Opinion
D070803
10-31-2017
THE PEOPLE, Plaintiff and Respondent, v. GIULIANA BOSCO, Defendant and Appellant.
Ava R. Stralla, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCD262396) APPEAL from a judgment of the Superior Court of San Diego County, Laura W. Halgren, Judge. Affirmed. Ava R. Stralla, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
Defendant Giuliana Bosco, also known as Giuliana Huerta (Bosco), appeals a judgment following her jury conviction on 23 counts of various criminal offenses, including grand theft (Pen. Code, § 487, subd. (a)), forgery of seal or handwriting (§ 470, subd. (b)), unlawful use of personal identifying information (§ 530.5, subd. (a)), false personation (§ 529, subd. (a)(3)), and practicing law without a license (Bus. & Prof. Code, § 16240). The trial court sentenced Bosco to a total term of 13 years 8 months.
All statutory references are to the Penal Code unless otherwise specified.
On appeal, Bosco's counsel filed an opening brief raising no issues and requesting that we independently review the record for error as required by People v. Wende (1979) 25 Cal.3d 436, 441-442 (Wende). To assist us in our review, her counsel identified three possible issues: (1) whether the alleged victim of grand theft in counts 1 through 8 was a victim if he did not have a written power of attorney to sign checks drawn on his father's bank account; (2) whether Bosco is guilty of forgery if she had her spouse's permission to sign her name on documents; and (3) whether Bosco can be guilty of unlawful use of personal identifying information if she made up the bar numbers she used and did not specifically and willfully use the bar numbers of the named attorneys. We granted Bosco permission to file a supplemental brief on her own behalf. She submitted a 125-page handwritten supplemental brief raising a multitude of issues.
Pursuant to Wende, we have reviewed the entire record on appeal and have concluded there are no arguable issues. Pursuant to People v. Kelly (2006) 40 Cal.4th 106 (Kelly), we will provide "a brief description of the facts and procedural history of the case, the crimes of which defendant was convicted, and the punishment imposed." (Id. at p. 110.) We have considered each of the contentions raised in Bosco's supplemental brief and will explain why we reject her contentions. (Id. at p. 123.)
FACTUAL AND PROCEDURAL BACKGROUND
Amended information. On June 1, 2016, an amended information was filed charging Bosco with 13 counts of grand theft of personal property (§ 487, subd. (a)) (counts 1-8, 14-15, 22-23), five counts of forgery of seal or handwriting (§ 470, subd. (b)) (counts 9-13), three counts of unlawful use of personal identifying information (§ 530.5, subd. (a)) (counts 16-18), three counts of false personation (§ 529, subd. (a)(3)) (counts 19-21), and one count of practicing law without a license (Bus. & Prof. Code, § 16240) (count 24). It also alleged that she committed counts 21 through 23 while released from custody on bail (§ 12022.1, subd. (b)) and had 12 probation denial prior convictions (§ 1203, subd. (e)(4)) and two prison prior convictions (§§ 667.5, subd. (b), 668). The trial court granted Bosco's motion to bifurcate the trial of the probation denial and prison prior conviction allegations.
Background facts. At trial, the prosecution presented the testimony of various witnesses establishing Bosco's relationships or connections, or the lack thereof, with the alleged victims of her crimes and showing her actions in committing the alleged crimes, and entered into evidence numerous documents, photographs, and other exhibits. In particular, Maribel Huerta (Maribel) and Melvin Douglas Fredrick (Fredrick) testified that they have a daughter, Mellany, born in 2006, from their previous dating relationship. They coparented Mellany, but never had a formal child support agreement. Fredrick would give Mellany necessities and gifts. Mellany attended St. Rose of Lima, a Catholic school. Fredrick's parents, Paulette Fredrick (Paulette) and Melvin Fredrick, Jr. (Melvin), had a close relationship with Mellany. Paulette often provided childcare for Mellany at either Maribel's or her home.
To avoid any confusion with Bosco, also known as Giuliana Huerta, we refer to Maribel Huerta by her first name without intending any disrespect.
To avoid confusion with Fredrick, we refer to Paulette Fredrick and Melvin Fredrick, Jr. by their first names without intending any disrespect.
Paulette had a key to Maribel's home.
Maribel testified that she began a dating relationship with Bosco in 2013. She believed Bosco was an attorney. Bosco would bring legal work home and discuss cases with Maribel. She told Maribel that she received a lot of money from a divorce. Bosco offered to set up a trust fund for her. On December 10, 2013, Bosco, then working in Chicago, sent Maribel an email asking her if it was all right to give her email address to Kevin McDonalde, an attorney and accountant, who would set up the trust for her. On March 15, 2014, Maribel received an email from McDonalde stating there would be $23,000,000 in her proposed trust. She received numerous emails from McDonalde thereafter. In one email, McDonalde suggested that it would be better financially for Maribel and Bosco to be married. On May 18, Maribel received an email from McDonalde stating the trust had been completed and was funded in the amount of $23,349,852. McDonalde also apparently informed Maribel that she had been approved for a line of credit and would receive a $28,000 deposit in her bank account. A $35,000 loan was obtained in Maribel's name and loan payments were debited from her Bank of America (B of A) checking account. Although Maribel did not recall signing any loan documents, she knew loan payments were being made from her bank account.
As a result of this case, Maribel learned that Bosco was not an attorney.
Maribel later learned that no trust existed.
McDonalde also suggested that Maribel work a lot of overtime so that she and Bosco would not have to pay as much in taxes, explaining Bosco was making too much money. McDonalde advised Maribel to take out a $44,000 home equity line of credit, explaining the more debt that she and Bosco had the better it was for their taxes. With the home equity line of credit that Maribel obtained, she and Bosco paid off the $35,000 loan and some credit card debt. Maribel did not know what all of the money was used for.
On March 22, 2014, Maribel and Bosco were married. Maribel testified that she married Bosco because she loved her, but admitted that emails from McDonalde and others that said good things about Bosco did have an influence on her. Bosco lived with Maribel and Mellany in the home that Maribel owned. Maribel had a B of A account in her name alone for which she had one debit card, but she gave that card and its PIN number to Bosco. Maribel's paychecks were directly deposited into her B of A account and her mortgage and credit card payments and other bills were automatically paid from that account. Maribel also had a joint account with Bosco at San Diego County Credit Union (SDCCU). Bosco's paychecks were deposited into the SDCCU account. Bosco had two credit cards in her name from Maribel's credit card accounts. Maribel did not monitor her bank accounts much, finding it was easier to have Bosco manage them. In August 2015, Maribel filed for a divorce from Bosco.
Fredrick testified that he met Bosco in early 2014 when Maribel introduced Bosco as her friend and roommate. Maribel told him that Bosco's name was Julie Saska Feinberg. Bosco told him that she was an attorney who handled business matters. When Bosco learned that Fredrick, a Donovan State Prison correctional officer, had been removed from his position as a K-9 officer and had filed a complaint with the California Department of Corrections and Rehabilitation (CDCR), she told him that she would assist him as his lawyer and asked him to collect his paperwork so that she could determine whether racial bias was a factor in his removal. She subsequently told Fredrick that she had been in contact with someone at CDCR and it offered to settle the claim for various amounts, but she rejected those offers. On April 30, 2015, Bosco met with Fredrick and showed him a settlement letter pursuant to which he would authorize her to settle his claim against CDCR for $16,500,000. They both signed the letter. Fredrick did not know whether Bosco actually communicated with CDCR regarding his claim. No settlement occurred and Fredrick's appeal with CDCR expired.
Fredrick had previously contacted the San Diego County District Attorney's Office regarding Bosco and wore a concealed audio recorder provided by its investigators during his meeting with her. The audio recording of his April 30, 2015, meeting with Bosco was played for the jury.
Fredrick also told Bosco that he had a small bakery business with another partner. She offered to help him file paperwork to form a limited liability corporation (LLC). He signed paperwork to obtain a fictitious business name for his bakery business. Fredrick never paid Bosco any fees because she told him her services would be free as he was Mellany's father.
Paulette testified that she knew Bosco as Maribel's friend and learned in the summer of 2014 that they were married. Paulette had a good relationship with Maribel and had a key to her home, which key she later provided to law enforcement. When Paulette suspected that Bosco was not, in fact, an attorney, she conveyed her concerns to Fredrick.
Investigation. On April 29, 2015, Fredrick contacted the San Diego County District Attorney's Office and one of its investigators, Steve Shakowski, was assigned the case the following day. Shakowski testified at trial that he obtained search warrants for certain records from B of A, SDCCU, Google, and Yahoo. He interviewed Kate Cohen, a California attorney. He learned Bosco created the email address of "katecohenlaw@gmail.com." He also learned that Bosco had worked a short time for Lindsay Brack, a California attorney, and that she created the email address of "linbraxton642@gmail.com." Bosco also created the email address of "michaelpadilla87@yahoo.com," but Shakowski could not locate any Michael Padilla who may have been related to the case. He could not locate any attorney and accountant named Keven McDonalde. He received information from Google regarding the email address of "mclaw2231@gmail.com" that the person purportedly named McDonalde used.
After seizing Bosco's cell phone on her arrest, Shakowski was provided with a DVD that contained all of its data. He found text messages on her cell phone regarding a "Walk for Life" fundraiser asking people to write out checks to Maribel. A search of Bosco's home found a document listing individuals who had donated amounts to the Walk for Life fundraiser. Shakowski contacted all of the individuals, except for one person, and verified that those individuals had donated a total of $965. He also found documents relating to a donation list for a "Pop for Christ" fundraiser. He also found paperwork showing checks Fredrick had written to Maribel as payee with notations regarding the trust intended for Mellany. He also found paperwork with the heading, "Melvin Douglas Fredrick Family Revocable Trust." On Bosco's arrest, she possessed a thumb drive containing a copy of that trust document. Shakowski also obtained photographs from B of A surveillance cameras showing the person who deposited each of the checks that Fredrick had written for the proposed trust. Bosco was shown making seven of the deposits and Erika Huerta (Erika), Maribel's sister, made the other deposit. Erika and Guadalupe Huerta (Guadalupe), Maribel's mother, provided Shakowski with paperwork that Bosco had given them regarding a purported notice of a federal tax lien against them.
Diane Zimmerman, a certified fraud examiner who had previously worked for the San Diego County District Attorney's Office as a forensic accountant, testified that she received information from Shakowski and reviewed bank records for Maribel's checking and savings accounts for the period of December 12, 2014, through April 23, 2015. About 48 percent of all deposits to Maribel's accounts were from Fredrick's checks. The amounts of the checks written by Fredrick for the trust totaled $40,883. Zimmerman testified that the money was used for various expenses, including household payments, loan payments, travel and entertainment, shopping, and car payments. Regarding the joint SDCCU account, Zimmerman testified two checks written by Deborah Ellis were deposited into that account. On June 15, 2015, a $8,500 check was deposited and on June 17, a $8,000 check was deposited. On June 17, $1,000 in cash was withdrawn from the account and on June 18, $2,000 in cash and $5,000 for a cashier's check payable to attorney Gretchen von Helms were withdrawn from the account. None of the money from the SDCCU account went to fund a trust for Ellis.
San Diego County District Attorney Investigator Victor Ray testified that he was present with Shakowski when Fredrick met with Bosco on April 30, 2015, at Horton Plaza. They sat about 15 to 29 feet away from Fredrick and Bosco near a coffee cart outside the Nordstrom store. He saw them with paperwork, but did not see any paperwork exchanged because he had his back to them. On June 10, 2015, Bosco was arrested and initially interviewed by Ray and other investigators. He received her wallet, which contained an American Bar Association card bearing her name and a debit card in Maribel's name. Ray showed Bosco documents that had been found in her home pursuant to a search warrant. Bosco initially denied everything, claiming Fredrick was doing his own trust and never gave her any money. She said she only provided him with a template for a revocable living trust, which he filled in with his information. She then clarified that Fredrick had given her two checks payable to Maribel for the trust and she gave those checks to Maribel. She later stated she may have signed one of the checks payable to Maribel, but had no recollection of doing so. She knew that Fredrick's checks were written on his father's account and recalled that Fredrick told her that his father was ill and incapacitated and that he would reimburse his father. She denied telling Fredrick that she was an attorney or informing him about the attorney-client privilege. She stated she merely provided Fredrick with a book of forms for forming an LLC and offered to answer any questions he had. She admitted she had a copy of Fredrick's trust on her thumb drive because she gave him the Word format of it. She denied meeting Fredrick at Horton Plaza, bringing paperwork she had prepared, or having him review, sign, and return to her that paperwork. She stated that Maribel was not involved in anything.
During the interview, Bosco also denied using an email account while posing as another person or sending emails to lead other people to believe she was an attorney. She claimed Kate Cohen was a friend with whom she had gone to school and who now lived in Seattle. She stated that she never used the bar numbers of other attorneys. She stated she never heard of the name, Julia Feinberg, and had never used that name or the name, Julia Saska Feinberg, Esq. When shown documents bearing the signature, "Julie L. Saska, Esq., Attorney at Law. . . . Attorney for Melvin Doug Fredrick," Bosco denied creating or signing those documents.
About midway through Bosco's interview, Shakowski entered and identified himself to her as the case agent and resumed the questioning. He told her that he had just completed talking to Maribel. When he asked Bosco whether a search warrant might show a link between her IP address and a certain email address involved in the case, she replied that "maybe" it would show a link. She stated that the signature on one of Fredrick's checks "might" be hers. When asked whether she had stolen money from Fredrick, Bosco replied: "I did not intentionally steal money from him, but the trust was never set up so yes, I did." After he told her that he had photographs showing her deposit Fredrick's checks that totaled over $40,000, she replied that she did not know where the money went and stated, "[i]t's not like I bought anything crazy."
