Opinion
No. C040646.
10-16-2003
THE PEOPLE, Plaintiff and Respondent, v. NATHAN DEON CAGLE, Defendant and Appellant.
FACTUAL AND PROCEDURAL BACKGROUND
Carol Weinmann owned a stained glass and upholstery shop (Kats Custom Upholstery) in Woodland, California. She had been in business approximately seven years when defendant entered her shop to look around while he was having his car repaired. They quickly began dating, and soon became intimate.
Defendant told Weinmann he was active in the Native American community. He referred to himself as Windwalker. He did Native American artwork, and made Weinmann a ceremonial Native American wedding dress. He told Weinmann they would grow old together.
Defendant eventually began to do his artwork in Weinmanns shop. Defendant offered to do things to help Weinmann around the shop. She taught defendant how to take bids for her. He did more and more things for her around the shop, and she did things for him as well. They helped each other out, but defendant was not Weinmanns employee.
Defendant was unemployed at the time, so Weinmann loaned defendant money to purchase a car and car stereo. Defendant only paid back $50 of the approximately $2,040 he owed her for the car and stereo.
In January 1998 defendant opened a car detailing business next to Weinmanns shop. Weinmann purchased the business license and the first stock of supplies for defendant. Defendants shop and Weinmanns were connected by a metal roll top door that could be locked only from defendants side. Weinmanns shop was protected by an alarm. Weinmann gave defendant the access code to the alarm.
After defendant opened his business he did not spend as much time at Weinmanns shop, although he continued to help her out. She also helped him out by detailing cars with him.
Defendant started making significant business decisions for Weinmanns business, even though she did not give him permission to do so. Around March 1998, defendant took an order for an upholstering job from Willibaldo Rodriguez. Defendant quoted Rodriguez $537.94 for the job, but only charged Rodriguez $300. Weinmann and her employees did the upholstery work. Defendant did not do any of the work. Defendant gave Weinmann $200 and told her Rodriguez would pay the rest later. Rodriguez paid the remaining $100, but Weinmann never received it.
In another incident Weinmann prepared an estimate for work to be done on a boat owned by James Canady. Defendant gave the bid to Canady, but Weinmann did the work. The bid was for $2,970.93. Canady paid $500 up front and tendered a gift certificate for $200. Weinmann only received $2,170.93 of the remaining $2,270.93, even though Canady paid the full amount.
In another incident Polly Nelson came to Weinmann to repair the broken stained glass on her front door. Nelson contracted separately with defendant to remove and re-install the door. Weinmann quoted Nelson $1,435 to do the glass work, with the understanding she would be paid by Nelsons insurance company. Weinmann never received the money from the insurance company. The insurance company sent the checks for Weinmanns work to defendant and defendant cashed them. The checks were made out to "Nathan Deon, Doing Business as Kats Custom Upholstery," and "Nathan Deon, Doing Business as Kats Stained Glass[.]" Defendant told the claims adjuster the drafts should be made out to him because he owned the business.
On March 13, 1998, Weinmann discovered defendant had received an e-mail from a woman named Caroline, indicating defendant had spent the previous evening with Caroline. Weinmann confronted defendant and "told him to pack up his beads and feathers and leave." Weinmann had the locks and the alarm code changed in her shop.
Weinmann felt she needed to get away, so she went to Clear Lake for the weekend. When she returned to her shop on Monday, she found defendant in her shop. He bragged to her that he had convinced the police and the alarm company he was supposed to be there. Defendant told Weinmann if she wanted him out of her life, "then Im going to sue you. Im going to ruin you in this town. Im going to see my attorney. . . . Oh, by the way, how much fire insurance do you have on this place?" He then demanded she put him on her payroll and pay him $400 per week. She put him on the payroll and paid him $400 per week until June 10, 1998.
After this incident Weinmann started to notice money was missing from the shop. To test defendant, she put a check in her desk drawer, and when she came in the next morning the check was gone. She stopped payment on the check. A few days later, on June 10, defendant told her he could not work for her anymore.
On June 12, 1998, defendant sent Weinmann a letter demanding $ 10,400. Weinmann turned the letter over to the police. Defendant called Weinmann twice demanding the money.
