IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO
August 6, 2009
THE PEOPLE, PLAINTIFF AND RESPONDENT,
SUNIL KUMAR BHASIN, DEFENDANT AND APPELLANT.
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.
I. PROCEDURAL BACKGROUND
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.
II. FACTUAL BACKGROUND
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 indicated that he was not substituting in and asked that the conflicts panel be appointed.
1. Waiver by Former Client
Defendant contends the trial court erred by finding that Exum needed to obtain a waiver from his former client, Ronnie, in order to represent him.
"Professional ethics demand that an attorney avoid conflicts of interest in which duties owed to different clients are in opposition. [Citations.] A conflict of interest may arise from an attorney‟s concurrent or successive representation of clients with adverse interests." (People v. Baylis (2006) 139 Cal.App.4th 1054, 1064, fn. omitted (Baylis).) State Bar Rules of Professional Conduct, rule 3-310(E) provides: "A member shall not, without the informed written consent of the client or former client, accept employment adverse to the client or former client where, by reason of the representation of the client or former client, the member has obtained confidential information material to the employment." "Rule 3-310(E) addresses the conflict between a lawyer‟s duty to use all information at his or her disposal in order to represent a current client competently and the lawyer‟s continuing duty of loyalty to a former client with respect to information obtained during the course of the prior representation. [Citation.]" (Baylis, supra, at p. 1065.)
"When a conflict arises out of the successive representation of a former and a current client, disqualification turns on whether there is a substantial relationship between the former representation and the current representation. [Citations.]" (Baylis, supra, 139 Cal.App.4th at p. 1066.) In determining whether there is a "substantial relationship," the court focuses on "the similarities in the facts involved in the two representations, the legal questions posed, and the nature and extent of the attorney‟s involvement in each case. [Citation.]" (Ibid.)
Based on the circumstances of the instant case, the trial court did not abuse its discretion in requiring a waiver from Ronnie. Here, the prior representation of Ronnie involved the fraudulent loan and identity theft by defendant, which gave rise to the charges in the instant case. Ronnie was presumably involved in the transport of the Mercedes and was aware to some extent of the transaction. Although the prosecutor stated that Ronnie had been acquitted in the prior trial, there was a possibility that he might be charged with other offenses that were not originally charged. Exum made no representation as to whether he would represent Ronnie if further charges were brought against him. Certainly, Exum could possess confidential information from his representation of Ronnie that would be pertinent to the instant case. Exum himself admitted that there might be problems if Ronnie was called as a witness. Further, he had a continuing duty to adequately represent Ronnie. There certainly was a real conflict if Ronnie was charged with additional offenses.
Further, Exum stated that Ronnie would not sign a waiver because he was concerned about his brother, who apparently had been convicted and was facing prison time. We cannot conclude that the trial court abused its discretion by finding that Exum needed to obtain a waiver from Ronnie in order to represent defendant on charges clearly intertwined with the charges involving Ronnie, especially in light of the fact that Ronnie might face further charges and might be a witness in defendant‟s case.
2. Constitutional Claims
Defendant contends the refusal by the trial court to allow Exum to represent him violated his right to counsel of choice guaranteed by the Sixth Amendment of the United States Constitution and article I, section 15 of the California Constitution.
"Under both the state and federal Constitutions, a defendant in a criminal case has a right to the assistance of counsel [citation], and that right embraces the right to retain counsel of one‟s own choice, within limits [citation]." (Baylis, supra, 139 Cal.App.4th at p. 1070.) Under the federal Constitution, trial courts are allowed "substantial latitude" in refusing a defendant‟s waiver of a conflict of interest. (Wheat v. United States (1988) 486 U.S. 153, 159-163 [101 L.Ed.2d 949, 108 S.Ct. 2918].)
Some California courts have rejected Wheat‟s broad discretion of the trial court to deny a defendant his right of his choice of counsel and concluded that under the state Constitution, a defendant is the "master of his own fate." (Alcocer v. Superior Court (1988) 206 Cal.App.3d 951, 956-957 (Alcocer).) Under Alcocer, "California law . . . protects a defendant‟s right to waive a conflict of interest on the part of retained counsel. [Citations.]" (Baylis, supra, 139 Cal.App.4th at p. 1070.) This is so regardless of the impact on the trial court or the prior client.