After a break, the interview continued and Bosco admitted she told Fredrick that she was an attorney and believed she told him her name was Julie Saska or Julie Saska Feinberg. She initially offered to help him with his LLC for his bakery business and admitted she told him she would represent him regarding his job demotion claim. She admitted she told him the Equal Employment Opportunity Commission (EEOC) was willing to settle his claim, but that she could get more money than it had offered. She admitted she prepared documents for Fredrick using her computer at the Ken Stone Law Group, which was her employer at the time. She copied and pasted a file stamp from another document onto documents for Fredrick. She admitted the documents she prepared for Fredrick were fictitious. She also admitted she obtained other forms from her work computer, including the tax lien document showing Erika and Guadalupe owed $91,000 to the IRS. She admitted she altered a tax lien form and represented herself as an attorney and made up a state bar number. She admitted she told the family she had paid that tax lien. She admitted she used the case numbers and file stamps from actual legal documents and represented that her altered documents were legitimate. She stated that her documents were never filed with the court.
Bosco stated that she told Maribel that Fredrick's checks were for Mellany and that Maribel had signed some of the checks given to her for the trust. Bosco stated that she paid St. Rose of Lima monies she collected for its fundraiser either from Maribel's B of A account or their joint SDCCU account. She admitted it was her idea for Maribel to apply for a home equity line of credit to consolidate and pay off debt and stated that line of credit was used primarily to pay her student loan payments of $775 per month. She admitted that she created the email address of "katecohenlaw@gmail.com" and that she sent the emails to Fredrick that purportedly were from Kate Cohen. She also admitted using various email addresses, apparently including the "mclaw2231" email address. She stated she did not keep any of the money raised for the fundraisers.
The court took judicial notice that Bosco was released from custody in this case on June 10, 2015, when she posted a bond of $35,000. Shakowski testified that while Bosco was out on bail, she was arrested again on June 24 and had $3,000 in cash in her possession.
Counts 1 through 8 (grand theft). Fredrick testified at trial that Bosco offered to establish a family trust for Mellany and him. He believed his assets would be deposited into a special bank account that he and Maribel would control, but Bosco told him not to mention anything about it to Maribel and referred to the attorney-client privilege. Bosco told him the trust would take care of a lump sum child support payment. She provided him with a copy of the trust that was stamped "Original" and "Confidential." She told him to make his checks for the trust payable to Maribel and reference the trust in the memo line of the checks. She told him the LLC for his bakery business would also be part of the trust. Fredrick believed that Bosco would give his checks to Maribel and then he and Maribel would establish the trust account.
From November 22, 2014, through April 23, 2015, Fredrick wrote nine checks totaling $40,583 from his father's account at the Navy Federal Credit Union (NFCU) in the specific amounts that Bosco suggested. Fredrick testified that he had deposited money in his father's NFCU account since Mellany was born. On November 23, 2014, his father was on life support and could not communicate. Fredrick later told Shakowski that although his name was not on his father's account, he had a power of attorney over his father's financial affairs. Fredrick stated he had talked with his father before writing the checks and had his father's authorization to write them. All nine checks were deposited into Maribel's B of A account.
Eight of the nine checks were for amounts exceeding $950.
On May 11, 2015, Shakowski attempted to interview Melvin in a hospital, but found he was incapacitated, intubated, heavily medicated, and unable to comprehend his questions. In August 2015, Melvin passed away.
In April 2015, Fredrick asked Maribel for the deposit slips for the checks she had deposited for Mellany's account. Because Maribel did not know what he was referring to, she told Bosco about his request and she (Bosco) said she would talk to him. Bosco called Fredrick and told him it was "a long process" and could take up to a year to get the deposit slips. Fredrick testified that had he known Bosco was not an attorney, he would not have allowed her to assist him and would never have given her any money.
Counts 9 through 13 (forgery). Maribel testified that she did not know Fredrick had given Bosco checks written out to her (Maribel) for a trust. She did not recall receiving any checks during the period from November 22, 2014, through April 23, 2015. Bosco handled all of their finances and Maribel rarely monitored her bank accounts, except for ensuring her paycheck was directly deposited. When shown copies of Fredrick's checks, Maribel testified that she was certain some of the signatures on the backs of the checks were not her signatures, although some of the other signatures might be hers. Maribel had no recollection of depositing any of the checks or observing that over $40,000 had been deposited into her account.
Maribel testified that she recognized Bosco's handwriting on the backs of some of the checks. Although Bosco had her permission to sign her name on checks for Mellany's school and other things, Maribel never authorized Bosco to take money from Fredrick. Photographs from B of A's surveillance cameras showed Bosco depositing eight of Fredrick's checks.
Counts 14 and 15 (grand theft). In October 2014, the Life Perspectives nonprofit organization associated with the St. Rose of Lima church conducted a fundraiser called "Life Walk" or "Walk for Life." Shakowski contacted Carolina Osuna, Life Perspective's officer manager, and asked her to provide him with all documentation regarding that fundraising event, including amounts of any funds donated by Bosco, Maribel, and/or Mellany. Osuna did not locate any donations made by them. Osuna conceded that if a donation was made in cash at the event and no name was given, her records would not show any name for that donation. She testified that on October 21, 2014, Life Perspectives sent an email message to individuals and entities thanking them for supporting the event. Although one recipient of that email was "juliehuerta91@yahoo.com," Osuna explained the email was sent to all email addresses collected through a certain program that was not connected to Life Perspective's database for funds raised.
Pursuant to Bosco's instructions, Fredrick wrote a $565 check payable to Maribel for the fundraiser and gave the check to Bosco. Erika gave Bosco $50 in cash for the fundraiser. Serena Suarez gave Bosco $100 in cash for the fundraiser. Rebecca Reed gave Bosco a $75 check payable to her (Bosco). Paulette gave Bosco a $50 check payable to Maribel. Paulette believed that Bosco would be writing a lump sum check that would be given to the school for the fundraiser.
A search of Bosco's home found a document that listed the individuals who donated money for the Walk for Life fundraiser and showed a total amount of $970. Shakowski contacted all of those individuals, except for one, and verified that $965 of the $970 amount had been deposited into Maribel's B of A account. Maribel did not participate in the fundraiser.
In April 2015, Bosco collected money for a fundraiser held by the St. Rose of Lima school called, "Pop for Christ." The plan was that Bosco would collect checks made payable to Maribel and then she (Bosco) would give one check to the school. Bosco created a flyer with Mellany's photograph and that stated she (Mellany) had a goal of collecting $3,500. Ines Stonehouse, the business manager for the St. Rose of Lima Church and School, testified that she complied with Shakowski's request to search records for the fundraiser to locate donations associated with Mellany. Stonehouse found that the school had received $235, consisting of the $35 registration fee for six persons plus a $25 donation, in Maribel's name with a partial email address of "juliehuerta91." However, Bosco collected over $1,800 for this fundraiser. At Bosco's direction, Ellis wrote a $500 check payable to Maribel. Bosco told Ellis that she was gathering all of the donations and would give all of the money to the school. Reed gave about $100 in cash to Bosco. Paulette gave Bosco $40 in cash. Paulette asked friends to donate and to write checks payable to Maribel, pursuant to Bosco's instructions. Creating a "GoFundMe" page, Fredrick raised almost $800 and collected additional money from coworkers and customers of his bakery business. On Bosco's instructions, he then wrote a $1,000 check payable to Maribel and gave it to Bosco. He also told his coworkers to write their checks payable to Maribel. Maribel did not participate in the fundraiser and never saw any of the checks intended as donations to it.
Counts 16 through 18 (unlawful use of personal identifying information). Thomas Fitch, a California attorney, testified that he did not authorize Bosco to use his state bar number. In a document entitled, "Request to Waive Court Fees," one of the names of Bosco's aliases, Julie Saska Feinberg, appeared with his bar number.
William Sharp, a California attorney, testified that he did not authorize anyone to use his state bar number. In a document entitled, "Findings and Order After Hearing," one of the names of Bosco's aliases, Julie Saska Feinberg, appeared with his bar number. He had not seen that document before and did not recognize Bosco, and the signature on the second page of the document was not his signature.
Sean Foldenauer, a California attorney, testified that he never authorized anyone to use his state bar number. In a document entitled, "Findings and Order After Hearing," one of the names of Bosco's aliases, Julie Saska Feinberg, appeared with his bar number. His name did not appear on that document and he had not seen it before. He did not know Fredrick or Bosco and did not recognize the second signature on the second page of the document.
Count 19 (false personation of Kate Cohen). Fredrick received emails from the email address of "katecohenlaw@gmail.com" from a person purporting to be Kate Cohen. In those emails, Cohen stated that she was Bosco's friend and an attorney and that Bosco was "one of the best" attorneys. He also received messages from Cohen via Bosco's phone with the explanation that she (Cohen) was using Bosco's phone while she was doing something else. He received a photograph of a female with blonde hair and blue eyes whom he was led to believe was Cohen. Over a period of months, Fredrick and Cohen exchanged over 100 friendly and flirtatious emails. Although they planned to meet, they never met because something always came up.
Erika also received emails from Cohen, whom she believed was a human resources attorney at Novartis. Cohen wrote that she was becoming the head attorney at that company and Erika would be her assistant. Cohen also wrote that Bosco had an impeccable reputation. When Cohen questioned Erika's honesty, Bosco replied to Cohen using the email address of "juliehuerta91@yahoo.com" and vouched for Erika's honesty. When Cohen sent an email to Erika and apologized, Erika replied to Cohen that there was no need to apologize. Erika never worked for Novartis.
Paulette testified that Bosco directed her to fax some of her (Paulette's) paperwork to a "katecohenlaw" email address, which address she believed Bosco had access to.
Katie Wise Cohen, a California attorney, testified that she worked for a pharmaceutical company, but never worked for Novartis, which was another pharmaceutical company. She previously had her own law firm and in her law practice used the email address of "Katie@kcohenlawoffice.com" when communicating with clients and others. She never used the email address of "katecohenlaw@gmail.com." Before talking with Shakowski and the prosecutor, she had never heard of Bosco, Giuliana Huerta, Julie Saska Feinberg, Maribel, Erika, Melvin, or Fredrick, nor had she communicated with any of them. She never worked for or with Giuliana Huerta. When shown emails purportedly from Kate Cohen, she testified that she had not written any of them.
Count 21 (false personation of Lindsay Brack). On or about June 24, 2015, while released on bail in this case, Bosco created the email address of "linbraxton642@gmail.com." Bosco used that email address to communicate with Ellis, purporting to be attorney Lindsay Brack, whom Ellis believed was Bosco's former employer. In one of the emails to Ellis, the person purporting to be Brack stated that Bosco "is an amazing attorney who has brought him lots of business and [he] values her work." Bosco told Ellis that Brack wanted to take them out to dinner, but that dinner never occurred. Brack testified that he knew Bosco as Julie Huerta and that she had worked for his law firm for about one month. He did not know Ellis and never communicated with her. His email address is "Lbrack@brackmason.com." "linbraxton642@gmail.com" is not his email address and he did not write any emails to Ellis using that email address. After Bosco's arrest in this case, she no longer worked for him. He never became friends with her and never told her he would support her in her criminal case. He did not know anything about a trust for Ellis and did not tell Bosco that he would help her with it.
Pursuant to Bosco's section 1118.1 motion, the trial court dismissed count 20 (false personation of Julia Ann Wright) on completion of the evidentiary portion of the trial.
Counts 22 and 23 (grand theft). Ellis, a psychiatric nurse practitioner, testified that when she met Bosco, she (Bosco) told her she was a lawyer. Bosco told her that she had worked for attorney Ken Stone and then under the license of a supervising attorney, Lindsay Brack. Bosco and Ellis became friends and Ellis believed she was Bosco's confidant. Ellis also had a close relationship with Maribel and Mellany. At Bosco's invitation, Ellis often stayed overnight at her home to avoid the long commute from work to her home. When Ellis mentioned to Bosco that she was interested in forming a trust, Bosco told her that she did not need to get an attorney and that she would prepare it for her. Ellis gave Bosco two blank checks for the trust and Bosco told her that she would fill in the amounts. After Bosco's arrest on June 10, 2015, she called Ellis and told her the charges against her were wrong and that she did not commit any crimes. Ellis believed her. When Bosco was released from jail on bail, Ellis picked her up and remained supportive of her. Pursuant to Bosco's instructions, Ellis did not return Shakowski's calls during his investigation of the case.
Bosco subsequently returned those checks to Ellis.
On or about June 15, 2015, Ellis gave Bosco two checks with her signature, but leaving the amounts and everything else blank. Bosco completed the checks, writing her (Bosco's) name as payee and the amounts of the checks (i.e., $8,500 and $8,000). Ellis also provided Bosco with all of her financial information, including bank accounts and other assets that would be listed in her trust. When Bosco asked Ellis for $2,000 to secure a bond for the trust, they drove together to a bank where Ellis withdrew $2,000 in cash and gave it to Bosco. When Bosco showed her the fees for filing various forms for the trust, Ellis thought the fees seemed excessive, but trusted Bosco. Late in June, Ellis became suspicious of Bosco and forwarded to Shakowski an email that Bosco had sent to her. Ellis then went to an attorney in Temecula who advised her that, contrary to her belief, a trust would not protect her assets if she were sued.
Count 24 (practicing law without a license). Between November 22, 2014, and April 23, 2015, Bosco told a number of people that she was an attorney and evidence showed that she practiced law without a license to practice law. Bosco told Paulette she had been a lawyer for 12 to 15 years. Fredrick and Bosco signed a letter indicating he had retained the law office of "Saska, Goodman and Shapiro Law Group," which showed the name "Julie Saska, Esq." on the top left of its letterhead. To complete paperwork for his trust, Fredrick accompanied Bosco to a downtown San Diego law office where she said she worked as an attorney.
Bosco told Erika that she worked for the Padilla & O'Mara or O'Mara & Padilla law firm. In July 2014, Bosco offered her a job with that firm. Erika received emails from Mike Padilla describing Bosco as an attorney. Erika worked for Bosco for four or five months as her personal assistant. Bosco paid her in cash and she (Erika) never went to the law firm's office. Bosco later told her that she and attorney Chris Morris formed their own law firm. Bosco gave Erika a purse with a note on "Huerta and Morris Law Firm" letterhead.
When Bosco worked for attorney Ken Stone, Erika ran errands for her and received a cashier's check from "Julie Huerta, Esq." for $369 for her work. A pay stub for $601.66 showed approval by "Julie Huerta, Attorney."
