testimony of a handwriting expert based on limited review of questioned documents.  Scott claims the cumulative effect of these errors of law denied him his federal and state constitutional rights to a fair trial.  We affirm.

FACTUAL BACKGROUND

            Because Scott does not challenge the sufficiency of the evidence to support his convictions, we set out separately the pertinent facts presented at trial regarding the two real estate transactions and the other evidence relating to both transactions as background for our discussion.

Counts 1 through 5

            In 2003, Richard Scott, Jr.,^[2] who lived on Blue Jay Way in Hemet, California, was behind in his mortgage payments and facing foreclosure.  Richard had known Scott, a licensed real estate salesperson, for over 20 years, and contacted him to sell the house.  In September 2003, the two men entered into a residential listing agreement, placing the house on the market for $350,000.  The agreement listed the real estate broker as the " Pittman Company," with Scott designated as the listing agent; elsewhere, however, " Scott Real Estate and Mortgage Services" was listed as the real estate brokerage.

            While the house was on the market, Richard left for Connecticut to care for his ill mother.  On December 6, 2003, Scott faxed a purchase offer to Richard in Connecticut from Nancy and Elizar Soto (the Sotos) for $287,000.  Finding the offer unacceptable, Richard agreed with Scott's suggestion to a counteroffer for " $325,000 or the appraised value."   Pursuant to Scott's instructions by telephone, Richard signed the Sotos's offer under a portion of the document reflecting he was accepting their offer even though he was submitting a counteroffer, and he did not check the box indicating there was a counteroffer.  When Richard questioned Scott about why he was not checking the counteroffer box, Scott said, " Don't worry about the box," and assured Richard they would " take care of the paperwork" when he returned to California.  Scott also told Richard that if the Sotos did not accept the counteroffer, there was another prospective

buyer who would do so at the price he wanted.  Richard faxed back the signed documents to Scott.  Scott later informed Richard that the Sotos had accepted the counteroffer for $325,000.  Richard never saw any additional counteroffers.

            On December 23, 2003, when Richard returned home, Scott had Richard come to his office in Chula Vista, California to sign closing documents for the sale of his house.  After signing several documents, the two men went together to a notary public's office to sign several other forms, including the grant deed to the Hemet property.  At that time, Scott reaffirmed to Richard that the purchase price was $325,000.

            In early January 2004, Richard was contacted by the Sotos's real estate agent, Silvia Gray, to do a final house inspection.  Later that month, after Richard had dropped off the keys to his house to Scott, he was notified by Gray, rather than Scott, that escrow had closed and that she was attempting to locate the keys for the house for the Sotos.  Ultimately, Richard received only $35,000 from the sale, far below the $100,000 he had anticipated receiving.  After hiring an attorney to investigate, Richard learned that the house did not sell for $325,000 as he had been led by Scott to believe, but that it had instead sold for only $285,000.

            In the escrow documents obtained by his attorney, Richard discovered a " Counteroffer #2," which offered to sell the house for $290,000, an " Addendum to Residential Purchase Agreement and Joint Escrow Instructions," two escrow amendments, agreeing to sell the house for $280,000 and $285,000, respectively, and a document authorizing Scott receive a $8,700 commission, all purportedly with his signature, which he had never seen or signed.  Richard had signed only one closing document -- a seller's information sheet that did not list a purchase price.  At some point, Scott was charged with four counts of forgery based on the second counteroffer, addendum and amendments and one count of grand theft based on the receipt of the commissions.

            In addition to the above evidence, the Sotos's agent Gray at trial provided many of the details of what occurred after Richard had made his $325,000 counteroffer.  At the same time that counteroffer was received, Gray received a flier advertising the house for somewhere in the range of $275,000 to $299,000.  On December 6, 2003, the Sotos responded to Richard's counteroffer with Counteroffer #2 for $290,000.  The acceptance was purportedly signed by Richard and sent from Scott's fax number.

            When Gray had the property appraised to complete the closing of escrow, the appraisal came in at $272,000, substantially lower than the purchase price.  Although the Sotos's counteroffer had made no reference to tying the purchase price to the appraised value of the house as had Richard's original counteroffer, Gray discussed amending the purchase price with Scott to reflect the lower appraised value.  On December 30, 2003, the Sotos signed an escrow amendment which lowered the purchase price to $280,000.  The next day, the escrow agent sent a copy of the amendment to Scott and then later that same day received a return facsimile from Scott attaching the escrow amendment with Richard's purported signature.

