People v. Bowden CA1/2 ( 2020 )

Filed 11/24/20 P. v. Bowden CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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
FIRST APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
A157132
v.
GINA BOWDEN, (Contra Costa County
Super. Ct. No. 51803667)
Defendant and Appellant.
Gina Bowden was convicted following a jury trial of identity theft and
forgery. On appeal, she contends (1) neither conviction is supported by
substantial evidence; (2) the trial court abused its discretion when it
admitted evidence of a prior offense pursuant to Evidence Code sections 1101,
subdivision (b) and 352; (3) the court erred when it failed to exclude the prior
offense evidence on the ground of delayed disclosure; (4) the court abused its
discretion when it refused to instruct the jury on the delayed disclosure; and
(5) Senate Bill No. 136 requires that six prior prison term enhancement
allegations the court found true be stricken. We shall strike the prior prison
term enhancement allegations and true findings, but shall otherwise affirm
the judgment.
PROCEDURAL BACKGROUND
On March 8, 2018, appellant was charged by information with four
counts of felony theft of identifying information with a prior conviction (Pen.
1
Code, § 530.5, subd. (c)(2)—counts 1-4)1 and one count of misdemeanor
forgery (§§ 473, subd. (b), 476—count 5). The information also alleged, as to
counts 1 to 4, that appellant had served six prior prison terms pursuant to
section 667.5, subdivision (b), and, as to all counts, that she was
presumptively ineligible for probation pursuant to section 1203, subdivision
(e)(4).
On February 25, 2019, during appellant’s jury trial, the trial court
granted appellant’s motion for judgment of acquittal (§ 1118.1) as to one of
the identity theft counts (count 4).
On February 26, 2019, the jury found appellant guilty of one of the
identity theft counts (count 1) and the forgery count (count 5), but found her
not guilty of the two remaining identity theft counts (counts 2 and 3).
On March 29, 2019, following a bifurcated court trial on appellant’s
prior convictions, the court found true the six prior prison term enhancement
allegations.
Also on March 29, 2019, the court struck the probation ineligibility
allegation for purposes of sentencing, and placed appellant on four years of
formal probation.
On April 22, 2019, appellant filed a notice of appeal.
FACTUAL BACKGROUND
Prosecution Case
Minh Nguyen testified that he was the owner of a tax preparation
business called MT Tax and Financial Consulting, located in Oakland.
Sometime before 2017, there was a break-in at the business and a “safety
box” containing financial documents was taken. The prosecutor showed
All further statutory references are to the Penal Code unless
1
otherwise indicated.
2
Nguyen a check with his name and business address on the top left and the
name “Minh M. Nguyen” on the signature line on the bottom right, but he
testified that the signature was not his. Nor had he written any of the
information that was on the check. Nguyen did not know the name Gina
Bowden and did not recognize appellant. He never gave appellant permission
to possess any of his financial documents or personal information.
Concord Police Officer Anthony Perry testified that around 1:30 a.m. on
January 29, 2017, he performed a traffic stop on a car in Concord. Appellant
was the driver and there were two passengers. After conducting an
investigation of the vehicle and its occupants, Perry arrested appellant and
searched the interior of the car. He found a purse in the backseat, which
appellant said belonged to her. Inside the purse was a red wallet containing
several credit cards, debit cards, a medical marijuana card, a Costco card,
and an out of state driver’s license, all with the names of people on them
other than appellant. He also found a receipt in the red wallet that was
dated November 30, 2016, and had appellant’s name on it.
Perry also found several checks in the red wallet, including a check
handwritten in the amount of $700 and payable to “Gina Bowden.” The
check was endorsed on the back by Gina Bowden. Printed on the check was
the account holder’s information, including the name Minh Nguyen, the
business MT Tax and Financial Consulting, and the business’s address in
Oakland.2 Another check was printed in the name of someone other than
appellant, but was otherwise blank. Finally, Perry found 13 of what “looked
2
On cross-examination, Perry testified that the date written on the
check was November 14, 2016. Also printed on the check was the notation,
“Check must post by 12-10-2016.”
3
like poor quality printed apparently fraudulent checks, in the names of
Pamela C[.] and Clarina M[.]”
Concord Police Officer Paul Miovas testified about a prior offense
appellant committed in 2012. Around 11:33 p.m. on April 21, 2012, after a
concerned citizen reported suspicions about a truck parked in a secluded
area, Miovas went to the location to investigate. During a search of the
truck, which was associated with appellant, he found a woman’s wallet in the
rear of the truck containing several California driver’s licenses, all with the
same photograph but with different names, dates of birth, license numbers,
and addresses. Miovas identified appellant at trial as the person pictured on
all of the driver’s licenses. The licenses did not have the holographic seal on
them and were peeling. He also found a debit card with appellant’s name on
it in the same wallet. In addition, Miovas found checks and credit cards with
names and addresses that corresponded with the information on some of the
fake driver’s licenses. There were also several garage door openers and
several cell phones in the truck. Appellant was ultimately arrested as a
result of Miovas’s investigation.