Bosco informed Erika that she received a subpoena regarding Guadalupe's tax debt of $91,000 for claiming Erika's children as dependents. Bosco and Erika signed a document entitled "Tax Declaration." Bosco told Erika that she (Bosco) had gone to court and paid the $91,000 debt. Erika received an email from Kevin McDonalde informing her that Bosco had paid her mother's tax debt of $91,546. However, neither Erika nor Guadalupe received any correspondence from the IRS.
Bosco told Ellis that she was a lawyer and that she worked at various law firms. She discussed with Ellis her cases and court appearances. Bosco also told Serena Suarez, her manicurist, that she was a lawyer.
At trial, Reed, an attorney, was shown a document entitled, "Declaration of Julie Huerta," in which Bosco represented herself as an attorney. The document also included Reed's name and bar number. Reed was not involved in the creation of that document.
Defense case. Bosco called Tim Johnson, an investigator for the San Diego County District Attorney's Office, as a witness. He testified that on April 29, 2015, he received a call from Fredrick, who reported that he believed he was the victim of theft by someone acting as an attorney. Fredrick told Johnson that he had been looking for an attorney to set up a family trust to facilitate child support payments. Fredrick stated that he had lost $37,000. Johnson forwarded Fredrick's information to the financial crimes unit.
Jury verdicts. The jury returned verdicts finding Bosco guilty on counts 1 through 19 and 21 through 24 and found true the related allegations that she committed counts 21 through 23 while released from custody on bail. After denying Bosco's posttrial Marsden motion, the trial court sentenced her to a total term of 13 years 8 months in local custody, consisting of a principal term of three years for count 1, consecutive 8-month terms for each of counts 2, 3, 4, 5, 6, 7, 8, 14, 15, and 22, a consecutive two-year term for the section 12022.1, subdivision (b), enhancement, and one-year terms for each of her two section 667.5, subdivision (b), prison prior convictions. Pursuant to section 654, the court stayed execution of three-year terms for each of counts 9, 10, 11, 12, 13, 16, 17, 18, 19, and 21. It imposed a three-year term for count 23 and a six-month term for count 24 with both terms to be served concurrently. The court also ordered Bosco to pay various fines and fees, including victim restitution amounts to Fredrick, Ellis, Life Perspectives, and St. Rose of Lima. Bosco timely filed a notice of appeal.
People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
As noted above, the court had previously dismissed count 20.
DISCUSSION
I
Wende and Standards of Review
Wende. Pursuant to Wende, supra, 25 Cal.3d 436, when an appellant's appointed counsel is unable to identify any arguable issues on appeal, we must independently review the record for arguable issues. (Id. at pp. 441-442; Kelly, supra, 40 Cal.4th at pp. 119, 126.) When an appellant's counsel files a Wende brief raising no arguable issues, the appellant has the right to file a brief raising supplemental contentions. (Wende, at p. 440; Kelly, at p. 120.) "[W]hen a Court of Appeal affirms a judgment in a Wende appeal in which the defendant has filed supplemental contentions, the appellate court necessarily must have considered and rejected those contentions. . . . [S]uch an opinion must reflect the contentions and the reasons that they fail . . . ." (Kelly, at p. 120.)
That right is an exception to the general rule that a represented appellant has no right to personally present supplemental arguments. (In re Barnett (2003) 31 Cal.4th 466, 469; Kelly, supra, 40 Cal.4th at p. 120.)
"A written decision does not require an extended discussion of legal principles. [Citations.] Moreover, a recitation of each of the defendant's assertions will not be necessary in all cases; the purposes of the constitutional requirement [for a written decision] may in some circumstances be satisfied by a summary description of the contentions made and the reasons they fail. . . . [H]owever, the written decision must disclose whether the contentions failed on the merits or for some other specified reasons." (Kelly, supra, 40 Cal.4th at p. 121.) Alternatively stated, a written decision need not include "information or analysis beyond that necessary to apprise the reader of the contention considered and the reasons underlying that court's conclusion that the contention fails." (Id. at p. 122.) Kelly stated: "[I]n affirming the judgment rendered in a Wende appeal, the Court of Appeal must prepare a written opinion that describes the contentions personally raised by the defendant and the reasons those contentions fail. In addition, the Court of Appeal must provide a brief description of the underlying facts, the procedural history, the crimes of which the defendant was convicted, and the punishment imposed. Finally, we encourage the Courts of Appeal to include any further information they deem appropriate." (Kelly, at p. 124.)
Standards of review. There are three primary standards of review for determining error on appeal: (1) de novo; (2) abuse of discretion; and (3) substantial evidence. When an issue raises a pure question of law (e.g., validity of jury instructions), we apply a de novo standard of review and exercise our independent judgment and give no deference to the trial court's ruling. (Ghirardo v. Antonioli (1994) 8 Cal.4th 791, 799; People v. Aldridge (1984) 35 Cal.3d 473, 477; Mattco Forge, Inc. v. Arthur Young & Co. (1997) 52 Cal.App.4th 820, 831.) When a trial court has exercised its discretionary power (e.g., admission or exclusion of certain evidence), we will find error only if the court has abused that discretion and no judge reasonably could have made that decision. (Smith v. Smith (1969) 1 Cal.App.3d 952, 958; People ex rel. Lockyer v. Sun Pacific Farming Co. (2000) 77 Cal.App.4th 619, 639-640.)
When a defendant challenges the sufficiency of the evidence to support a judgment or resolution of a disputed fact, we apply the substantial evidence standard of review. Generally, our task "is to review the whole record in the light most favorable to the judgment 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." (People v. Rodriguez (1999) 20 Cal.4th 1, 11, citing People v. Johnson (1980) 26 Cal.3d 557, 578.) "Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact. [Citation.]" (People v. Young (2005) 34 Cal.4th 1149, 1181.) Accordingly, on appeal we do not reweigh the evidence, resolve conflicts in the evidence, or reevaluate the credibility of witnesses. (People v. Cochran (2002) 103 Cal.App.4th 8, 13.)
The substantial evidence standard of review involves two steps. "First, one must resolve all explicit conflicts in the evidence in favor of the respondent and presume in favor of the judgment all reasonable inferences. [Citation.] Second, one must determine whether the evidence thus marshaled is substantial. While it is commonly stated that our 'power' begins and ends with a determination that there is substantial evidence [citation], this does not mean we must blindly seize any evidence in support of the respondent in order to affirm the judgment. . . . [Citation.] '[I]f the word "substantial" [is to mean] anything at all, it clearly implies that such evidence must be of ponderable legal significance. Obviously the word cannot be deemed synonymous with "any" evidence. It must be reasonable . . . , credible, and of solid value . . . .' [Citation.] The ultimate determination is whether a reasonable trier of fact could have found for the respondent based on the whole record." (Kuhn v. Department of General Services (1994) 22 Cal.App.4th 1627, 1632-1633, fns. omitted.) The standard of review is the same in cases in which the prosecution relies primarily on circumstantial evidence. (People v. Bean (1988) 46 Cal.3d 919, 932.) "Because intent is rarely susceptible of direct proof, it may be inferred from all the facts and circumstances disclosed by the evidence." (People v. Kwok (1998) 63 Cal.App.4th 1236, 1245.)
II
Bosco's Contentions
On appeal, Bosco's appointed counsel filed an appellant's opening brief pursuant to Wende, supra, 25 Cal.3d 436, setting forth the facts of the case and requesting that we independently review the entire record, but raising no arguable issues. To assist us in our review, her counsel identified three possible issues: (1) whether the alleged victim of grand theft in counts 1 through 8 was a victim if he did not have a written power of attorney to sign checks drawn on his father's bank account; (2) whether Bosco is guilty of forgery if she had her spouse's permission to sign her name on documents; and (3) whether Bosco can be guilty of unlawful use of personal identifying information if she made up the bar numbers that she used and did not specifically and willfully use the bar numbers of the named attorneys. After we granted Bosco permission to file a supplemental brief on her own behalf, she submitted a 125-page handwritten brief raising 25 major contentions—many of which included multiple issues. Pursuant to Kelly, supra, 40 Cal.4th 106, we have considered each of her contentions and will explain why they fail. (Id. at pp. 120-122.) Furthermore, our independent review of the record has not disclosed any reasonably arguable issues and therefore we affirm the judgment. (Wende, at pp. 441-442; Kelly, at pp. 119, 126.)
A
Jury voir dire. Bosco contends the trial court erred in conducting jury voir dire because it did not disclose to the potential jurors that she was in a same sex marriage and did not question them about any potential bias or inability to serve as a juror because of that status. During jury voir dire, the court informed the potential jurors that "[i]t may appear that one or more of the parties, attorneys or witnesses come from a particular national, racial or religious group or have a lifestyle different from your own." It then asked them: "Would this in any way affect your judgment or the weight and credibility you would give to that person's testimony?" None of the potential jurors indicated that those characteristics would affect his or her decisionmaking in the case. Bosco did not object to the court's questions or nondisclosure of her same sex marriage status, nor did she request that the court specifically question the potential jurors whether their decisionmaking would be affected by that status.
By not objecting to the court's jury voir dire statements and questions and not requesting clarifying or other questions below regarding her same sex marriage status, we conclude that Bosco forfeited her claim that the court erred by not disclosing her same sex marriage status and not specifically questioning the potential jurors whether their decisionmaking would be affected by that status. (Cf. People v. Raviart (2001) 93 Cal.App.4th 258, 269 [objections to trial court's questions of witness or noninstructional comments must be raised at trial or are waived or forfeited on appeal]; People v. Anderson (1990) 52 Cal.3d 453, 468; People v. Camacho (1993) 19 Cal.App.4th 1737, 1745; People v. Sturm (2006) 37 Cal.4th 1218, 1237 [claims of judicial misconduct or error generally are forfeited if defendant does not timely object and request an admonition].) In any event, even if Bosco had objected below, she has not carried her burden on appeal to show that the court erred by not disclosing her same sex marriage during jury voir dire and not questioning the potential jurors whether their decisionmaking would be affected by that status. In particular, she cites no case or other authority showing the court had a duty to do so during jury voir dire. Finally, she has not carried her burden on appeal to show the court's purported errors were prejudicial (i.e., that it is reasonably probable she would have obtained a more favorable result had the court not erred or that the errors caused a miscarriage of justice). (Cal. Const., art. VI, § 13; People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).) To the contrary, because the court instructed the jurors to "not let bias, sympathy, prejudice, or public opinion influence your decision," we presume the jurors followed that instruction and did not allow Bosco's same sex marriage status to affect their decisionmaking in this case and therefore she could not have been prejudiced by the court's purported errors during jury voir dire.
Ineffective assistance of counsel. Bosco also argues that she was denied her constitutional right to effective assistance of counsel when her counsel did not submit proposed jury voir dire questions to the court regarding any possible bias of the potential jurors or their inability to be fair or impartial based on her same sex marriage status or sexual orientation. A criminal defendant is constitutionally entitled to effective assistance of counsel. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15; Strickland v. Washington (1984) 466 U.S. 668, 684-685 (Strickland); People v. Pope (1979) 23 Cal.3d 412, 422 (Pope).) To show denial of the right to counsel, a defendant must show: (1) his or her counsel's performance was below an objective standard of reasonableness under prevailing professional norms; and (2) the deficient performance prejudiced the defendant. (Strickland, at pp. 687, 691-692; People v. Ledesma (1987) 43 Cal.3d 171, 216-217 (Ledesma); Pope, at p. 425.) To show prejudice, a defendant must show there is a reasonable probability that he or she would have received a more favorable result had his or her counsel's performance not been deficient. (Strickland, at pp. 693-694; Ledesma, at pp. 217-218.) "When a defendant challenges a conviction, the question is whether there is a reasonable probability that, absent the [trial counsel's] errors, the factfinder would have had a reasonable doubt respecting guilt." (Strickland, at p. 695.) "A reasonable probability is a probability sufficient to undermine confidence in the outcome. [Citation.]" (People v. Williams (1997) 16 Cal.4th 153, 215.) It is the defendant's burden on appeal to show that he or she was denied effective assistance of counsel and is entitled to relief. (Ledesma, at p. 218.)
"In evaluating a defendant's claim of deficient performance by counsel, there is a 'strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance' [citations], and we accord great deference to counsel's tactical decisions. [Citations] . . . . Accordingly, a reviewing court will reverse a conviction on the ground of inadequate counsel 'only if the record on appeal affirmatively discloses that counsel had no rational tactical purpose for his act or omission.' [Citations.]" (People v. Frye (1998) 18 Cal.4th 894, 979-980.) If the record on appeal " 'sheds no light on why counsel acted or failed to act in the manner challenged[,] . . . unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation,' the claim [of ineffective assistance of counsel] on appeal must be rejected." (People v. Wilson (1992) 3 Cal.4th 926, 936.) In such a case, the claim "is more appropriately decided in a habeas corpus proceeding." (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.)
Furthermore, a court need not address the issue of whether a defendant's counsel performed deficiently before it addresses the issue of whether the defendant was prejudiced by that purported deficient performance. "If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed." (Strickland, supra, 466 U.S. at p. 697; see In re Alvernaz (1992) 2 Cal.4th 924, 945.)
Assuming arguendo Bosco's counsel performed deficiently as she asserts, we nevertheless conclude she has not carried her burden on appeal to show that such deficient performance prejudiced her case. (Strickland, supra, 466 U.S. at pp. 687, 691- 692, 697; Ledesma, supra, 43 Cal.3d at pp. 216-217; Pope, supra, 23 Cal.3d at p. 425.) Based on our review of the evidence, we conclude it is not reasonably probable Bosco would have obtained a more favorable verdict had her counsel not performed deficiently as she asserts by not proposing jury voir dire questions to the court regarding her same sex marriage status or sexual orientation. As discussed above, the court instructed the jurors to "not let bias, sympathy, prejudice, or public opinion influence your decision." We presume the jurors followed that instruction and did not allow Bosco's same sex marriage status or sexual orientation to affect their decisionmaking in this case and therefore she could not have been prejudiced by her counsel's purported deficient performance during jury voir dire. Therefore, Bosco has not carried her burden on appeal to show she was denied her right to effective assistance of counsel.