The California Supreme Court seemed to disagree with Alcocer in People v. Jones (2004) 33 Cal.4th 234 (Jones). As stated in Baylis: "The [Jones] court upheld removal of a defendant‟s appointed counsel over the defendant‟s objection because counsel had a conflict of interest involving a former client who may have been involved in the murder for which the defendant was on trial. [Citation.] The court questioned whether certain of its earlier decisions, offering broad protection for a defendant‟s right to choose counsel, were decided under the federal or state Constitutions, reasoning that if they were decided under the federal Constitution they were superseded by Wheat. [Citation.] Nevertheless, Jones declined to overrule Alcocer, stating "[w]e need not decide whether the state Constitution permits a defendant to insist on being represented by a retained attorney who has a potential conflict of interest, for here defendant‟s attorney was appointed by the court, not privately retained by defendant.‟ [Citation.]" (Baylis, supra, 139 Cal.App.4th at pp. 1070-1071.)
As the court in Baylis determined, we need not decide the effect of Jones, supra, 33 Cal.4th 234 on the standard set forth in Alcocer, supra, 206 Cal.App.3d 951. (Baylis, supra, 139 Cal.App.4th at p. 1071.) This case is almost identical to the situation in Baylis. In Baylis, the defendant‟s brother was originally charged for a rape and kidnapping. Richard Hove had represented the defendant‟s brother in previous sexual assault cases, but not the current case. When the victim changed the identification of her assailant, and defendant was charged with the crimes instead of his brother, defendant sought to have Hove substitute in as his counsel. (Baylis, supra, 139 Cal.App.4th at pp. 1060-1062.)
The trial court denied the request for substitution because defendant‟s brother might become a witness in the case and Hove might have to divulge or rely on privileged communication. Further, defendant‟s brother had not adequately waived the potential conflict and was still subject to being charged in the instant offenses if defendant was acquitted. (Baylis, supra, 139 Cal.App.4th at pp. 1063-1064.)
In addressing the findings in Alcocer, the Baylis court concluded: "[E]ven if we assume that the California Constitution is more protective of a defendant‟s right to choose retained counsel, disqualification of [retained counsel] was not unconstitutional. If the state Constitution is more protective, then the applicable standard, set forth in People v. Crovedi (1966) 65 Cal.2d 199, 208, is that the defendant‟s right to counsel of choice may be forced to yield only where it would result in a "disruption of the orderly processes of justice unreasonable under the circumstances of the particular case.‟ [Citation.]" (Baylis, supra, 139 Cal.App.4th at p. 1071.)
The Baylis court went on to conclude: "The question before us is not whether defendant could waive the conflict but whether the trial court could disqualify [retained counsel] to enforce ethical standards meant to protect [his former client]‟s interests. That a defendant is "master of his own fate‟ does not mean that the trial court must disregard the interests of others potentially adversely affected by the representation and the effect of the conflict on the integrity of the judicial process. Defendant could not waive those considerations. [Citation.]" (Baylis, supra, 139 Cal.App.4th at p. 1071.) We find Baylis persuasive and apply its standard here.
We believe that to allow Exum to represent defendant would have presented an actual and substantial conflict of interest implicating Exum‟s duty of confidentiality to Ronnie and would have adversely affected the integrity of the judicial process. Here, Exum had represented Ronnie in a case that gave rise to the instant charges. Ronnie had somehow been involved in transferring the Mercedes to Ferguson. Although defendant contends that the presentation of evidence by Ronnie never came to "fruition," that is not the determining factor. As stated in Jones, "a trial court‟s decision whether to allow a defendant to waive a conflict of interest cannot be made after trial, but instead occurs "in the murkier pretrial context when relationships between parties are seen through a glass, darkly.‟ . . . "[t]he likelihood and dimensions of nascent conflicts of interest are notoriously hard to predict‟ and are "even more difficult to convey by way of explanation to a criminal defendant untutored in the niceties of legal ethics.‟ [Citation.]" (Jones, supra, 33 Cal.4th at p. 241.)
Thus, given the potential conflict arising between Exum‟s representation of the defendant and his prior representation of Ronnie, a potential witness and possibly facing additional charges, the refusal to appoint Exum did not violate defendant‟s rights under the state and federal Constitutions.
IV. ATTORNEY-CLIENT PRIVILEGE
Defendant contends the trial court erred by allowing his prior attorney to disclose that he had been given the RDF by defendant as it violated his attorney-client privilege under Evidence Code section 952.