Defendant began following Weinmann around town. He gave her "evil" looks and glared at her. She felt threatened by him and did not believe her encounters with him occurred by chance. She also began receiving hang-up phone calls. Finally, in September she got a restraining order against defendant.
Weinmanns property started disappearing during the time defendant was in her life, and she stopped noticing property was missing after he was gone. She made a list of items he took. The total value of the missing items was $11,455.88.
Brenda Klein met defendant in June 1998. They soon began dating and became intimate. On July 31, 1998, defendant called Klein and told her he was being arrested for violation of probation. Klein loaned defendant $3,200 to hire an attorney. She also allowed him to stay with her to avoid going to jail. She accepted third party custody of him, and he lived with her for a period of about nine weeks.
Klein had her own business selling credit card equipment and debit machines. Klein hired defendant as an independent contractor in her business because he needed a job for probation. Defendant charged Klein for some business cards without her permission. Klein also agreed to co-sign a contract for defendant to get a cellular phone. She later found out the phone bill was in her name. Klein paid approximately $2,000 for defendants phone charges.
Klein noticed things like tools, jewelry, and coins turned up missing while defendant was staying with her. Klein estimated the missing items had a value of around $1,159.
The jury convicted defendant of embezzlement based on the money defendant took from Weinmann on the Rodriguez, Canady, and Nelson jobs. He was convicted of check fraud based on possession of one of the checks from Nelsons insurance company. He was convicted of two counts of grand theft based on the personal property taken from Weinmann and Klein. He was found guilty of diversion of construction funds based on the Nelson job. The jury found him guilty of one count of extortion based on his demand to be on Weinmanns payroll, and guilty of stalking against Weinmann. He was found guilty of two counts of grand theft by false pretenses, one against Weinmann and one against Klein.
The jury found defendant not guilty of extortion of $10,400 from Weinmann. The jury was unable to reach a verdict on one count of check fraud and the burglary charge.
The trial court sentenced defendant to a total of nine years in prison.
DISCUSSION
I
Wheeler Motion
Two of the potential jurors claimed Native American Heritage. Another was Hispanic. One Native American, Lopez, was dismissed after the prosecutors challenge for cause. The other Native American, Vigil, and the Hispanic, Macias, were dismissed after peremptory challenges.
Macias was excused before the jury was sworn, but Vigil was excused after the jury had been sworn and before the alternate jurors were sworn. After the peremptory challenge to Vigil, defendant asked to reserve a motion pursuant to People v. Wheeler, supra.
Defendants Wheeler motion did not dispute the for cause challenge of Lopez, noting Lopez stated he felt he would be biased in favor of a Native American. The motion disputed the peremptory challenges of Vigil and Macias.
a. Prospective Juror Vigil
The trial court found defendant had made a prima facie case of discrimination as to Vigil, and asked the prosecutor for a justification of his challenge to Vigil.
The prosecutor stated he was concerned about Vigil because she said at first she might be partial. When the court asked her if she would be thinking about things similar to Lopezs concern, she responded that she would. In the prosecutors mind, Lopez was a clear cut motion to excuse for cause. Vigil said she would not hold the District Attorney to a higher standard than the defense, but the prosecutor said he thought she seemed uncomfortable answering the question.
In ruling on the motion the trial court stated Vigil had expressed her feelings in such a way "that raised in my mind a question of her ability to allow the People to start from a neutral point, that is, taking into account the presumption of innocence, but letting the People start from that point that the law allows them to. And her responses to those questions at first, the way she stated it, really came across like she was having some doubts about that." The trial court expressed it would have exercised a peremptory to excuse Vigil, had it been prosecuting the case, even if Vigil had not been Native American.
We review a trial courts ruling on a Wheeler motion with considerable deference because such motions call upon a trial courts personal observations. (People v. Howard (1992) 1 Cal.4th 1132, 1155.) We affirm a denial of a Wheeler motion if the record contains grounds that would have made a peremptory challenge of a juror in question reasonable. (Ibid.)