            In the meantime, Scott insisted upon a second appraisal.  When the appraisal valued the house at $285,000, the Sotos executed a second escrow amendment reflecting that amount as the new purchase price.  Upon receiving the second amendment on January 5, 2004, the escrow agent sent it to Scott, who returned it to the escrow agent on January 7, 2004, purportedly approved and signed by Richard.

            A search executed on Scott's home after this case was filed uncovered numerous documents, including several fax cover sheets:  (i) one dated December 5, 2003, to Gray discussing Richard's counteroffer, (ii) two dated December 31, 2003, attaching escrow amendments for Richard's home; (iii) another to Gray dated January 5, 2004, requesting, " Please have your buyers sign and fax to me so I can have my seller sign" ; and (iv) one dated January 6, 2004, to Gray stating that Scott had paid for the second appraisal on Richard's home.  Documents recovered from Scott's house also showed he received $8,700 as a commission and a $400 " transaction fee" based on the sale of Richard's house.

Count 6

            In January 2004, Xavier Avila, who was looking to purchase his first home, called Scott who was listed as the seller's agent for a condominium (condo) Avila saw that interested him.  Although Avila already had a real estate agent, he decided to go with Scott when Scott represented that he was a broker and could obtain better financing and a larger loan for Avila.  Although Scott told Avila he could preapprove him for a $250,000 purchase because he was a broker, he prepared a preapproval letter for Avila for $200,000, telling him that would be sufficient for the size of condo he wanted.

            With Scott's assistance, Avila proceeded to make offers on several condos.  For the first involving a condo on Hollister Street in San Diego, Scott told Avila to make out a check to Scott Real Estate to cover a " good faith estimate."   When Avila was outbid for the property, Scott returned Avila's check.

            When Avila later made an offer on a condo on Casey Street in San Diego for $250,000, he gave Scott a check for $2,500 made out to Scott Real Estate, which Scott represented would be deposited into an escrow account within three days.  Avila also gave Scott $300 for an appraisal and $35 for homeowner's fees for the Casey Street condo.  Avila then filled out a loan application based on Scott's representations that Avila was preapproved for the amount of the offer and that his monthly payments would be within a specified amount which Avila could financially handle.

            In March 2004, roughly a month after making the offer, Avila received a cancellation notice from the escrow agent.  When he contacted the escrow company, Avila learned that escrow had been cancelled because no money or loan application had ever been received from him as the buyer and that he would be charged fees for not closing escrow on time.  Under the purchase agreement for the Casey Street condo, Avila, as the buyer, had been required to deposit $2,500 into the escrow account.  Avila immediately called Scott, who reassured Avila that his money had been deposited into the escrow account.

            Avila, however, discovered from his bank that his $2,500 check had already been cashed and the funds removed from his account.  When he attempted to call Scott again about the matter, Scott avoided his calls.  Avila even went to Scott's home on two occasions, but Scott would not come to the door.  Although Avila eventually reached Scott several times by calling him from a blocked number, Scott hung up on him.  Avila ultimately was paid $3,250 to settle a lawsuit he filed to recover his money given to Scott for the Casey Street condo.

            In addition to the above evidence being presented at trial on the criminal charge of grand theft stemming out of Scott's taking of Avila's $2,500 check, Avila further testified that even before receiving the escrow cancellation notice, he had wanted to cancel escrow himself because he believed his monthly payments would be higher than originally represented to him by Scott.  Although he had received some loan documents from the bank showing his payment would be larger, he did not cancel escrow because he was afraid he would lose the money he believed had been deposited into the escrow account.  Avila said he lost his trust in Scott even before the cancellation notice.

            Real estate broker Francisco Marquez, responsible for supervising Scott who was working as a real estate salesperson for him from February 12, 2004 until May 9, 2004, had confronted Scott about cashing Avila's checks.  Although Scott initially denied doing so, he then admitted he had, but claimed it " had to do with the lease that he was performing for Mr. Avila."   Marquez explained that in the real estate industry, it is standard practice not to commingle client funds with an agent's personal funds.  Marquez paid the money to settle the lawsuit Avila had filed to obtain reimbursement for the funds he had given to Scott.

            Records recovered from Scott's house after these charges were filed stated he had received the $2,500 as commissions for the Avila transaction.  Scott's bank statement further showed that Avila's checks had been deposited into Scott's own personal account.