Prior to trial, Dunlop, defendant‟s attorney in the prior case, was called outside the presence of the jury, because it was anticipated he would assert the attorney-client privilege. On October 21, 2002, during the first trial, he marked the RDF as exhibit D. Dunlop was asked how he came into possession of the document. Dunlop asserted the attorney-client privilege. The prosecutor argued it was a nonverbal act, but the trial court indicated that nonverbal acts were communication.
Dunlop then testified that he used the RDF to cross-examine Ferguson and believed it was authentic. Dunlop testified that he received the RDF during trial. The document showed on its face it was generated on October 3, 2002. Dunlop believed that he showed the document before marking it to DDA Long. Dunlop indicated he was not given the document by a private investigator or secretary, but did not disclose who gave it to him. He never checked its authenticity.
The prosecutor then explained to the trial court that he wanted to elicit testimony from Dunlop that he received the document from defendant. Dunlop told DDA Long and Fox that he got the document from defendant thereby waiving the attorney-client privilege.
The trial court indicated that he was looking at Evidence Code section 952, and nonverbal communication qualified. The trial court then indicated it believed that there were independent sources that could confirm that defendant gave the document to Dunlop. Defendant argued there was no independent source that he gave the document to Dunlop.
The trial court indicated that if Dunlop told DDA Long and Fox that defendant gave the document to him, that constituted waiver. Further, if Dunlop denied it, then his prior statement could be used to impeach him. Defendant countered that Dunlop was not denying the statement, he was invoking the privilege, and questioned whether you can impeach the invocation of the attorney-client privilege.
The trial court believed that if Dunlop had in fact told others in a public forum that defendant gave him the document, this was a waiver of the privilege. Dunlop, who in response to the question regarding whom he received the RDF from, asserted the attorney-client privilege, and was ordered to answer. He testified he was given the RDF by defendant.
Dunlop was called at trial and testified that he received the RDF from defendant. After Dunlop testified, the prosecutor asked the trial court to consider an additional basis for admitting his testimony regarding defendant giving him the RDF. The prosecutor asked the trial court to consider the exception to the attorney-client privilege embodied in Evidence Code section 956 (the crime-fraud exception). The trial court, relying on whether there was "good faith belief" that a crime or fraud occurred, concluded the standard had been met here and would be an exception to the attorney-client privilege.
Here, the People concede that the trial court‟s finding that there was a waiver of the attorney-client privilege was improper because the holder of the privilege was the client, not the attorney, and the fact that defendant‟s attorney disclosed to the prior deputy district attorney and investigator where he obtained the document did not waive the privilege. Since we conclude that the crime-fraud exception applies, we do not address this issue.
First, we conclude that the information possessed by Dunlop-where he obtained the false document-was indeed privileged. The handing of a document to his attorney was a confidential privileged communication under Evidence Code section 952, and such act tended to incriminate defendant. (See In re Navarro (1979) 93 Cal.App.3d 325, 330-331 [act of counsel handing a police report to his client was communication privileged under Evid. Code, § 952].)
Hence, we must determine whether there was an exception. One of those exceptions is known as the "crime-fraud" exception. It is codified in Evidence Code section 956, which states: "There is no privilege under this article if the services of the lawyer were sought or obtained to enable or aid anyone to commit or plan to commit a crime or a fraud." In other words, "[t]he attorney-client privilege does not extend to communications between the attorney and client "having to do with the client‟s contemplated criminal acts, or in aid or furtherance thereof. . . .‟ [Citations.]" (Nowell v. Superior Court (1963) 223 Cal.App.2d 652, 657.)
The crime-fraud exception is "very limited." (Geilim v. Superior Court (1991) 234 Cal.App.3d 166, 174.) "This exception is invoked only when a client seeks or obtains legal assistance "to enable or aid‟ one to commit a crime or fraud. The quoted language clearly requires an intention on the part of the client to abuse the attorney-client relationship . . . ." (Glade v. Superior Court (1978) 76 Cal.App.3d 738, 746.)
""The mere charge of illegality will not defeat the privilege. There must be prima facie evidence that the illegality has some foundation in fact [on the part of the defendant].‟" (Nowell v. Superior Court, supra, 223 Cal.App.2d at p. 657.) Further, there must be ""a reasonable relationship between the [crime or] fraud and the attorney-client communication. [Citation.]‟" (People v. Superior Court (Bauman & Rose) (1995) 37 Cal.App.4th 1757, 1769.) The intent of the client is the relevant factor, not that of the lawyers. (Glade v. Superior Court, supra, 76 Cal.App.3d at p. 746.)
