P. v. Wheeler

Filed 4/4/07 P. v. Wheeler CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Patrick F. Magers, Judge. Affirmed as modified.

Lynda A. Romero, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Rhonda Cartwright-Ladendorf, Supervising Deputy Attorney General, and Annie Fraser, Deputy Attorney General, for Plaintiff and Respondent.

Victim Bill Wheeler was drugged, bound, and garroted; his dead body was then thrown in the swimming pool in his backyard. The evidence ‑‑ although circumstantial ‑‑ indicated that his wife, defendant Mary Wheeler, either killed him or had him killed so that she could obtain the proceeds of his life insurance (and possibly also because she was having an affair).

A jury found defendant guilty of first degree murder (Pen. Code,  187, subd. (a), 189), with a financial-gain special circumstance (Pen. Code,  190.2, subd. (a)(1)). She was sentenced to life in prison without the possibility of parole. She appeals, contending the trial court erred by:

1. Improperly excluding evidence in reliance on the principles concerning evidence of third-party culpability stated in People v. Hall (1986) 41 Cal.3d 826 (Hall).

2. Admitting evidence of prior bad acts.

3. Imposing a parole revocation restitution fine.

The People concede that the parole revocation restitution fine was erroneous. We agree. We will modify the judgment accordingly. Otherwise, for the reasons stated below, we reject defendants contentions, and we will affirm.

I

FACTUAL BACKGROUND

A. Background.

Defendant and Bill were married in 1995. They lived in Hemet. Amber Agostini, defendants 14-year-old daughter from a previous relationship, lived with them.

Kate Wheeler, Bills adult daughter from a previous marriage, lived with her mother. She and Bill rarely saw or spoke to each other. She used heroin and methamphetamine.

In August 2000, Bill and defendant filed for bankruptcy protection. In October 2000, Bill complained to a coworker that he couldnt keep up with [his wifes] spending habits . . . . He seemed distraught, and he referred to defendant as a bitch.

Around December 2000, defendant told Bill as well as others that she was going back to work for her former boss, Ron Phillips, and she would be making a six[‑]figure salary.

B. The Events of December 15, 2000.

Defendant and Bill told Amber that, on Friday, December 15, 2000, they were going to Temecula; they would be gone all weekend. They said they were going to be meeting with Phillips to talk about defendant going to work for him.

On December 15, 2000, around 6:00 a.m., Kate had a seizure; she was admitted to a hospital. Around 4:00 p.m., she was discharged. She went home and went to sleep.

Meanwhile, around 7:15 a.m., Bill dropped Amber and a friend off at school. He was wearing a flannel shirt and blue jeans.

After school, Amber was supposed to go directly to a friends house, where she was going to stay overnight. Around 3:00 p.m., however, she stopped home to pick up some things. The gate to the driveway was open, which was unusual. Likewise, the front door was unlocked. Bills truck was in the garage.

In the master bedroom, the linens had been removed from the bed. Bills glasses were on the nightstand; Bill couldnt see past his nose without his glasses, and he never went anywhere without them. A half-filled cup of coffee was also on the nightstand. Bills running shoes were on the floor next to the bed, which was also unusual. A door from the bedroom to the backyard was unlocked and open.

At 3:01 p.m., Amber phoned her mother and left a message. She then left and went over to her friends house. At 3:25 p.m., defendant called her back. Defendant explained that Bill had stayed behind, partly because he was not feeling well and partly because he was hoping to see Kate. She herself had gone on ahead to do some Christmas shopping. Bill was supposed to come down later and meet her, but he had not shown up.

Around 3:30 or 4:00 p.m., Amber went back to the house. While she was there, defendant called the house phone. The answering machine picked up; Amber could hear her saying, Bill, are you there? Hello, pick up. Amber answered. After they discussed the situation, defendant told Amber, I dont know whats going on. Get out of the house immediately.

C. The Discovery of Bills Body.

Defendant phoned her best friend, Donna Wheeler (no relation to defendant or Bill), and asked her to go to the house and check on Bill. Donna phoned her husband Glenn. They went to the house together, arriving between 6:00 and 6:15 p.m. They searched for Bill but did not find him.

