Filed 9/25/18 P. v. Atwood CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

Defendant Melissa Atwood appeals from a judgment of conviction after a jury found her guilty of elder abuse, identity theft, commercial burglary and grand theft. The charges arose from defendant obtaining a credit union loan by representing herself to be her mother, Suzi Atwood. On appeal, defendant contends the trial court erred by admitting hearsay statements of Suzi Atwood, who did not testify, and by not giving requested instructions limiting the statements to a nonhearsay purpose. Defendant argues that the admission of the hearsay evidence also violated her rights under the confrontation clause.

Because the challenged statements were not testimonial, we do not find a violation of defendant’s confrontation clause rights. Suzi Atwood’s out-of-court statements were admissible for the nonhearsay purpose of imparting information to the credit union and explaining its subsequent action. While we agree with defendant that the trial court erred in admitting these statements for the truth of the matter asserted without a limiting instruction, we do not find it reasonably probable that a result more favorable to defendant would have resulted absent the error. (People v. Watson (1956) 46 Cal.2d 818 (Watson).) We affirm.

STATEMENT OF THE CASE

A felony information charged defendant with one count of theft from an elder or dependent adult (Pen. Code, § 368, subd. (d); count one), and one count of identity theft (Pen. Code, § 530.5, subd. (a); count two) relating to her mother, Suzi Atwood. She was also charged with two counts of second degree commercial burglary—based on her entry into the Travis Credit Union (credit union) to obtain the loan and its proceeds—and one count of grand theft of personal property (Pen. Code, § 459; counts three and four; Pen. Code, § 487, subd. (a); count five). Defendant pleaded not guilty to all counts.

A jury found defendant guilty on all five counts. The trial court suspended imposition of sentence and admitted defendant to three years of court probation on count one, with 150 days in county jail, and an additional 180 days suspended on the condition that defendant successfully complete a 90-day residential substance abuse treatment program. The court reduced counts two through five to misdemeanors and imposed various fines and fees, including victim restitution of $5,000. Defendant timely appealed.

STATEMENT OF THE FACTS

On April 7, 2014, defendant entered the credit union’s Concord branch and met with senior financial services representative Sandra Sather. Defendant identified herself as Suzi Atwood and told Sather she had obtained online approval for a loan and wanted to have it funded. Sather confirmed that a loan application filled out with Suzi Atwood’s information had been submitted and approved online. Defendant showed Sather a California senior citizen’s identification card bearing the name “Suzi Atwood,” which matched the name and information on the loan application. Defendant also provided the requisite proof of Suzi Atwood’s receipt of Social Security income. Sather verified the information, opened an account in Suzi Atwood’s name and prepared an agreement for a $5,000 loan. Defendant signed the agreement in the name of Suzi Atwood. At defendant’s request, Sather disbursed the loan as $3,000 in cash and a $2,000 cashier’s check payable to “Melissa Atwood.” Two days later, on April 9, 2014, defendant returned to the credit union and deposited the cashier’s check and had it re-issued to another person.

On April 19, 2014, a different woman identifying herself as Suzi Atwood entered the credit union and met with Sather. Sather confirmed the woman’s identity as Suzi Atwood by obtaining her identification, including her Social Security number and address. Over defendant’s objection, Sather testified that Suzi Atwood told Sather’s manager that she “had been away” at the time the loan was taken out. Sather admitted that she made an “honest mistake” in issuing the loan to the wrong person because Suzi Atwood and defendant “looked just alike.”

At her manager’s request, Sather wrote a statement describing the incident, which was forwarded to the credit union’s fraud unit. Keri Mahaffey-Gignoux, compliance specialist and deputy custodian of records for Travis Credit Union, testified—over defendant’s objection—that the Concord branch manager contacted her “because Suzi Atwood was there claiming that she did not open the account or the loan.” Mahaffey-Gignoux obtained, and the court admitted, still photographs from the credit union’s surveillance cameras showing Sather meeting with defendant on April 7 and 9, 2014, and with Suzi Atwood on April 19, 2014. After reviewing the evidence, Mahaffey-Gignoux telephoned Suzi Atwood and sent her a letter, which enclosed a draft affidavit—both of which were admitted over defendant’s hearsay and confrontation clause objections. The April 21, 2014 letter, referenced the subject of “Identity Theft: Affidavit of Claimant” and read: “Thank you for alerting us that your identity had been fraudulently used to establish an account and obtain a loan with Travis Credit Union.” The letter advised Suzi Atwood to file a police report and to contact Mahaffey-Gignoux, who would then “send [Suzi Atwood] copies of the documents containing [her] information and forged signature(s).” The letter instructed Suzi Atwood to “complete the enclosed Affidavit of Claimant” and “return the completed, notarized affidavit” in an enclosed envelope.