Other Evidence Regarding the Transactions

            David Oleksow, a forensic document examiner certified by the American Board of Forensic Document Examiners, who has been examining questioned documents and handwriting for over 30 years, testified about the process used in examining questioned documents and his examination of a number of the documents admitted at trial.  Oleksow explained that document examiners generally employ a nine-point scale to grade the certainty that a questioned document was written by a given individual.  At the top of the scale, a rank of " 1" comports with a definite, positive identification of a person as the author.  Conversely, a rank of " 9" equates with a positive determination that the individual is not the author.  The next level of findings equates a rank of " 2" with the " high probability" that the person is the author, while a rank of " 8" equates with a " high probability" that the person did not do the writing.  Similarly, the next level would be ranks of " 3" and " 7" which respectively equates with " probably did and did not" do the writing.  The weakest finding that leans one way or the other on the scale are ranks of " 4" and " 6."   " Indications that the person did write it is number 4 and indications the person may not be the writer is number 6."   A middle rank of " 5" is inconclusive either way.

            Using this scale, and reviewing handwriting samples from Scott, Richard, Gray and the escrow agent, Oleksow examined a number of the documents admitted at trial to determine the authorship of the various signatures, including the first and second escrow amendments, a commission authorization form, the escrow addendum, a faxed document from December 30, 2003, a faxed document from Scott to Richard dated December 6, 2003, the Sotos's second counteroffer, and the endorsement on Avila's check for $2,500.  Oleksow concluded that Scott had probably been the person who signed on the back of the check from Avila for $2,500.  Oleksow explained the basis for this conclusion to the jury, pointing out the similarities between the signature on the check and a handwriting exemplar Scott provided.  As for the commission authorization form and the escrow addendum, Oleksow concluded that there were indications Scott authored the signatures, giving the documents a rating of " 4."   The remaining documents were rated " 5," or inconclusive as to whether Scott had signed them.

            Oleksow, however, was able to rule out Gray and the escrow agent has having signed any of the questioned documents.  He also concluded it was highly probable (or an " 8" ) that Richard did not author any of the questioned signatures on the challenged documents, with the exception of the faxed cover sheet sent on December 6, 2003, purportedly from Scott to Richard, as to which he expressed no opinion.

DISCUSSION

I

SEVERANCE

            In limine, Scott brought a motion to sever counts 1 through 5 regarding forgery and grand theft charges stemming from the real estate transaction with Richard from the count 6 grand theft charge involving the Avila real estate transaction.  Scott claimed the charges were not properly joined because they were not of the same class, the transactions were not related, the charges were not cross-admissible and he would suffer prejudice in his ability to present separate defenses.

            The trial judge denied the motion, stating:

" In this case I considered that the two types of offenses are actually one type of offense and in a very significant way.  And this is where they are offenses of the same class or connected together in the commission.  And, that is, there is a substantial element of commonality between them, and that is the fact that the defendant used a position of trust as a real estate licensed individual to commit a rather blatant fraud in both cases to take money from clients.  [¶] And it's rare in itself for the Court to see real estate transactions used in this fashion.  So it's significantly unique in a way that the defendant would use the real estate license and the position of trust in a relationship, where the purpose is ostensibly to get the customer to either sell or to buy real estate and then to use a fraud to take money from them.  [¶] Now, the fact that, in one case, the alleged victim's signature was forged and then passed along or, in the other case, that money was accepted to go into escrow and then was never delivered, to me, is of minor importance.  [¶] The major factor in the two cases is the use of that position of trust, his professional standing, the fact that it was a real estate or ostensible real estate deal, and the use of escrow companies in both that make it so much in common.  [¶] So I do find they are offenses of the same class, or connected together in the commission.  I don't find that one of these, either Counts 1 through 5 or Count 6, is inflammatory.  Neither is clearly a strong or weak case.  They're not remote from each other.  [¶] So, all in all, I do not find that the counts should be severed or the defendant has met the burden of showing he would be unduly prejudiced by the fact that they are tried together."

            The court further found that count 6 would be cross-admissible on the issue of criminal intent for counts 1 through 5, which was another factor it considered in denying the motion.