On cross-examination, Miovas testified that the name Catherine G. was
on several of the items he found in the truck, including one of the driver’s
licenses, several debit cards, a checkbook, and a letter from Turbo Tax.
There was also an envelope with the name Catherine G., a social security
number, and an address handwritten on it.
Defense Case
Appellant testified in her own defense. She acknowledged that she had
previously been convicted of identity theft and related charges, both in the
April 2012 incident with the truck and in an earlier 2011 case. In the 2012
incident, appellant had made the counterfeit driver’s licenses that had her
4
photo on them with a program she had purchased from someone who worked
at the Department of Motor Vehicles. She already had the identifying
information for the people she impersonated when she made the driver’s
licenses. Appellant acknowledged that she had possessed the fake driver’s
licenses, checks, and credit cards for the purposes of opening fraudulent
accounts and making fraudulent transactions, and that she had in fact used
those documents to open fraudulent accounts and engage in fraudulent
transactions. She also acknowledged taking mail in the name of Catherine
G. from an address in Pleasant Hill. Appellant described her criminal record
as “[e]xtensive.” She was involved in criminal activity from 1995 to 2012.
She had spent a lot of time in prison, but had not been in prison since her
release in 2014, following the 2012 identity theft conviction.
Appellant further testified that in the present case, the red wallet
found in her purse did not belong to her. It belonged to an acquaintance
named Pamela C., who had been a passenger in appellant’s car and had left
the wallet in the car in late 2016. Regarding the check for $700 with her
name on it, appellant did not write that check to herself, although she
endorsed it on the back. Pamela C., who owed her money, wrote the
information on the check and told appellant she just needed to endorse it.
Pamela C. showed appellant, who was not wearing her glasses, where to
endorse the check, and appellant did so. Pamela C. then changed her mind
and said she was going to pay appellant in cash instead. Pamela C. took back
the check and gave appellant $350, which was half of the money she owed.
Appellant never received the other $350.
Appellant said she never looked closely at the $700 check, and had
assumed it was from Pamela C. She never tried to cash the check and never
saw it after the day Pamela C. took it back. Nor had she ever looked through
5
the red wallet or seen any of the other items inside of it. Between November
2016, when Pamela C. left the red wallet in appellant’s car, and January 29,
2017 when appellant was arrested, appellant kept the red wallet in her
purse, the glove compartment of her car, or the trunk of the car. Appellant
had tried to get the wallet back to Pamela C. but could not reach her. The
phone number appellant had for her was disconnected and she no longer lived
where appellant had known her to live. Appellant thought that if she kept
the wallet with her, when she ran into Pamela C., she could return it.
Appellant never looked inside the red wallet for Pamela C.’s contact
information because she thought she would see Pamela C. again soon since
Pamela C. still owed her $350.
Regarding the receipt found in the red wallet with appellant’s name on
it, appellant testified that she thought she had put the receipt in her purse,
but did not recall putting it in the red wallet. She believed she “must have
stuffed it into her purse and inadvertently stuffed it into the wallet.” She
had been unable to find the receipt in her purse when she subsequently
looked for it. Appellant’s purse had contained her own wallet, various
receipts, and other items, in addition to the red wallet. Before Officer Perry
searched her purse, she told him that one of the wallets was hers and one
belonged to someone else.
Appellant further testified that she had been arrested in February or
March of 2016 for failing to report to her probation officer. Appellant had
failed to report because her mother had passed away in April 2015, and
appellant was grieving and had a lot to deal with regarding her mother’s
estate. In the days before her mother died, appellant told her mother that
she would be okay and her mother did not have to worry about that. When
she said this, appellant meant that she would stop committing crimes, which
6
her mother had always wanted her to do. Appellant had kept that promise
and had not committed any crimes since. Specifically, in the present case,
she had not forged any checks or bank information and did not possess any of
the items found in her purse with the intent to defraud. Those items were
left in her car by someone else.
DISCUSSION
I. Sufficiency of the Evidence
Appellant contends her convictions for identity theft and forgery are
not supported by substantial evidence because the prosecution failed to
provide sufficient evidence of an intent to defraud.
To be guilty of identity theft, the prosecution must prove that the
defendant had the intent to defraud. (See § 530.5, subd. (c)(2).) The offense
of forgery also requires an intent to defraud. (See § 476.)
“In reviewing a criminal conviction challenged as lacking evidentiary
support, the court must review the whole record in the light most favorable to
the judgment below to determine whether it discloses substantial evidence—
that is, 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. An appellate court must accept logical inferences the jury might have
drawn from the evidence, even if the court would have concluded otherwise.
[Citation.]” (People v. Brady (2010) 50 Cal. 4th 547, 561.)
In her opening brief, both in her statement of facts and in her
discussion of the substantial evidence issue, appellant has offered a one-sided
view of the evidence, setting forth only the evidence presented at trial that
supports her version of the case. This is contrary to basic tenets of appellate
review. First, rule 8.204(a)(2)(C) of the California Rules of Court, requires an
appellant’s opening brief to “[p]rovide a summary of the significant facts . . . .”