They phoned defendant. She asked them to check the backyard, explaining that Bill liked to go out there when he was not feeling good. She directed them to a light switch by the pool equipment. (They may have asked her how to turn on the lights in the backyard.) If they had turned on that switch, it would have lit up the pool. Before they could find it, however, they saw Bills body at the bottom of the swimming pool.

Donna called 911. At 6:38 p.m., police officers were dispatched to the house.

When the police interviewed defendant, she said that when Bill woke up, he was dizzy and light-headed, and he had a severe headache. She left the house at 10:30 a.m. to go to Temecula, to go Christmas shopping and also to meet with Phillips about a possible job. Bill stayed behind because Kate was coming to visit. He was going meet defendant later, and they were going to stay at a hotel. Defendant also told police that Bill had been receiving strange phone calls from someone named Toby.

D. The Physical Evidence.

1. The Condition of the Crime Scene.

At that point, the police did not collect any evidence, because they did not consider the death to be a homicide. Nothing was missing from the house; there were no signs of forced entry and no signs of a struggle. However, on one of the pillows on the bed, there was a small stain that appeared to be blood. In the bathroom, there was an open container of Tylenol PM and an empty paper cup.

Glenn testified that he saw sheets in the washing machine; it had stopped in mid-cycle, leaving them in standing water. The police, however, found a blanket and a comforter in the washing machine; they were damp, but not in standing water. In the dryer, they found sheets, pillowcases, and a pair of blue jeans, all dry and cool to the touch. The gray sweatpants that Bill usually wore to go jogging were in the hamper. Bill did not normally do laundry.

2. The Condition of the Body.

Bills body was dressed in a different flannel shirt and different blue jeans than he had been wearing that morning. The shirt was buttoned crookedly. Only the top button of the jeans was buttoned. He was wearing socks but no shoes.

On December 19, 2000, an autopsy was performed. It revealed that Bill did not drown; there was no water in his lungs. Rather, the cause of death was strangulation with a ligature. This could have been done with only nine pounds of pressure â€‘‑ even less if he had been bound or drugged.

He had been garroted from behind. A scrape in the small of his back, plus nearby internal bleeding, were consistent with someone placing a knee or a foot in his back while strangling him. Marks on his wrists indicated that he had been bound, possibly with handcuffs and had struggled. He had suffered a blow to the left temple, which could have rendered him unconscious. There was a bruised and scraped area on his left chest, his left elbow was bruised, and his left thumbnail had been torn off.

Temazepam, a prescription tranquilizer and muscle relaxant, was found in his blood, along with acetaminophen and diphenhydramine ‑‑ the active ingredients of Tylenol PM. Taken together, these drugs would be pretty sedative. Because the body had been in cold water, the time of death could not be determined.

E. The Paper Trail.

1. The Computer.

A forensic examination of defendants computer revealed that once in March, once in April, and twice on November 29, 2000, she had done web searches using the words drown, drowning and suffocation.

2. Life Insurance.

As of June 2000, Bill had four life and/or accidental death insurance policies, totaling about $377,000. By the time of his death in December 2000, two more policies had been issued, and the coverage under three of the existing policies had been increased, for a total of about $1,050,000, all payable to defendant.

3. Credit Cards.

In November 2000, defendant and Bill had applied to have her added to two of his credit card accounts. By December 2000, the balances on these accounts had increased dramatically. The accounts came with credit life insurance, which ultimately paid off the balances after Bills death.

4. The Trust.

On November 3, 2000, defendant attended a living trust seminar. On November 18, 2000, she and Bill adopted a new estate plan, based on a new living trust. Defendant was the beneficiary of Bills estate.

5. Embassy Suites.

On December 15, 2000, according to the records of the Embassy Suites in Temecula, someone checked into a room reserved under Bills name at 3:00 p.m.,^[1]paying cash for one night in advance, then checked out at 6:50 p.m., receiving a refund. There were no room service or telephone charges to the room.

