P. v. Sherrell

Filed 10/4/06 P. v. Sherrell CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Merced County. Frank Dougherty, Judge.

John Doyle, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Louis M. Vasquez, Kathleen A. McKenna and Connie A. Proctor, Deputy Attorneys General, for Plaintiff and Respondent.

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INTRODUCTION

Appellant, Verlin Ray Sherrell, was found guilty on November 24, 2004, after a jury trial, of willfully presenting a false insurance claim (Pen. Code, § 550, counts one & five) and making a false statement in support of an insurance claim (Pen. Code, § 550, subd. (b)(1), counts two, three, four & six).^[1] On February 24, 2005, the court suspended imposition of sentence and placed appellant on probation for 48 months on condition that he spend 10 months in the county jail.^[2]

Appellant contends the trial court improperly instructed the jury with CALJIC No. 2.04. Appellant further contends the trial court erred in failing to stay counts two, three, four, five, and six because they were part of a continuous course of conduct, an indivisible transaction, pursuant to section 654.

FACTS

Prosecution Case

Appellant owns a parcel of land on which there is a house and some outbuildings. According to David Fuentes, a Merced County Code Enforcement Officer, there was a large quantity of debris on the property. Appellant had an illegal junkyard, stored vehicles, sold illegal firewood, and operated a business on the property without a permit. There was an inoperable forklift on the property which was in the same location between May 12, 2003, and October 7, 2003. Appellant’s neighbors made many complaints concerning the condition of appellant’s property. Fuentes considered appellant’s property to be a nuisance. Fuentes took a panoramic photograph of appellant’s property on February 12, 2003.

On October 6, 2003, there was a fire on the property. A firefighter with the California Department of Forestry who was dispatched to put out the fire explained a shed was burnt along with grass between the shed and a fence. There was a roadway between the spot where the fire occurred and the house. The fire did not reach the house on the property.

Luis Beltran knew appellant for 15 or 20 years and considered himself appellant’s good friend. Beltran thought there was an attic fire. He described smoke damage to the inside of the residence, including soot on the walls. Beltran did not remember talking to anyone from the insurance company. Beltran did not remember telling the insurance investigator that no smoke got inside the house. Beltran testified that prior to the fire he was paying appellant rent. After the fire, Beltran stayed on the property to act as a night watchman. Appellant paid Beltran for this work for about two weeks. At first Beltran stayed in the house. After a few days the house was condemned and Beltran stayed in a trailer. Beltran did not see anyone steal anything from the property but was told by someone there had been vandalism and theft of property.

District Attorney Investigator Albert Flores inspected appellant’s property on October 9, 2003. Flores found the residence uninhabitable. It was filled with garbage and mouse droppings. Flores took photographs of the house and called the health department. Flores saw no artwork in the home, no stamp collection, and no coin collection.

Jeff Palsgaard works as Director of Environmental Health for Merced County. One of his duties is to inspect buildings to see if they are inhabitable. John Harrell, an inspector from Palsgaard’s office, inspected and posted the property as unfit for human habitation. Palsgaard and Flores visited the property on October 27, 2003, after a complaint that someone was living on the property. Palsgaard found Beltran living in a van in front of the property. There had been no repairs to the property.

John Harrell testified that when he inspected the property on October 9, 2003, he found a huge accumulation of junk and debris. Harrell posted the property for its substandard condition, not for smoke damage. The house had distinctive odors caused by rodents and cockroaches. The only smoke smell Harrell detected was from burnt garbage in the fireplace which combined with the other odors. There had been a large fire near, but not right next to, the house with remnants of junk that had been burned. Harrell went to the attic and observed it had been converted into living quarters.

Steven Fosgren, an investigator for Allied Insurance Company, was assigned to investigate a fire damage and theft claim filed by appellant. Fosgren took a statement from appellant on January 28, 2004. Appellant explained he was not present when the fire occurred, sometime between October 12 and 14 of 2003. Appellant was in his shop talking to police officers when he was notified of the fire. Appellant’s mistress was on the property with her two children. Appellant’s houseboy was also present. Appellant’s four wards, Luis Beltran and Beltran’s son were living on the premises as well.

Appellant’s mistress told him the whole ranch was on fire. The left side of the ranch, near the house, was burned. Three antique cars and a motor home were burned. The cars were uninsured and appellant disposed of them. Appellant stated three buildings were burned. The premises had been condemned as unsafe for what appellant described as “very minor stuff.” Appellant told Fosgren all the personal property inside the home, including furniture and clothing, had been damaged by smoke from the fire. Appellant took all damaged items to the dump.