The form draft affidavit, subtitled “Identity Theft/Account Takeover,” was partially filled in with Suzi Atwood’s name, account number and contact information. Inserted in two fields for “Signature Was Forged/Unauthorized On” were: “Membership Agreement” and “Credit Application” with the corresponding “Transaction Date,” of “04/07/2014” for both entries.[1] The draft affidavit as admitted was not completed and did not bear the proposed affiant’s signature.

Mahaffey-Gignoux explained the purpose of the letter and draft affidavit: “When a person is claiming identity theft, there are certain things that they need to do to prove that. [¶] We need a police report. And we need affidavits, where they are swearing under penalty of perjury, that they did not perform any of [the] transactions, or write any of the contracts, or sign any of the checks.” When asked if she received a response to her letter, Mahaffey-Gignoux testified she “did receive the affidavit.” “I got the documents back.” Mahaffey-Gignoux further testified that Suzi Atwood was “cooperative in clearing up this fraudulent loan and getting her name removed from it.” As a result, the credit union revised the credit report to remove “Suzi Atwood” and her Social Security number; she was absolved of liability for the loan, and the $5,000 became the credit union’s loss.

The prosecution introduced a printout from the credit union’s internal record keeping system, “TAPS Enterprise Lending – Total Account Processing System” (TAPS), which Mahaffey-Gignoux authenticated as a document that she “pulled off the system for the purpose of the investigation . . . .” The most recent entry on the TAPS record, dated April 30, 2014, stated: “Account/loan opened fraudulently. Consumer is identity theft victim. Daughter Melissa Atwood Impersonated her.”

DISCUSSION

Defendant argues the trial court erred in admitting the following out-of-court statements into evidence:

(1) Suzi Atwood’s statement to Sather that she “had been away” at the time the loan was taken out;

(2) the Concord branch manager’s statement to Mahaffey-Gignoux that Suzi Atwood was “claiming she did not open the account or the loan”;

(3) Mahaffey-Gignoux’s testimony that she received the paperwork back from Suzi Atwood containing statements that her signature was forged or unauthorized on the membership agreement and credit application;

(4) Mahaffey-Gignoux’s testimony that Suzi Atwood was cooperative in “clearing up this fraudulent loan”;

(5) the April 21, 2014 letter thanking Suzi Atwood “for alerting us that your identity had been fraudulently used”;

(6) the “Affidavit of Claimant” stating that the signature was forged/unauthorized; and

(7) the TAPS record stating that the account/loan was “opened fraudulently,” Suzi Atwood was an “identity theft victim,” and defendant “impersonated” her.[2]

Defendant argues these statements are hearsay and did not fall within any exception to the hearsay rule. She further contends the trial court erred in failing to provide a limiting instruction that Suzi Atwood’s statements were not admissible for the truth of the matters asserted. Defendant also claims the trial court’s erroneous admission of Suzi Atwood’s hearsay statements violated the confrontation clause, as interpreted in Crawford v. Washington (2004) 541 U.S. 36 (Crawford). The errors were prejudicial, defendant argues, because without the inadmissible hearsay evidence, the prosecution could not prove that her actions were taken without Suzi Atwood’s consent.

The Attorney General responds that the challenged statements were admissible because they either fell within an exception to the hearsay rule (i.e., to demonstrate Suzi Atwood’s state of mind) or were used for a nonhearsay purpose (i.e., to explain the effect of the statements on the credit union and the credit union’s subsequent conduct). The Attorney General argues the admission of the statements did not violate the confrontation clause because the statements were not testimonial. The Attorney General concludes that any error was harmless because, without the contested statements, there was ample evidence of defendant’s guilt to support the conviction.

We agree with defendant that Suzi Atwood’s statements should not have been admitted for their truth, but agree with the Attorney General that they were properly admitted as a basis for explaining the credit union’s subsequent action. The court should have given an instruction explaining the limited purpose for which they were admitted. Because the statements were not testimonial, we apply the Watson standard and—given the abundant evidence—find the errors were harmless.