6. The Anonymous Threat.

In February 2002, defendant reported finding in her mailbox an anonymous note, made from cut-out letters, that said, Mary, you will die to [sic] good riddance. However, defendant had sent at least four emails in which she misspelled too as to.

F. Ron Phillips.

Ron Phillips was an insurance agent. He had known defendant, off and on, since about 1975. She had worked for his agency as a service representative.^[2] Around 1985, they had dated.

Around May or June 2000, they got back together. It is not clear exactly how. According to Phillips, defendant happened to phone the agency where he was working to ask about automobile insurance; however, he was impeached somewhat on this point. Around October 2000, they began having a sexual relationship.

Phillips testified that he offered defendant a job doing paperwork in exchange for a percentage of any increase in his income. On December 15, 2000, he was supposed to meet defendant and Bill at the Embassy Suites in Temecula between 4:00 and 4:30 p.m. to discuss the job. Defendant also told him that she and Bill were going to have dinner with another couple.

According to Phillips, he arrived at the Embassy Suites at 4:00 or 4:15 p.m. He met defendant in the bar. She had already spoken to Amber, and she was upset. They ordered some food from room service and ate it in defendants room. When they learned that Bill had been found in the pool, Phillips phoned the front desk, said that defendant was checking out immediately due to a family emergency, and asked for a bill; the desk clerk said there would be no charge.

In April 2001, Phillips moved in with defendant. He testified that he once saw a pair of handcuffs in the house, in the drawer of a filing cabinet.

In July 2001, Phillips credit union issued him an accidental death policy. Phillips testified that he was not aware of the policy. At trial, when he was shown evidence of it, he was literally shaking.

G. Defendants False or Conflicting Statements.

1. Defendants Previous Marriages.

Defendant made conflicting statements about how many times she had been married before Bill ‑‑ once, twice, or four times. Actually, she had five previous marriages.

2. Bills Health.

Around November 2000, defendant remarked to a friend, Dont be surprised if I call you any day and tell you Bills gone.

On December 15, 2000, defendant told police that Bill had frequent headaches, but otherwise he was in good health and had no medical problems. She also said that he was not taking any medication.

On December 18, 2000, however, defendant told police that Bills health had been deteriorating for months and that she had made a doctors appointment for him. She added that he would often take quite a few Tylenol PMs to help him sleep. In a March 2003 deposition, defendant said again that she had made a doctors appointment for Bill. Actually, no such appointment was ever made.

3. The Temecula Trip.

Defendant originally told police that, when she first told Bill about the meeting with Phillips, he responded that he had already made arrangements to have dinner in Temecula with another couple from his work; she claimed not to know their names. In April 2001, she added that Bill told her that the couple had canceled at the last minute. The police were never able to identify any such couple.

Defendant originally told police that she left the house at 10:30 a.m. In April 2001, however, she told them that she left between 9:30 and 10:00 a.m. In her March 2003 deposition, she said that she left between 9:00 and 9:30.

Defendant also told police that when she got to Temecula, around 11:00 a.m., she went to a Costco, but it was not open yet. Actually, that Costco opened at 10:00 a.m. Later, she told police that she did go to the Costco and even ate lunch there. Costco had no record of her buying lunch or anything else that day.

In April 2001, defendant gave the police a receipt from a Target, assertedly in Temecula, indicating that she made a purchase on December 15, 2000, at 12:58 p.m. It turned out to be a forgery; it was an altered copy of the receipt for a purchase defendant had actually made on December 12, 2000, in Hemet.

4. The Laundry.

On December 15, 2000, defendant told both a deputy coroner and a neighbor that she had spoken to Bill on the phone, and he had said that he was doing laundry. Phone records did not show any such call.

5. Phone Calls to Neighbors.

Defendant told her friend Donna that she had called three neighboring families ‑‑ the Oakses, the Mercers, and the Wolfgangs ‑‑ to ask them to check on Bill, but she could not reach anybody. In her March 2003 deposition, she said that she called the Oakses and the Mercers. Phone records showed that she called the Oakses, but not the Mercers or the Wolfgangs.