After the fire, appellant had items stolen from his property. He was ordered by the county to leave the property. Because no one was allowed to stay on the property, there were numerous thefts from the property. Fosgren interviewed Luis Beltran who told Fosgren that there was no smoke damage inside the house from the fire.

Fosgren taped a second interview with appellant on February 26, 2004. Fosgren questioned appellant about a list of damaged and destroyed property prepared by others because appellant is unable to write. Appellant explained to Fosgren that most of the destroyed items were acquired in consideration for cleanup and hauling work he performed. When appellant received, for example, a washer-dryer as compensation, the owner would represent to appellant that the item in question worked. Appellant did not test things to determine if this was true. Appellant took most of the destroyed items to a scrap yard or to the dump because the county insisted he clean up his property. Appellant lost wood paneling and a number of cords of firewood in the fire.

Appellant represented to Fosgren that a building approximately 16 feet by 48 feet was destroyed along with some utility sheds and garage doors. Appellant incurred $5,000 in cleanup expenses. Appellant had no receipts for, or appraisals of, items stolen from his property including a sliding repo-tow package he valued at $3,000. Other stolen items included: a $2,500 car lift, Craftsman tools and a rolling toolbox, antique oak and rosewood tables, saddles, model cars and planes, 30 antique paintings worth $3,500, a jump starter, J hooks for tow trucks, air and electric jack hammers, lock-out kits, cutting torches, a pressure washer, skill saws, a welding hand grinder, a metal chop saw to cut scrap metal, a drill and drill press, antique Pepsi Cola signs worth $1,500, a larger cola sign valued at $2,500, antique clock radios, VCR tapes, fishing equipment, hearing aids, cooking equipment, a stamp collection, a $1,000 coin collection, 20-ton hydraulic and bottle jacks, a leather jacket, a DVD player worth $200, three chain saws purchased for $300 to $850, costume jewelry worth $250, a turquoise Indian belt buckle, a turquoise and silver watch, a turquoise and silver necklace, porcelain figurines, and many other items.

When Fosgren inspected the residence he detected the smell of burnt garbage, but saw no evidence of smoke damage. Fosgren had an industrial hygienist with him and was satisfied after his inspection that there was no smoke damage in the dwelling.

Blanche Unti works for Leap-Carpenter Insurance Company. Her agency insured appellant, who filed a claim on January 26, 2004. Unti sent it to the insurance company. She also processed sworn statements and proof of loss forms concerning appellant’s claims for fire damage and theft. These forms were signed by appellant on March 25 and June 9, 2004, and notarized by Unti.^[3]

In December 2002, appellant sought public assistance. When asked by a social worker if he had personal property such as antiques, artwork, collections, jewelry, mobile homes, tools, or other items, appellant answered no to the question.

Defense Case

Appellant’s sister, Janet Laverne Spray, testified that she had been to her brother’s property many times. Spray explained that the fire on the property destroyed a large shed, a big barn, and two smaller sheds. Spray had been in the destroyed structures prior to the fire and recalled seeing an antique refrigerator and an antique baby stroller and baby buggy. She saw a forklift on the property that was used, as well as 100 antique oak chairs in the barn, die cast collectable cars, antique tables, a computer in the house, antique clock radios, a coin collection, and two Craftsman tool boxes. According to Spray, the house did not smell like smoke prior to the fire.

Appellant’s niece, Kimberly Henson, went to appellant’s property every weekend prior to the fire. The large shed to the left of the house was full of boxed items, including an antique baby stroller, paintings, and 100 antique oak chairs. Henson saw die cast collectable cars and airplanes, oil paintings, plates, and an oak wood mirror, a carousel horse, Pepsi and Coca Cola antiques in the house, videotapes, and fishing equipment. Henson never saw burnt garbage in the fireplace.

Bryon Spray, appellant’s brother-in-law, Dina Henson and Dawn Henson, other nieces, all described items of property they had seen before the fire in the destroyed sheds and the house. Their observations largely corroborated the testimony of previous witnesses. Spray testified that the forklift worked and he had seen it used on the property within the past year and a half.

Appellant is Lacy T.’s legal guardian. Lacy lived on appellant’s property prior to the fire and testified a large shed across the driveway from the house and a small shed burned down from the fire. Lacy explained that the large shed contained an old refrigerator and baby stroller and an antique baby buggy. There was a forklift on the property that Lacy’s cousin used to move cars. There were old chairs stacked in the shed and a couple of red rolling tool boxes in the residence.