Juror number 9. Bosco also argues she was denied her constitutional right to effective assistance of counsel when she informed her counsel that juror number 9 was sleeping and nodding off during trial, but her counsel failed to take any action. However, assuming arguendo Bosco's counsel performed deficiently as she asserts, we nevertheless conclude she has not carried her burden on appeal to show that such deficient performance prejudiced her case. (Strickland, supra, 466 U.S. at pp. 687, 691-692, 697; Ledesma, supra, 43 Cal.3d at pp. 216-217; Pope, supra, 23 Cal.3d at p. 425.) Therefore, she has not carried her burden on appeal to show she was denied her right to effective assistance of counsel.
B
In limine motions. Bosco contends the trial court abused its discretion in ruling on various pretrial in limine motions. In particular, she argues the court abused its discretion by denying her motion to exclude all evidence of her prior bad acts (i.e., her felony convictions from 2005, 2010, and 2011) and granting the prosecution's motion to admit that evidence, albeit in a sanitized form, for purposes of impeachment in the event that she testified, but not as part of the prosecution's case-in-chief. We conclude Bosco has not carried her burden on appeal to show the court abused its discretion under Evidence Code sections 1101, subdivision (b), and 352 by allowing evidence of her prior felony convictions that involved moral turpitude and therefore were relevant to her credibility in the event she testified. (See, e.g., People v. Ewoldt (1994) 7 Cal.4th 380, 400; People v. Beagle (1972) 6 Cal.3d 441, 453.) In any event, because Bosco did not ultimately choose to testify at trial, none of her prior felony convictions were admitted into evidence and therefore she was not prejudiced by the court's ruling. She has not carried her burden to show she would have obtained a more favorable verdict had the court not erred as she purports (i.e., had the court excluded such evidence in the event she testified) or that the purported error caused a miscarriage of justice. (Cal. Const., art. VI, § 13; Watson, supra, 46 Cal.2d at p. 836.)
Bosco also argues the court abused its discretion by granting the prosecution's motion to exclude evidence of Maribel's prior employment as a deputy sheriff and other evidence indicating that Maribel and Ellis met Bosco while working at the Las Colinas jail. The court stated that the jury did not need to know how they met Bosco. Bosco's counsel agreed and did not object to the court's ruling. We conclude that Bosco forfeited her claim on appeal by not timely objecting to the court's evidentiary ruling below. (Evid. Code, § 353; People v. Partida (2005) 37 Cal.4th 428, 433-434 (Partida) [party must object to court's evidentiary ruling to raise purported error on appeal].) Furthermore, she has not carried her burden on appeal to show the court abused its discretion by excluding such evidence or that the court's purported error was prejudicial (i.e., it is reasonably probable that she would have obtained a more favorable verdict had the court admitted that evidence or that the court's ruling caused a miscarriage of justice). (Cal. Const., art. VI, § 13; Evid. Code, § 354 [no reversal of verdict unless court's exclusion of evidence caused a miscarriage of justice]; Watson, supra, 46 Cal.2d at p. 836.)
Bosco also argues the court abused its discretion by precluding cross-examination of Fredrick regarding his purported violation of CDCR rules by searching its databases regarding Bosco's criminal record. The court stated that under Evidence Code section 352 such cross-examination would be unduly time-consuming. Bosco's counsel agreed with the court's ruling and stated she did not plan on cross-examining Fredrick on that subject. We conclude that Bosco forfeited her claim on appeal by not timely objecting to the court's evidentiary ruling below. (Evid. Code, § 353; Partida, supra, 37 Cal.4th at pp. 433-434 [party must object to court's evidentiary ruling to raise purported error on appeal].) Furthermore, she has not carried her burden on appeal to show the court abused its discretion by excluding such evidence under Evidence Code section 352 or otherwise or that the court's purported error was prejudicial (i.e., that it is reasonably probable she would have obtained a more favorable verdict had the court admitted that evidence or that the court's ruling caused a miscarriage of justice). (Cal. Const., art. VI, § 13; Evid. Code, § 354 [no reversal of verdict unless court's exclusion of evidence caused a miscarriage of justice]; Watson, supra, 46 Cal.2d at p. 836.)
Bosco also argues the court erred by not inquiring why counts 9 through 13 of the amended information did not name specific victims for their five alleged forgeries. However, she omits any discussion of the procedural background in this case. Our review of the record shows that she filed a section 995 motion to dismiss the five forgery counts alleged in the original information (former counts 20-24) for insufficient evidence presented at her preliminary hearing, the prosecution opposed her motion, and the court denied her motion. As noted in the prosecution's opposition to her motion, evidence presented at her preliminary hearing included Maribel's testimony that she was unaware of Fredrick's trust checks payable to her (Maribel) and that five of those checks clearly were not signed by her, as well as photographic evidence showing Bosco depositing those checks into an ATM for Maribel's account. After the court denied Bosco's section 995 motion regarding counts 20 through 24 of the information, the prosecution filed an amended information charging Bosco with five forgeries in counts 9 through 13. Therefore, contrary to Bosco's argument, the court did, in fact, address the question of whether there was sufficient evidence presented at the preliminary hearing to support the charged forgeries, including sufficient evidence of the specific victim (who was clearly identified as Maribel by Maribel and Shakowski in their preliminary hearing testimony, the parties' section 995 motion papers, and the court's ruling on that motion). Therefore, any error in the form of counts 9 through 13 of the amended information by omitting the name of the specific victim of the forgeries was harmless error, especially since Bosco could not have been misled by the omission of a named victim in those counts. (§§ 956 [if offense is described with sufficient certainty to identify the criminal act, erroneous allegation regarding person injured is immaterial]; 960 [information is not insufficient by reason of any defect that does not prejudice the substantial right of defendant]; Jones v. Superior Court (1971) 4 Cal.3d 660, 666; Talamantez v. Superior Court (1981) 122 Cal.App.3d 629, 639; People v. Pitts (1990) 223 Cal.App.3d 606, 903-906.)
Furthermore, after denial of her section 995 motion, Bosco failed to object or demur to the filing of the amended information on the ground that it did not name a victim in counts 9 through 13. By her failure to do so, she forfeited her claim that the court erred by allowing the purported deficient amended information to be filed and the charges alleged in counts 9 through 13 to be prosecuted at trial. (§ 1012 [objections to information that appear on its face can only be taken by demurrer and, if not, shall generally be deemed waived]; People v. Pitts, supra, 223 Cal.App.3d at p. 891 [same]; cf. People v. Raviart, supra, 93 Cal.App.4th at p. 269; People v. Anderson, supra, 52 Cal.3d at p. 468; People v. Camacho, supra, 19 Cal.App.4th at p. 1745; People v. Sturm, supra, 37 Cal.4th at p. 1237.)
In any event, even if Bosco had objected or demurred to the amended information below, she has not carried her burden on appeal to show the court erred by allowing the amended information to be filed and counts 9 through 13 to be prosecuted against her. In particular, we note that if her counsel had objected to counts 9 through 13 of the amended information, the prosecution could have easily amended it to specify the victim of the crimes charged in those counts. Furthermore, as discussed above, the victim of those forgery counts (i.e., Maribel) testified at both the preliminary hearing and trial and therefore there was sufficient evidence regarding the victim in counts 9 through 13 and any error in the amended information was cured by the evidence showing who the victim of those counts was. Therefore, Bosco has not carried her burden on appeal to show the court's purported error was prejudicial (i.e., that it is reasonably probable she would have obtained a more favorable result had the court not erred or that the error caused a miscarriage of justice). (Cal. Const., art. VI, § 13; Watson, supra, 46 Cal.2d at p. 836.)
Bosco also refers to the court's rulings granting the prosecution's motions to exclude evidence of her mental health and to possibly present the testimony of Dr. Reid Meloy in rebuttal and denying her motion to compel discovery regarding the prosecutor's statement that he directed Fredrick to deposit money into his father's account. However, Bosco does not present any substantive legal argument or analysis showing that the court erred in making those rulings or that those purported errors were prejudicial. "Where a point is merely asserted by [appellant] without any [substantive] argument of or authority for its proposition, it is deemed to be without foundation and requires no discussion." (People v. Ham (1970) 7 Cal.App.3d 768, 783.) "Issues do not have a life of their own: if they are not raised or supported by [substantive] argument or citation to authority, we consider the issues waived." (Jones v. Superior Court (1994) 26 Cal.App.4th 92, 99; see Landry v. Berryessa Union School Dist. (1995) 39 Cal.App.4th 691, 699-700 ["When an issue is unsupported by pertinent or cognizable legal argument it may be deemed abandoned and discussion by the reviewing court is unnecessary."]; Ochoa v. Pacific Gas & Electric Co. (1998) 61 Cal.App.4th 1480, 1488, fn. 3 [contention was deemed waived because "[a]ppellant did not formulate a coherent legal argument nor did she cite any supporting authority"]; Colores v. Board of Trustees (2003) 105 Cal.App.4th 1293, 1301, fn. 2 ["The dearth of true legal analysis in her appellate briefs amounts to a waiver of the [contention] and we treat it as such."]; Bayside Auto & Truck Sales, Inc. v. Department of Transportation (1993) 21 Cal.App.4th 561, 571.) Appellants acting in propria persona are held to the same standards as those represented by counsel. (See, e.g., City of Los Angeles v. Glair (2007) 153 Cal.App.4th 813, 819.) Because Bosco does not present any substantive legal argument or analysis showing that the court erred in making the purported erroneous rulings or that those purported errors were prejudicial, we conclude she has waived those contentions on appeal.
C
Exhibit 9. Bosco contends the trial court abused its discretion by overruling her objection to (on grounds of irrelevance and undue prejudice), and admitting into evidence, the prosecution's Exhibit 9, which apparently is a declaration signed by Bosco regarding a federal tax lien on Erika and Guadalupe, and testimony regarding that exhibit. Bosco argues that exhibit and the testimony thereon should have been excluded because the court dismissed count 9 of the amended complaint, finding there was insufficient evidence to show that Bosco committed any crime regarding the Exhibit 9 declaration. She argues the court abused its discretion by admitting that exhibit and testimony on the ground, inter alia, that the evidence provided additional support for the alleged offense that she practiced law without a license. She also argues the court abused its discretion under Evidence Code section 352 by concluding the probative value of the evidence substantially outweighed its potential for unfair prejudice, confusion, or undue consumption of time.
We conclude Bosco forfeited her contentions regarding Exhibit 9 because she did not request its transmission to this court for our consideration and review as required by California Rules of Court, rules 8.320 and 8.224. Rule 8.320(e), which applies to criminal appeals, incorporates rule 8.224's requirements for transmission of exhibits to the reviewing court. Rule 8.320(e) states: "Exhibits admitted in evidence . . . are deemed part of the record, but may be transmitted to the reviewing court only as provided in rule 8.224." Rule 8.224(a)(1) states that "a party wanting the reviewing court to consider any original exhibits that were admitted in evidence . . . but that were not copied in the clerk's transcript under rule 8.122 or the appendix under rule 8.124 must serve and file a notice in superior court designating such exhibits." On filing of such notice, the superior court clerk (or any party in possession of the exhibits) then sends the listed exhibits to the reviewing court. (Rule 8.224(b).) An appellant has the responsibility to put before this court every part of the record necessary to review claims asserted on appeal. (People v. Whalen (2013) 56 Cal.4th 1, 85 (Whalen) ["[I]t is appellant's burden to present a record adequate for review and to affirmatively demonstrate error."].) An appellant "has the burden of providing an adequate record. [Citation.] Failure to provide an adequate record on an issue requires that the issue be resolved against [the appellant]." (Hernandez v. California Hospital Medical Center (2000) 78 Cal.App.4th 498, 502 (Hernandez).) Because Bosco did not file the notice required by rule 8.224(a)(1) and therefore Exhibit 9 was not transmitted to this court, the record is plainly inadequate for us to review her contentions regarding that exhibit. (Hiser v. Bell Helicopter Textron Inc. (2003) 111 Cal.App.4th 640, 657 (Hiser) ["since neither party requested these exhibits be transmitted to this court . . . , we are unable to evaluate their admissibility"]; In re Marriage of Blazer (2009) 176 Cal.App.4th 1438, 1447, fn. 4 (Blazer); Dominguez v. American Suzuki Motor Corp. (2008) 160 Cal.App.4th 53, 55, fn. 2. (Dominguez).) Accordingly, we reject her contention that the court erred by admitting Exhibit 9 and testimony thereon. (Whalen, at p. 85; Hernandez, at p. 502; Hiser, at p. 657; Blazer, at p. 1447, fn.4; Dominquez, at p. 55, fn.2.) In any event, we conclude Bosco has not carried her burden on appeal to show the court abused its discretion by admitting that evidence and that the purported error was prejudicial.
All references to rules are to the California Rules of Court.
D
Exhibit 8. Bosco contends the trial court abused its discretion by overruling her objection to (on grounds of irrelevance and undue prejudice), and admitting into evidence, the prosecution's Exhibit 8, which apparently consisted of 29 pages of emails purportedly from Kevin McDonalde to Maribel, and testimony regarding those emails. Bosco argues those emails and the testimony thereon should have been excluded because Maribel was not a victim on any count involving those emails. She also argues the prosecution did not present any evidence regarding the McDonalde email account.
We conclude Bosco forfeited her contentions regarding Exhibit 8 because she did not request its transmission to this court for our consideration and review as required by rules 8.320(e) and 8.224(a)(1), discussed above. An appellant has the responsibility to put before this court every part of the record necessary to review claims asserted on appeal. (Whalen, supra, 56 Cal.4th at p. 85.) "Failure to provide an adequate record on an issue requires that the issue be resolved against [the appellant]." (Hernandez, supra, 78 Cal.App.4th at p. 502.) Because Bosco did not file the notice required by rule 8.224(a)(1) and therefore Exhibit 8 was not transmitted to this court, the record is plainly inadequate for us to review her contentions regarding that exhibit. (Hiser, supra, 111 Cal.App.4th at p. 657; Blazer, supra, 176 Cal.App.4th at p. 1447, fn. 4; Dominguez, supra, 160 Cal.App.4th at p. 55, fn. 2.) Accordingly, we reject her contention that the court erred by admitting Exhibit 8 and testimony thereon. (Whalen, at p. 85; Hernandez, at p. 502; Hiser, at p. 657; Blazer, at p. 1447, fn.4; Dominquez, at p. 55, fn.2.) In any event, we conclude Bosco has not carried her burden on appeal to show the court abused its discretion by admitting that evidence and that the purported error was prejudicial.