6. The Bloody Pillowcase.

On December 15, 2000, when a deputy coroner asked defendant about the blood on the pillow, she said that Bill had bled onto it as a result of some recent dental surgery. According to Bills dentist, however, he had not had any recent dental surgery; at the autopsy, his body did not show signs of any.

A day or two after Bill died, defendant told one of his friends that he had died of a cerebral hemorrhage. She said that the blood on the pillow had come out of his ear during the hemorrhage.

On December 18, 2000, defendant told police that she had thrown the bloody pillowcase in the trash. They told her not to take the trash can out to the street, because they would come back and get the pillowcase the next day. The next day, however, defendant told police that the trash had been collected. She explained that a concerned neighbor must have taken it out. The police were never able to find a neighbor who admitted taking out the trash.

7. The Life Insurance Policies.

Defendant told one of Bills coworkers that he had had no life insurance. She told a victim-witness advocate that there was just one policy, for $100,000. She told police that there were three policies, for a total of $450,000. In her March 2003 deposition, she listed five policies. Ultimately, the police discovered that there were six policies.

When defendant filed claims, she falsely stated that Bill had only one other life insurance policy.

H. Evidence of Other Possible Perpetrators.

An unnamed neighbor told police that on December 15, 2000, around 2:30 p.m., he (or she) saw a young woman with short, dark, curly hair standing next to a red foreign-made compact car in the driveway of the house.^[3]

An 80-year-old neighbor told police that on December 15, 2000, she saw Bill out jogging. She said that she saw him between 12:30 and 1:00 p.m.; he was wearing a light-colored jacket and khaki pants. In May 2004, however, she testified that she saw him at 1:30 p.m., and he was wearing navy blue or black, although he usually jogged around noon, and he usually wore khaki. She claimed to have vivid recall because she is a painter and pays attention to detail. Bill did jog regularly, but usually in the early morning and in his gray sweatpants.

II

EVIDENCE OF THIRD-PARTY CULPABILITY

Defendant contends the trial court erred by excluding evidence, purportedly in reliance on Hall.

A. Additional Factual and Procedural Background.

1. The Prosecutions Motion in Limine.

The prosecution filed a written motion in limine to exclude any evidence . . . that Kate Wheeler or any other person was involved in the death of Dr. Wheeler. They argued that such evidence would violate the principles governing evidence of third-party culpability, as stated in Hall. They also requested an offer of proof by the defense prior to trial so that any such evidence may be subjected to the light of the Hall standard.

During argument on the motion, defense counsel said: On the testimony, we will have to take it as it comes. Certainly we will discuss it with the Court prior to cross-examining any witness . . . . [] If it even sounds like it might go to third-party culpability, we will discuss it with the Court at the time before we do it.

The trial courts only ruling, at that point, was that defense counsel could not mention Kate Wheeler as a possible suspect during opening argument. It added: That may change during the course of the evidence, but right now I would ask that you not suggest that to the jury.

2. Request to Cross-Examine the Investigating Officers.

When defense counsel was cross-examining one of the investigating officers, he asked:

Q During the course of your conversations with Kate Wheeler, did she ever talk to you about any other persons who were suspects in this case?

[PROSECUTOR]: Objection. Irrelevant.

THE COURT: Sustained.

The next day, defense counsel sought leave to cross-examine the investigating officers based on my question yesterday . . . regarding other suspects and investigating into that. The prosecutor objected that this would violate Hall. The trial court sustained the objection at this point, but without prejudice.

3. Ambers Taped Statement.

Finally, outside the presence of the jury, the parties discussed the admissibility of a taped statement by Amber.

In the course of that discussion, defense counsel stated: [W]e are seeking to . . . bring in evidence to show that there were things that the police didnt do. And the fact that we are not allowed to do that, I think is different than the third-party culpability argument that . . . we previously made . . . .

So on all these things where Im seeking to bring in that somebody else could have done this, certainly we should have the opportunity to argue to this jury that theres evidence that points away from this person and may point to somebody else.