Here, the RDF, which was generated on October 3, 2002, four days prior to trial, listed that Ferguson was the registered owner of the Mercedes. The prosecution was well aware that all other evidence from the DMV showed that he was not the registered owner. Defendant‟s attorney cross-examined Ferguson with the document and marked it for identification to impeach him on his claim he was not the registered owner of the Mercedes. As we will set forth in more detail, post, such action constituted a violation of section 132. Defendant‟s giving of the false document to his attorney to be used at his trial was clearly for the purpose of committing a crime. Defendant‟s actions enabled his attorney to commit the violation of section 132. We have no doubt that the defendant used his attorney to commit a crime.
We do not believe the fact that the trial court did not consider whether there was a prima facie case as to the crime-fraud exception before admitting the testimony in evidence requires reversal. (See Nowell v. Superior Court, supra, 223 Cal.App.3d at 657.) Prior to disclosure in the hearing outside the presence of the jury, Dunlop testified that he used the RDF to cross-examine Ferguson and believed it was authentic. Dunlop testified that he received the RDF during trial. The document showed on its face it was generated on October 3, 2002. Dunlop indicated he was not given the document by a private investigator or secretary, but did not disclose who gave it to him. He never checked its authenticity. The prosecution knew the information on the RDF was false. After this hearing, Fox went to the DMV and obtained videotape that showed defendant in the DMV at the same time that the document was created.
Since there was a sufficient showing of a prima facie case of the crime-fraud exception prior to its disclosure, such disclosure was proper.
Finally, even if we were to conclude that the trial court erroneously admitted Dunlop‟s testimony, we would conclude that reversal is not required because it is not reasonably probable that the outcome of defendant‟s trial would have been different had the evidence not been admitted. (People v. Watson (1956) 46 Cal.2d 818, 836; see also People v. Gionis (1995) 9 Cal.4th 1196, 1225.)
Here, had Dunlop not disclosed that defendant had given him the RDF, we believe that the prosecution could have nonetheless presented evidence that defendant in fact was the source of the document. Initially, there was evidence that the DMV had no record that Ferguson was the registered owner. The prosecution was immediately suspicious of the document and hired Fox to investigate. The document itself stated the date it was generated. Based on this information, the videotape was obtained showing defendant in the DMV. Further, Dunlop could testify that he did not obtain the RDF through his investigations. Based on this evidence alone, it would have been a reasonable inference that defendant gave the RDF to Dunlop. As such, it is not "reasonably probable that, absent the error, the outcome of defendant‟s criminal trial would have been different. [Citation.]" (People v. Gionis, supra, 9 Cal.4th at p. 1225.)
V. INSUFFICIENT EVIDENCE OF BOTH COUNTS
Defendant contends that insufficient evidence was presented to support his convictions for violations of sections 132 and 134.*fn5
A. Standard of Review
"In reviewing a challenge to the sufficiency of the evidence, we do not determine the facts ourselves." (People v. Guerra (2006) 37 Cal.4th 1067, 1129, limited by People v. Rundle (2008) 43 Cal.4th 76, 151.) Rather, "we review the whole record to determine whether any rational trier of fact could have found the essential elements of the crime . . . beyond a reasonable doubt. [Citation.] The record must disclose substantial evidence to support the verdict-i.e., evidence that is reasonable, credible, and of solid value-such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] In applying this test, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence. [Citation.]" (People v. Zamudio (2008) 43 Cal.4th 327, 357.)
B. Section 132
Defendant first contends there was insufficient evidence presented that he "offered into evidence" the RDF at the underlying trial to support his conviction for violating section 132.
Section 132 provides: "OFFERING FALSE EVIDENCE. Every person who upon any trial, proceeding, inquiry, or investigation whatever, authorized or permitted by law, offers in evidence, as genuine or true, any book, paper, document, record, or other instrument in writing, knowing the same to have been forged or fraudulently altered or ante-dated, is guilty of felony." (Italics added.)