In the present case the trial court made a "sincere and reasoned attempt" to evaluate the prosecutors reasons for challenging Vigil, and the record contains reasonable grounds for the challenge. (People v. Silva (2001) 25 Cal.4th 345, 386.) The trial court did not err in denying the Wheeler motion as to Vigil.
b. Prospective Juror Macias
Defendant asserts in his opening brief, without citation to the record, that the trial court found the Wheeler motion untimely as to Lopez, and that the trial court erred by failing to find a prima facie case as to Lopez. The record does not bear out either of these assertions. Defendant asserts in his reply brief that these are arguments he meant to make with respect to prospective juror Macias, not Lopez. We accept defendants claim he mistakenly used Lopezs name when making these arguments, since the arguments are applicable to Macias and have no factual foundation as to Lopez.
A Wheeler motion is timely if it is made before jury empanelment is completed. (People v. McDermott (2002) 28 Cal.4th 946, 969; People v. Gore (1993) 18 Cal.App.4th 692, 703.) Where the trial is to be heard with alternate jurors, jury empanelment is not complete until the alternates are selected and sworn. (People v. McDermott, supra, at p. 969; In re Mendes (1979) 23 Cal.3d 847, 853; People v. Rodriguez (1996) 50 Cal.App.4th 1013, 1023.) The trial court thus erred when it ruled the Wheeler motion was untimely as to prospective juror Macias. (People v. Rodriguez, supra, at p. 1023.)
We nevertheless find the error harmless because defendant failed to make a prima facie showing of discrimination. There exists a presumption "that a party exercising a peremptory challenge is doing so on a constitutionally permissible ground." (People v. Wheeler, supra, 22 Cal.3d at p. 278.) The presumption may be rebutted by a prima facie showing of discrimination. (Id. at p. 280.)
To make a prima facie showing, a defendant must make a complete record, establish that the excluded persons are members of a cognizable group, and show from the circumstances of the case that the person is being challenged because of his or her group association. (People v. Wheeler, supra, 22 Cal.3d at p. 280.) A sufficient prima facie showing is made where the defendant shows, "that his opponent has struck most or all of the members of the identified group from the venire, or has used a disproportionate number of his peremptories against the group. He may also demonstrate that the jurors in question share only this one characteristic — their membership in the group — and that in all other respects they are as heterogeneous as the community as a whole. Next, the showing may be supplemented when appropriate by such circumstances as the failure of his opponent to engage these same jurors in more than desultory voir dire, or indeed to ask them any questions at all. Lastly, . . . the defendant need not be a member of the excluded group in order to complain of a violation of the representative cross-section rule; yet if he is, and especially if in addition his alleged victim is a member of the group to which the majority of the remaining jurors belong, these facts may also be called to the courts attention." (People v. Wheeler, supra, at pp. 280-281, fn. omitted.)
Here, defendants sole showing with respect to Macias was that Macias was "not Native American [but] was a minority whose answers . . . did not seem to raise a[n] identifiable problem with the People, other than being young and Hispanic. I dont recall him saying anything that would cause one concern."
Additionally, unlike People v. Gore, supra, there was no "prima facie pattern of systematic exclusion[.]" (People v. Gore, supra, 18 Cal.App.4th at p. 705.) In Gore, the prosecutor peremptorily excused the only four prospective Hispanic jurors before the panel of 12 jurors was sworn. (Id. at p. 697.) When the alternate jurors were called for selection, the prosecutor immediately used the first peremptory challenges to excuse the only three Hispanic prospective alternate jurors. (Ibid.) Only then did it become apparent that the prosecutor systematically had excluded every Hispanic juror.
In the present case, the exclusion of one other person of an identifiable group does not show a pattern of systematic exclusion. The defense counsel stated during the hearing on the motion that he believed the jury was "primarily, if not entirely, Caucasian." However, there was no evidence the prosecutor systematically challenged all persons of color. The exclusion of one Hispanic, in addition to one Native American, without more, is insufficient to show a prima facie pattern of discrimination, and is not enough to overcome the presumption that the prosecutor exercised his peremptory challenges in a constitutional manner. (People v. Turner (1994) 8 Cal.4th 137, 165, 168, citing to People v. Rousseau (1982) 129 Cal.App.3d 526, 536-537 "[defense counsels statement that `"there were only two [B]lacks on the whole panel, and they were both challenged by the district attorney" fails to establish a prima facie case.]".)