1. The Trial Court Improperly Admitted Some Hearsay Evidence.

“ ‘Hearsay evidence’ is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated.” (Evid. Code, § 1200, subd. (a).)[3] “Except as provided by law, hearsay evidence is inadmissible.” (§ 1200, subd. (b).) “We review the court’s evidentiary rulings—including those that turn on the hearsay nature of the evidence—for abuse of discretion [citation], keeping in mind that an abuse of discretion occurs when the trial court makes an error of law.” (People v. Yates (2018) 25 Cal.App.5th 474, 484–485 (Yates).)

1. 1. Suzi Atwood’s Statement that She “Had Been Away”

Defendant argues that no hearsay exception applies to Suzi Atwood’s out-of-court statement to Sather that she “had been away” at the time the loan funds were withdrawn. The Attorney General contends the statement was admissible under the hearsay exception for statements that demonstrate a declarant’s state of mind (§ 1250).

“Subject to Section 1252,[4] evidence of a statement of the declarant’s then existing state of mind, emotion, or physical sensation (including a statement of intent, plan, motive, design, mental feeling, pain, or bodily health) is not made inadmissible by the hearsay rule when: (1) The evidence is offered to prove the declarant’s state of mind, emotion, or physical sensation at that time or at any other time when it is itself an issue in the action. . . .” (§ 1250, subd. (a)(1), footnote added.) Section 1250 “does not make admissible evidence of a statement of memory or belief to prove the fact remembered or believed.” (Id., subd. (b).)

Suzi Atwood’s statement reflected her memory of a past event (that she was “away” at the time the loan proceeds were withdrawn). The Attorney General acknowledges the statement was offered as “a means of establishing that [Suzi Atwood] had not been at the credit union”—in other words, to use her stated memory of a past event to prove the event occurred. This was not a permissible application of the state of mind exception. “Any statement of a past event is, of course, a statement of the declarant’s then existing state of mind—his memory or belief—concerning the past event. If the evidence of that state of mind—the statement of memory—were admissible to show that the fact remembered or believed actually occurred, any statement narrating a past event would be, by a process of circuitous reasoning, admissible to prove that the event occurred.” (§ 1250, subd. (b); Cal. Law Revision Com. com., 29B West’s Ann. Evid. Code (2015 ed.) foll § 1250, p. 420.)

Alternatively, the Attorney General argues that the contested statement constituted nonhearsay circumstantial evidence of Suzi Atwood’s state of mind. “[A] statement which does not directly declare a mental state, but is merely circumstantial evidence of that state of mind, is not hearsay.” (People v. Ortiz (1995) 38 Cal.App.4th 377, 389.) Under the circumstances, that argument is similarly flawed since the prosecution sought to do indirectly what it could not do directly. As discussed below, there was a nonhearsay purpose for which the statement was properly admitted, but—as the defense requested—it should have been accompanied with an instruction that the statement was not admitted to prove its truth, but for a limited, nonhearsay purpose, as required by section 355.

1. 2. Mahaffey-Gignoux’s Testimony

Defendant argues that Mahaffey-Gignoux’s testimony contained multiple levels of hearsay, and there was no exception to the hearsay rule applicable to each level. The Attorney General replies that Mahaffey-Gignoux’s testimony about Suzi Atwood’s out-of-court statements was admissible for the nonhearsay purpose of explaining the credit union’s reaction and subsequent conduct in relieving Suzi Atwood from any liability for the loan after having learned that she did not apply for it.[5]

“ ‘[O]ne important category of nonhearsay evidence . . . [is] evidence of a declarant’s statement that is offered to prove that the statement imparted certain information to the hearer and that the hearer, believing such information to be true, acted in conformity with that belief. The statement is not hearsay, since it is the hearer’s reaction to the statement that is the relevant fact sought to be proved, not the truth of the matter asserted in the statement.’ ” (People v. Scalzi (1981) 126 Cal.App.3d 901, 907.) However, “[a] hearsay objection to an out-of-court statement may not be overruled simply by identifying a nonhearsay purpose for admitting the statement. The trial court must also find that the nonhearsay purpose is relevant to an issue in dispute.” (People v. Armendariz (1984) 37 Cal.3d 573, 585, superseded by statute on other grounds as stated in People v. Cottle (2006) 39 Cal.4th 246, 255.)