E
Admission of other exhibits. Bosco contends the trial court abused its discretion by admitting into evidence Exhibits 5, 10, 11, 12, 15 (part), 21 (part), 24, 43, 56, and 58. She argues Exhibits 10, 11, 12, 24, and 43 were irrelevant and/or highly prejudicial and related to a nonvictim of count 24 (practicing law without a license) and therefore should have been excluded. She also argues parts of Exhibits 15 and 21 should have been excluded as inadmissible hearsay because the writers of the checks did not testify at trial. She also argues Exhibits 5 and 58 should have been excluded because they related to count 20, which was dismissed by the court. She also argues Exhibit 56 should have been excluded as irrelevant and unduly prejudicial under Evidence Code section 352. Finally, she argues the court should have further redacted Exhibits 60A and 62A to omit any references to emails of Juliann Wright and Ann Wright and should have excluded any testimony regarding those emails.
We conclude Bosco forfeited her contentions regarding Exhibits 5, 10, 11, 12, 15, 21, 24, 43, 56, 58, 60A, and 62A because she did not request their transmission to this court for our consideration and review as required by rules 8.320(e) and 8.224(a)(1), discussed above. An appellant has the responsibility to put before this court every part of the record necessary to review claims asserted on appeal. (Whalen, supra, 56 Cal.4th at p. 85.) "Failure to provide an adequate record on an issue requires that the issue be resolved against [the appellant]." (Hernandez, supra, 78 Cal.App.4th at p. 502.) Because Bosco did not file the notice required by rule 8.224(a)(1) and therefore the exhibits listed above were not transmitted to this court, the record is plainly inadequate for us to review her contentions regarding those exhibits. (Hiser, supra, 111 Cal.App.4th at p. 657; Blazer, supra, 176 Cal.App.4th at p. 1447, fn. 4; Dominguez, supra, 160 Cal.App.4th at p. 55, fn. 2.) Accordingly, we reject her contentions that the court erred by admitting those exhibits and testimony thereon. (Whalen, at p. 85; Hernandez, at p. 502; Hiser, at p. 657; Blazer, at p. 1447, fn.4; Dominquez, at p. 55, fn.2.) In any event, we conclude Bosco has not carried her burden on appeal to show the court abused its discretion by admitting that evidence and that the purported errors were prejudicial.
F
Exhibit 22. Bosco contends the trial court abused its discretion by admitting Exhibit 22 and Shakowski's testimony regarding Exhibit 22, which exhibit apparently includes a list of donors and amounts donated for the Walk for Life fundraiser, and Exhibit 21, which apparently consists of photocopies of checks given for that fundraiser. She argues that evidence should have been excluded as inadmissible hearsay because Shakowski did not record his interviews with the donors listed on Exhibit 22 and those donors did not testify at trial (except for Fredrick, Paulette and Reed). Bosco also argues there is insufficient evidence to support a finding that she created Exhibit 22.
We conclude Bosco forfeited her contentions regarding Exhibit 22 and Shakowski's testimony thereon because she did not request its transmission to this court for our consideration and review as required by rules 8.320(e) and 8.224(a)(1), discussed above. An appellant has the responsibility to put before this court every part of the record necessary to review claims asserted on appeal. (Whalen, supra, 56 Cal.4th at p. 85.) "Failure to provide an adequate record on an issue requires that the issue be resolved against [the appellant]." (Hernandez, supra, 78 Cal.App.4th at p. 502.) Because Bosco did not file the notice required by rule 8.224(a)(1) and therefore Exhibit 22 was not transmitted to this court, the record is plainly inadequate for us to review her contentions regarding that exhibit. (Hiser, supra, 111 Cal.App.4th at p. 657; Blazer, supra, 176 Cal.App.4th at p. 1447, fn. 4; Dominguez, supra, 160 Cal.App.4th at p. 55, fn. 2.) Accordingly, we reject her contention that the court erred by admitting Exhibit 22 and testimony thereon. (Whalen, at p. 85; Hernandez, at p. 502; Hiser, at p. 657; Blazer, at p. 1447, fn.4; Dominquez, at p. 55, fn.2.) In any event, we conclude Bosco has not carried her burden on appeal to show the court abused its discretion by admitting that evidence and that the purported error was prejudicial.
Section 1118.1 motion for acquittal on count 14. Bosco also contends the court erred by denying her section 1118.1 motion for acquittal on count 14 because there was insufficient evidence to support a finding that property in excess of $950 was unlawfully taken from Life Perspectives. However, Shakowski testified that a document found in Bosco's home (Exhibit 22) listed individuals who donated money for the Walk for Life fundraiser and showed a total amount of $970. Shakowski contacted all of those individuals, except for one, and verified that $965 of the $970 amount had been deposited into Maribel's B of A account. The record supports a reasonable inference that Bosco created that list of donors and donations and that the total amount she unlawfully took from Life Perspectives exceeded $950. Because there was substantial evidence to support a finding that Bosco was guilty on count 14, the court properly denied Bosco's section 1118.1 motion for acquittal on count 14.
G
Evidence regarding, and testimony of, nonvictims of count 24. Bosco contends the trial court abused its discretion by admitting certain evidence (i.e., Exhibits 10, 11, and 12, the McDonalde emails, and Maribel's testimony) regarding statements she (Bosco) made that she was an attorney because Maribel and the other recipients of McDonalde's emails were not victims of count 24 (practicing law without a license) and therefore that evidence was not relevant to prove count 24. She argues the only potential victim of count 24 was Fredrick. Although the jury presumably found Fredrick was one of Bosco's victims of count 24, we conclude the court could properly have found evidence regarding her statements to other persons who may not have been victims of count 24 was nevertheless relevant to prove count 24 and/or other counts. In particular, the court could have reasonably concluded that evidence was relevant to explain why Maribel trusted Bosco to handle her B of A account and other financial affairs and did not learn of Bosco's crimes until after her arrest. Alternatively, the court could have reasonably concluded that evidence was relevant to provide support for the credibility of Fredrick's testimony that Bosco told him she was an attorney and provided legal services to him. Contrary to Bosco's apparent position, the evidence did not have to relate to a direct victim of count 24 for it to be admissible.
Business and Professions Code section 16240 (count 24). Bosco also argues that erroneously telling a person you are an attorney does not, in itself, constitute practicing law without a license under Business and Professions Code section 16240. Although Bosco is correct that erroneously telling a person you are an attorney may not constitute the unlawful practice of law, the evidence admitted at trial did not show that she only told persons that she was an attorney, but rather it also supported the jury's finding that she practiced law without a license within the meaning of that statute. Business and Professions Code section 16240 provides: "Every person who practices, offers to practice, or advertises any . . . profession . . . , or who uses any title, sign, initials, card, or device to indicate that he or she is qualified to practice any . . . profession . . . for which a license . . . is required by any law of this state, without holding a current and valid license . . . , is guilty of a misdemeanor." Based on the record in this case, there is substantial evidence to support a finding by the jury that Bosco not only told Fredrick that she was an attorney, but that she also performed legal services for him that required a professional license to practice law for her to perform (e.g., drafting a trust for him). Furthermore, although the prosecution could have alternatively charged Bosco with a violation of Business and Professions Code section 6126, which more specifically applies to the unlawful practice of law without a license, its charge in count 24 of unlawfully practicing law without a license under the broader provisions of Business and Professions Code section 16240 was proper and her conviction thereof was supported by the evidence and the law.
Business and Professions Code section 6126, subdivision (a), provides: "Any person advertising or holding himself or herself out as practicing or entitled to practice law or otherwise practicing law who is not an active member of the State Bar, or otherwise authorized pursuant to statute or court rule to practice law in this state at the time of doing so, is guilty of a misdemeanor . . . ."
H
Jury instruction on theft by embezzlement. Bosco contends the trial court erred by instructing with CALCRIM No. 1806 on theft by embezzlement because she was not charged with that offense under section 484 or section 503. We conclude the court did not err by instructing the jury with CALCRIM No. 1806. The amended information charged Bosco with 12 counts of grand theft (§ 487, subd. (a)), which is a theft of money or personal property of a value exceeding $950. The offense of "theft" is defined in section 484 and since 1927 has included all forms of larceny, embezzlement, and obtaining property by false pretenses. (People v. Davis (1998) 19 Cal.4th 301, 304, 305, fn. 3.) When instructed on more than one theory of theft, jurors need not agree on a particular theory to find a defendant guilty of theft. (CALCRIM No. 1861; People v. Counts (1995) 31 Cal.App.4th 785, 793-794.) Here, the court instructed the jury on two theories of theft: (1) theft by false pretenses under sections 484 and 487 (CALCRIM No. 1804); and (2) theft by embezzlement under sections 484 and 503 (CALCRIM No. 1806). Bosco does not cite, and we are unaware of, any authority requiring an information to specify which theory or theories of theft the prosecution is charging a defendant with. Our review of the record in this case shows there is substantial evidence to support an instruction with CALCRIM No. 1806 on theft by embezzlement. Bosco does not make any attempt to show otherwise. Accordingly, we conclude the court properly instructed with CALCRIM No. 1806 on theft by embezzlement.
Jury instruction on count 24 (practicing law without a license). Bosco also argues the court erred by instructing on count 24 regarding practicing law without a license. The court's instruction on count 24 began by restating the language of Business and Professions Code section 16240, quoted above. With citations to supporting case law, the court then instructed:
"The practice of law includes legal advice and counsel and the preparation of legal instruments and contracts by which legal rights
are secured although such matter may or may not be pending in a court.Bosco did not object below to that instruction, nor did she request any modification or clarification of it.
"The mere clerical work of filling in or typing certain information, furnished by another, onto a blank form does not constitute the practice of law. However, the determination of which kind of form to be used does constitute the practice of law.
"Providing advice, tailored to the facts of a specific situation, which includes an explanation of one's legal rights and the legal procedures to be followed to exercise those rights, constitutes the practice of law. [¶] . . . [¶]
"A single act may constitute the practice of law. It is not necessary to show that the defendant engaged in a course of conduct or a series of acts in order to show that the defendant practiced law."
We conclude the court properly instructed the jury on the offense of practicing law without a license within the meaning of Business and Professions Code section 16240. Contrary to Bosco's apparent position, the practice of law does not consist solely of actions taken in court, whether by filing pleadings or other documents with a court or representing clients at trial or other proceedings. (Baron v. City of Los Angeles (1970) 2 Cal.3d 535, 542.) " ' "[I]n a larger sense [the practice of law] includes legal advice and counsel and the preparation of legal instruments and contracts by which legal rights are secured although such matter may or may not be [pending] in a court." ' [Citations.]" (Ibid.) Bosco does not cite any case or other authority showing that the court's instruction on count 24 was inaccurate or incorrect in any manner. Therefore, the court's instruction on count 24 correctly stated the law that applied to the charged offense. Furthermore, if Bosco believed the court's instruction was incomplete or warranted clarification, she could have, but did not, request that the instruction be modified or clarified.
Bosco also argues the amended information improperly relied on Business and Professions Code section 16240 as its basis for count 24. As discussed above, although Business and Professions Code section 6126 is an alternative statute that also prohibits the practice of law without a license, it is not, contrary to Bosco's assertion, the sole basis for a misdemeanor charge of practicing law without a license. She does not cite any case or other authority showing otherwise. Finally, to the extent she so argues, the evidence in support of her conviction on count 24 did not consist solely of her telling people she was an attorney. Rather, it also included substantial evidence showing she counseled one or more persons regarding legal questions specific to his or her circumstances and/or prepared legal documents based on his or her circumstances (e.g., prepared a trust for Fredrick).
I
Miranda. Bosco contends that because there is insufficient evidence to support a finding that she was advised of her constitutional rights under Miranda v. Arizona (1966) 384 U.S. 436 (Miranda) after her arrest, evidence of her extrajudicial statements made to district attorney investigators during her postarrest interview should have been excluded at trial. However, she did not file a motion to suppress that evidence or otherwise object to its admission at trial. Therefore, she forfeited or waived any challenge to the admission of evidence of her extrajudicial statements made to the investigators during her postarrest interview. (Evid. Code, § 353; Partida, supra, 37 Cal.4th at pp. 433-434.)
In any event, we conclude there is substantial evidence to have supported a finding that Bosco was, in fact, advised of her Miranda rights before she made her extrajudicial statements to the investigators. In particular, investigator Ray testified at trial that he believed he read Bosco her Miranda rights prior to his interview of her on June 10, 2015. He described the nature of those rights and stated that she appeared to understand them. He could not recall whether he recorded his Miranda advisements. Therefore, even if Bosco had objected to admission of her extrajudicial statements based on a purported failure to advise her of her Miranda rights, there is substantial evidence that would have supported a finding by the court that she was advised of her Miranda rights. Accordingly, her extrajudicial statements would have been properly admitted even if she had timely and specifically objected to admission of her statements on that ground. Contrary to her argument, the fact that Ray's testimony may have been inconsistent regarding whether he recorded all of his interview(s) of Bosco and did not produce a recording of his Miranda advisement would not necessarily preclude the admission of her extrajudicial statements. Rather, if Bosco had timely and specifically objected to admission of that evidence on that ground, the court presumably would have weighed that purported inconsistency, along with all of the testimony of Ray and other persons and other evidence, in determining whether she was, in fact, advised of her Miranda rights. We reject her assertion that it is "very clear" that she was not advised of those rights.
Bosco also apparently argues that we should independently review the record to determine whether her postarrest extrajudicial statements to investigators were coerced and false, as she argued at her posttrial Marsden hearing. Alternatively, she asks this court to grant an evidentiary hearing regarding that issue. We deny her request to order such a hearing and conclude, based on our review of the record, that her postarrest extrajudicial statements were knowing, intelligent, and voluntary.