The third-party culpability issue relates to the Court allowing the defense to have a specific instruction and allowing us to present an affirmative defense for third-party culpability. We cannot do that. [W]e are not arguing that. But as to the police officer[s] investigation, the fact that we are not allowed to go into that there were other suspects, that you didnt do this, you didnt do that, . . . I dont believe that thats the way third-party culpability is supposed to go.

The trial court responded: As far as third-party liability, I dont see anything that gets you over the burden, the burden of proof set forth by . . . Hall. On the other hand, if you are arguing that there are inferences based upon the circumstantial evidence that indicates that someone other than your client did it, thats a completely different ball game. (Italics added.)

Specifically with respect to the tape, however, the court said: Im not making a ruling on its admissibility until you submit the redacted form so we can go through it line by line.

B. Analysis.

In Hall, the Supreme Court held that relevant evidence that raises a reasonable doubt as to a defendants guilt, including evidence tending to show that a party other than the defendant committed the offense charged is generally admissible. (Hall, supra, 41 Cal.3d at p. 829.) To be admissible, the third-party evidence need not show substantial proof of a probability that the third person committed the act; it need only be capable of raising a reasonable doubt of defendants guilt. At the same time, we do not require that any evidence, however remote, must be admitted to show a third partys possible culpability. [E]vidence of mere motive or opportunity to commit the crime in another person, without more, will not suffice to raise a reasonable doubt about a defendants guilt: there must be direct or circumstantial evidence linking the third person to the actual perpetration of the crime. (Id. at p. 833.)

Here, it is not at all clear precisely what evidence defendant is contending was erroneously excluded.

The trial courts first ruling precluded defense counsel from mentioning Kate as a suspect during opening statement. It is not clear whether defendant is even challenging this ruling; she never actually argues that it was either erroneous or prejudicial. In any event, the ruling did not exclude any evidence. Moreover, it was expressly made without prejudice.

The trial courts second ruling evidently concerned evidence that Kate told the investigating officers something that implicated someone other than defendant, and that the officers somehow failed to follow up on it. Defendant claims that the excluded questioning did not involve traditional third[‑]party culpability evidence . . . . Admittedly, evidence that the officers failed to follow up on other leads might be admissible to show that they were biased or that they conducted a generally sloppy investigation. Defendant, however, did not offer the evidence for this purpose. Rather, as she says in her brief, the cross-examination was calculated to create a doubt in the minds of the jurors that [defendant] was the perpetrator. That is the classic function of third-party culpability evidence.

Kates statements to the officers were hearsay, inadmissible for their truth. And, unless her statements were true, the officers failure to follow up on them proved nothing. Accordingly, this was not evidence linking the third person to the actual perpetration of the crime, as Hall would require. Moreover, even assuming the trial court erred, defendant cannot show that the error was prejudicial, because the record fails to show that Kates statements were worthy of any follow up.

Ordinarily, to obtain reversal of a judgment based on the erroneous exclusion of evidence, the appellant (1) must show that the error . . . resulted in a miscarriage of justice, and (2) must have made an offer of proof. (Evid. Code,  354.) The offer of proof requirement is excused when ‑‑ as here ‑‑ [t]he evidence was sought by questions asked during cross-examination . . . . (Evid. Code,  354, subd. (c).) However, this does not excuse the overriding requirement of showing a miscarriage of justice. (See also Cal. Const., art. VI,  13.)

Finally, although the trial court discussed the issue a third time, defendant has not called our attention to any third ruling. The trial court commented generally on Hall, but it did not rule. Indeed, it specifically stated that it was not going to rule on the admissibility of Ambers taped statement until the parties had attempted to redact it. It does not appear that defense counsel ever raised the issue again. Accordingly, there is no ruling for us to review. (See People v. Rowland (1992) 4 Cal.4th 238, 259.) Moreover, once again, defendant did not make an offer of proof or otherwise show what evidence (if any) defense counsel was prevented from presenting.^[4] Hence, she cannot show that the asserted error was prejudicial.

III

EVIDENCE OF OTHER MISCONDUCT

Defendant contends that the trial court erred by admitting evidence of several of her prior bad acts.