7
Second, when arguing on appeal that the evidence is insufficient to support
the verdict, an appellant must set forth all material evidence on the issue.
(See People v. Dougherty (1982) 138 Cal. App. 3d 278, 282 [a defendant who
sets forth only her own evidence on an issue waives any sufficiency of the
evidence argument].)
Moreover, even assuming appellant has preserved the substantial
evidence issue for review, we find it to be without merit. Appellant argues
that the circumstantial evidence in this case “does not rise to the level of an
inference of intent to defraud,” citing only her self-serving testimony that she
had endorsed the check for $700 without her glasses on, that Pamela C. had
then taken the check back and paid half of the money she owed to appellant
in cash, and that appellant had not looked inside the red wallet and therefore
did not even know the check was there during the time she possessed it, as
she waited for the opportunity to return the wallet to Pamela C. Appellant
further states, as if it were incontrovertible fact, that there was no evidence
that she was connected with the red wallet, dismissing evidence that a
receipt with her name on it was found in the wallet, asserting that she “did
not know the receipt was in the red wallet, and surmised that she must have
‘inadvertently stuffed it into the wallet’ when she put it in her purse.”
Appellant’s conclusion that “any inference of intent required
speculation and conjecture” simply ignores the questionable nature of much
of her testimony, as well as all of the credible evidence presented at trial that
did support a finding of intent to defraud. In addition to the evidence of
appellant’s prior offense involving identity theft and fraud, the evidence
included the red wallet, found in appellant’s possession and containing, inter
alia, a receipt with her name on it, from which the jury could reasonably infer
that the wallet belonged to her. The wallet also contained a check belonging
8
to Nguyen, with the name and address of his business—which had been the
victim of a prior burglary—printed on it. The check was made out to
appellant in the amount of $700, and she had endorsed the check on the back.
Nguyen testified that he did not know appellant and had not given her
permission to possess any of his business’s financial documents. Plainly, in
view of the totality of the evidence, the jury reasonably rejected appellant’s
justifications and found that she possessed the check with the requisite
intent to defraud. (See People v. Brady, supra, 50 Cal.4th at p. 561.)
II. Admission of the Prior Offense Evidence
Appellant contends the trial court abused its discretion when it
admitted evidence of her 2012 offense, pursuant to Evidence Code sections
1101, subdivision (b) and 352.
A. Trial Court Background
Before trial, appellant filed a motion in limine requesting exclusion of
all evidence related to her prior offenses.
During the hearing on the motion, the prosecutor told the court that he
was seeking admission of, inter alia, evidence related to the 2012 offense,
including evidence about the search of the truck and the items that were
found inside, pursuant to Evidence Code section 1101, subdivision (b).
Defense counsel objected to admission of that evidence, which had resulted in
a 2014 conviction, arguing that the evidence was far more prejudicial than
probative and that its admission would violate appellant’s due process rights.
Defense counsel further argued that the 2012 offense and the present
case were not similar enough for the prior offense evidence to be useful to the
jury. Specifically, at the time of prior offense, unlike the present incident,
there was an outstanding warrant against appellant and she was on parole.
In addition, unlike in the present case, some 20 counterfeit driver’s licenses
9
with appellant’s photo on them had been found, as well as several checkbooks
and tax documents. Police had also found a case full of cell phones and
garage door openers in the truck, “indicating an intricate, sophisticated,
complex scheme.” Counsel believed that all of the items found in the truck in
the 2012 incident showed that appellant was “fully assuming the identities of
other people . . . in an attempt to open up different accounts with tax
information,” which was much more inflammatory than the present case in
which only an expired check and other unusable documents were found, with
no fake identification cards or evidence of an attempt to assume anyone’s
identity. In addition, counsel believed that the prior offense evidence would
take up more time at trial than evidence from the current case would.
The prosecutor, while noting that some of the items found in the truck
in 2012 were different from what was found in appellant’s car in the present
case, the 2012 evidence was relevant to appellant’s “intent to defraud and
shows that and tends to prove that . . . in this case.” In addition, the
prosecution intended to call only one witness to testify about the facts of the
prior offense, which would not take up a significant amount of time. Finally,
the prosecutor acknowledged that the prior offense evidence would be
prejudicial to some degree, but argued that it would be far more probative of
appellant’s intent in the present case, which was an element the prosecution
had to prove.
The court first observed that appellant’s convictions dated back to 1995,
with at least nine other criminal cases before a conviction in 2009. All of the
cases were “theft or fraud related.” The court acknowledged the prejudice of
admitting evidence of the 2012 offense pursuant to Evidence Code section
1101, subdivision (b), but found that under Evidence Code section 352, “there
is significant probative value in her knowledge and intent here.” The court
10
explained: “the documents or the items that were found in the current
case . . . , taken as a whole, indicate[] a practice of having financial
instruments in other people’s names that can be used for not a legitimate
purpose. And I think to present to the jury that this is the very first time . . .
that this has happened or maybe even the second time is misleading.”