We agree with the Attorney General that the statements at issue were admissible to prove that the credit union—having conducted its required fraud investigation and obtained documentation that Suzi Atwood did not apply for the loan—revised its records, absolved her from any loan liability and treated the $5,000 as a loss. To meet its burden as to counts three and four (commercial burglary) and five (grand theft), the prosecution had to prove defendant’s “specific intent to deprive the owner permanently of [the] property.” (CALJIC Nos. 14.50 and 14.02, italics added.) Until the credit union completed its fraud investigation and determined for its purposes that Suzi Atwood had not obtained the loan, she would have been the owner of the funds on deposit and would have been the alleged crime victim. Determining and proving the owner of the funds was not only relevant but necessary to prove that element beyond a reasonable doubt. To do so, the statements obtained during the fraud investigation were admissible to provide the basis for the credit union’s subsequent action—taking the $5,000 loss. Contrary to the trial court’s ruling, however, Suzi Atwood’s statements were not admissible for the truth of the fact asserted, i.e., that she did not apply for the loan, but were admissible for the nonhearsay purpose of proving the credit union’s subsequent conduct.

1. 3. The Credit Union Documents

Defendant argues the credit union documents (April 21, 2014 letter, draft affidavit, and TAPS record) were not within the business records hearsay exception because they were prepared in anticipation of litigation; did not have indicia of trustworthiness; and included statements by someone who lacked a business duty to make them accurately. The Attorney General again responds they were admissible to show their effect on the credit union and to explain its subsequent actions.[6]

The credit union documents contain extrajudicial statements attributed to Suzi Atwood regarding the unauthorized loan and use of her identity. (See Yates, supra, 25 Cal.App.5th at p. 482 [documents prepared outside courtroom and offered for truth of information contained therein are usually hearsay and may contain multiple levels of hearsay; Elkins v. Superior Court (2007) 41 Cal.4th 1337, 1359 [affidavits constitute hearsay and are inadmissible at trial in absence of stipulation or lack of objection], superseded by statute on other grounds as stated in In re Marriage of Swain (2018) 21 Cal.App.5th 830, 838–840.)

The trial court correctly concluded that any documents used and possessed by the credit union were business records within the meaning of the exception. (§ 1271.) However, the court failed to recognize that within the business records were the statements attributed to Suzi Atwood to which defendant also properly objected as hearsay. Reports made by private citizens to the credit union are not made within the regular course of business and do not “bear[] on the trustworthiness factor contemplated by [the business records] exception to hearsay rule.” (Daniels v. Dep’t of Motor Vehicles (1983) 33 Cal.3d 532, 537; see People v. Ayers (2005) 125 Cal.App.4th 988, 994 [police reports, probation reports, psychiatric evaluations and emergency call logs do not qualify as business records because they contain hearsay statements by participants and bystanders].) Those statements should not have been admitted to prove that Suzi Atwood did not submit the loan application and did not sign the loan documents, but were properly admitted for the nonhearsay purpose of providing the predicate for the credit union’s determination that it—and not Suzi Atwood—was the owner, and therefore the victim. Given the subtle distinction, it was especially important for the court to rule correctly and then to provide a limiting instruction to the jury, which we address in the next section.

2. The Trial Court Erred in Refusing to Give a Limiting Instruction.

“When evidence is admissible . . . for one purpose and is inadmissible . . . for another purpose, the court upon request shall restrict the evidence to its proper scope and instruct the jury accordingly.” (§ 355, italics added.) “[S]ection 355 requires the court to give appropriate limiting instructions if properly requested.” (People v. Dennis (1998) 17 Cal.4th 468, 533.)

The Attorney General contends defendant failed to request a limiting instruction and to obtain a definitive ruling from the trial court to preserve the issue for appeal. We disagree. Before the third day of trial, defense counsel sent an email to the court, copied to the prosecution, requesting various jury instructions including a limiting instruction under CALJIC 2.09.[7] The trial court acknowledged receipt of this email and responded, “2.09. I am not going to instruct on specifics of statements admitted. But you can comment on it during your argument. But I’m not instructing on it.” After an off-the-record discussion, the court announced “a finalized set of instructions” and indicated that defense counsel “wanted to go on the record. Go ahead.” Counsel reiterated his request for a limiting instruction under CALJIC 2.09. Because defendant made a proper request, the trial court was required to give an appropriate limiting instruction under Evidence Code, section 355. The trial court’s failure to do so was error.

3. The Admission of Suzi Atwood’s Statements Did Not Violate the Confrontation Clause.

Defendant argues the court admitted Suzi Atwood’s out-of-court statements in violation of the confrontation clause. Defendant contends the statements at issue were “testimonial” because the credit union’s primary purpose in gathering the statements was to obtain evidence to pursue a criminal prosecution. Defendant notes that the April 21, 2014 letter from Mahaffey-Gignoux instructed Suzi Atwood to file a police report, and the attached affidavit contained fields for information such as the police department and case number, as well as several references to potential to criminal prosecution.