II
Prior Conviction Evidence
Defendant did not testify at trial. However, he offered evidence of several of his out of court statements that, if believed by the jury, supported his theory of defense, i.e., that the complaining witnesses were merely scorned women seeking to retaliate by their complaints to police.
With the testimony of Kathleen Morrow defendant sought to cast doubt on Weinmanns testimony that their relationship was primarily personal and intimate, and that defendant was not her business partner and did not work for her as an employee. Morrow testified defendant told her Weinmann wanted to have a sexual relationship with him, and defendant discussed with Morrow whether Weinmann was sexually harassing him. Defendant told Morrow he quit his job with Weinmann because Weinmann was sexually harassing him and because she had called him in for a business meeting and was waiting in the office naked.
Defendant also called James Willis to testify defendant told him he owned the upholstery shop. Defendant called Richard Durrenberg to testify defendant told him Weinmann wanted to have an affair with defendant, but that Weinmann was a "skag" and he was not attracted to her.
Defendant sought to cast doubt on Kleins testimony by depicting her as a drunk, angry woman who was out to get him. Durrenberg testified defendant told him he was frustrated with his situation with Klein, and that Klein was always drunk. He wanted out of the relationship because Klein was drunk all the time. Kathy Morrow testified defendant asked her to accompany him to Kleins house because he was concerned about Kleins temper and he wanted a witness in case Klein attacked him or lied about him.
Defendant asserts these hearsay statements were admitted for the purpose of showing his state of mind and emotional attitude. As we expressed at oral argument, defendants state of mind as it related to his conduct was not an issue. In any event, the statements were admitted for all purposes, thus the prosecution was entitled to impeach their credibility.
The prosecutor made a motion to impeach defendants hearsay statements pursuant to People v. Jacobs (2000) 78 Cal.App.4th 1444, hereinafter Jacobs. The trial court granted the motion and read a stipulation to the jury that defendant had been convicted of five felonies: "1975, transportation of a controlled substance; 1986, theft; 1990, theft; 1996, forgery; 1996, sale of migratory bird parts." The trial court further instructed the information was not to be used as evidence of defendants propensity to commit crimes, but for the purpose of attempting to impeach defendants credibility regarding his own statements.
In Jacobs, a prosecution for receiving stolen property, the defendant sought to introduce his own statement to the investigating officer that he had purchased the property in question from an acquaintance. (78 Cal.App.4th at p. 1447.) The defendant did not testify at trial. (Id. at p. 1446.) The trial court allowed the prosecution to impeach the defendants hearsay statement with evidence of the defendants prior convictions. (Id. at p. 1449.)
The court of appeal agreed, holding Evidence Code sections 788 and 1202, taken together, provide that evidence of a prior felony conviction is admissible to impeach a criminal defendants hearsay declaration. (Id. at pp. 1449-1450.)
Evidence Code section 788 provides that with certain exceptions not relevant here, the credibility of a witness may be attacked by showing the witness has been convicted of a felony.
Evidence Code section 1202 provides: "Evidence of a statement or other conduct by a declarant that is inconsistent with a statement by such declarant received in evidence as hearsay evidence is not inadmissible for the purpose of attacking the credibility of the declarant though he is not given and has not had an opportunity to explain or to deny such inconsistent statement or other conduct. Any other evidence offered to attack or support the credibility of the declarant is admissible if it would have been admissible had the declarant been a witness at the hearing. For the purposes of this section, the deponent of a deposition taken in the action in which it is offered shall be deemed to be a hearsay declarant."
The purpose of allowing a hearsay declarant to be impeached by an inconsistent statement, other conduct, or "[a]ny other evidence[,]" is to be fair to the party against whom the hearsay was received, since that party is denied the opportunity to impeach the statement by cross-examination. (Am-Cal Investment Co. v. Sharlyn Estates, Inc. (1967) 255 Cal.App.2d 526, 542; Evid. Code, § 1202.)
Defendant argues his credibility was not placed in issue, and that the prior convictions were only related to defendants character and to show defendant had a history of committing such crimes. Defendant attempts to distinguish Jacobs, because there the hearsay declaration had the effect of exonerating Jacobs, whereas here his hearsay declaration was merely an expression of his "emotional attitude" toward Weinmann. Defendant claims his hearsay statements that he was not in love with Weinmann went only to his state of mind.