"The phrase "offers in evidence‟ must be construed in the context of and harmonized with the other words in section 132." (People v. Pereira (1989) 207 Cal.App.3d 1057, 1063 (Pereira).) In Pereira, the court stated: "The act characterizing a violation of section 132 is an offer in evidence occurring "upon any trial, proceeding, inquiry, or investigation whatever, authorized or permitted by law . . . .‟ "[A]ny . . . proceeding, inquiry, or investigation whatever, authorized or permitted by law‟ bespeaks a broad range of formal as well as informal settings in which an "[offer] in evidence‟ may constitute a violation of the section." (Id. at pp. 1063-1064.) As such, the Pereira court interpreted the phrase "offer in evidence" as "not [being] used in a technical sense or as a term of art." (Id. at p. 1064.) It concluded: "Manifestly, the scope of section 132 extends beyond those situations involving the formal introduction in evidence of documents in a court of law." (Id. at p. 1067, fn. omitted.) In Pereira, the court concluded that the "tender of documents pursuant to a subpoena duces tecum" was sufficient to meet the element of "offer in evidence" of section 132. (Pereira, at p. 1064.)
Here, defendant interprets the language in section 132 as a "term of art" in concluding that he must have moved the RDF into evidence in order to have violated this section. (Pereira, supra, 207 Cal.App.3d at p. 1064.) The fact that defendant gave the RDF to his attorney, it was used in cross-examination of Ferguson, it was read into the record, and it was marked for identification by defendant clearly was an offer of evidence within the meaning of section 132. The fact that the prosecution sought to move the RDF into evidence (without objection from defendant‟s counsel) was not imperative to a conviction of section 132. There simply is no requirement that a document must be moved into evidence in order to constitute a violation of section 132. We believe the evidence supported that the RDF was offered into evidence within the meaning of section 132.
C. Section 134
In order to secure a conviction of a violation of section 134, the prosecution must prove beyond a reasonable doubt that (1) the defendant prepared a false or antedated book, paper, record, instrument in writing, or other matter or thing, (2) with the intent to produce it, or allow it to be produced as genuine or true upon any trial, proceeding, or inquiry authorized by law, (3) for any fraudulent or deceitful purpose. (§ 134.) Relying on familiar principles of statutory interpretation, defendant contends there was insufficient evidence here to sustain his conviction for violating section 134 because he did not prepare the documents at issue, the DMV prepared the document.
""[I]n construing a statute, a court [must] ascertain the intent of the Legislature so as to effectuate the purpose of the law.‟ [Citation.]" (People v. Coronado (1995) 12 Cal.4th 145, 151.) In determining that intent, we first examine the words of the statute, applying ""their usual, ordinary, and common sense meaning based upon the language . . . used and the evident purpose for which the statute was adopted.‟" (People v. Granderson (1998) 67 Cal.App.4th 703, 707, quoting In re Rojas (1979) 23 Cal.3d 152, 155.) ""If there is no ambiguity in the language of the statute, "then the Legislature is presumed to have meant what it said, and the plain meaning of the language governs." [Citation.] "Where the statute is clear, courts will not "interpret away clear language in favor of an ambiguity that does not exist.‟ [Citation.]"‟ [Citation.]" (Coronado, at p. 151.) If the words of the statute are ambiguous, a court may resort to "extrinsic sources, including the ostensible objects to be achieved and the legislative history." (Ibid.) Applying these rules of statutory interpretation, a court ""must select the construction that comports most closely with the apparent intent of the Legislature, with a view to promoting rather than defeating the general purpose of the statute, and avoid an interpretation that would lead to absurd consequences.‟ [Citation.]" (Ibid.)
The word "prepare" is unambiguous. "Prepare" means "to make ready beforehand for some purpose," "to put together . . . make or produce," "to put into written form:
draw up," or "to make . . . ready: get ready." (Webster‟s 3d New Internat. Dict. (1993) p. 1790.) Black‟s Law Dictionary (6th ed. 1990) at page 1182, defines "prepare" as "[t]o provide with necessary means; to make ready; to provide with what is appropriate or necessary."
We believe that the actions of defendant in this case constituted preparation of a false document to be produced at trial. According to testimony presented at trial, defendant obtained the RDF. The document itself showed that the person who identified himself as Ferguson did not have a valid driver‟s license and did not bring the fees to actually transfer the Mercedes. All other information from the DMV showed that Ferguson was not the registered owner.
Defendant manipulated the DMV into creating a document based on false information given by him. We believe the fact that defendant did not physically make the document is not fatal to a conviction under section 134.
We believe that this interpretation of the statute meets the objective of the statute. The objective of section 134, and the other sections embodied in title 7, chapter 6, entitled "FALSIFYING EVIDENCE, AND BRIBING, INFLUENCING, INTIMIDATING OR THREATENING WITNESSES" "is to prevent the fraudulent introduction of material in a proceeding under the authority of law." (People v. Clark (1977) 72 Cal.App.3d 80, 84.) If we were to conclude that defendant, clearly a savvy man, could avoid prosecution under section 134 by being smart enough to have someone else create a fraudulent document for him, it would defeat this purpose. (See also People v. Fields (1980) 105 Cal.App.3d 341, 345, fn. 3 [purpose of section 134 is "[p]rotecting the integrity of evidence in pending formal proceedings"].)