The Attorney General replies the statements at issue were not testimonial because they were not made to any law enforcement officers, and the primary purpose of obtaining the statements was to release Suzi Atwood from the consequences of the loan.

We review claims implicating a defendant’s constitutional right to confrontation de novo. (People v. Sweeney (2009) 175 Cal.App.4th 210, 221.) The Sixth Amendment confrontation clause bars admission of testimonial statements of a witness who does not appear at trial unless he or she is unavailable to testify and the defendant has had a prior opportunity for cross-examination. (Crawford, supra, 541 U.S. at p. 59.) A testimonial statement is one “made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.” (Id. at p. 52.) “[T]he proper focus is not on the mere reasonable chance that an out-of-court statement might later be used in a criminal trial. Instead, we are concerned with statements, made with some formality, which viewed objectively are for the primary purpose of establishing or proving facts for possible use in a criminal trial.” (People v. Cage (2007) 40 Cal.4th 965, 984, fn. 14.)

Unlike the solemnity of executed affidavits (Crawford, supra, 541 U.S. at pp. 51–52), the challenged statements were contained in a draft proposed affidavit, and no executed version was admitted.[8] Nor were the statements created for the primary purpose of establishing facts for possible use in a criminal trial. They were not made to the police, but to credit union employees and “are much less likely to be testimonial than statements to law enforcement officers.” (Ohio v. Clark (2015) 135 S.Ct. 2173, 2181 (Clark).) In Clark, statements made by an abused child in response to questioning from his preschool teachers about his injuries were found to be nontestimonial because the primary purpose of the child’s statements was not generating evidence for prosecution of the abuser, but to identify and end the threat. (Id. at pp. 2181–2182.) The court found it “irrelevant that the teachers’ questions and their [state-law] duty to report the matter [of abuse] had the natural tendency to result in [the abuser’s] prosecution.” (Id. at p. 2183.)

The credit union’s primary purpose in obtaining Suzi Atwood’s statements was to establish its failure to follow proper procedures to assure that the loan applicant was Suzi Atwood. Mahaffey-Gignoux’s letter stated that removal of any adverse reports to Suzi Atwood’s credit agencies was conditioned “upon receipt of the form and/or completion of our investigation.” Mahaffey-Gignoux testified that a reasonable person would go through this process to avoid having the loan reflected on her credit report and to stop the credit union from reporting the debt under the person’s name and Social Security number. She further testified that Suzi Atwood was “cooperative” and “jumped through some hoops” to “get[] her name removed” from the loan and to not be “on the hook” for it. After conducting the standard fraud investigation, the credit union concluded that Suzi Atwood and the credit union were victims of identity theft and forgery. As a result, the credit union released Suzi Atwood from any repayment obligation and related credit consequences and took the $5,000 loss. That these actions also led to a criminal prosecution did not convert this process “into a law enforcement mission aimed primarily at gathering evidence for a prosecution.” (Clark, supra, 135 S.Ct. at p. 2183.)

Even if the statements had satisfied Crawford’s definition of testimonial, the confrontation clause “ ‘does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted.’ ” (People v. Thomas (2012) 53 Cal.4th 771, 803; Crawford, supra, 541 U.S. at p. 59, fn. 9.) To the extent the challenged statements were used for the relevant nonhearsay purpose of showing the effect of the statements on the credit union, the statements were not used to establish the truth of the matters asserted, and therefore, did not implicate defendant’s confrontation clause rights.” (People v. Thomas, supra, 53 Cal.4th at p. 803; Crawford, supra, at p. 59.)

4. The Evidentiary Errors Were Harmless.

In deciding whether the trial court’s erroneous evidentiary rulings require reversal, we apply the Watson standard: “[A] ‘miscarriage of justice’ should be declared only when the court, after an examination of the entire cause, including the evidence,’ is of the ‘opinion’ that ‘it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error. ” (Watson, supra, 46 Cal.2d at p. 836.) “[A] ‘probability’ in this context does not mean more likely than not, but merely a reasonable chance, more than an abstract possibility.” (College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 715.)

Defendant contends, even if the admission did not violate the confrontation clause, the error was prejudicial under Watson. She argues that an element of all five counts was proof of the absence of Suzi Atwood’s consent and that the challenged statements were indispensable—indeed the only—evidence that the use of the identification was unauthorized.