The record does not support defendants claim his statements were admitted only for the purpose of showing state of mind. In fact, the statements were admitted for all purposes without objection from the prosecution. The hearsay declarations were offered by defendant at least in part to tell defendants version of events, and to thereby disprove the charges against him. As such, the prosecution was entitled to impeach the hearsay statements with evidence of defendants prior felony convictions.
Defendant also argues the prior convictions should have been inadmissible under Evidence Code section 352 because of the multiplicity of convictions and because of the remoteness of the first three convictions.
Under Evidence Code section 352, the trial court has discretion to exclude evidence ". . . if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury."
"`When an objection to evidence is raised under Evidence Code section 352, the trial court is required to weigh the evidences probative value against the dangers of prejudice, confusion, and undue time consumption. Unless these dangers "substantially outweigh" probative value, the objection must be overruled. [Citation.] On appeal, the ruling is reviewed for abuse of discretion. [Citation.]" (People v. Hart (1999) 20 Cal.4th 546, 606, quoting People v. Cudjo (1993) 6 Cal.4th 585, 609.) We will not disturb the trial courts exercise of discretion "unless the court acted in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. [Citations.]" (People v. Yovanov (1999) 69 Cal.App.4th 392, 406.)
The trial court should consider four factors when making a determination under Evidence Code section 352: "`(1) whether the prior conviction reflects adversely on an individuals honesty or veracity; (2) the nearness or remoteness in time of a prior conviction; (3) whether the prior conviction is for the same or substantially similar conduct to the charged offense; and (4) what the effect will be if the defendant does not testify out of fear of being prejudiced because of impeachment by prior convictions. [Citation.]" (People v. Green (1995) 34 Cal.App.4th 165, 182, quoting People v. Muldrow (1988) 202 Cal.App.3d 636, 644.)
Alluding to the above factors, defendant argues the 1976 drug conviction and the 1986 and 1990 theft convictions were too remote in time. However, even remote convictions may be admissible under Evidence Code section 352 where the defendant has not led a subsequently blameless life. (People v. Green, supra, at p. 183.) A systematic occurrence of convictions creates a pattern that is relevant to a defendants credibility. (Ibid.) Here, defendant was convicted of forgery six years after the nearest prior conviction and only two years before the crimes at issue occurred. Taken together, the convictions show a systematic occurrence of convictions indicating the trial court did not err in determining the remote prior convictions were more probative than prejudicial.
Citing People v. Lewis (1987) 191 Cal.App.3d 1288, 1297, Defendant argues the multiplicity of convictions weighed against the introduction of those convictions. However, People v. Lewis, supra, held it was not error to permit impeachment with more than one felony conviction because a "series of crimes evidencing moral turpitude is more probative of a defendants willingness to give perjured testimony than a single such offense." (Ibid.)
The People concede the prior conviction for sale of migratory bird parts was not a crime of moral turpitude. Nevertheless we find the admission of this evidence harmless. Evidence defendant had gone to federal prison for possessing eagle feathers was already before the jury without objection from defendant.
III
Jury Instructions
The trial court gave three instructions relating to defendants consciousness of guilt. Defendant claims it was error to give these instructions.
The court instructed the jury in the language of CALJIC No. 2.03, stating: "If you find that before this trial the defendant made a willfully false or deliberately misleading statement concerning the crime for which now hes being tried, you may consider that statement as a circumstance tending to prove a consciousness of guilt. However, that conduct is not sufficient by itself to prove guilt, and its weight or significance [if] any are for you to decide."
Defendant argues this instruction was justified only if there was evidence he prefabricated a story to explain his conduct, and there was no such evidence here.
The People point to two instances in which defendant made a false statement reflecting his consciousness of guilt. They claim his statements to the claims representative for CAL-Farm Insurance that he owned Kats Stained Glass, and that the checks for the work on Polly Nelsons door should be made out to him, reflects defendants awareness the insurance money should have been paid to Weinmann. They also claim his statement to Kathy Morrow that Weinmann wanted to have a sexual relationship with him and wondering whether that might be sexual harassment when he was in fact having an affair with Weinmann indicates he fabricated a story in anticipation of having to defend against charges for offenses against Weinmann.