            In his opening brief on appeal, Scott contended he was denied his federal constitutional right to due process because he was prejudiced by the joinder of the two theft charges with the four forgery charges.  He specifically argued the trial court abused its discretion in denying his motion to sever counts 5 and 6 from the remaining counts based on its misunderstanding and application of the law governing the admissibility of other crimes evidence under Evidence Code section 1101, subdivision (b) regarding the cross-admissibility of those counts to prove his criminal intent for the forgeries alleged in counts 1 through 4.  However, as the People point out, and Scott concedes in his reply brief, his initial appellate claim regarding the severance motion denial was erroneously presented based on a wrong statement of the facts by his appellate counsel.  Nevertheless, Scott maintains that even under the correct facts as argued below, the trial court abused its discretion in denying the severance motion because the two transactions were not related, the count 6 theft charge was not sufficiently similar to the other counts to be cross-admissible, the crimes of theft and forgery require different intents, and the evidence of the count 6 charge was stronger than the evidence on the other counts.  We conclude that the court's denial of severance was well within its discretion and that no due process violation by such denial is shown on this record.

            Generally, the denial of a severance motion is reviewed for abuse of discretion.  (People v. Osband (1996) 13 Cal.4th 622, 666.)  " A court abuses its discretion when its ruling 'falls outside the bounds of reason.'  "   (Ibid.)  We find the court's ruling on the motion to sever was reasonable.

            Under section 954, " [a]n accusatory pleading may charge two or more different offenses connected together in their commission . . . or two or more different offenses of the same class of crimes or offenses, under separate counts, . . . provided, that the court in which a case is triable, in the interests of justice and for good cause shown, may in its discretion order that the different offenses or counts set forth in the accusatory pleading be tried separately or divided into two or more groups and each of said groups tried separately . . . ."   " Offenses committed at different times and places against different victims are, nevertheless, 'connected together in their commission' when there is a 'common element of substantial importance' among them.  [Citations.]"   (People v. Matson (1974) 13 Cal.3d 35, 39.)

            The joinder of such related charges, "   'whether in a single accusatory pleading or by consolidation of several accusatory pleadings, ordinarily avoids needless harassment of the defendant and the waste of public funds which may result if the same general facts were to be tried in two or more separate trials [citation], and in several respects separate trials would result in the same factual issues being presented in both trials.'  [Citation.]"   (People v. Ochoa (1998) 19 Cal.4th 353, 409.)

            Here, counts 1 through 5 and count 6, all forgery and theft crimes, were clearly of the same class since all theft and forgery offenses are classified as crimes against property.  (See People v. Allen (1999) 21 Cal.4th 846, 866; People v. Thorn (1934) 138 Cal.App. 714, 734-735 (Thorn).)  Also, the counts were generally related, as the trial court found, by Scott using his position as a licensed real estate salesperson and his representations that he was a broker to obtain the trust of the client/victim in each transaction " to commit a rather blatant fraud in both cases to take money. . . ."   Joinder of such counts under section 954 was therefore appropriate and preferred unless Scott could make " a clear showing of potential prejudice" due to the consolidation of such properly joined counts.  (People v. Bradford (1997) 15 Cal.4th 1229, 1315 (Bradford).)  Scott failed to do so.

            "   '  " The burden is on the party seeking severance to clearly establish that there is a substantial danger of prejudice requiring that the charges be separately tried."   '  [Citation.]"   (Bradford, supra, 15 Cal.4th at p. 1315.)  Whether joinder of properly joined counts would cause prejudice depends on the circumstances of each case, " but certain criteria have emerged to provide guidance in ruling upon and reviewing a motion to sever trial."   (Frank v. Superior Court (1989) 48 Cal.3d 632, 639.)  The denial of a severance motion " may be an abuse of discretion where:  (1) evidence on the crimes to be jointly tried would not be cross-admissible in separate trials; (2) certain of the charges are unusually likely to inflame the jury against the defendant; (3) a 'weak' case has been joined with a 'strong' case, or with another 'weak' case, so that the 'spillover' effect of aggregate evidence on several charges might well alter the outcome of some or all of the charges; and (4) any one of the charges carries the death penalty or joinder of them turns the matter into a capital case.  [Citations.]"   (People v. Sandoval (1992) 4 Cal.4th 155, 172-173 (Sandoval), distinguished on another point in People v. Lewis (2001) 26 Cal.4th 334, 390.)

