People v. Waterman CA4/3 ( 2014 )


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  • Filed 6/24/14 P. v. Waterman CA4/3
    NOT TO BE PUBLISHED IN OFFICIAL REPORTS
    California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
    publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
    or ordered published for purposes of rule 8.1115.
    IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
    FOURTH APPELLATE DISTRICT
    DIVISION THREE
    THE PEOPLE,
    Plaintiff and Respondent,                                         G049909
    v.                                                            (Super. Ct. No. RIF10005797)
    MARYBETH WATERMAN,                                                     OPINION
    Defendant and Appellant.
    Appeal from a judgment of the Superior Court of Riverside County, Gary
    B. Tranbarger, Judge. Judgment affirmed.
    Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant
    and Appellant.
    Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
    Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and
    Kimberley A. Donohue, Deputy Attorneys General, for Plaintiff and Respondent.
    *               *               *
    A jury convicted defendant Marybeth Waterman of three counts of grand
    1
    theft (Pen. Code, § 487, subd. (a); counts 1, 3, and 5) and three counts of diversion of
    construction funds (§ 484b; counts 2, 4, and 6). The jury found true the allegations
    defendant took over $200,000 (§ 12022.6, subd. (a)(2)) as to counts 1, 2, 3, 4, and 6, and
    over $65,000 (§ 12022.6, subd. (a)(1)) as to counts 2, 4, 5, and 6, and that she committed
    multiple felonies involving the taking of over $500,000 (§ 186.11, subd. (a)(2)) as to all
    counts. The court sentenced her to six years eight months in prison.
    On appeal defendant contends the court violated her constitutional rights to
    a fair trial and to present a defense when it excluded an expert’s opinion that her conduct
    was legal based on generally accepted business practices in the interior design industry.
    She also contends the prosecutor improperly commented in his closing argument on her
    right not to testify. We disagree with both contentions and affirm the judgment.
    FACTS
    Defendant is an interior designer who owned an interior design company in
    Rancho Mirage named Studio Waterman. In 2006, Studio Waterman had cash flow
    problems. It lost its $250,000 line of credit and could not obtain a new line of credit from
    any other bank. Defendant made decisions about which client purchase orders would be
    fulfilled from the available funds.
    By February or March of 2007, Studio Waterman had $700,000 to
    $800,000 in unfunded liabilities and lacked sufficient funds to finish its current jobs. Its
    accountant suggested defendant move to a less expensive office building, cut down staff,
    or find new clients. Defendant refused.
    1
    All statutory references are to the Penal Code.
    2
    The company’s financial condition worsened. Its accountant gave
    defendant monthly reports on the company’s financial condition, including the
    outstanding balances on clients’ accounts.
    At this point, Studio Waterman had only three or four clients, including the
    Pharrises (Gerald and Lynn), the Berlins (James and Madeline), and the Wiltzes (James
    and Jane). Studio Waterman used much of the money paid by these clients to pay the
    company’s operating expenses, to advance other clients’ projects, to pay defendant, or to
    pay credit card charges for personal expenses, such as “high end women’s clothing and
    accessories, payments to a plastic surgeon, hair salon and spa treatment charges,
    entertainment, travel at very high end . . . first class hotels, limousines, and international
    travel.” Between 2006 and 2009, Studio Waterman paid defendant around $640,000.
    The Pharrisses
    In 2006, the Pharrises hired defendant to provide interior design services
    for a house they were building in Indian Wells. The contract required the Pharrises to
    pay defendant (1) the wholesale cost of furniture and fixtures listed in letters of estimate,
    and (2) a 35 percent markup as defendant’s design fee. Of this, the Pharrises were to pay
    defendant an upfront deposit equal to 20 percent of the total amount of any letter of
    estimate. Between June 2008 and July 2009, the Pharrises paid defendant almost $1.3
    million. Defendant and one of her employees falsely claimed to have ordered all the
    items for which the Pharrises had paid.