J
Sufficiency of the evidence for convictions on counts 1 through 8. Bosco contends there is insufficient evidence to support her convictions on counts 1 through 8. In particular, she argues that there is no evidence to support a finding that she committed theft by false pretenses (§§ 484, subd. (a), 487, subd. (a)) because the evidence showed that Fredrick was not a victim of those charged offenses and that his checks payable to Maribel were for child support.
In applying the substantial evidence standard of review, we "review the whole record in the light most favorable to the judgment 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." (People v. Rodriguez, supra, 20 Cal.4th at p. 11.) "Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact. [Citation.]" (People v. Young, supra, 34 Cal.4th at p. 1181.) Accordingly, on appeal we do not reweigh the evidence, resolve conflicts in the evidence, or reevaluate the credibility of witnesses. (People v. Cochran, supra, 103 Cal.App.4th at p. 13.) The substantial evidence standard of review involves two steps. "First, one must resolve all explicit conflicts in the evidence in favor of the respondent and presume in favor of the judgment all reasonable inferences. [Citation.] Second, one must determine whether the evidence thus marshaled is substantial. While it is commonly stated that our 'power' begins and ends with a determination that there is substantial evidence [citation], this does not mean we must blindly seize any evidence in support of the respondent in order to affirm the judgment. . . . [Citation.] '[I]f the word "substantial" [is to mean] anything at all, it clearly implies that such evidence must be of ponderable legal significance. Obviously the word cannot be deemed synonymous with "any" evidence. It must be reasonable . . . , credible, and of solid value . . . .' [Citation.] The ultimate determination is whether a reasonable trier of fact could have found for the respondent based on the whole record." (Kuhn v. Department of General Services, supra, 22 Cal.App.4th at pp. 1632-1633, fns. omitted.)
Based on our review of the record, we conclude there is substantial evidence to support Bosco's convictions on counts 1 through 8, which alleged Fredrick was the victim of grand theft on eight separate occasions. Bosco argues there is insufficient evidence to support a finding that Fredrick was a victim of those charged offenses because no written power of attorney was admitted into evidence showing that he had the authority to write the eight checks drawn on his father's account. However, Shakowski testified that Fredrick told him that he did, in fact, have a power of attorney to write the checks he did on his father's account even though his (Fredrick's) name was not on that account. Although his father's written power of attorney apparently did not become operative until a physician issued a letter stating he was no longer of sound mind (which letter apparently was not issued until after all of the checks were written by Fredrick on his father's account), Fredrick told Shakowski that he had talked to his father prior to writing those checks and his father authorized him to write those checks. Therefore, there is substantial evidence to support a finding that Fredrick was a victim of grand theft in counts 1 through 8. To the extent Bosco argues the evidence supports a finding Fredrick did not have the power of attorney over his father's account or otherwise was not a victim of counts 1 through 8 under CALCRIM No. 1804 (e.g., not a property owner under §§ 484, subd. (a), 487, subd. (a)), she either misconstrues or misapplies the substantial evidence standard of review. In particular, the fact that Fredrick filed a declaration in a family law case stating that the checks he made payable to Maribel were for child support and not his trust, does not show there is insufficient evidence to support his convictions on counts 1 through 8. None of the cases cited by Bosco are factually apposite to this case or otherwise persuade us to reach a contrary conclusion.
Bosco also argues that to the extent the court properly instructed the jury with CALCRIM No. 1806 on the theory of theft by embezzlement (which instruction we concluded above was properly given), there likewise was insufficient evidence to support her convictions on counts 1 through 8 on that theory because Fredrick did not have a power of attorney to write checks on his father's account. However, we rejected that argument above, concluding there is substantial evidence to support findings that he had the authority to write checks on his father's account and therefore was a victim in counts 1 through 8.
K
Sufficiency of the evidence for convictions on counts 9 through 13. Bosco contends there is insufficient evidence to support her convictions of forgery on counts 9 through 13. In particular, she argues the evidence shows that she had Maribel's permission to sign her (Maribel's) name on the checks in question and therefore she cannot be guilty of forgery. However, Maribel testified at trial that she was unaware that Fredrick had given Bosco checks made payable to her (Maribel) and the signatures on those checks were not her signature. Maribel further testified that she never authorized Bosco to take money from Fredrick. Photographs were admitted showing Bosco depositing those checks at ATMs. Based on our review of the record, we conclude there is substantial evidence to support a finding Bosco signed Fredrick's checks that were made payable to Maribel and did not have Maribel's permission to do so. Maribel's testimony that Bosco had her permission to sign checks for Mellany's school, catering, food, daycare, and other minor purchases does not show otherwise.
Bosco also argues that even if there is substantial evidence to support a finding she forged Maribel's handwriting on the checks, there is insufficient evidence to support a finding that she had the requisite intent to defraud under section 470, subdivision (b). However, the jury could reasonably infer that when Bosco requested Fredrick to give her checks made payable to Maribel purportedly to fund his family trust and she (Bosco) forged Maribel's signature on those checks without her permission or knowledge and deposited them into the B of A account, Bosco had the intent to deceive Maribel and/or Fredrick and take that money. Therefore, there is substantial evidence to support Bosco's convictions on counts 9 through 13. To the extent Bosco cites evidence or inferences therefrom that would have supported contrary verdicts, she either misconstrues or misapplies the substantial evidence standard of review.
L
Sufficiency of the evidence for conviction on count 15. Bosco contends there is insufficient evidence to support her grand theft conviction on count 15. In particular, she argues there is insufficient evidence to support a finding that she committed grand theft on the theory of theft by false pretenses (§§ 484, subd. (a), 487, subd. (a)). First, she argues there is no evidence showing who cashed or deposited into the B of A account the checks that she had collected from individuals for the St. Rose of Lima fundraiser. However, the jury could reasonably infer that because Bosco told the individuals to make checks payable to Maribel and give them to her (Bosco), but St. Rose of Lima never received any of that money, that it was Bosco who deposited the checks into the B of A account. The jury could further reasonably infer that, in so doing, Bosco knowingly and intentionally deceived those individuals (i.e., property owners) by the false or fraudulent pretense or representation that she would, in fact, deliver that money to St. Rose of Lima for its fundraiser. (CALCRIM No. 1804.) Second, Bosco argues there is no evidence to support a finding that, in so doing, she had the intent to persuade those individuals to let her take possession and ownership of their money. (CALCRIM No. 1804.) However, the jury could reasonably infer Bosco had the intent to persuade the individuals to give her possession and ownership of their money when she told them to make their checks payable to Maribel and then took those checks. Finally, contrary to Bosco's argument, we conclude the jury could reasonably infer, and therefore there is substantial evidence to support a finding, that the individuals relied on Bosco's false or fraudulent pretense or representation when they gave their checks to Bosco. (CALCRIM No. 1804.) Accordingly, we conclude there is substantial evidence to support Bosco's conviction on count 15. To the extent Bosco cites evidence or inferences therefrom that would have supported a contrary verdict, she either misconstrues or misapplies the substantial evidence standard of review.
Bosco also argues that the trial court erred by instructing the jury with CALCRIM No. 1806 on the alternative theory of theft by embezzlement. We rejected that argument above and need not address it again in the context of count 24.
M
Sufficiency of the evidence for convictions on counts 16 through 18. Bosco contends there is insufficient evidence to support her convictions on counts 16 through 18 of unlawful use of personal identifying information (§ 530.5, subd. (a)). In particular, she argues there is no evidence showing that she "willfully obtained" and "willfully used" the state bar numbers of California attorneys for an unlawful purpose. Section 530.5, subdivision (a), provides: "Every person who willfully obtains personal identifying information . . . of another person, and uses that information for any unlawful purpose . . . without the consent of that person, is guilty of a public offense . . . ." (See, CALCRIM No. 2040.) Bosco argues there is no evidence showing that she willfully obtained the state bar numbers she allegedly used in counts 16 through 18 because there was no evidence presented showing how she obtained the state bar numbers of the three California attorneys. We disagree. Although there may have been no evidence presented showing how Bosco obtained those state bar numbers, the jury could reasonably infer from her use of those numbers on pleadings and other legal documents that she, in fact, had "willfully obtained" those bar numbers within the meaning of section 530.5, subdivision (a). Likewise, contrary to Bosco's argument, the jury could reasonably infer from her insertion of those state bar numbers on those documents that she "willfully used" them within the meaning of section 530.5, subdivision (a), and did so for an unlawful purpose (i.e., to practice law without a license). The fact that none of those documents were filed with a court or were seen by the attorneys whose bar numbers were used does not preclude a finding that she used the bar numbers for an unlawful purpose. Therefore, we conclude there is substantial evidence to support her convictions on counts 16 through 18. To the extent Bosco cites evidence or inferences therefrom that would have supported contrary verdicts, she either misconstrues or misapplies the substantial evidence standard of review. In re Rolando S. (2011) 197 Cal.App.4th 936 and the other cases cited by Bosco are factually inapposite to this case and do not persuade us to reach a contrary conclusion. Based on the same reasoning, we also reject Bosco's related argument that the court erred by denying her section 995 motion to dismiss counts 16 through 18 because there was a lack of sufficient evidence to support those counts.
Bosco also argues the court erred by instructing with CALCRIM No. 2040 on the offense of unlawful use of personal identifying information under section 530.5, subdivision (a). In particular, she argues the court failed to properly define the term "willfully" as used in that instruction, erroneously describing it as an act done "willingly or on purpose." She asserts the court should have instead defined "willfully" as an act that is "intentionally" done. We disagree. Section 7, subdivision 1, provides: "The word 'willfully,' when applied to the intent with which an act is done or omitted, implies simply a purpose or willingness to commit the act, or make the omission referred to. It does not require any intent to violate law, or to injure another, or to acquire any advantage." (Italics added.) By its use of the term "purpose," the Legislature necessarily intended to include acts done "on purpose," as the court instructed in CALCRIM No. 2040 in defining the term "willfully." Therefore, the court properly instructed the jury on the term "willfully." If Bosco believed that instruction should have been modified or clarified to include the additional description "intentionally," she should have requested that the court do so. By not requesting any such modification or clarification, she forfeited any challenge to the court's instruction with CALCRIM No. 2040.
N
Sufficiency of the evidence for conviction on count 19. Bosco contends there is insufficient evidence to support her conviction on count 19 for false personation (§ 529, subd. (a)). In particular, she argues there is insufficient evidence to support a finding that she falsely impersonated Katie Wise Cohen or that she published any document in the name of Katie Wise Cohen. She also argues there is no evidence that she received any benefit as a result of her alleged false personation of Katie Wise Cohen.
The court instructed on count 19 with CALCRIM No. 2044, which states in part: "To prove that the defendant is guilty of [false personation], the People must prove that: [¶] 1. The defendant falsely impersonated another person in the other person's private or official capacity; AND [¶] 2. While falsely impersonating that person, the defendant verified, published, acknowledged, or proved, in the name of the person, any written document; AND [¶] 3. When the defendant did so, did anything that, if done by the person being falsely impersonated, might cause the defendant or anyone else to receive a benefit as a result." Bosco argues that she could not possibly have falsely impersonated Katie Wise Cohen because she used, at most, the name Kate Cohen and the email address of "katecohenlaw@gmail.com." However, we conclude the jury could reasonably infer from Bosco's use of the name "Kate Cohen" and the related email address that she falsely impersonated Katie Wise Cohen even though there was a difference, albeit a slight one, in her first name (i.e., "Katie" versus "Kate").
Bosco also argues there is no evidence showing she published any written document in the name of Katie Wise Cohen. However, we conclude the jury could reasonably infer from Bosco's use of the email address of "katecohenlaw@gmail.com" in sending emails to Fredrick and Erika that Bosco published written documents in the name of Katie Wise Cohen even though there was a difference, albeit a slight one, in her first name.
Bosco also argues there is no evidence showing that, even if she falsely impersonated Katie Wise Cohen, she (Bosco) did not do anything that might cause her or anyone else to benefit as a result. We disagree. The jury could reasonably infer that when Bosco falsely impersonated Katie Wise Cohen to send emails to Fredrick, she did so to convince him that she (Bosco) was an attorney and, more specifically, a good attorney. The jury could further reasonably infer that by attempting to convince Fredrick that she was a good attorney by impersonating Katie Wise Cohen, Bosco sought to obtain the benefit of receiving, as his purported attorney, substantial checks from him for his trust, which checks she would use for herself instead of for his trust. Therefore, there is substantial evidence to support Bosco's conviction on count 19. To the extent Bosco cites evidence or inferences therefrom that would have supported a contrary verdict, she either misconstrues or misapplies the substantial evidence standard of review.
Citing People v. Guion (2013) 213 Cal.App.4th 1426, Bosco also argues that she could not be convicted of false impersonation of Katie Wise Cohen because she did not perform an act separate from her false impersonation of Cohen, which act occurred at the time of that false personation. She notes that all of her alleged false impersonations occurred prior to the thefts she allegedly perpetrated on Fredrick during the period of November 24, 2014, through April 23, 2015. However, those thefts were not the only possible benefits that Bosco may have received by impersonating Katie Wise Cohen. The jury could reasonably infer that at the time she impersonated Katie Wise Cohen in numerous emails, she might have received the benefit of Fredrick's trust as an attorney, which trust enabled her to later commit, inter alia, the thefts in counts 1 through 8 and/or the practice law without a license in count 24. Therefore, there is substantial evidence to support a finding that the requisite additional act was performed and that she was guilty of count 19.
O
Sufficiency of the evidence for conviction on count 21. Bosco contends there is insufficient evidence to support her conviction on count 21 for false personation (§ 529, subd. (a)). In particular, she argues there is insufficient evidence to support a finding that she falsely impersonated Lindsay Brack or that she published any document in his name. She also argues there is no evidence that she received any benefit as a result of her alleged false personation of Brack.