These instances do not present evidence on which the instruction was properly grounded. The statements defendant made were not concerning the crimes, but were made in furtherance of the crimes. The inference of guilt described in CALJIC No. 2.03 "comes from the fact that a falsehood was told in order to mislead the authorities and avoid suspicion . . . ." (People v. White (1995) 35 Cal.App.4th 758, 772.) There was no attempt to mislead authorities in defendants statements, only an attempt to accomplish the crimes.
However, the jury was instructed to "[d]isregard any instruction which applies to facts determined by you not to exist." Under these circumstances any error would have been harmless. The Supreme Court has stated that giving an irrelevant instruction is usually harmless unless it "creates a substantial risk of misleading the jury to the defendants prejudice." (People v. Rollo (1977) 20 Cal.3d 109, 123.) The instruction was merely permissive, and it was for the jury to determine whether defendants statements inferred consciousness of guilt and what, if any, weight to give such evidence. (People v. Rankin (1992) 9 Cal.App.4th 430, 436.)
Defendants argument that the instruction was an impermissible pinpoint instruction has been rejected by the Supreme Court. (People v. Kelly (1992) 1 Cal.4th 495, 531-532.) We reject it as well.
Defendant also now argues it was error for the trial court to give CALJIC No. 2.04 and 2.06. These instructions are similar to No. 2.03, and instruct the jury it may infer a consciousness of guilt from the defendants attempts to persuade a witness to testify falsely or fabricate evidence, or from a defendants attempt to suppress evidence. We find any error in giving these instructions was harmless for the same reasons it was harmless to give CALJIC No. 2.03.
IV
Instruction on Lesser Included Offense
The information charged defendant with two counts of extortion based on two separate incidents. The first incident was based upon the incident on March 15 at Weinmanns shop, when defendant told her he would sue her for sexual harassment and everything he could think of unless she put him on her payroll. He also implied he would burn down her business unless she complied. Weinmann testified defendant worked in her business no more than one or two hours a day, for which he was paid $400 per week.
The second extortion charge was based on a letter defendant sent Weinmann on June 12, 1998, demanding $10,400. Weinmann did not pay the $10,400, but called the police instead. The jury found defendant not guilty of this second charge because Weinmann never paid defendant the money.
Defendant now claims the trial court had a duty to instruct sua sponte on the lesser included offense of attempted extortion. Because there is no substantial evidence of attempted extortion, the trial court had no sua sponte duty to give such an instruction. (See People v. Breverman (1998) 19 Cal.4th 142, 162 [a trial court is not obliged to instruct on theories that have no substantial support in the evidence].)
Defendant asserts count VIII charged him with extortion occurring on March 5, 1998. He claims there was "considerable evidence" he did "substantial work" for Weinmann during the time the $ 400 payments continued. He cites the work he did for Rodriguez, Nelson, Canady, Willis, and Mikes Marine Service as evidence he was performing services for his weekly paycheck. He argues he did not obtain any property from Weinmann through force or fear because there was no payment of unearned money, and that given the alternative the jury would have convicted him of the lesser included offense of attempted extortion rather than extortion.
The extortion charged in count VIII was alleged to have occurred on March 15, not March 5. It is unclear from the record precisely when the job for Rodriguez was done. The job for Canady was done in January or February 1998, prior to the extortion demand. The job for Nelson was contracted in February 1998. It was unclear when the work for Mikes Marine Service was done.
The record indicates defendant was not on Weinmanns payroll before he threatened her. Weinmann only paid defendant because she was afraid of him, and would not have hired him or paid him anything had he not threatened her. The fact that defendant may have done some work for Weinmann is immaterial. There was substantial evidence the paycheck he received was obtained through force or fear, and no evidence the payments were freely made without force or fear. Therefore, the trial court was not required to instruct the jury on the law of attempted extortion.
Defendant argues in his opening appellate brief that the trial court erred by not providing an instruction on the lesser included offense of petit theft as to counts I, IV, and V. However, he acknowledges in his reply brief that the trial court did in fact instruct the jury and provide verdict forms on petit theft.
DISPOSITION
The judgment is affirmed.
We concur: SCOTLAND, P. J. and ROBIE, J.