    In August 2009, the Pharrises learned from their general contractor that
    defendant had not ordered the cabinets for their house. The Pharrises tried to contact
    defendant by cell phone, land line, and e-mail. About two weeks later, she finally
    answered the phone. In a meeting on August 24, 2009, defendant told the Pharrises that
    her business had started declining right when the Pharrises started making their major
    payments to her, that she had commingled their payments with her company accounts,
    3
    and that their money was gone and had been used to pay for other people’s furniture.
    Defendant said she was out of money, she had let her staff go, and she was paying her
    overhead with her clients’ money. Gerald Pharris accused defendant of committing fraud
    and she agreed. She offered to give the Pharrises some money she had received from
    other clients for her design fees, but Gerald Pharris refused to accept it. He reported
    defendant to the authorities because he did not want defendant to do this to anyone else.
    The total loss suffered by the Pharrises was about $1.1 million.
    The Berlins
    In 2006, the Berlins hired defendant to provide interior design services for a
    New York City apartment they were renovating. Pursuant to a letter of estimate, they
    paid defendant deposits for items she purportedly ordered for them at her wholesale cost,
    as well as defendant’s design fee equal to a 35 percent markup. They also paid her travel
    expenses.
    In July 2009, a subcontractor informed the Berlins that progress on the
    apartment had stalled because defendant failed to deliver all the wall paper the Berlins
    had ordered. An employee of defendant e-mailed the Berlins that the wall paper would
    be shipped out. In August 2009, defendant claimed to be on vacation and in a “no cell
    zone,” and also that she had visited the apartment and it was not in a ready condition for
    the wall paper.
    On August 18, 2009, James Berlin e-mailed defendant that the Berlins
    would proceed to take necessary action. The next day, defendant phoned him and
    acknowledged she had not ordered all the items she had claimed to. She said “her
    business had been bad and she had used the money for other things and that she was
    hoping that the next project would provide money for this project, but there was no next
    project.” The Berlins suffered a loss of around $600,000 to $650,000.
    4
    The Wiltzes
    In the spring of 2007, the Wiltzes hired defendant to provide interior design
    services for a house they were building in Indian Wells. Pursuant to a letter of estimate,
    the Wiltzes paid defendant deposits for items she purportedly ordered for them, as well as
    her service charge equal to a 35 percent markup. In August 2009, defendant told them
    she did not have the money to pay the balance owing to vendors for some items for which
    the Wiltzes had already paid, and that they would need to pay the vendors directly.
    Defendant said she had lost a line of credit and was having financial difficulties. The
    Wiltzes suffered a loss of around $300,000.
    Defense
    A forensic accountant testified that Studio Waterman’s books and records
    showed that some money was paid to defendant (or paid toward her credit card charges
    for personal expenses) to repay her for around $780,000 in loans she had made to the
    company in 2004 and 2005. The company repaid defendant in full for those loans by
    May 31, 2008. Studio Waterman owes the Pharrises, the Berlins, and the Wiltzes about
    $1.7 million.
    Character witnesses opined that defendant is honest, trustworthy, and
    honorable.
    DISCUSSION
    The Court Did Not Abuse Its Discretion by Excluding Certain Expert Testimony
    Defendant contends the court abused its discretion by excluding evidence
    she acted within acceptable industry norms and lacked the specific intent required for
    grand theft. She argues the court thereby violated her due process right to a fair trial and
    her right to present a defense.
    5
    Prior to trial, the People moved for a court ruling that “[e]vidence relating
    to the common practice in the interior design or construction industry is not relevant and
    should not [be] admitted into evidence.” At a pretrial hearing, the court and counsel for
    both parties placed on the record some issues they had discussed in chambers. The
    prosecutor stated, “Then I believe we also discussed evidence relating to the defense
    bringing in an expert in the interior design industry would not be admitted and not be
    relevant as to the practices.” The court stated, “That’s overbroad. Generally speaking,
    that is correct. But I didn’t exclude all possibility of someone experienced in the industry
    giving the jury some useful information. What we discussed was whether or not that
    person could at all give an expert opinion about the legality of certain activity, whether or
    not it was legal or not legal, and that it is certainly going to become clear to the jury and
    everyone in this trial that defense is not a defense, and if it’s simply being presented in
    furtherance of that kind of defense it won’t be permitted.” The prosecutor replied,
    “Okay,” thereby acknowledging he understood the court’s ruling.
