APPEAL from the Superior Court of Riverside County. Vilia G. Sherman, Judge (retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) and Ronald Brown, Judge (judge of the Mendocino Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 5 of the Cal. Const.) Affirmed. (Super.Ct.No. RIF106740).
The opinion of the court was delivered by: Richli J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
Defendant Sunil Kumar Bhasin was set to stand trial on a fraudulent loan transaction and identity theft in Riverside County (case No. RIF090125) for a car loan involving a 1994 Mercedes Benz. Just days prior to trial, defendant went to the Redlands Department of Motor Vehicles (DMV), located in San Bernardino County, and gave them false information regarding the registered owner of the Mercedes. The DMV, based on this information, generated a report of deposit of fees (RDF) that listed John Ferguson (the person whose identity defendant was charged with stealing and in whose name he allegedly obtained a fraudulent loan) as the registered owner of the Mercedes. Bhasin gave his counsel the RDF, and counsel cross-examined Ferguson with the document based on his denial at trial that he was ever the registered owner of the Mercedes.
The prosecution immediately questioned the authenticity of the RDF, since it had never before seen the document, it had been recently generated, and all other DMV documents showed that Ferguson was not the registered owner of the Mercedes. After further investigation, it was discovered that defendant had obtained the document containing the false information. A mistrial was declared, and the Riverside County District Attorney‟s Office filed charges in this case of preparing false documentary evidence and offering forged, altered, or antedated documentary evidence at a trial.
Defendant was convicted of both charges. Defendant now contends on appeal:
1. The trial court erred by refusing to substitute in as counsel an attorney who had represented his codefendant in the underlying fraud and identity theft trial, thus denying defendant his right to counsel of his choice under the federal and state Constitutions.
2. The trial court improperly allowed his prior attorney to testify that defendant gave the RDF document to counsel, as it violated the attorney-client privilege.
3. Insufficient evidence was presented to support his convictions of violating Penal Code sections 132 and 134.*fn2
4. Riverside County was not the proper venue for prosecution of the violation of section 134.
We find that substantial evidence supports defendant‟s convictions and there were no prejudicial trial errors. We affirm the judgment in its entirety.
Defendant was found guilty by a jury of preparing false documentary evidence (§ 134) and offering forged, altered, or antedated documentary evidence at trial (§ 132). On June 20, 2008, defendant was sentenced to 36 months of formal probation.
The acts of defendant that gave rise to the convictions in this case occurred while defendant was brought to trial in 2002 for charges that he stole John Ferguson‟s identity and secured a fraudulent loan in Ferguson‟s name.
Sometime prior to 2002, defendant had asked Ferguson to tow a 1994 Mercedes, that had no engine or transmission, to Riverside (specifically, defendant‟s medical office) from Orange County. The car was in the possession of Auto Market, which was owned by several brothers with the last name of Dawood. In exchange, Ferguson was told by defendant that he could build his credit by signing a loan on the car. Ferguson understood that he would sign the loan papers but would not receive any money or the car. Ferguson signed the bill of sale on the Mercedes when he picked it up from Auto Market. He transported the Mercedes to defendant.
A loan application and pay stubs in Ferguson‟s name were submitted to the USAA Federal Savings Bank (USAA) in San Antonio, Texas. The bank issued a $50,000 loan based on the Mercedes as collateral, on the representation that Ferguson earned between $50,000 to $80,000 a year, which was not the case as he was just doing handyman work on a part-time basis for defendant. USAA deposited the money into a bank account bearing a company name that defendant owned. The money was immediately withdrawn from the account. Defendant made one payment to USAA. The car disappeared and was found on the street in San Bernardino County in 2003. It was eventually sold at a lien sale by the towing company. The Mercedes was unregistered from 1999 to 2003. Suspicion arose regarding the transaction and defendant was interviewed by police as to how he obtained the loan proceeds. He initially stated that Ferguson bought the car with his own money. He then claimed that he loaned Ferguson the money to buy the car and received the loan check from USAA because he had agreed to do repair work on the Mercedes for Ferguson. Defendant claimed he gave back the remaining loan proceeds to Ferguson after he fixed the car.
A search of defendant‟s office revealed documents in Ferguson‟s name, including the loan papers between Ferguson and USAA for the Mercedes. The address listed for Ferguson (184 Sir Bedivere) was actually a motor home occupied by the Dawood brothers, who owned Auto Market, and Ferguson denied that he had ever lived there. There were several credit card applications in Ferguson‟s name and a company called Custom Motors. There was also a credit report in Ferguson‟s name. Some of the applications had Ferguson‟s name forged and others Ferguson actually signed.*fn3
Charges were brought against defendant and the Dawood brothers in Riverside County for the loan fraud and identity theft based on defendant using Ferguson‟s name to get the car loan from USAA and the use of fraudulent information. George Dunlop, defendant‟s attorney, announced ready for trial and it was set to begin on October 7, 2002.