            These criteria, however, are not " equally significant."   (Bradford, supra, 15 Cal.4th at p. 1315.)  "   '[T]he first step in assessing whether a combined trial [would have been] prejudicial is to determine whether evidence on each of the joined charges would

have been admissible . . . in separate trials on the others.[^[3]]  If so, any inference of prejudice is dispelled.'  [Citations.]  Cross-admissibility suffices to negate prejudice, but is not essential for that purpose.  Although '  " we have held that cross-admissibility ordinarily dispels any inference of prejudice, we have never held that the absence of cross-admissibility, by itself, sufficed to demonstrate prejudice."   '  [Citation.]"   (Id. at pp. 1315-1316; fn. added.)

            " [T]he propriety of a ruling on a motion to sever counts is judged by the information available to the court at the time the motion is heard."   (People v. Cummings (1993) 4 Cal.4th 1233, 1284.)  In this case, the prosecutor originally argued the evidence that Scott had taken the money that was suppose to be deposited in escrow in a real estate transaction upon which the count 6 charge was based would be cross-admissible in a separate trial of the other counts to show Scott intended to defraud the people he represented in that real estate transaction.  Scott claimed the evidence in count 6 was not cross-admissible with the other counts because there was no similarity " in terms of the mechanisms involved [in committing the crimes]."   As noted above, the court found that count 6 would be cross-admissible on the issue of criminal intent in a separate trial on counts 1 though 5 and that Scott had not met his burden of showing " a substantial danger

of prejudice" arising from the joinder of the charges.  (Sandoval, supra, 4 Cal.4th at p. 172.)  We agree.

            Unlike evidence of uncharged crimes used to show identity, " [t]he 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 (Ewoldt).)  To support an inference that the defendant probably entertained the same intent in the commission of each offense, the circumstances of the two crimes need only be sufficiently similar.  (People v. Carpenter (1997) 15 Cal.4th 312, 379.)  The forgeries in counts 1 through 4 were committed to facilitate a real estate transaction that would allow Scott to collect a commission, which formed the basis for the count 5 grand theft charge.  To convict Scott of those charges, the prosecutor needed to prove Scott had the specific criminal intent to defraud.  Such intent could be inferred from the general circumstances surrounding the transactions and " that other similar transactions carried on by [Scott were] sufficient to prove guilty knowledge and criminal intent."   (People v. Smith (1984) 155 Cal.App.3d 1103, 1148; disapproved of on a different point by Baluyut v. Superior Court  (1996) 12 Cal.4th 826, 835-836.)  Count 6 involved Scott using his position of trust to defraud a client out of escrow funds in a real estate transaction by false pretenses.  It was more than sufficient that Scott used his position as a real estate agent to commit a fraud and steal from more than one client to render the evidence probative and cross-admissible on such intent.  Because the evidence was cross-admissible, Scott could not show he was likely to suffer any prejudice.  (See People v. Jenkins (2000) 22 Cal.4th 900, 947.)  Therefore, we conclude that on the information before the court at the time of its ruling, it was well within its discretion in denying Scott's severance motion.

            Although we find no abuse of discretion, " [b]ecause the issue is raised on appeal following trial [and Scott asserts he was denied a fair trial by the denial of his severance motion], we must also consider whether, 'despite the correctness of the trial court's ruling, a gross unfairness has occurred from the joinder such as to deprive the defendant of a fair trial or due process of law.'  [Citation.]"   (Sandoval, supra, 4 Cal.4th at p. 174.)  Scott's bald assertion of gross unfairness caused by the joining of a strong count with weaker counts, however, is unsupported by this record.  Rather, it is based solely on his view that Richard's accusations were not believable and that he (Scott) had no reason to lie or forge documents.  Scott's position is skewed.  It not only ignores the fact that the decision to continue with a real estate sale or to wait for another buyer (such as the one Scott represented to Richard was interested in the house) was Richard's to make, but the facts that he himself had a motive to lie and forge documents to ensure that the sale was completed so that he could receive a commission, and that Richard's unrealistic expectation regarding the value of his property was based on Scott's representations to him as to how much it was worth.  Scott simply has not demonstrated any actual prejudice from an alleged " spillover" effect of count 6, resulting from the joinder of the charges for trial.  (Bradford, supra, 15 Cal.4th at p. 1318.)  No due process violation is shown.

II

EXCLUDED EVIDENCE

            At trial, when defense counsel cross-examined Richard as to why he did not know the exact selling price of his Hemet house, Richard replied, " To honestly tell you the truth, for me not seeing any type of paperwork prior to me hiring a lawyer to get paperwork for me to see where all this money went, it's beyond me."   On further cross, Richard acknowledged he had received a small portion in a settlement after suing the escrow company and buyers regarding the sale.  When counsel tried to pinpoint how much that settlement was, Richard said he " can't even know right offhand," explaining that " [a] lot of it went to my lawyer, honestly."   The court sustained the prosecutor's objection to any further questioning regarding the amount of the settlement.