The trial court ultimately ruled on the admissibility of evidence related
to the 2012 offense as follows: “I will not allow the tax documents, or the W-
2s, the Turbo Tax documents, or the case full of cell phones and garage door
openers. I think those are less probative and less use to a jury. But I think
the fact that she was in possession of ten different IDs, all with her picture on
it, checkbooks, and debit cards or credit cards . . . with other people’s . . .
information, names, et cetera, is extremely probative. And given that we are
talking about potentially fraudulent financial instruments in the present
case, I think that it outweighs the prejudicial value, so I will allow those.”
During trial, just before Officer Miovas testified about the 2012
incident, defense counsel asked the court to partially reverse its ruling on the
2012 offense, to admit additional testimony about what was found in the
truck, including the case of cell phones and garage door openers, and the tax
documents. He explained that he and appellant had “discussed it, and we
have decided that we actually want to elicit that testimony.” The court
granted counsel’s request. Counsel also said he had no objection to the court
taking judicial notice of the convictions from 2014 that were based on the
2012 offense.
During closing argument, while discussing appellant’s intent to defraud
in the present case, the prosecutor referred briefly to the prior offense
evidence and told the jury that “the reason you got to hear about that prior
incident is to prove the element of intent.”
11
During his closing argument, defense counsel contrasted the strong
evidence of intent to defraud in the 2012 incident with the current case,
stating that “in 2012, Gina was an identity thief” and that “this is a
prosecution against the old Gina. That is what this is. [¶] Because the
evidence in this case, the evidence before us in this wallet, does not support a
conviction.” Counsel told the jury that appellant had “told us the truth” and
“owned the past” in her testimony. Counsel concluded by asking the jury,
when considering appellant’s intent, to think about the differences between
this case and the 2012 offense: “Think about that level of sophistication in
2012 that’s not present here. [¶] Think about the actual fraud, the actual
victims, what [appellant] herself said was her intent, and what she actually
did in 2012. [¶] In my opening statement I said I would get back up here and
ask you to not convict the old Gina. To vindicate the new Gina.”
B. Legal Analysis
We review the court’s rulings on the admissibility of evidence under
Evidence Code sections 1101, subdivision (b) and 352 for an abuse of
discretion. (People v. Mungia (2008) 44 Cal. 4th 1101, 1130 (Mungia).)3
1. Evidence Code Section 1101, Subdivision (b)
“Subdivision (a) of [Evidence Code] section 1101 prohibits admission of
evidence of a person’s character, including evidence of character in the form
of specific instances of uncharged misconduct, to prove the conduct of that
3
We do not agree with respondent that appellant waived this claim and
abandoned her objections when she requested permission from the court to
present the full circumstances of the 2012 incident to the jury and then used
that evidence to differentiate the earlier case from the present one. This
defense, and the decision to present additional evidence from the prior
incident, presumably was a result of the court’s initial ruling that some of the
evidence from 2012 was admissible to prove appellant’s intent in the present
case, and was an attempt to make the best of that evidence.
12
person on a specified occasion. Subdivision (b) of [Evidence Code] section
1101 clarifies, however, that this rule does not prohibit admission of evidence
of uncharged misconduct when such evidence is relevant to establish some
fact other than the person’s character or disposition.” (People v. Ewoldt
(1994) 7 Cal. 4th 380, 393 (Ewoldt).) Hence, under subdivision (b) of Evidence
Code section 1101, evidence that a person committed a prior uncharged
offense is admissible “when relevant to prove some fact (such as motive,
opportunity, intent, preparation, plan, knowledge, identity, absence of
mistake or accident . . .) other than his or her disposition to commit such an
act.” (Evid. Code, § 1101, subd. (b).) The least degree of similarity between
the prior conduct and the charged offense is required to prove intent.
(Ewoldt, at p. 402; see also People v. Stitely (2005) 35 Cal. 4th 514, 532 [to
prove intent, “[t]he two acts need only be sufficiently similar to suggest that
the defendant probably had the same intent each time”].)
In this case, appellant argues that the circumstances of the 2012
offense and this case were too different to warrant admission of the prior
offense evidence to prove appellant’s intent in the present case. According to
appellant, “the only similarity between the two cases was the identity theft
label.” We disagree.
The limited evidence from the 2012 incident that the court ruled
admissible at trial included evidence that during a search of a truck
associated with appellant, police found various documents associated with
other people, some of which were in a wallet belonging to appellant. In the
present case too, during a search of appellant’s car, police found a wallet in
her possession that contained numerous documents, including checks, credit
cards, debit cards, and an out of state driver’s license, all of which were
associated with other people, as well as the check endorsed by appellant and
13
a receipt with her name on it. That the items found in the truck and the car
were not identical does not negate the fact that evidence from the two
incidents had important similarities and that the 2012 offense evidence was
quite relevant to prove appellant’s intent in the present case. (See Ewoldt,
supra, 7 Cal.4th at p. 402.)