There were also two or three computers in the residence, but they were not hooked up. Lacy said appellant had many die cast collectable cars and airplanes. Appellant had paintings, antique clock radios, and many videos. Appellant had fishing gear, coins, and a horse collar with a mirror mounted in it. Lacy was in the back bedroom of the house when the fire started. She could smell smoke from the fire in the house. Lacy heard the forklift explode after seeing it surrounded by smoke.

Appellant testified that his property was beautiful. It had a 2,000 square foot house, a redwood barn, a metal shop, a second redwood barn, a hay barn, a milk barn, a garage attached to the house, and a 16-foot by 64-foot building that was lost in the fire. The entire property is 38.8 acres. A prefabricated building made of wood, which appellant said would cost between $2,000 and $3,000 to replace, was destroyed in the fire along with a building appellant constructed with brand new plywood.

Appellant explained that he made about $10,000 a month as a junk dealer and selling scrap metals. He owns towing and tree services. Appellant has owned a tire shop, a truck stop, and a church. He was a professional race driver and drove in the NASCAR destruction derby.

In the previous 10 years, appellant has had 20 to 30 grass and vehicle fires. Kids have started fires on his property. On October 6, 2003, appellant’s mistress called him to tell him about the fire on his property. Appellant did not go to his property for three days. David Fuentes, the Merced County Code Enforcement Officer, told appellant that if he touched this fire, they were going to file criminal charges against him.

Appellant said the damage looked like something from a movie. The local paper reported that flames were shooting eight feet high for four hours. Over 100 car tires burned, putting out a lot of black smoke. A large motor home burned down right next to the house. Plastics caught on fire, causing smoke. Appellant explained that the wind blows toward his house.

Four buildings burned down, including appellant’s large shop, two smaller sheds, and the red barn. These buildings were crammed with stored items to sell at swap meets which appellant was keeping for his retirement. Appellant estimated he had paid close to $150,000 in premiums to the insurance company over 12 years. Appellant stated that the lists he gave to the insurance company were accurate and could almost be doubled to reflect his actual losses.

On cross-examination, appellant said that the prosecutor threatened to prosecute appellant when he was drunk one day. Appellant told Fuentes that he could have made $100,000 if Fuentes had left appellant alone. The county, however, kept picking on appellant. Appellant complained he was prosecuted for failing to clean up his place, but that he was not allowed on the property. Appellant said he was not paid, apparently by the insurance company, $125,000 he was owed and that he was going to lose a property worth $250,000. Appellant asserted the junk on his property had a value of $200,000.

According to appellant, someone stole his $20 gold pieces and his hearing aids. Without the hearing aids, appellant is a deaf mute.^[4] Appellant complained that the newspaper said his loss was only $50,000. Appellant did not go out to the property for three weeks after the fire because it reminded him of his son who was killed in a previous fire.

CALJIC No. 2.04

Appellant contends the trial court erred when it instructed the jury with CALJIC No. 2.04.^[5] Appellant argues there was no evidence concerning an attempt by him to persuade any witness to testify falsely.

Respondent acknowledges that before a jury can be instructed on whether it may draw an inference, there must be evidence, which if believed by the jury, will support the suggested inference.^[6] (People v. Hart (1999) 20 Cal.4th 546, 620.) Respondent argues there is evidence in the record from which the jury could infer appellant persuaded Beltran to testify falsely. We agree.

When Fosgren, the insurance adjuster, initially interviewed Beltran, Beltran told him there was no smoke damage to the house as a result of the fire. At trial, Beltran testified that he thought the attic of the house caught on fire. Beltran recalled seeing soot on the walls from the smoke. Beltran testified that prior to the fire he was paying appellant rent. After the fire, Beltran stayed on the property to act as a night watchman and was paid to do so.

Beltran’s trial testimony was very different from his statement to Fosgren. There was testimony from other witnesses which refuted Beltran’s statements at trial that there was smoke damage to the house and soot on the walls. Based on the state of the evidence, including appellant’s hiring of Beltran as a watchman, the divergence between Beltran’s statements to Fosgren from his trial testimony is evidence from which the jury could infer appellant persuaded Beltran to testify falsely. Usually there is not a specific statement from a defendant announcing his or her state of mind. It must be inferred from other evidence. (People v. Prantil (1985) 169 Cal.App.3d 592, 604-605.)