Bosco argues that she could not possibly have falsely impersonated Brack because she used, at most, the name "Lin Braxton" and the email address of "linbraxton642@gmail.com," neither of which were Brack's name or email address. However, we conclude the jury could reasonably infer from Bosco's use of the name "Lin Braxton" and the related email address that she falsely impersonated Brack even though she used a variation of his name.
Bosco also argues there is no evidence showing she published any written document in Brack's name. However, Bosco used the email address of "linbraxton642@gmail.com" to communicate with Ellis, purporting to be Brack. Brack, an attorney, was Bosco's former employer. In one of Bosco's emails to Ellis, the person purporting to be Brack stated that Bosco "is an amazing attorney who has brought him lots of business and [he] values her work." We conclude the jury could reasonably infer from Bosco's use of the email address of "linbraxton642@gmail.com" in sending emails to Ellis that Bosco published written documents in Brack's name even though she used a variation of Brack's name.
Bosco also argues there is no evidence showing that, even if she falsely impersonated Brack, she did not do anything that might cause her or anyone else to benefit as a result. We disagree. Purporting to be attorney Brack and using the email address of "linbraxton642@gmail.com," Bosco sent Ellis an email stating that she (Bosco) "is an amazing attorney who has brought him lots of business and [he] values her work." The jury could reasonably infer that when Bosco falsely impersonated Brack to send emails to Ellis, she did so to convince her that she (Bosco) was an attorney and, more specifically, a good attorney. The jury could further reasonably infer that by attempting to convince Ellis that she was a good attorney by impersonating Brack, Bosco sought to obtain the benefit of receiving, as her purported attorney, substantial checks from her for her trust, which checks Bosco would use for herself instead of for Ellis's trust. Therefore, there is substantial evidence to support Bosco's conviction on count 21. To the extent Bosco cites evidence or inferences therefrom that would have supported a contrary verdict, she either misconstrues or misapplies the substantial evidence standard of review.
Citing People v. Guion, supra, 213 Cal.App.4th 1426, Bosco also argues that she could not be convicted of false impersonation of Brack because she did not perform an act separate from her false impersonation of him, which act occurred at the time of that false personation. However, as with her impersonation of Cohen as discussed above, the jury could reasonably infer that at the time Bosco impersonated Brack in numerous emails, she might have received the benefit of Ellis's trust as an attorney, which trust enabled her to later commit, inter alia, the thefts in counts 22 and 23 and/or the practice law without a license in count 24. Therefore, there is substantial evidence to support a finding that the requisite additional act was performed and that she was guilty of count 21.
P
Sufficiency of the evidence for convictions on counts 22 and 23. Bosco contends there is insufficient evidence to support her grand theft convictions on counts 22 and 23. In particular, she argues there is insufficient evidence to support a finding she committed grand theft on the theory of theft by false pretenses.
Ellis testified that Bosco told her she was an attorney. When Ellis told Bosco that she wanted to form a trust, Bosco replied that Ellis did not need to get an attorney because she could prepare it for her. Ellis gave Bosco two blank checks for the trust and Bosco told her she would fill in the amounts. Bosco wrote in her name as payee of those checks and their amounts of $8,500 and $8,000. Those checks were cashed by Ellis's bank. Although Ellis may have given conflicting testimony regarding whether Bosco told her she was an attorney or was working as a paralegal, the jury could reasonably infer that Bosco told her she was an attorney and, by so doing, intended to set the groundwork for her subsequent theft of the two checks Ellis gave her for the trust. Therefore, there is substantial evidence to support findings that Bosco knowingly and intentionally deceived Ellis by a false or fraudulent representation or pretense and did so intending to persuade Ellis to let her take ownership and possession of the two checks. Furthermore, the jury could reasonably infer that Ellis relied on Bosco's false or fraudulent representation or pretense when she gave Bosco the two checks. Accordingly, there is substantial evidence to support Bosco's convictions on counts 22 and 23.
Ellis also signed two other checks that she gave to Bosco, but Bosco subsequently returned those checks to Ellis.
To the extent Bosco cites evidence or inferences therefrom that would have supported contrary verdicts, she either misconstrues or misapplies the substantial evidence standard of review. Contrary to her assertion, the jury could reasonably find that Bosco's false pretense act was sufficiently corroborated by Ellis's testimony, along with, inter alia, Ellis's two checks for the trust and Bosco's emails to Ellis wherein she purported to be Brack. Furthermore, we reject Bosco's assertion that, in determining whether there was substantial evidence to support her convictions, we must disregard most of Ellis's testimony because she purportedly violated her (Bosco's) HIPAA rights. Bosco does not cite any case or other authority, and we are unaware of any authority, requiring the exclusion of testimony by a witness who has violated a defendant's HIPAA rights. In any event, Bosco does not carry her burden on appeal to show she did not forfeit that claim by not timely and specifically objecting to Ellis's testimony on that ground, that the court abused its discretion by admitting that testimony, and that Ellis's testimony was prejudicial under the Watson standard. Furthermore, Bosco does not cite to the record to show what specific testimony by Ellis purportedly violated her (Bosco's) privacy interest in her health information. Based on our review of the record, the majority, if not all, of Ellis's testimony does not appear to have violated any such right of Bosco.
Bosco also argues the court erred by instructing with CALCRIM No. 1806 on theft by embezzlement because she was not charged with that offense under section 484 or section 503. The court did not err by instructing the jury with CALCRIM No. 1806. As discussed above, the amended information charged Bosco with counts 22 and 23 and 10 other counts of grand theft (§ 487, subd. (a)), which is a theft of money or personal property of a value exceeding $950. The offense of "theft" is defined in section 484 and since 1927 has included all forms of larceny, embezzlement, and obtaining property by false pretenses. (People v. Davis, supra, 19 Cal.4th at pp. 304, 305, fn. 3.) When instructed on more than one theory of theft, jurors need not agree on a particular theory to find a defendant guilty of theft. (CALCRIM No. 1861; People v. Counts, supra, 31 Cal.App.4th at pp. 793-794.) Here, the court instructed the jury on two theories of theft: (1) theft by false pretenses under sections 484 and 487 (CALCRIM No. 1804); and (2) theft by embezzlement under sections 484 and 503 (CALCRIM No. 1806). Bosco does not cite, and we are unaware of, any authority requiring an information to specify which theory or theories of theft the prosecution is charging a defendant with. Our review of the record in this case shows there is substantial evidence to support an instruction with CALCRIM No. 1806 on theft by embezzlement regarding counts 22 and 23. Bosco does not make any attempt to show otherwise. Accordingly, we conclude the court properly instructed with CALCRIM No. 1806 on theft by embezzlement.
Q
Section 12022.1, subdivision (b), enhancement. Bosco contends that if we reverse her convictions on counts 1 through 8, 18, or 21 through 23 based on her arguments above, we must also reverse the jury's true findings on the section 12022.1, subdivision (b), out-on-bail allegations related to counts 21 through 23. However, because we rejected her arguments regarding those counts above and affirm her convictions, the premise of her argument is not satisfied and we therefore need not address its merits.
R
Sentencing. Bosco contends the trial court abused its discretion by not postponing her sentencing hearing, by imposing consecutive terms for counts 1 through 8, and by not sentencing her to a split sentence pursuant to section 1170, subdivision (h)(5).
Prior to her sentencing, Bosco made a Marsden motion and a closed hearing was held to determine whether she was entitled to replace her defense counsel. At that hearing, she argued, inter alia, that her sentencing should be postponed for various reasons. The court denied her Marsden motion and request to postpone her sentencing hearing and then sentenced her. Bosco has not carried her burden on appeal to present substantive legal analysis showing that the court abused its discretion by denying her request to postpone her sentencing hearing. Based on our review of the record, we conclude the court did not abuse its discretion by denying her request.
At her sentencing, the court imposed a total term of 13 years 8 months in local custody, consisting of a principal term of three years for count 1, consecutive 8-month terms for each of counts 2, 3, 4, 5, 6, 7, 8, 14, 15, and 22, a consecutive two-year term for the section 12022.1, subdivision (b), enhancement, and one-year terms for each of her two section 667.5, subdivision (b), prison prior convictions. Pursuant to section 654, the court stayed execution of three-year terms for each of counts 9, 10, 11, 12, 13, 16, 17, 18, 19, and 21. It imposed a three-year term for count 23 and a six-month term for count 24 with both terms to be served concurrently.
Bosco argues the court abused its discretion by imposing consecutive terms for counts 1 through 8 and by not splitting her sentence pursuant to section 1170, subdivision (h)(5). We conclude the court did not abuse its discretion by imposing consecutive terms for counts 1 through 8. Contrary to Bosco's assertion, there is substantial evidence to support the court's finding that those offenses were committed at different times and were not pursuant to a single period of aberrant behavior within the meaning of rule 4.425(a)(3).
We further conclude the court did not abuse its discretion by deciding to not grant Bosco a split sentence under section 1170, subdivision (h)(5). Under the Criminal Justice Realignment Act of 2011 (Act), qualified defendants who are convicted of nonserious and nonviolent felonies are sentenced to county jail instead of state prison. (Stats. 2011, ch. 15, § 1; Stats. 2011, 1st Ex. Sess. 2011-2012, ch. 12, § 1; People v. Scott (2014) 58 Cal.4th 1415, 1418; People v. Catalan (2014) 228 Cal.App.4th 173, 178.) In general, "[t]rial courts have discretion to commit the defendant to county jail for a full term in custody, or to impose a hybrid or split sentence consisting of county jail followed by a period of mandatory supervision." (Catalan, at p. 178.) However, effective January 1, 2015, the Act was amended to provide the presumption that a split sentence should be imposed for a qualifying defendant, "[u]nless the court finds that, in the interests of justice, it is not appropriate in a particular case." (§ 1170, subd. (h)(5)(A).) Rule 4.415 sets forth rules for that presumption and criteria for determining whether to deny a split sentence with mandatory supervision. In particular, a court may consider "[s]pecific factors related to the defendant that indicate a lack of need for treatment or supervision upon release from custody" and "[w]hether the nature, seriousness, or circumstances of the case or the defendant's past performance on supervision substantially outweigh the benefits of supervision in promoting public safety and the defendant's successful reentry into the community upon release from custody." (Rule 4.415(b)(3), (4).) In finding that the split sentence presumption was rebutted and choosing not to impose a split sentence, the court in this case stated that it relied on the probation report, which stated that Bosco's past conduct showed it would be only a matter of time until she committed new theft and fraud crimes so that protection of the community supported her incarceration for the full term imposed. The court stated: "The situation . . . with this defendant, I feel, is different. She is well-educated. She's able to get jobs. . . . [S]he doesn't need the support of the community to get her on track. . . . And she, in this case, continues to maintain her innocence even though, from the Court's point of view, having sat through the trial, this appears to me to be a clear-cut situation of criminal behavior that victimized many people." The court further stated: "[Bosco] has used her education in a way to take advantage of people. She is manipulative and conniving, and that causes me great concern. So I do not think she falls within the category of a person who should receive a split sentence."
Based on our review of the record, we conclude that although Bosco was presumptively eligible for imposition of a split sentence and mandatory supervision pursuant to section 1170, subdivision (h)(5), the trial court did not abuse its discretion by concluding Bosco did not qualify for a split sentence under the criteria set forth in rule 4.415(b). There is substantial evidence to support its findings that Bosco would not need treatment or supervision upon release from custody (rule 4.415(b)(3)) and the nature, seriousness, and circumstances of the case substantially outweighed the benefits of mandatory supervision in promoting public safety and her successful reentry into the community upon her release from custody (rule 4.415(b)(4)). To the extent Bosco cites evidence and inferences that would support a contrary conclusion, she either misconstrues or misapplies the substantial evidence standard of review. Accordingly, we conclude the court did not abuse its discretion by concluding the interests of justice made the imposition of a split sentence and mandatory supervision inappropriate in her case. (§ 1170, subd. (h)(5)(A); rule 4.415(a).)
Also, to the extent Bosco argues the court erred by failing to consider her presentencing solitary confinement in local custody when deciding whether to impose a split sentence, she does not cite any case or other authority showing the court was required to consider that factor in deciding whether to impose a split sentence pursuant to section 1170, subdivision (h)(5).
S
Marsden motion. Bosco contends the trial court abused its discretion by denying her posttrial Marsden motion to replace her appointed counsel. In particular, she argues the court failed to conduct a meaningful inquiry into her claims that her counsel did not provide her with effective assistance.
If a defendant believes he or she is not receiving effective assistance from counsel, the defendant may move to have counsel discharged and new counsel appointed. (Marsden, supra, 2 Cal.3d at pp. 123, 125; People v. Smith (1993) 6 Cal.4th 684, 694-695.) When a defendant makes that motion, the trial court must hold a closed hearing and give the defendant an opportunity to explain the reasons for his or her request for new counsel. (Marsden, at pp. 123-125.) "When a defendant moves for substitution of appointed counsel, the court must consider any specific examples of counsel's inadequate representation that the defendant wishes to enumerate. Thereafter, substitution is a matter of judicial discretion. Denial of the motion is not an abuse of discretion unless the defendant has shown that a failure to replace the appointed attorney would 'substantially impair' the defendant's right to assistance of counsel." (People v. Webster (1991) 54 Cal.3d 411, 435.)
When a defendant makes a Marsden motion, the trial court must "permit the defendant to articulate his [or her] causes of dissatisfaction and, if any of them suggest ineffective assistance, to conduct an inquiry sufficient to ascertain whether counsel is in fact rendering effective assistance. [Citations.] If the defendant states facts sufficient to raise a question about counsel's effectiveness, the court must question counsel as necessary to ascertain their veracity." (People v. Eastman (2007) 146 Cal.App.4th 688, 695.) A Marsden hearing is not a "full-blown adversarial proceeding, but an informal hearing in which the court ascertains the nature of the defendant's allegations regarding the defects in counsel's representation and decides whether the allegations have sufficient substance to warrant counsel's replacement." (People v. Hines (1997) 15 Cal.4th 997, 1025.)