    The court did not abuse its discretion by excluding expert testimony on the
    legality of defendant’s conduct. (People v. McDowell (2012) 
    54 Cal.4th 395
    , 426
    [court’s decision on admissibility of expert testimony reviewed for abuse of discretion].)
    Expert opinion on a question of law is inadmissible (Summers v. A.L. Gilbert Co. (1999)
    
    69 Cal.App.4th 1155
    , 1178), as is expert opinion that “invades the province of the jury to
    decide a case” and “‘“amounts to no more than an expression of his general belief as to
    how the case should be decided . . . .”’” (Piscitelli v. Friedenberg (2001) 
    87 Cal.App.4th 953
    , 972; see also People v. Coffman and Marlow (2004) 
    34 Cal.4th 1
    , 82).
    Defendant contends her trial counsel reasonably misunderstood the court’s
    ruling. She asserts that, regardless of how the court’s order is “characterized,” “defense
    counsel never called an industry expert to testify as to common industry accounting,
    fulfillment and banking practices because he, like everyone other than [plaintiff],
    reasonably understood the court’s ruling as prohibiting him from doing so.” But the
    6
    court and the prosecutor understood the ruling. Apparently, only defense counsel was
    confused. Defendant cites no support in the record (or any other support) for his
    assertion that his misunderstanding of the court’s ruling was reasonable. Moreover,
    defense counsel could have asked the court on the record to clarify its ruling. He failed to
    do so.
    Next, defendant complains that the court improperly limited defense
    counsel’s cross-examination of prosecution witness George Kline, who was not an
    expert, but rather an employee of Studio Waterman from the spring of 2008 to August
    2009. During that time, Kline’s primary responsibility at Studio Waterman was “UPS,”
    as well as “additional general office functions,” such as assisting other staff members and
    filing.
    On cross-examination, defense counsel elicited, with no objection from the
    prosecutor, Kline’s testimony that he had worked in the design industry prior to his
    employment at Studio Waterman, and that, based on his prior experience and knowledge
    and what he observed at Studio Waterman, he did not believe he had committed any
    criminal conduct or had assisted anyone else’s criminal conduct.
    Shortly thereafter, the following colloquy ensued.
    Q. [BY DEFENSE COUNSEL]: “The sense that one gets in listening to your testimony
    about conversations and about interaction and then in these e-mails is a couple of things.
    One, this is a legitimate business that is functioning, that is providing services to
    numerous clients.
    A. Yes.
    Q. When you think about, you know, shams or Ponzi schemes or these grand sort of shell
    companies, one thinks of a purported business that is providing no service.”
    [The court properly sustained the prosecutor’s objection to this statement.]
    Q. [BY DEFENSE COUNSEL]: “Was this that type of business?” The court called a
    sidebar conference, after which defense counsel moved on to another line of questioning.
    7
    On appeal defendant contends the court improperly excluded Kline’s
    testimony “about whether Studio Waterman was a Ponzi scheme which provided no
    actual service.” The court did not abuse its discretion by doing so. Defense counsel’s
    question concerning shams, Ponzi schemes, and shell companies went to the legality of
    defendant’s business. Furthermore, the testimony would have been cumulative. Kline
    testified that the other employees of Studio Waterman included an architect, two graphic
    artists, an office manager, project managers, an in-house bookkeeper, a
    secretary/receptionist, and a computer specialist. His testimony concerning Studio
    Waterman’s employees and its daily activities revealed the company provided actual
    interior design services to various clients. For example, Kline testified that money was
    spent on projects for other clients and that vendors (who had provided merchandise)
    pressured Studio Waterman for payment. Moreover, the court granted defense counsel
    very generous latitude in cross-examining Kline, even allowing Kline to testify he did not
    believe any criminal conduct “was going on” at Studio Waterman.