Moreover, the fact that in the 2012 incident, police also found multiple
counterfeit driver’s licenses with appellant’s photograph on them,
checkbooks, cell phones, garage door openers, and tax documents does not
render the 2012 offense evidence too dissimilar to be admissible to prove
intent, as appellant asserts. Indeed, it was defense counsel, not the
prosecutor, who subsequently asked the court to expand its ruling and admit
evidence regarding many of these items, including the cell phones, garage
door openers, and tax documents.
Accordingly, given that the least degree of similarity between the prior
conduct and the charged offense is required to prove intent and that “[t]he
two acts need only be sufficiently similar to suggest that the defendant
probably had the same intent each time,” we conclude the court did not abuse
its discretion when it found some of the evidence from the 2012 incident was
admissible in the present case, pursuant to Evidence Code section 1101,
subdivision (b). (People v. Stitely, supra, 35 Cal.4th at p. 532; see Ewoldt,
supra, 7 Cal.4th at p. 402; see also Mungia, supra, 44 Cal.4th at p. 1130.)
2. Evidence Code Section 352
Before admitting the evidence in question under Evidence Code section
1101, subdivision (b), the trial court was required to determine, pursuant to
section 352, whether the probative value of the evidence of appellant’s prior
conduct was “substantially outweighed by the probability that its admission
[would] necessitate undue consumption of time, or create a substantial
14
danger of undue prejudice, confusion of the issues, or misleading the jury.”
(People v. Jennings (2000) 81 Cal. App. 4th 1301, 1314.) Evidence is more
prejudicial than probative only when “ ‘it poses an intolerable “risk to the
fairness of the proceedings or the reliability of the outcome” [citation].’
[Citation.]” (People v. Jablonski (2006) 37 Cal. 4th 774, 805.)
Appellant first argues that the prior offense evidence had no probative
value due to the lack of similarity between the two incidents, a claim we have
already rejected. (See pt. II.B.1., ante.) She also argues that the prior offense
evidence “caused an undue consumption of time because the conviction
involved lengthy facts and a sophisticated scheme.” According to appellant,
this undue consumption of time “heightened [the evidence’s] importance to
the jury and resulted in prejudice to appellant,” particularly given the
“inflammatory and sensational” nature of that evidence.
The court acknowledged the prejudice that would inevitably result from
admitting evidence of appellant’s prior offenses, but it specifically limited
that evidence to the most recent of her many prior offenses involving identity
theft—the 2012 offense—which it found was extremely probative of
appellant’s intent in the present case. The court also limited the evidence of
items found in the truck in the 2012 incident to those that would be most
relevant in assisting the jury to determine appellant’s intent in the present
case. As the court explained: “I think the fact that she was in possession of
ten different IDs, all with her picture on it, checkbooks, and debit cards or
credit cards . . . with other people’s either information, names, et cetera, is
extremely probative. And given that we are talking about potentially
fraudulent financial instruments in the present case, I think that it
outweighs the prejudicial value, so I will allow those.”
15
At trial, the prosecution evidence related to the 2012 offense was
limited to presenting the direct testimony of Officer Miovas, which took up
approximately 10 pages of the reporter’s transcript. The additional time
spent on the 2012 incident at trial involved defense counsel’s cross-
examination of Miovas and appellant’s testimony expanding on the evidence
the court originally found admissible, and discussing how the difference in
scale between the items found in the two incidents demonstrated differing
intents. The prior offense evidence presented in the prosecution’s case thus
was straightforward and limited to a single witness. Moreover, as already
discussed, the court reasonably found that the differences between the items
found in the truck and the car did not unduly prejudice appellant,
considering the relevance and probative value of the 2012 evidence in proving
appellant’s intent in the present case. (See Evid. Code, § 352; People v.
Jennings, supra, 81 Cal.App.4th at p. 1314.)4
The court did not abuse its discretion in admitting the 2012 prior
offense evidence to prove appellant’s intent in the present case. (See Mungia,
supra, 44 Cal.4th at p. 1130; Evid. Code, §§ 352, 1101, subd. (b).)
III. Court’s Failure to Exclude the Prior Offense Evidence on the
Ground of Delayed Disclosure or to Instruct the Jury
Regarding the Delayed Disclosure
Appellant contends the court erred when it (1) failed to exclude the
prior offense evidence pursuant to the reciprocal discovery statutes (§ 1054
et seq.) on the ground that the prosecution delayed disclosure of a police
4
We also observe that the court instructed the jury on the limited
purpose for which it could consider the prior offense evidence, i.e., to
determine appellant’s intent in this case. (See CALCRIM No. 375; see also
People v. Rogers (2013) 57 Cal. 4th 296, 332 [limiting instructions ensured
that jury would not consider other crimes evidence, admitted under Evidence
Code section 1101, subdivision (b), for any improper purpose].)
16
report containing information about appellant’s many prior convictions, and
(2) refused to instruct the jury regarding the delayed disclosure, pursuant to
CALCRIM No. 306.