A. Additional Factual and Procedural Background.

By filing a motion in limine, the prosecution sought leave to introduce evidence of several prior instances of misconduct by defendant. It argued that this evidence was relevant (1) to show a lack of accident and mistake and, conversely, that [defendant] acted intentionally and purposefully to obtain insurance money through the murder of her husband, (2) to demonstrate her knowledge of the insurance industry as well as death and disability claims and disability payments, and (3) to rebut all defenses[,] including those pertaining to the special circumstance of murder for financial gain.

After hearing argument, the trial court admitted evidence of three such instances, as we will discuss further below. (We omit any evidence that the prosecution never actually introduced or that defendant is no longer challenging.)

B. Analysis.

Evidence Code section 1101, subdivision (a), generally prohibits the admission of evidence of a persons character or a trait of his or her character when offered to prove his or her conduct on a specified occasion. Section 1101, subdivision (b), however, provides that evidence of a persons prior criminal act is admissible when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge . . . ) other than his or her disposition to commit such an act. . . . Moreover, to be admissible, such evidence must not contravene other policies limiting admission, such as those contained in Evidence Code section 352. [Citation.] Under Evidence Code section 352, the probative value of the proffered evidence must not be substantially outweighed by the probability that its admission would create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. [Citations.] (People v. Avila (2006) 38 Cal.4th 491, 586-587, quoting (People v. Lewis (2001) 25 Cal.4th 610, 637.)

On appeal, we review a trial courts ruling under Evidence Code section 1101 for abuse of discretion. [Citation.] [Citation.] (People v. Gray (2005) 37 Cal.4th 168, 202, quoting People v. Roldan (2005) 35 Cal.4th 646, 705.)

1. Previous Life Insurance Claim.

a. Additional Factual and Procedural Background.

In 1979, Kenneth Henderson, one of defendants former husbands, died by drowning. As a result, defendant collected the proceeds of his life insurance proceeds.

The trial court admitted this evidence, explaining: I think the act of drowning and collecting monies as a result of that, . . . that goes to knowledge. However, it prohibited the prosecution from trying to show that defendant was involved in causing Hendersons drowning.

The trial court also instructed the jury: There are no allegations that the defendant was involved in any way in the deaths of any husbands previous to William Wheeler.

b. Analysis.

Evidence is relevant if it has any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action. (Evid. Code,  210.) Here, the fact that defendant had received life insurance proceeds as a result of a previous husbands drowning death made it more likely that she would come up with a scheme to obtain life insurance proceeds as a result of a current husbands (apparent) drowning death. Defendant argues that it is common knowledge that the widow of a drowning victim will receive the proceeds of his life insurance. Nevertheless, having actually been in this situation herself would have made this knowledge stand out in defendants mind. Thus, what the evidence proved was something more specific than knowledge, though more general than a common scheme ‑‑ it could be called inspiration.

The People have done an unusually good job of research on this issue and have provided us with several useful precedents. For example, in People v. Furgerson (1962) 209 Cal.App.2d 387, the defendant had allegedly torched his store to collect the insurance. (Id. at pp. 388-389.) The prosecution introduced evidence that he had collected insurance benefits as the result of two previous fires. (Id. at pp. 389-390.) The appellate court held that this evidence was relevant to intent to defraud. (Id. at p. 390.) However, it added that [t]he evidence objected to also was proof of a mental state respecting the ease of recovery upon an insurance claim, of the defendants familiarity with the method of recovery, and of an acute consciousness that insurance benefits are a ready source of cash. The fact that the prior fires were not of an incendiary origin did not establish that the evidence in question was irrelevant. [Citations.] (Id. at pp. 390-391, italics added; see also People v. Maler (1972) 23 Cal.App.3d 973, 978-981.)