    Defendant’s second contention concerning Kline’s testimony is that the
    court improperly precluded Kline from testifying about defendant’s “business intent
    during the economic downturn.” The court did not abuse its discretion. Kline had no
    personal knowledge of defendant’s intent. Furthermore, whether defendant had the
    requisite intent for grand theft was a question for the jury.
    Finally, defendant contends the court improperly precluded Kline from
    testifying “about litigation against a former client that owed a great deal of money to
    Studio Waterman.” But Kline was not familiar with the subject; defense counsel had to
    educate him by saying (in the guise of a question), “Hitchcock was actually a litigation
    matter that Studio Waterman had against a prior client that had not paid a whole lot of
    money.” The court did not abuse its discretion when it sustained the prosecutor’s
    relevance objection. Hitchcock’s debt to defendant was irrelevant to whether defendant
    committed grand theft and diversion of construction funds against the Pharrises, the
    8
    Berlins, and the Wiltzes. And since Kline was unfamiliar with the litigation, it is unclear
    what he could have testified about it (other than to respond to defense counsel’s
    educational question/statements).
    In sum, the court did not abuse its discretion and did not violate defendant’s
    constitutional rights to a fair trial and to present a defense. A state’s evidentiary rules
    generally do not abridge an accused’s right to present a defense. (People v. Cunningham
    (2001) 
    25 Cal.4th 926
    , 999; United States v. Scheffer (1998) 
    523 U.S. 303
    , 308.) Nor
    does a court abuse its discretion by precluding defense counsel from cross-examining a
    witness about cumulative evidence. (Cunningham, at p. 999.) There was no error.
    The Prosecutor Did Not Improperly Comment on Defendant’s Failure to Testify
    During closing argument, the prosecutor argued that defendant intended to
    commit grand theft. He then immediately commented on defendant’s right not to testify:
    “Let’s move to a few different categories in terms of how you evaluate evidence. First,
    let’s start with the defendant’s right not to testify. Miss Waterman has a right not to
    testify. You cannot hold that against her. In fact, you can’t even talk about it during your
    deliberations. There’s a — and you can’t consider it for any reason. [¶] There’s a law
    school professor one time that told me, you know, if you’ve got a right but you get
    penalized when you exercise that right, well what good is the right? So she didn’t testify
    in this case, and you can’t consider that — for any purpose.” The court overruled defense
    counsel’s objection.
    Outside the jury’s presence, defense counsel elaborated on his objection:
    “I’m sure [the prosecutor’s] intent was not to educate the jury on why we have a right not
    to testify, but rather to highlight the fact that there is a right not to testify and it was
    invoked in this case. [¶] I was surprised by the comment . . . . I’ve never heard a
    Government prosecutor previously comment on the theory behind no comment on the
    9
    Fifth Amendment. And so I thought it was an appropriate Griffin objection.” The court
    again overruled the objection.
    On appeal defendant contends the prosecutor implied to the jury that her
    “failure to testify was evidence that she had the specific intent to steal . . . .”
    In Griffin v. California (1965) 
    380 U.S. 609
    , 611-615 (Griffin), “the United
    States Supreme Court held that the privilege against self-incrimination of the Fifth
    Amendment prohibits any comment on a defendant’s failure to testify at trial that invites
    or allows the jury to infer guilt therefrom, whether in the form of an instruction by the
    court or a remark by the prosecution.” (People v. Clair (1992) 
    2 Cal.4th 629
    , 662.) In
    Griffin, the prosecutor “made much of” the defendant’s failure to testify, and argued that
    the defendant would know details such as whether the victim looked “‘beat up’” when
    they went down an alley together. (Griffin, at p. 610.) The prosecutor argued: “‘These
    things he has not seen fit to take the stand and deny or explain.’” “‘And in the whole
    world, if anybody would know, this defendant would know.’” “‘Essie Mae is dead, she
    can’t tell you her side of the story. The defendant won’t.’” (Ibid.)