The bottom line in this case was that the RDF contained false information that was provided by defendant. Defendant went to the DMV and obtained this document clearly by providing some sort of false information. He sought to use the document at his trial in order to benefit himself. To conclude that section 134 narrowly defines the preparation of a document to requiring that the person actually physically create the document would both be absurd and defeat the objective of the statute.
Based on the foregoing, there was substantial evidence supporting defendant‟s convictions for violating sections 132 and 134.
Defendant also contends that Riverside County was not the proper venue in which to prosecute the violation of section 134 because the fraudulent document was obtained in San Bernardino County. Defendant claims reversal is required as Riverside County had no jurisdiction to prosecute him.
A. Additional Factual Background
Defendant brought a motion pursuant to section 995 on the ground that the violation of section 134 occurred in San Bernardino County, and therefore prosecution could not be obtained in Riverside County. In denying the motion, the trial court stated: "The venue issue I don‟t have much of a problem determining that issue. Even though the document itself was initially obtained in San Bernardino County, it was certainly used in Riverside County during [defendant]‟s trial. So I think Riverside County has jurisdiction with respect to these violations, as well."
Section 777 sets forth the basic rule of venue in criminal cases: "Every person is liable to punishment by the laws of this State, for a public offense committed by him therein, except where it is by law cognizable exclusively in the courts of the United States; and except as otherwise provided by law the jurisdiction of every public offense is in any competent court within the jurisdictional territory of which it is committed." Section 781 contains an exception to the general rule: "When a public offense is committed in part in one jurisdictional territory and in part in another, or the acts or effects thereof constituting or requisite to the consummation of the offense occur in two or more jurisdictional territories, the jurisdiction of such offense is in any competent court within either jurisdictional territory."
Our Supreme Court has interpreted section 781 as follows: "[W]hen a crime is committed partly in one county and partly in another county, or when the acts or effects constituting the crime or requisite to its commission occur in more than one county, venue is in the superior court in each of the counties in question, and a defendant may be tried in any of them. [Citations.]" (People v. Posey (2004) 32 Cal.4th 193, 199-200.) In interpreting the words of the statute, it established, ""effects . . . requisite to the consummation‟ of a crime establishing venue in a county should be liberally construed to embrace preparatory effects, such as the placement of a telephone call into a county leading to a crime." (Id. at p. 219.)
The underlying purpose of section 781 is expansion of venue beyond the single county in which a crime may be said to have been committed. (People v. Betts (2005) 34 Cal.4th 1039, 1057.) As such, section 781 is applied in a "commonsense manner with due regard to the factual circumstances of the case rather than technical niceties." (People v. Williams (1973) 36 Cal.App.3d 262, 268.)
Liberally construing section 781, it would encompass the violation of section 134 being tried in Riverside County in the instant case. In order to violate section 134, defendant had to have the intent to use the false document in a trial proceeding. Defendant‟s trial was set to begin in four days in Riverside County. It was clear that he used the DMV to prepare a false RDF to be used at his trial to show Ferguson was the registered owner of the Mercedes. As such, his act in San Bernardino clearly had an effect on the pending trial in Riverside County and the subsequent prosecution for violating section 132, which clearly was properly prosecuted in Riverside County.
Furthermore, the facts supporting the violation of sections 132 and 134 were intertwined. The factual circumstances of the case warranted trying both in Riverside County. (People v. Williams, supra, 36 Cal.App.3d at p. 268.)
Defendant contends the preparatory acts must be for the same crime (i.e., the violation of § 132 which was committed in Riverside County) and that if the crime in one county is complete (which he contends it was), it cannot be tried in another county. We believe that is too strict an interpretation of section 781. The violation of section 134 could certainly be seen as a preparatory act to the violation of section 132, and there is nothing that prohibits a violation of both sections. Furthermore, section 134 on its own required the intent to introduce the false document at trial, which was already set for Riverside County. The Riverside County District Attorney‟s Office could properly prosecute defendant for the violation of section 134.
We affirm the judgment in its entirety.
We concur: HOLLENHORST Acting P.J., McKINSTER J.