A. Trial Court Background
In appellant’s in limine motion to exclude all prior offense evidence at
trial, defense counsel included as a ground for exclusion that the evidence
“was discovered late to the defense.” Counsel argued that admission of the
prior offense evidence, which had been in the prosecution’ possession since
April 2018, but not discovered to the defense until February 5, 2019, would
prejudice her because of the limited time before trial she would have to
prepare a defense to that evidence.
At the February 21, 2019 hearing on in limine motions, defense counsel
reiterated that there was important prior offense evidence that had been in
the possession of the Contra Costa County District Attorney’s Office, though
not the prosecutor personally, for about 10 months before it was turned over
to the defense on February 5. Counsel acknowledged that since the trial date
had recently been continued, he had 10 days or two weeks “to go through it,
so I’m not in the position I initially was in, but it has hamstrung us a bit.”
The court suggested discussing counsel’s request “in more detail when we get
to that motion.” Later in the hearing, after ruling that evidence of the 2012
offense was admissible under Evidence Code sections 1101, subdivision (b)
and 352, the court asked defense counsel: “Does that cover everything we
have talked about?” Counsel brought up an evidentiary issue concerning
other items found in appellant’s car in the present case, but did not again
mention the late discovery issue.
On February 25, 2019, after both sides had rested, the parties and the
court discussed jury instructions. Defense counsel asked the court to instruct
17
the jury with CALCRIM No. 306, regarding untimely disclosure of evidence,
based on the defense’s late receipt of the police report containing prior offense
information. The prosecutor stated that he did not believe an instruction was
necessary because there had been no prejudice from the late disclosure,
which consisted of only one police report, and “additional time waivers that
were entered into.” Defense counsel responded that he had received a total of
250 pages regarding convictions going back to 2001, which he had to scramble
to read quickly. In addition, he had not been able to locate Catherine G., who
had been a victim of identity theft in the 2012 incident, and he could not have
subpoenaed her in time to testify at trial. Upon questioning by the court,
counsel acknowledged that he had only asked appellant if she knew where
Catherine G. was and had not asked an investigator to try to locate her based
on the information he had.
The court declined defense counsel’s request to instruct the jury with
CALCRIM No. 306, explaining: “So I think this information clearly should
have been turned over long ago. It’s been there all this time. . . . I’m not
excusing the fact that it wasn’t turned over, but I’m having some trouble
finding the prejudice in that if there had been some efforts to, at least some
rudimentary efforts, made to find [Catherine G.], and you can show me some
due diligence, the investigator tried to run her down with what information
you had and came up short, since that wasn’t done, that sort of basically step
[sic], that tells me that this wasn’t of utmost importance to the case, it falls in
that category, it would have been nice, but really doesn’t go to any of the
central issues of the case, I’m really not seeing that this instruction is
appropriate.” The court subsequently expanded on its reasoning, explaining
directly to appellant: “And what I have heard is that, although you didn’t
have information where this woman was located, no other efforts were
18
necessarily taken to find this person. And I’ll be honest with you, I’m not
sure how much, even if you had located [Catherine G.], that would have
necessarily added to this piece. The prior comes in to show intent, and that’s
the prior itself. Unless there was information that you can share with me
that [Catherine G.] would potentially have that would change that scenario, I
don’t see how the instruction is necessary at this juncture . . . .”
Defense counsel then returned to his earlier point that the lengthy
police report “was a lot to get through and filter through,” and “not knowing
in advance what was going to be offered by the D.A., I think did put us in a
difficult spot in preparing on that.” The court responded: “And the other
piece of this is, realistically, since your client’s criminal history goes back to
1995 and 1996, it would have been quite unlikely that all of that would have
come in. It would have been a far stretch for me, or any court, to allow all of
that in. So realistically, we were talking about, give or take, somewhere in
the ten-year period, and then we could argue about it. But realistically, those
reports that went back to ’95 were not coming in front of this jury.”
B. Legal Analysis
1. The Court’s Failure to Exclude the Prior Offense Evidence
Appellant argues that the court erred when it failed to exclude the
prior offense evidence because the delayed disclosure of the police report
violated the reciprocal discovery statutes. (See § 1054 et seq.)
“Section 1054.1 provides, in pertinent part, that the ‘prosecuting
attorney shall disclose’ certain types of material to defense counsel if the
evidence ‘is in the possession of the prosecuting attorney or if the prosecuting
attorney knows it to be in the possession of the investigating agencies.’ Such
disclosure ‘shall be made at least 30 days prior to the trial’ or as soon as the
prosecution learns of the documents or information. (§ 1054.7.) To prevail on
19
a claim alleging a violation of the discovery statutes, an appellant must show
there is a reasonable probability that, had the evidence been disclosed, the
result of the proceedings would have been different. [Citation.]” (People v.
Mora and Rangel (2018) 5 Cal. 5th 442, 467 (Mora), citing People v. Zambrano
(2007) 41 Cal. 4th 1082, 1132 [violations of California reciprocal discovery
statute is subject on appeal to harmless error standard set forth in People v.