    Similar blatant references to the defendant’s failure to testify appear in the
    case law. They “include remarks that the defendant ‘has been very quiet’ during trial;
    ‘where is the outcry of innocence?’; ‘Ask the defendant to explain these things’; ‘What
    other witnesses could the defendant’s case have put forward who were totally available to
    you?’ spoken while the prosecutor gestured toward the defendant; ‘He could have taken
    the stand and explained it to you’; ‘Only Mr. Harris [the victim] and this defendant were
    present at those initial meetings and we have brought you the testimony of Mr. Harris’;
    ‘If there are reasons why innocent people do not testify before the court, I do not know
    what they would be.’ ‘There is only one person that can tell you [what happened], and
    that’s the defendant.’” (Gershman, Prosecutorial Misconduct (2d ed.) 11:12, fns.
    omitted.)
    10
    “Prosecutorial comment which draws attention to a defendant’s exercise of
    his constitutional right not to testify, and which implies that the jury should draw
    inferences against defendant because of his failure to testify, violates defendant’s
    constitutional rights.” (People v. Murtishaw (1981) 
    29 Cal.3d 733
    , 757, superseded by
    statute on another point as recognized in People v. Boyd (1985) 
    38 Cal.3d 762
    , 772-773.)
    In People v. Carter (2005) 
    36 Cal.4th 1114
    , 1190, defense counsel, in
    closing argument, acknowledged that the defendant did not testify, admonished the jurors
    they could not “‘hold it against him’” or “‘consider any of it,’” and “hypothesized a
    number of reasons why a defendant might elect not [to] testify.” (Id. at p. 1190.) Our
    Supreme Court held there was no Griffin error because the remarks, considered in
    context, showed “that counsel was not suggesting that the jury draw any sort of adverse
    inference from defendant’s silence.” (Carter, at p. 1192.) The attorney’s admonishments
    that the jury could not consider the defendant’s silence, or hold it against him,
    “manifestly did not constitute the type of comments that Griffin declared invalid.” (Ibid.)
    In People v. Bradley (2012) 
    208 Cal.App.4th 64
    , a prosecutor “stated
    ‘[t]here was no valid explanation given by the [defendant] as to why the public could not
    see the actual credit card statements,’” which comment elicited a defense motion for a
    mistrial on Griffin grounds. (Bradley, at p. 85.) The trial court denied the motion.
    (Ibid.) The prosecutor then told the jury that the defendant had a constitutional right not
    to testify and “the jury could not draw an inference from the fact that [he] did not testify
    because he was ‘entitled to just sit in that chair on his constitutional right and not say
    anything.’” (Ibid.) The prosecutor explained to the jurors that, when he previously
    commented on the defendant’s failure to explain why the credit card statements were
    private, the prosecutor had not been talking about the defendant’s choice not to testify.
    (Id. at pp. 85-86.) Defense counsel then “renewed his motion for mistrial on the basis of
    the prosecutor’s ‘intentional’ misconduct in ‘commenting on [the defendant’s] right to
    take the Fifth Amendment.’ The [trial] court again denied [the defense] motion for
    11
    mistrial, finding the prosecutor’s comments did no more than paraphrase instructions the
    court had already given the jury.” (Id. at p. 86.)
    The Court of Appeal held there was no Griffin error. (People v. Bradley,
    supra, 208 Cal.App.4th at p. 86.) As to the prosecutor’s comments “that the jury should
    not draw any adverse inferences from [the defendant’s] failure to testify, the trial court
    properly denied the motion for mistrial. The prosecutor merely paraphrased the language
    of CALJIC Nos. 2.60 and 2.61, which had already been read to the jury, and explained he
    did not mean to suggest the jury should draw any adverse inference from [the
    defendant’s] failure to testify. [¶] Even if the prosecutor’s references to [the
    defendant’s] constitutional right not to testify can be regarded as error, ‘“indirect, brief
    and mild references to a defendant’s failure to testify, without any suggestion that an
    inference of guilt be drawn therefrom, are uniformly held to constitute harmless error.”’”