In this case, during the Marsden hearing the court allowed Bosco to fully state her reasons why she believed her counsel's assistance was ineffective and why substitute counsel should be appointed. Our independent review of the record shows that her complaints about her counsel were based on purported errors in trial tactics or other pretrial or trial errors and not on any irreconcilable conflict with, or inability to effectively communicate with, her counsel in preparing for and proceeding with her sentencing. (People v. Abilez (2007) 41 Cal.4th 472, 487-488 (Abilez).) Furthermore, our independent review of the record does not reveal any arguable issues in support of her Marsden claim that she was not receiving effective assistance of counsel and should therefore have substitute counsel appointed. (Abilez, at pp. 487-488) Accordingly, the court did not abuse its discretion by denying her Marsden motion. (Abilez, at pp. 487-488; People v. Webster, supra, 54 Cal.3d at p. 435 [no abuse of discretion in denying Marsden motion unless failure to appoint replacement counsel would substantially impair defendant's right to effective assistance of counsel].)
To the extent Bosco complains the court did not allow her to submit certain documents purportedly showing her counsel's deficient performance, those documents are not part of the record on appeal and therefore we need not, and do not, address the substance of those documents or the purported prejudice caused by the court's rejection of them. In any event, she has not carried her burden on appeal to show the court erred by refusing to allow her to submit those documents and that the error was prejudicial.
T
Prosecutorial misconduct. Bosco contends the prosecution committed prejudicial misconduct that denied her the right to a fair trial. She cites numerous instances in which the prosecution purportedly erred, including the prosecution's failure to verify Fredrick's statements, its direction to Fredrick to return funds to his father's account, its failure to name the victims in counts 9 through 13 of the amended information, the failure of its investigators to record all of their witness interviews, its violations of her HIPAA rights, its presentation of conflicting testimony regarding whether she was advised of her Miranda rights before she gave statements to its investigators, and various other claims of prosecutorial misconduct.
"A prosecutor's conduct violates the Fourteenth Amendment to the federal Constitution when it infects the trial with such unfairness as to make the conviction a denial of due process. Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the trial court or the jury." (People v. Morales (2001) 25 Cal.4th 34, 44.) To preserve a claim of prosecutorial misconduct or error, a defendant must timely object and request a curative admonition unless an admonition would not have cured the harm caused by the misconduct or error. (People v. Hinton (2006) 37 Cal.4th 839, 863; People v. Earp (1999) 20 Cal.4th 826, 858.)
Absent a fundamentally unfair trial under the federal Constitution, prosecutorial misconduct or error does not require reversal of the judgment unless it was prejudicial under state law, i.e., it is reasonably probable the defendant would have obtained a more favorable verdict absent the misconduct or error. (People v. Bell (1989) 49 Cal.3d 502, 534, 542; People v. Castillo (2008) 168 Cal.App.4th 364, 386 (Castillo); People v. Crew (2003) 31 Cal.4th 822, 839.) If the prosecutorial misconduct or error renders the defendant's trial fundamentally unfair under the federal Constitution, reversal of the judgment is required unless the misconduct or error is harmless beyond a reasonable doubt. (Castillo, at pp. 386-387, fn. 9; People v. Bordelon (2008) 162 Cal.App.4th 1311, 1323-1324.)
In arguing the prosecution committed misconduct in numerous instances, Bosco has not cited to the record showing that she objected below to the purported misconduct or that she requested a curative admonition. Absent such a showing, she has forfeited or waived any claims of prosecutorial misconduct. (People v. Hinton, supra, 37 Cal.4th at p. 863; People v. Earp, supra, 20 Cal.4th at p. 858.) In any event, based on our independent review of the record, we conclude none of the instances of purported prosecutorial misconduct rendered Bosco's trial fundamentally unfair under the federal Constitution and it is not reasonably probable she would have obtained a more favorable verdict absent the purported misconduct. Accordingly, the purported instances of prosecutorial error were not prejudicial and do not require reversal of the judgment. (People v. Bell, supra, 49 Cal.3d at pp. 534, 542; Castillo, supra, 168 Cal.App.4th at pp. 386-387, fn. 9; People v. Crew, supra, 31 Cal.4th at p. 839; People v. Bordelon, supra, 162 Cal.App.4th at pp. 1323-1324.)
U
Pitchess motion. Bosco contends the trial court abused its discretion by denying her pretrial Pitchess motion for discovery of information regarding Fredrick. She alternatively contends she was denied her right to effective assistance of counsel when her counsel failed to file a properly framed Pitchess motion.
Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).
"A criminal defendant has a limited right to discovery of a peace officer's personnel records. ([Pitchess], supra, 11 Cal.3d at pp. 536-539.) Peace officer personnel records are confidential and can only be discovered pursuant to Evidence Code sections 1043 and 1045. (Pen. Code, § 832.7; [citation].) The discovery procedure has two steps. First, the defendant must file a motion seeking such records. The motion in pertinent part must state what records are sought and provide affidavits 'showing good cause for the discovery or disclosure sought, setting forth the materiality thereof to the subject matter involved in the pending litigation.' (Evid. Code, § 1043, subd. (b)(3).) The required affidavit may be based on information and belief. [Citation.] If the foundational showing is satisfied, the trial court reviews the records in camera to determine whether any are relevant to the litigation. (Evid. Code, § 1045, subd. (b).)" (Giovanni B. v. Superior Court (2007) 152 Cal.App.4th 312, 318.)
"A showing of 'good cause' exists if the defendant demonstrates both (1) a 'specific factual scenario' that establishes a 'plausible factual foundation' for the allegations of officer misconduct [citations], and (2) that the misconduct would (if credited) be material to the defense (Warrick v. Superior Court (2005) 35 Cal.4th 1011 . . . [(Warrick)]). Warrick clarified that the materiality element requires the defendant to establish a logical link between the pending charge and the proposed defense, and to articulate how the requested discovery will support the proffered defense. [Citation.] Accordingly, defense counsel's supporting declaration must propose a defense and articulate how the requested discovery may be admissible as direct or impeachment evidence in support of the proposed defense, or how the requested discovery may lead to such evidence. [Citation.] Thus, a defendant meets the materiality element by showing (1) a logical connection between the charges and the proposed defense; (2) the requested discovery is factually specific and tailored to support the claim of officer misconduct; (3) the requested discovery supports the proposed defense or is likely to lead to information that will do so; and (4) the requested discovery is potentially admissible at trial." (Giovanni B. v. Superior Court, supra, 152 Cal.App.4th at pp. 318-319.)
In presenting a specific, plausible factual scenario of officer misconduct, a defendant need not present a credible or believable factual account of, or a motive for, police misconduct. (Warrick, supra, 35 Cal.4th at p. 1026.) Rather, that presentation requires a scenario that might or could have occurred. (Ibid.) "Such a scenario is plausible because it presents an assertion of specific police misconduct that is both internally consistent and supports the defense proposed to the charges." (Ibid.) "That factual scenario, depending on the circumstances of the case, may consist of a denial of the facts asserted in the police report." (Id. at pp. 1024-1025, italics added.) A trial court's ruling on a Pitchess motion is generally reviewable for abuse of discretion. (Alford v. Superior Court (2003) 29 Cal.4th 1033, 1039; Pitchess, supra, 11 Cal.3d at p. 535; Uybungco v. Superior Court (2008) 163 Cal.App.4th 1043, 1049.)
Bosco argues, in a conclusory manner, that the court abused its discretion by finding she had not shown good cause for the disclosure of the confidential personnel records of Fredrick, a correctional officer. She argues that information may have included acts of dishonesty or moral turpitude that could then have been used to possibly impeach Fredrick's credibility. In support of her Pitchess motion, Bosco's counsel submitted a declaration stating, in effect, that Bosco's version of events involving Fredrick differed from his version and, in addition, asserting that he had been removed from his position on the prison K-9 unit because of misconduct and moral turpitude on the job. Bosco argued below that because her version of events was plausible and could have happened, she had shown good cause for disclosure of Fredrick's confidential information and its materiality. The prosecution opposed the motion, arguing that Bosco had not shown a specific factual scenario that establishes a plausible factual foundation for allegations of officer misconduct or that the misconduct, if proven, would be material to her defense. In particular, it argued Bosco's denials of Fredrick's statements were insufficient to establish good cause. The court found that she had not shown good cause. The court denied her Pitchess motion, finding that no good cause had been shown.
However, Bosco does not present any substantive legal argument or analysis showing that the court abused its discretion by denying her Pitchess motion or that the court's error was prejudicial. Accordingly, we conclude she has forfeited or waived that contention. (People v. Ham, supra, 7 Cal.App.3d at p. 783; Jones v. Superior Court, supra, 26 Cal.App.4th at p. 99; Landry v. Berryessa Union School Dist., supra, 39 Cal.App.4th at pp. 699-700; Ochoa v. Pacific Gas & Electric Co., supra, 61 Cal.App.4th at p. 1488, fn. 3; Colores v. Board of Trustees, supra, 105 Cal.App.4th at p. 1301, fn. 2; Bayside Auto & Truck Sales, Inc. v. Department of Transportation, supra, 21 Cal.App.4th at p. 571.)
Bosco also argues that even if the court did not abuse its discretion by denying her Pitchess motion based on her failure to show good cause, she was denied her right to effective assistance of counsel because her counsel failed to properly frame a Pitchess motion. In particular, she argues her counsel failed to use evidence available to her (e.g., Fredrick's purported misuse of his work database and misconduct regarding his K-9 unit) to show a plausible, specific alternative factual scenario and good cause for discovery of Fredrick's confidential personnel records.
However, assuming arguendo Bosco's counsel performed deficiently as she asserts, we nevertheless conclude she has not carried her burden on appeal to show that such deficient performance prejudiced her case. (Strickland, supra, 466 U.S. at pp. 687, 691-692, 697; Ledesma, supra, 43 Cal.3d at pp. 216-217; Pope, supra, 23 Cal.3d at p. 425.) Based on our review of the evidence, we conclude it is not reasonably probable Bosco would have obtained a more favorable verdict had her counsel not performed deficiently as she asserts by not filing a properly framed Pitchess motion. Based on our independent review of the record, we conclude that even if her counsel had filed such a motion, the court nevertheless would have denied her motion and, even if it had granted it, it is not reasonably probable she would have obtained a more favorable result at trial. Therefore, Bosco has not carried her burden on appeal to show she was denied her right to effective assistance of counsel.
V
Ineffective assistance of counsel. Bosco contends she was denied her constitutional right to effective assistance of counsel by the numerous instances of deficient performance by her counsel, as she argued during her posttrial Marsden motion. In particular, she argues she was denied effective assistance of counsel when her counsel: (1) failed to file a pretrial motion to suppress her extrajudicial statements based on violation of her Miranda rights and/or undue coercion; (2) failure to retain a handwriting expert to examine the signatures on certain exhibits and testify that those exhibits did not bear her signature; (3) failure to properly investigate the fundraising grand theft counts (counts 14 and 15) and failure to present testimony by certain impeachment witnesses related to those counts; (4) failure to subpoena the personal bank records of Fredrick and Maribel and telephone records of Fredrick, Maribel, and Ellis; (5) failure to retain a forensic computer expert and forensic accountant; (6) failure to call witnesses to impeach the credibility of Fredrick, Maribel, Ellis, and Shakowski; (7) failure to prove that Fredrick knew that Bosco's last name was Huerta; (8) failure to transcribe the interviews of all key witnesses; (9) failed to file a motion to suppress evidence obtained pursuant to two search warrants on the ground of prosecutorial misconduct; (10) failed to show she performed multiple acts of paralegal services for Ellis; (11) failed to raise the issue that the McDonalde email account was created and used during the February 2015 through May 2015 period; (12) failed to retain an expert psychologist to evaluate her and testify at her sentencing; (13) failed to object to the jury instruction on the offense of practicing law without a license (count 24); (14) conceding that she was guilty on counts 15 and 24 without her permission; and (15) falsely stating in an in limine motion that she had been convicted of murder in Florida.
However, Bosco's claims of ineffective assistance of counsel refer to possible tactical choices made by her counsel and/or other matters outside of the record on appeal. Therefore, they cannot be resolved on the present record and should instead be raised, if at all, in a petition for writ of habeas corpus. (Kelly, supra, 40 Cal.4th at p. 126; People v. Salcido (2008) 44 Cal.4th 93, 172; People v. Jones (2003) 30 Cal.4th 1084, 1105; People v. Mendoza Tello, supra, 15 Cal.4th at p. 267.) In any event, assuming arguendo Bosco could have raised on appeal her contentions of ineffective assistance of counsel and shown her counsel performed deficiently as she asserts, we nevertheless would conclude she has not carried her burden on appeal to show that such deficient performance prejudiced her case. (Strickland, supra, 466 U.S. at pp. 687, 691-692, 697; Ledesma, supra, 43 Cal.3d at pp. 216-217; Pope, supra, 23 Cal.3d at p. 425.) Based on our review of the evidence, we conclude it is not reasonably probable Bosco would have obtained a more favorable verdict had her counsel not performed deficiently as she asserts. Therefore, Bosco has not carried her burden on appeal to show she was denied her right to effective assistance of counsel.
Recognizing that we may dispose of her ineffective assistance of counsel claims on appeal in this manner, Bosco requests that we allow her to file a petition for writ of habeas corpus which would be joined with her instant appeal and that we appoint counsel to represent her in such a habeas corpus proceeding. She alternatively requests that we appoint counsel to represent her in filing a petition for writ of habeas corpus to be filed originally in the trial court. We deny her requests to join a petition for writ of habeas corpus with this appeal and to appoint counsel to represent her in such a proceeding. We deny, without prejudice, her request that we appoint counsel to represent her in filing a petition for writ of habeas corpus to be filed originally in the trial court. --------
III
Wende Review
In addition to our disposition above of the contentions raised by Bosco in her supplemental brief, we have also conducted an independent review of the record on appeal pursuant to Wende and Kelly. Based on our review, we conclude there are no arguable appellate issues and affirm the judgment. (Wende, supra, 25 Cal.3d at pp. 441-442; Kelly, supra, 40 Cal.4th at pp. 119, 126.) Bosco was competently represented in this appeal.
DISPOSITION
The judgment is affirmed.
NARES, J. WE CONCUR: HUFFMAN, Acting P. J. O'ROURKE, J.