The Attorney General responds that any error by the trial court was harmless because there was ample evidence of defendant’s guilt. The Attorney General points to the various unchallenged exhibits including the surveillance images showing two different people claiming to be Suzi Atwood, the loan documents, cash and check issuances and deposits, as well as defendant’s conduct in falsely holding herself out as her mother, providing her mother’s identification and income verification, and receiving the loan proceeds, all without indicating that she was acting on her mother’s behalf. The Attorney General contends that the evidence of Suzi Atwood going to the credit union 10 days after the defendant’s actions showed that she was physically capable of going there herself and did not need the defendant to act on her behalf; it was also circumstantial evidence that Suzi Atwood did not approve of the loan.

We review the entire record and conclude that absent the challenged statements, there was sufficient evidence as to every count, and therefore, admitting the statements for the truth and failing to limit their use to the permitted purpose was harmless error.

As to the commercial burglary and grand theft counts, defendant mistakenly treats Suzi Atwood as the owner of the funds and, on that basis, argues that the prosecution had to prove the absence of her consent. But as we discussed, she was not the owner of the funds which are the subject of counts three, four and five. The credit union acknowledged and took responsibility for its failure in processing the loan and accepted the $5,000 loss. While the challenged statements were improperly admitted for their truth—and as a result the limiting instruction was not given—the statements were admissible to prove that the credit union was the owner, and therefore the victim. Admitting the statements for their truth—rather than to explain the credit union’s subsequent conduct—was consistent with, but collateral to the issues raised by counts three, four and five.

As to counts one and two, the issue of prejudice is a closer question. The absence of consent is an element of both count one (theft from an elder) and count two (identity theft). (CALJIC Nos. 15.60, CALCRIM Nos. 1807[9] and 2040.) To prove identity theft, the prosecution had to prove that “1. [a] person willfully obtained personal identifying information of another person; [and,] 2. [t]he person used that information for any unlawful purpose, including the obtaining, or attempted obtaining of credit, good, or services without the consent of that person.” (CALJIC No. 15.60). Count one alleged that defendant committed theft from an elder by committing identity theft and the court’s instruction referred the jury to the count two instruction for that crime. (CALJIC No. 15.60.)

The challenged statements, admitted for their truth, supplied the element that Suzi Atwood did not consent to the taking and use of her identity by defendant. However, the uncontroverted evidence establishes that defendant entered the credit union on April 7, representing herself to be Suzi Atwood supported by the State of California senior identification card, and requested that the preapproved loan be funded. After providing the additional proof of income using Suzi Atwood’s Social Security documents, she requested and received $3,000 in cash and the balance of the loan as a $2,000 cashier’s check payable to herself. She returned two days later, returned the check and—using services only available to a depositor—requested and received a new check payable to a different person. When Suzi Atwood went to the bank 10 days later, she identified herself and as with defendant, her interaction was recorded. The jury considered not only unobjectionable documentary evidence, but also Sather’s testimony supported by the outtakes from the security video, which depicted defendant on April 4 and 9 and Suzi Atwood on April 19. The properly-admitted exhibits and testimony provided both direct—and to the extent necessary circumstantial—evidence in support of every element of these charges.

Without the erroneously admitted hearsay, the properly admitted testimony and exhibits provided substantial evidence that defendant “willfully obtain[ed] personal identifying information of another person” and “use[d] that information for [the] unlawful purpose [of] . . . obtain[ing] . . . credit [and] goods.” (CALJIC 15.60.) While there was no direct evidence that defendant used the information “without the consent of” Suzi Atwood or “with the specific intent to defraud,” we find sufficient circumstantial evidence from which the jury could properly infer that Suzi Atwood did not consent to the use of her information and that defendant’s intent was to defraud. That Suzi Atwood went to the credit union 10 days after the loan was funded, identified herself and returned the requested documents—without evidence as to the content of the documents she returned—is evidence the jury properly considered. That the credit union followed its customary fraud investigation procedures and concluded that Suzi Atwood had not applied for the loan and had not received its proceeds was properly admitted for proof of counts three, four and five and could be considered to decide both whether defendant had the specific intent to defraud and whether she “use[d] that information for any unlawful purpose.”[10] (CALJIC 15.60) The jury could—and we believe did—consider this evidence and drew inferences to support their verdicts as to counts one and two.

For these reasons, we conclude the trial court’s error in admitting Suzi Atwood’s statements for their truth and failing to instruct on the appropriate limited purpose was harmless under Watson.

DISPOSITION

The judgment is affirmed.

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Ross, J.*

We concur:

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Pollak, Acting P.J.

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Jenkins, J.