    (Ibid.)
    Here, too, the prosecutor’s remarks paraphrased the court’s jury instruction
    2
    on the subject. As in People v. Carter, 
    supra,
     
    36 Cal.4th 1114
    , the prosecutor reminded
    the jurors they could not talk during deliberations about defendant’s right not to testify or
    consider it for any reason.
    But defendant argues the prosecutor’s remarks were not meant to be
    educational, but “were, at best, unnecessary and reckless, and, at worst, intentionally
    2
    The court instructed the jury with CALCRIM No. 355 as follows: “A
    defendant has an absolute constitutional right not to testify. She may rely on the state of
    the evidence and argue that the People have failed to prove the charges beyond a
    reasonable doubt. Do not consider for any reason at all the fact that the defendant did not
    testify. Do not discuss that fact during your deliberations or let it influence your decision
    in any way.”
    12
    unconstitutional.” Defendant notes the court had already instructed the jury on the
    3
    subject and that defense counsel surely intended to do so in his closing argument.
    “The test on review is whether there is a reasonable likelihood that the jury
    misconstrued or misapplied the words in violation of the privilege against self-
    incrimination.” (Levenson, Cal. Crim. Proc. (The Rutter Group 2013) ¶ 23:45, p. 23-51;
    People v. Clair, 
    supra,
     2 Cal.4th at pp. 662-663.) It is not reasonably likely the jury did
    so here. The prosecutor’s comments paraphrased the court’s instructions to the jury.
    Jurors are “presumed to have followed the court’s instructions.” (People v. Sanchez
    (2001) 
    26 Cal.4th 834
    , 852.) Indeed, the prosecutor’s comments reminded the jury they
    could not discuss or consider in their deliberations that defendant did not testify.
    In any event, the prosecutor’s remarks on defendant’s right not to testify
    were brief, mild, and not the type of comments Griffin declared invalid. “[I]ndirect, brief
    and mild references to a defendant’s failure to testify, without any suggestion that an
    inference of guilt be drawn therefrom, are uniformly held to constitute harmless error.”
    (People v. Hovey (1988) 
    44 Cal.3d 543
    , 572; People v. Turner (2004) 
    34 Cal.4th 406
    ,
    420-421.) Although the prosecutor’s comments were probably ill advised, inviting
    scrutiny on appeal, it was not error to paraphrase the court’s own instruction, and, in any
    3
    As to the prosecutor’s intent, this was not the first time in his closing
    argument that he gave the jurors an educational admonishment. Earlier, he had noted that
    Studio Waterman employees had testified pursuant to immunity agreements: “[C]ommon
    sense will tell you, Well, why is [defendant] charged and not these people? Good
    question. But as you heard in the jury instruction, that isn’t something for you to
    consider. So I understand you might be curious about it. You might think, well is it fair
    or not? But as a jury sitting in judgment of [defendant’s] actions, you have to put that
    issue completely aside and just judge [defendant’s] actions.” These comments
    highlighted the issue for the jury. But clearly the prosecutor had no nefarious intent,
    since it was not in the prosecution’s interest for the jury to speculate about the
    employees’ culpability and to consider whether it was fair that defendant was singled out
    for prosecution.
    13
    event, was harmless beyond a reasonable doubt. (Hovey, at p. 572 [standard for prejudice
    for Griffin error is harmless beyond a reasonable doubt].)
    DISPOSITION
    The judgment is affirmed.
    IKOLA, J.
    WE CONCUR:
    RYLAARSDAM, ACTING P. J.
    BEDSWORTH, J.
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