            Outside the jury's presence, defense counsel made an offer of proof that the proceeds of the sale of the house plus the settlement from the lawsuit had given Richard " roughly what he wanted to get on the home."   Counsel believed this was " direct impeachment" of Richard's testimony that he did not know what the exact selling price was for his house.  The court ruled that the lawsuit was irrelevant to this case and barred further questions regarding the civil suit under Evidence Code section 352, noting it was not surprised that Richard did not know the ultimate sale price for the house in light of all the amendments, the ultimate payoff to the mortgage company and then to his lawyer.

            When defense counsel continued arguing that the settlement amount was crucial to the defense because it would impeach Richard, the court commented it did not see how the final amount in the civil suit had anything to do with impeaching Richard at that time.  Counsel explained that the defense position was that Richard was lying when he said he did not sign certain documents for escrow and that he had hired an attorney with the goal in mind to make up the difference between what the house actually sold for and what he wanted it to sell for.  The court found there was no good cause shown to get into the civil suit and its results, and stood by its original ruling.  The court explained that it was not obvious Richard was being untruthful about not knowing the exact amount the house sold for in escrow and that the fact he had received some money out of the civil suit simply did not show he was lying on that point.

            Near the end of trial, Scott's counsel renewed the request to examine Richard regarding the amount of the settlement.  After the court observed that the settlement only seemed to confirm the house was actually worth $325,000, that it sold for less than its value, and that such evidence did not appear to assist the defense, counsel again insisted that Scott had a right to elicit the settlement amount, which was " roughly equivalent to what he wanted for the sale of his house," to impeach Richard.  Counsel argued that it was Scott's defense that Richard had had his signature forged to set up Scott.  Because the fact of the lawsuit and a settlement were already before the jury, and further cross-examination would be time consuming and potentially confusing by bringing in other issues of liability on the part of the buyer's agent and the escrow company, the court found additional questioning about the matter more prejudicial than probative.  Although the court again reiterated its original ruling, it noted Scott's counsel could certainly argue that it was Richard, not Scott, who submitted the documents with a signature not his own in an attempt to frame Scott to get the price he wanted for the sale of the Hemet house.

            On appeal, Scott contends the trial court violated his constitutional right to present a defense by ruling the cross-examination of Richard regarding the amount of the settlement was irrelevant and more prejudicial than probative.  We disagree.

            Although the trial court generally has broad discretion to admit or exclude proffered evidence, it has no discretion to admit irrelevant evidence.  (Evid. Code, §  350; People v. Babbitt (1988) 45 Cal.3d 660, 681 (Babbitt).)  "   'Relevant evidence' means evidence, including evidence relevant to the credibility of a witness. . . , 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.)  "   '[E]vidence which produces only speculative inferences is irrelevant evidence.'  [Citation.]"   (Babbitt, supra, 45 Cal.3d at p. 682, original italics.)

            Moreover, even if the proffered evidence is somehow relevant, it may be excluded under Evidence Code section 352 where, its " probative value [is] 'substantially outweighed by the probability that its admission [will] . . . create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.'  "   (Ewoldt, supra, 7 Cal.4th at p. 404, quoting Evid. Code, §  352.)

            These evidentiary rules also apply to evidence sought to be admitted for impeachment purposes.  (People v. Hill (1995) 34 Cal.App.4th 727, 738.)  " Although wide latitude should be given to cross-examination designed to test the credibility of a prosecution witness, the court retains discretion to exclude collateral matters.  [Citations.]"   (Ibid.)  In this regard, " a state court's application of ordinary rules of evidence--including the rule stated in Evidence Code section 352--generally does not infringe upon [a defendant's federal constitutional right to present a defense].  [Citations.]"   (People v. Cornwell (2005) 37 Cal.4th 50, 82 (Cornwell).)

            Similarly, " trial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on . . . cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant."   (Delaware v. Van Arsdall (1986) 475 U.S. 673, 679.)  Because "   'the Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish'  " (ibid.), there is no violation of the Sixth Amendment right to present a defense " unless the defendant can show that the prohibited cross-examination would have produced 'a significantly different impression of [the witness's] credibility'. . . ."   (People v. Frye (1998) 18 Cal.4th 894, 946.)