Watson (1956) 46 Cal. 2d 818, 836], disapproved on another ground in People
v. Doolin (2009) 45 Cal. 4th 390, 421, fn. 22.)
Here, we will assume for purposes of argument that appellant has
preserved this issue for appeal (but see People v. Braxton (2004) 34 Cal. 4th
798, 813 [“If the trial court’s failure to hear or rule on [a] motion appears to
be inadvertent, the defendant must make some appropriate effort to obtain
the hearing or ruling”]), and that exclusion of the prior offense evidence
would in fact have been a proper remedy (but see § 1054.5, subd. (c) [court
may prohibit testimony of a witness “only if all other sanctions have been
exhausted”]).
Turning to the merits, we conclude that appellant was not prejudiced
by the late disclosure. That is, it simply is not reasonably probable that, had
the police report been disclosed in a timely manner, the result of the trial
would have been different. (See Mora, supra, 5 Cal.5th at p. 467.)
First, in the discussions about the defense’s request for the court to give
CALCRIM No. 306, to inform the jury about the delayed discovery, defense
counsel acknowledged that because of the unrelated delay in the start of trial,
he had approximately two weeks to review the police report and use it in his
trial preparation. Counsel did state that his review of this material was
rushed because it included 250 pages of documents related to appellant’s
various convictions, going back many years. However, as the court noted,
20
many of those documents pertained to multiple convictions from many years
ago, and counsel should have foreseen that the court would not consider
admitting prior offenses from more than 10 years earlier.
Second, the only alleged harm to the defense’s trial preparation,
according to counsel, was the inability to locate Catherine G., whose
testimony regarding her losses counsel stated the defense would have
presented at trial. However, counsel acknowledged that he had made no
effort to find this potential witness in the time available before trial, other
than asking appellant if she knew Catherine G.’s whereabouts. The court
reasonably found the argument about the importance of Catherine G.’s
testimony less than compelling, given the lack of any real attempt to locate
her.
Third, the testimony about the 2012 offense was admitted to prove
appellant’s intent in the present case, and even had counsel located
Catherine G., the court had trouble understanding what information
Catherine G. would potentially have that would bolster the defense case
beyond what was already presented. Although the court invited counsel to
share any such information with it, counsel did not respond directly to this
question, but instead returned to his having to scramble to review all of the
documents before trial. Appellant now argues that “the prior conviction
evidence related directly to the material element of intent to defraud”
because Catherine G.’s “testimony about her losses would have been valuable
to highlight the difference between the two cases.” Both the prosecution and
defense introduced evidence regarding appellant’s wrongful acts in the 2012
offense, which included the various documents found that were in Catherine
G.’s name, including driver’s licenses, several debit cards, a checkbook, and a
letter from Turbo Tax, as well as an envelope with Catherine G.’s name, an
21
address, and a social security number handwritten on it. Appellant also
testified that she had taken mail addressed to Catherine G. from an address
in Pleasant Hill.
Appellant, who described her criminal history as “extensive” during her
own testimony, also testified more generally about her wrongful conduct and
intent in 2012. For example, she testified that when she made the
counterfeit driver’s licenses with her photo on them, she already had the
identifying information for the people she impersonated with the driver’s
licenses, and that she had possessed the driver’s licenses, checks, and credit
cards for the purposes of opening fraudulent accounts and making fraudulent
transactions, and had in fact opened such accounts and made such
transactions.
Considering all of the evidence admitted at trial regarding appellant’s
conduct in 2012, it is difficult to imagine how additional testimony from
Catherine G. about the effects of the identity theft on her would have added
significantly to the defense’s efforts to contrast “the old Gina” with “the new
Gina,” as defense counsel put it during his closing argument. Like the trial
court, we in no way condone the delayed disclosure of the police report, which
was in the possession of the prosecution (although apparently not the
prosecutor in this case) for some 10 months before it was produced to the
defense. However, in view of all of the circumstances, we find that “[n]o
prejudicial statutory violation can be made out” because there is no
reasonable probability that the result of the trial would have been different
had the evidence in question been timely disclosed. (Mora, supra, 5 Cal.5th
at p. 468.)5
5
In light of this conclusion, we find that appellant’s argument that her
due process right to a fair trial was violated “because the late evidence
22
2. Court’s Refusal to Instruct the Jury on the Delayed Disclosure
Appellant contends the court abused its discretion when it refused to
instruct the jury with CALCRIM No. 306, regarding the delayed disclosure of
the police report.
Under section 1054.1, subdivision (b), upon a showing that a party has
not complied with discovery requirements, the trial court “may advise the
jury of any failure or refusal to disclose and of any untimely disclosure.”
(§ 1054.5, subd. (b).)
CALCRIM No. 306, which the court declined to give in this case,
provides in relevant part: “Both the People and the defense must disclose
their evidence to the other side before trial, within the time limits set by law.
Failure to follow this rule may deny the other side the chance to produce all
relevant evidence, to counter opposing evidence, or to receive a fair trial.