Admittedly, Furgerson was decided before People v. Ewoldt (1994) 7 Cal.4th 380, the leading case construing Evidence Code section 1101 ‑‑ indeed, it was decided before the enactment of the Evidence Code. In 1995, however, People v. Singh (1995) 37 Cal.App.4th 1343 came to a similar conclusion. There, defendant Singh and others had allegedly committed insurance fraud by staging collisions and then padding the resulting medical bills. (Id. at pp. 1353-1358.) The prosecution introduced evidence that Singh had been involved in several uncharged collisions. There was no evidence that the uncharged collisions had been staged; indeed, in some of them, Singh did not claim to be injured and/or did not file an insurance claim. (Id. at pp. 1355-1356.) The appellate court held that the uncharged collisions were admissible to negate accident. (Id. at pp. 1380-1381.) Alternatively, however, it also held that [e]ven if innocent, . . . the uncharged collisions could have provided the experience upon which Singh later relied to construct and enact his fraudulent scheme. (Id. at p. 1381, italics added.)

Here, the evidence was also relevant to motive. Once the jury accepted that defendant faked Bills death by drowning, the evidence made it more likely that she did so for financial gain, and hence that the financial gain special circumstance applied. (See People v. Miller (1940) 41 Cal.App.2d 252, 256-257 [in prosecution for arson and insurance fraud, evidence that the defendant had collected insurance benefits after a previous fire was relevant to motive, even though there was no evidence of fraud in connection with the previous fire].)

The evidence was not particularly prejudicial, especially as the trial court instructed the jury that there was no allegation that defendant had killed any former husbands. Accordingly, the trial court did not abuse its discretion.

2. Previous Fraudulent Insurance Claims.

a. Additional Factual and Procedural Background.

In 1987, defendant had filed a homeowners insurance claim, alleging that $18,000 in jewelry and other items had been stolen. The insurance company discovered that she had provided forged or altered documents regarding appraisals. She was charged with insurance fraud, but she pleaded guilty to the lesser offense of theft. She admitted that, when she took out the insurance policy, she already intended to file a false claim.

The trial court admitted this evidence, stating: What is relevant is her knowledge. And I think beyond knowledge, it goes to her level of sophistication in the insurance business and in defrauding insurance companies.

Defendant had also filed a claim for disability insurance benefits in which she falsely stated that she was employed by a certain attorney. She had forged a note from her doctor to support the claim.

Defense counsel argued that the prosecutions evidence of this incident consisted of documents that could not be authenticated. After a discussion of the witnesses and documents on which the prosecution intended to rely, the trial court admitted this evidence.

The jury was instructed: Evidence has been introduced for the purpose of showing that the defendant committed illegal acts other than those for which she is on trial. This evidence, if believed, may not be considered by you to prove that the defendant is a person of bad character or that she has a disposition to commit crimes. It may be considered by you only for the limited purpose of determining if it tends to show the defendant had knowledge or possessed . . . the means that might have been useful or necessary for the commission of the crime charged in this case. But [sic] the limited purpose for which you may consider this evidence, you must weigh it in the same manner as you would do all other evidence. You are not permitted to consider such evidence for any other purpose. (CALJIC No. 2.50.)

b. Analysis.

Preliminarily, with respect to the evidence of the fraudulent disability claim, defendant waived her present contention. In response to the prosecutions motion in limine, her counsel argued only that the prosecution did not have any admissible evidence of the incident. He never argued that the evidence was inadmissible under Evidence Code section 352 or 1101, and he never asked the trial court to rule on that issue.

In any event, the trial court could properly have admitted evidence of both fraudulent insurance claims to show intent. The least degree of similarity is required to establish relevance on the issue of intent. [Citation.] For this purpose, the uncharged crimes need only be sufficiently similar [to the charged offenses] to support the inference that the defendant probably harbor[ed] the same intent in each instance. [Citations.] [Citation.] [Citation.] (People v. Carter (2005) 36 Cal.4th 1114, 1149, quoting People v. Kipp (1998) 18 Cal.4th 349, 371, quoting People v. Ewoldt, supra, 7 Cal.4th at p. 402, quoting People v. Robbins (1988) 45 Cal.3d 867, 879, quoting People v. Thompson (1980) 27 Cal.3d 303, 319.)