            On appeal, we review the exclusion of evidence under Evidence Code section 352 for abuse of discretion.  (People v. Holloway (2004) 33 Cal.4th 96, 134.)  We will not disturb the decision of the trial court to exclude evidence under Evidence Code section 352 absent a showing that the court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.  (People v. Ochoa (2001) 26 Cal.4th 398, 437-438; People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125.)  The exclusion of evidence that produces only speculative inferences does not show such an abuse of discretion.  (See Cornwell, supra, 37 Cal.4th at p. 81, citing Babbitt, supra, 45 Cal.3d at p. 684.)

            Here, the trial court acted within its discretion in concluding that the details of Richard's settlement was basically irrelevant to his credibility or bias because such did not reasonably show he was lying when he testified he did not know the actual, final price for which his Hemet house sold.  The jury was already aware that Richard had filed a lawsuit against the escrow company and the buyers, and that he had received some amount in settlement of that lawsuit.  Scott's counsel was not precluded from arguing from such evidence that Richard had a motive to lie and had accused Scott of the forged signatures to obtain the price he wanted for his home.  The actual amount of the settlement simply had no additional relevance, and as the court commented, could have even harmed Scott's case by arguably showing that the property was worth more than it had sold for under the forged documents.

            Further, even if the evidence that a certain amount of money was paid by third parties had some marginal probative value for the defense to impeach Richard, such value was speculative and clearly outweighed by the undue consumption of time it would have taken to present the matter and by the potential that the evidence would confuse the jury.  Moreover, any possible error cannot have been prejudicial, because, as noted above, defense counsel was not precluded from eliciting the facts of the lawsuit and settlement, or arguing from those facts the defense theory that it was Richard who had signed the documents, lied and then sued others to obtain the amount of money he wanted for his house by way of settlement.  Thus, Scott has failed to show that the excluded evidence would have produced a significantly different impression of Richard's credibility or that it was so vital to the defense that due process principles required its admission.  (See People v. Hawthorne (1992) 4 Cal.4th 43, 56-58; Babbitt, supra, 45 Cal.3d at p. 684.)  No prejudicial error is shown.

III

ADMISSION OF HANDWRITING EXPERT EVIDENCE

            In limine, Scott also had sought to exclude the testimony of the handwriting expert, asserting Oleksow's opinions were irrelevant, inconclusive and did not add anything that a layperson would not know.  Scott argued that without a firm opinion that he had signed the questioned documents, Oleksow's testimony was not really " expert testimony" and merely created a potential for prejudice because it would make the jurors into handwriting experts.  Scott also suggested that the evidence was inadmissible under " Kelly-Frye" and its progeny.^[4]

            Noting that Oleksow had not only compared the signatures in the documents for both real estate transactions with Scott's handwriting, but also with exemplars from Richard, the buyer's agent Gray, and the escrow officer, the prosecutor argued the expert's conclusions or opinions as to who was or was not the possible writer of the questioned documents were relevant for the jury to hear and should not be excluded.

            In denying the motion to exclude the expert's testimony, the trial judge stated, " Well, I think, without doubt, it's relevant.  The first thing the jury will want to know is, well, was there a handwriting analysis done on that signature to see whether it was the defendant's or not."   The court further commented that " just because the evidence does not prove the People's point that the defendant may have been the forger does not mean that it's irrelevant to the case."   The court analogized the situation to one in which fingerprint evidence is inconclusive, finding the inconclusiveness of such evidence is still relevant to show the authorities did everything possible to investigate the case.  The court additionally found there was no prejudice to the defense in the admission of such relevant evidence.

            Later, during a break between witnesses, defense counsel renewed Scott's objection to Oleksow's testimony on grounds he could not " conclusively state, based upon his expertise . . . in handwriting, that [Scott] signed the documents in question."   Without specifically ruling, the court acknowledged Scott's continuing objection on such ground.  Oleksow subsequently testified as noted above in the factual background.

            In his opening brief on appeal, Scott claimed he was denied state and federal due process when the trial court admitted inconclusive, irrelevant testimony of a handwriting expert, especially when the expert had a limited amount of handwriting from Richard to compare with the questioned documents.  Within this claim Scott also raised contentions that Oleksow's testimony was not a proper subject for expert opinion, that it was inadmissible as a new scientific technique with unproven reliability and that there was a violation of due process because the expert's opinion was rendered on insufficient handwriting exemplars by Richard.