“An attorney for the (People/defense) failed to disclose: [within the legal time period].
“In evaluating the weight and significance of that evidence, you may
consider the effect, if any, of that late disclosure.” (CALCRIM No. 306.)
Trial courts have broad discretion to determine the appropriateness of
a sanction, such as a jury instruction, for discovery abuse. (People v. Jenkins
(2000) 22 Cal. 4th 900, 951.)
In the present case, appellant argues that, had the court instructed the
jury with CALCRIM No. 306, “appellant would have been able to highlight
the effect of the late disclosure on appellant’s case,” which “gave respondent a
tactical advantage by considerably shortening the time appellant had to
investigate the police report.”
hampered appellant’s ability to adequately investigate the evidence” is
without merit.
23
As we have already set forth in part III.A., ante, of this opinion, the
court found that the instruction was unnecessary because the defense had not
shown either that it considered Catherine G. an important enough witness to
make any effort to locate her or that Catherine G.’s testimony would in fact
assist appellant in bolstering her credibility and proving that she did not
have the intent to defraud in this case. We have already concluded that
appellant has failed to demonstrate that she was prejudiced by the delayed
disclosure of the police report. (See pt. III.B.1, ante.) For the same reasons,
we conclude the court’s decision not to instruct the jury with CALCRIM
No. 306 was well within its broad discretion. (See People v. Jenkins, supra,
22 Cal.4th at p. 951.)
IV. Prior Prison Term Enhancements
Appellant contends Senate Bill No. 136 applies retroactively to her case
and requires that the six prior prison term enhancement allegations the court
found true pursuant to former section 667.5, subdivision (b), be stricken.
Respondent agrees.
In the information, the prosecution alleged that appellant had served
six prior prison terms, pursuant to section 667.5, subdivision (b). Following
the court trial on the prior convictions, the court found all six prior prison
term allegations true beyond a reasonable doubt,6 although it did not impose
the one-year enhancement terms because it placed appellant on probation.
Under the version of section 667.5 that was in effect when appellant
was sentenced, subdivision (b) required trial courts to impose a one-year
enhancement for each prior prison term served for any felony. In 2019, the
6
In making these findings, the court inadvertently referred to the fifth
prior prison term allegation as the fourth, and the sixth allegation as the
fifth.
24
Legislature passed Senate Bill No. 136, which took effect on January 1, 2020,
and which made this enhancement applicable only to a prior prison term
served “for a sexually violent offense as defined in subdivision (b) of Section
6600 of the Welfare and Institutions Code.” (§ 667.5, subd. (b); Legis.
Counsel’s Dig., Sen. Bill No. 136 (2019-2020 Reg. Sess) ch. 590; see People v.
Matthews (2020) 47 Cal. App. 5th 857, 862 (Matthews).)
“Absent evidence of a contrary legislative intent, when an act of the
Legislature lessens or eliminates the prescribed punishment for a criminal
offense or a sentencing enhancement, such a penalty reduction must be
applied retroactively to all judgments not yet final on appeal. (In re Estrada
(1965) 63 Cal. 2d 740, 745–748; [citations].) ‘[F]or the purpose of determining
retroactive application of an amendment to a criminal statute, a judgment is
not final until the time for petitioning for a writ of certiorari in the United
States Supreme Court has passed.’ [Citation.]” (Matthews, supra,
47 Cal.App.5th at p. 865.)
Recently, in Matthews, a panel of this court addressed whether Senate
Bill No. 136 applies retroactively to a one-year enhancement term imposed
pursuant to subdivision (b) of section 667.5 before the amendment to that
section took effect. We held that “the Legislature’s change to section 667.5,
subdivision (b) is a reduction in punishment that applies retroactively to non-
final judgments.” (Matthews, supra, 47 Cal.App.5th at p. 865.)
Here, the judgment in appellant’s case was not final on January 1,
2020, when the amendment to section 667.5 took effect. Moreover, her prior
prison terms were for offenses that were not sexual in nature. For these
reasons, we agree with both parties that Senate Bill No. 136 applies
retroactively to the six prior prison term allegations, which the court found
true pursuant to former section 667.5, subdivision (b), but did not impose
25
because it placed appellant on probation. Those prior prison term
enhancement allegations and true findings must therefore be stricken. (See
Matthews, supra, 47 Cal.App.5th at p. 865.)7
DISPOSITION
The six prior prison term enhancement allegations and the court’s true
findings are stricken. In all other respects, the judgment is affirmed.
7
We agree with appellant that striking the enhancement allegations
and the court’s true findings is necessary, despite the fact that the court did
not impose the one-year enhancement terms, to avoid any possible negative
consequences to appellant in the future. (Cf. People v. Fuentes (2016) 1
Cal. 5th 218, 225 [“even if the punishment” for an enhancement allegation is
stricken, “an enhancement finding could impact defendant in a future case”].)
26
_________________________
Kline, P.J.
We concur:
_________________________
Richman, J.
_________________________
Miller, J.
People v. Bowden (A157132)
27