Even if we were to find that there was not substantial evidence to support the trial court’s use of CALJIC No. 2.04, we would find the error harmless beyond a reasonable doubt under the more rigorous Chapman standard of review.^[7] The prosecution case against appellant was strong. At worst, CALJIC No. 2.04 was an unnecessary instruction. If use of CALJIC No. 2.04 was error here, it was superfluous. Where, as here, evidence of the defendant’s guilt is strong, reversal on a minor, tangential point is not warranted. (People v. Pride (1992) 3 Cal.4th 195, 248-249.) There was other evidence undermining appellant’s credibility and his testimony. We do not find the trial court’s use of this instruction to have unfairly damaged appellant’s credibility as a witness.

The jury was also instructed with CALJIC No. 17.31 which expressly states that the jury is to: “Disregard any instruction which applies to facts determined by you not to exist.” The jury is presumed to follow the trial court’s instructions and presumed to have performed its official duty. (People v. Carter (2005) 36 Cal.4th 1114, 1176-1177.) We therefore presume that, to the extent the jury did not find factual support for this instruction, it disregarded it.

SECTION 654

Appellant contends the trial court erred in sending him to jail for consecutive terms on each count because he was engaged in a single course of conduct to defraud the insurance company.^[8] Appellant argues that section 654 bars multiple punishment for an indivisible course of conduct.

Respondent argues appellant waived this issue by failing to object on section 654 grounds during sentencing. If the trial court violated section 654 in sentencing appellant, the court’s sentence is unauthorized and therefore not waived on appeal for the defendant’s failure to lodge the proper objection. (People v. Scott (1994) 9 Cal.4th 331, 354, fn. 17; People v. Le (2006) 136 Cal.App.4th 925, 931.)

Being placed on probation, however, appellant did not suffer any impermissible double punishment. (People v. Lofink (1988) 206 Cal.App.3d 161, 168.) The trial court suspended imposition of a prison sentence and granted probation. Probation is an act of grace and clemency to permit rehabilitation. It is not within the ambit of the double punishment proscription of section 654. (People v. Stender (1975) 47 Cal.App.3d 413, 425 [overruled on other grounds in People v. Martinez (1999) 20 Cal.4th 225, 240].) The section 654 issue should be presented to a court upon any future attempt to impose double punishment in the event appellant violates probation.^[9] (People v. Wittig (1984) 158 Cal.App.3d 124, 137.)

DISPOSITION

The judgment is affirmed.

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^* Before Harris, Acting P.J., Gomes, J., and Dawson, J.

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

^[2] The court imposed consecutive jail terms of two months on counts one, two, three, and four. The court imposed consecutive jail terms of one month on counts five and six.

^[3] People’s Exhibit No. 6 was an inventory of damaged or stolen items prepared by appellant. It was admitted into evidence. The damages appellant claimed from the fire totaled nearly $70,000. Appellant claimed the items stolen from his property had a value over $41,000.

^[4] Appellant explained he was alright now and was able to read lips.

^[5] The court instructed the jury with the following version of CALJIC No. 2.04:

“If you find that the defendant did persuade a witness to testify falsely or did fabricate evidence to be produced at the trial, that conduct may be considered by you as a circumstance tending to show a consciousness of guilt. However, that conduct is not sufficient by itself to prove guilt and its weight and significance, if any, are for you to decide.”

^[6] Respondent argues appellant waived this issue by failing to assert it before the trial court. The authority respondent relies upon, however, stands for the proposition that a defendant waives an alleged instructional error for failing to seek clarification of an ambiguous or unclear instruction at trial. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1192.) Appellant’s argument focuses on a different point. Appellant contends that use of the entire CALJIC No. 2.04 was error. We therefore reject respondent’s waiver argument.

^[7] Chapman v. California (1967) 386 U.S. 18.

^[8] In closing argument to the jury, the prosecutor explained that count one was appellant’s first false claim related to the fire and count two was the false written statement appellant made in support of that claim. Count three was based on appellant’s first interview with claims adjuster Fosgren. Count four was based on appellant’s second interview with Fosgren. Count five was related to appellant’s second insurance claim filed on June 9, 2004. Count six was based on the documentary statement appellant filed in support of his June 9, 2004, claim.

^[9] Appellant’s objection to the length of his jail term was sufficient to preserve this issue for appeal. We therefore find People v. Welch (1993) 5 Cal.4th 228, 234-237 inapposite.