            Scott, however, changed his position in his reply brief after the People pointed out that Evidence Code section 1418 specifically provides for the admission of expert testimony regarding the genuineness of a writing based upon a comparison of known and unknown handwriting^[5]; that Oleksow's testimony also included definite opinions that Scott had written certain documents and that other persons had not signed any of the questioned documents; that handwriting comparison is a century old technique regarding physical evidence obvious to the senses which is not subject to the Kelly rule limited to new, scientific methods; that the federal rules under Daubert, supra, 509 U.S. 579, do not preclude the admission of handwriting expert testimony; and that Scott has waived any claim Oleksow's testimony lacked foundation because he failed to challenge the expert evidence on that ground below.

            Although Scott now concedes that Oleksow's testimony he probably signed the check from Avila for $2,500 had some relevance for admission, and that testimony of a handwriting expert is probably not subject to the rules of Kelly, supra, 17 Cal.3d 24 and Daubert, supra, 509 U.S. 579, he continues to maintain that Oleksow's inconclusive findings should have been excluded as irrelevant and that he was denied due process on

the basis of lack of foundation for Oleksow's opinions regarding Richard.  Scott argues that to prevent a miscarriage of justice, the latter issue of foundation should not be considered waived because it was not raised by trial counsel.  Scott asserts prejudice is shown because the People cannot demonstrate beyond a reasonable doubt that the erroneous admission of the handwriting expert's testimony " did not contribute" to his convictions.  We find no merit in Scott's assertions.

            The law clearly provides for expert testimony on the comparison of handwriting for questioned documents such as those involved in this case (Evid. Code, §§  801, 1418) and Oleksow was qualified without objection to give such expert testimony.  Oleksow then testified about the documents and signatures examined and the process utilized to examine the documents for his opinions.  He specifically explained that because he only had exemplars of Richard's signatures, his opinions regarding the questioned documents were necessarily limited to the signature on those documents and he was unable to give opinions about other " generic" writings or initials on those documents.  Thus, even if Scott's foundational objection had been properly preserved for appeal, we would find it meritless because Oleksow's limited opinions regarding Richard had sufficient foundation based on the comparison of Richard's known signatures.  It was for the jury to determine the weight to give such limited opinions.

            Moreover, Oleksow's opinions it was inconclusive whether Scott had signed certain of the questioned documents were, as the trial court properly found, relevant on the issue of whether Scott had forged those documents.  Such opinions, although uncertain, were subject to cross-examination and within the jury's realm to weigh.  Scott has failed to show that the trial court abused its discretion in admitting any portion of Oleksow's testimony or that such admission violated his constitutional rights.

IV

CUMULATIVE ERROR

            Finally, Scott claims that even if none of the above errors is singularly prejudicial requiring reversal, the cumulative effect of the errors at law denied him his federal and state constitutional right to a fair trial.  However, because we have found no error in the above claimed errors, Scott cannot show cumulative error, or that he was denied due process or a fair trial.  (See People v. Kronemyer (1987) 189 Cal.App.3d 314, 349.)

DISPOSITION

            The judgment is affirmed.

HUFFMAN, Acting P. J.

WE CONCUR:

                                          NARES, J.

                                       HALLER, J.

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^[1]           All statutory references are to the Penal Code unless otherwise specified.

^[2]           To avoid possible confusion with defendant/appellant Scott, Richard Scott will be referred to as " Richard."

^[3]           Although evidence of other crimes is not cross-admissible to establish a disposition to commit crimes under Evidence Code section 1101, it is admissible to establish other relevant facts, including intent, motive, knowledge, or identity.  (Evid. Code, §1101, subd. (b).)

^[4]           The standard set forth in People v. Kelly (1976) 17 Cal.3d 24 (Kelly) and Frye v. United States (D.C. Cir. (1923) 293 F. 1013 (Frye)) were originally used to determine the admissibility of new scientific evidence.  Although the federal Frye analysis has been superseded by Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993) 509 U.S. 579 (Daubert), the Kelly-Frye formulation continues to apply in California and is generally referred to now as the Kelly standard.  (People v. Leahy (1994) 8 Cal.4th 587, 611.)

^[5]           Evidence Code section 1418 states, " the genuineness of writing, or the lack thereof, may be proved by a comparison made by an expert witness with writing (a) which the court finds was admitted or treated as genuine by the party against who the evidence is offered or (b) otherwise proved to be genuine to the satisfaction of the court."