On October 3, 2002, defendant went to the DMV. Apparently, the DMV generates a RDF if a person presents evidence of the sale of a vehicle and wants to transfer the title and registration on the vehicle. Defendant presented some documents (that were not admitted at trial) to the DMV clerk in order to show there would be a transfer of title and to prove the registered owner for the Mercedes. The RDF obtained by defendant listed those items that must be completed in order to transfer the title and registration for the Mercedes. Defendant did not present to the DMV clerk a valid driver‟s license for Ferguson, he did not have permission to transfer the title from the lienholder, and he did not pay any fees. All the information needed to create the RDF would have been based on information given by defendant. The registered owner need not be present to get this report. The RDF listed John Ferguson, Custom Motors, as the registered owner, or "R/O," with the address listed as 184 Sir Bedivere in Riverside. The legal owner was listed as USAA. All other DMV records showed that Ferguson was not the registered owner of the Mercedes.
Sometime during the trial, defendant gave the RDF to Dunlop. Dunlop did not confirm the document‟s authenticity. During cross-examination of Ferguson, Dunlop marked the RDF as a defense exhibit and read the report to Ferguson into the record. He showed the report to Ferguson on several occasions to both impeach Ferguson and to prove that Ferguson was in fact the registered owner of the Mercedes.
After Dunlop finished his cross-examination of Ferguson, he gave the RDF to the prosecutor of the first trial, Deputy District Attorney Samuel Long. DDA Long became suspicious because the RDF had been generated during the proceedings and because the information possessed by DDA Long was that Ferguson was not the owner. DDA Long had not seen the document prior to that day. A district attorney investigator employed by Riverside County, Gerald Fox, was assigned to confirm the authenticity of the document.
Fox obtained a videotape from the DMV that showed defendant in the DMV on October 3, 2002, at the same time the RDF was generated, which was shown to the jury.*fn4
III. DENIAL OF RIGHT TO COUNSEL OF CHOICE
Defendant contends the trial court erred by denying his request to substitute in as his counsel an attorney who had represented his codefendant in the loan fraud and identity theft trial based on the codefendant‟s refusal to sign a waiver of the conflict of interest. Such denial violated his right to counsel of his choice under the state and federal Constitutions.
A. Additional Factual Background
Private attorney, Darryl Exum, appeared to substitute in as counsel for defendant on March 21, 2003. He explained: "I would like to substitute in. Previously, I was hoping to file a waiver of conflict of interest from my former client. I‟ve been informed by the State Bar that I don‟t need a waiver from my former client, because he‟s not before the Court and I‟m not using any information from him in my representation of this client.
But this client needs to waive his right to conflict-free counsel, and I need to put that on the record and later file a written waiver with the Court before I substitute in." Exum then asked defendant if he understood that he had represented a codefendant in the first case, Ronnie Dawood, and that anything that was told to him by Ronnie would be privileged and could not be used by defendant in his case. Defendant stated that he understood. Defendant waived his "right to a conflict-free counsel."
The prosecution expressed concern because it might call Ronnie as a witness in its case-in-chief. Exum stated that he was not concerned and that the problem could be addressed when Ronnie was actually called. The trial court was concerned: "I don‟t care what the State Bar says. You have privileged information, and you could cross-examine that witness with privileged information. If you don‟t, it‟s to the dereliction of your current client." Exum responded that defendant had waived his right to conflict-free counsel. The trial court responded that he could not waive his right to a fair trial. The prosecution did not want an issue in the middle of trial and wanted a waiver from Ronnie. If Ronnie was called as a witness, the prosecutor would ask about his relationship with defendant and other previous codefendants in the case that led to the instant case. The trial court responded that the "potential for your cross-examination of him is fraught with error without a waiver from him."
Exum stated that he did not believe Ronnie would actually be called to testify. The prosecutor responded that he was not sure, but was investigating whether his testimony might be helpful. The prosecutor also noted that although Ronnie was acquitted on the prior charges, there might be cause to bring new charges. The trial court understood that Ronnie had been acquitted but that he was only peripherally involved. The trial court felt that Ronnie might have some knowledge whether personal or business with the participants in the instant case. The trial court stated: ". . . I would think that the potential for calling him as a witness is very strong. So I think it could blow up in your face, Mr. Exum." The trial court indicated that Exum would not be allowed to substitute in without a waiver from Ronnie. Exum indicated that Ronnie would not execute the waiver.
Exum explained that Ronnie would not execute the waiver because he did not want Exum to blame his brother for the crime committed by defendant. Exum admitted if Ronnie testified, it would present a problem. Exum did not think that Ronnie would testify for the prosecution. The trial court responded that the prosecution could force Ronnie to testify. Exum ...