The evidence here showed that defendant had made two fraudulent insurance claims and had forged documents both times to support her claims. It was fairly inferable that when, in this case, she made insurance claims, and when she forged the Target receipt to support them, her intention was equally fraudulent. (See People v. Quartermain (1997) 16 Cal.4th 600, 626-627 [evidence that defendant had agreed to participate in previous murder conspiracy was admissible to disprove his claim that he was only shamming when he ostensibly agreed to participate in charged murder conspiracy].) The trial court properly protected defendant against any potential prejudice by giving a limiting instruction. This evidence was not so inflammatory that the jury would have had any unusual difficulty in following such an instruction. (Id. at p. 627.)

Even though the trial court could have admitted the evidence as bearing on intent, it actually admitted it solely as bearing on knowledge and means. Assuming, without deciding, that this was error, defendant was not prejudiced. If anything, she was benefited, because the jury was told that it could not consider the evidence for any other purpose. If, as defendant contends, the evidence was irrelevant (or cumulative) with respect to knowledge and means, then presumably the jury did not consider it at all. (People v. Stern (2003) 111 Cal.App.4th 283, 299 [if trial court erred by admitting evidence of prior stabbing by defendant, on theory that it was relevant to victims credibility, error was harmless because jury was instructed that this was the only issue on which it could consider the evidence]; People v. Scheer (1998) 68 Cal.App.4th 1009, 1023 [any prejudicial impact from admission of the prior flight evidence was nullified by the courts limiting instruction directing the jury that it could not consider such evidence for the purpose of finding propensity].)

Defendant argues that the admission of the evidence violated due process. Even though she never objected on due process grounds at trial, she can still argue on appeal that (1) the trial court erred in overruling the trial objection, and (2) the error was so serious as to violate due process. (People v. Partida (2005) 37 Cal.4th 428, 436, fn. omitted; see also id. at pp. 438-439.) But the admission of evidence, even if erroneous under state law, results in a due process violation only if it makes the trial fundamentally unfair. [Citations.] (Id. at p. 439.) As already discussed, the evidence was admissible as bearing on intent, and the trial court instructed the jurors not to consider it as bearing on propensity. Accordingly, even assuming that the trial court erred in admitting this evidence, the error did not result in a fundamentally unfair trial.

IV

PAROLE REVOCATION RESTITUTION FINE

Defendant contends that the trial court erred by imposing a parole revocation restitution fine.

As the People concede, the parole revocation restitution fine was erroneous. Defendant was being sentenced to life in prison without the possibility of parole; thus, the sentence did not include[] a period of parole, as a parole revocation restitution fine would require. (Pen. Code,  1202.45; see People v. Jenkins (2006) 140 Cal.App.4th 805, 819; People v. Petznick (2003) 114 Cal.App.4th 663, 687; People v. Oganesyan (1999) 70 Cal.App.4th 1178, 1182.) We will modify the judgment by striking the parole revocation restitution fine.

V

DISPOSITION

The judgment is modified by striking the parole revocation restitution fine and, as so modified, it is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RICHLI

J.

We concur:

RAMIREZ

P.J.

McKINSTER

J.

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Analysis and review provided by Chula Vista Property line Lawyers.

^[1] It took approximately 30 minutes to drive from Hemet to Temecula.

^[2] Defendant had worked for various insurance agencies, off and on, for about 20 years. Her last job had been working for Aetna, in its fraud investigation division.

^[3] The car Amber arrived in was black. Kate, however, had short brown hair, and possibly also a red car (the record is ambiguous on this point).

^[4] At her March 2003 deposition, defendant was questioned extensively about other possible perpetrators. She suggested four: Kate, Toby of the mysterious phone calls, the unnamed brown-haired woman with the red car, and one Mr. Jordan. She testified that Mr. Jordan came up to her at Bills funeral and said he had heard that Bill had been strangled; at the time, this was not public knowledge.

The evidence implicating Kate, Toby, and the brown-haired woman with the red car came in at trial. The evidence implicating Mr. Jordan would not have passed muster under Hall. Moreover, we fail to see how defense counsel could have gotten it in without calling defendant to testify. Finally, because the prosecution introduced defendants deposition as an exhibit, her testimony regarding Mr. Jordan actually was in evidence.