Opinion
NOT TO BE PUBLISHED
San Mateo County Super. Ct. No. SC060374
Ruvolo, P. J.
I. Introduction
Appellant Michael John King was convicted by a jury of submitting a false or fraudulent claim for payment with intent to defraud a public agency or officer (Pen. Code, § 72), and conspiracy to violate section 72 (§ 182, subd. (a)(1)). The prosecution’s theory was that appellant orchestrated a scheme to defraud the South County Fire Protection Authority (Fire Authority) of more than $13,000 by directing Margaret “Peg” Collier, a long-time San Mateo political consultant, to submit fraudulent invoices to the Fire Authority requesting payment for work she did not do. The scheme was a way to recoup money Collier was owed for her work on the Measure I campaign because there were no campaign funds available to pay Collier after the measure was defeated by the voters.
All undesignated statutory references are to the Penal Code.
On appeal, appellant contends the trial court erroneously removed from the jury’s consideration several issues required to be proven by the prosecution for a conviction under section 72, thereby depriving appellant of the right to have the jury decide the question of his guilt or innocence. He also claims the evidence did not support the jury’s finding that he violated section 72, or that he conspired to do so.
Appellant also makes numerous arguments regarding the testimony given by Collier, who cooperated with the prosecution and testified pursuant to a plea agreement. Appellant first argues that the court erred when, over his objection, it instructed the jury with CALJIC No. 3.18 to view Collier’s testimony with caution if they found that she was an accomplice. Appellant next claims the trial court erred in admitting into evidence certain out-of-court statements made by Collier because they were inadmissible hearsay, and did not fall within the coconspirator exception to the hearsay rule (Evid. Code, § 1223). He also argues that the admission of the terms of Collier’s plea agreement into evidence allowed the prosecution to improperly bolster and vouch for her testimony. Lastly, he claims the prosecutor committed misconduct during closing argument because he “improperly exploited” Collier’s plea agreement in an attempt to mislead the jury.
We reject all of these arguments and affirm the judgment.
II. Facts and Procedural History
Since 1949, the Joint Exercise of Powers Act has permitted two or more municipalities to form a joint powers authority by which they may exercise jointly any power each may exercise individually. (Gov. Code, § 6500 et seq.; City of South El Monte v. Southern Cal. Joint Powers Ins. Authority (1995) 38 Cal.App.4th 1629, 1632.) In 1979 the two cities involved in this case, San Carlos and Belmont, entered into a Joint Powers Agreement creating the Fire Authority to provide fire protection services to those two cities.
In the fall of 2003, the Fire Authority was in a budget crisis and layoffs, demotions, and fire station closures appeared likely. To remedy the situation, a proposed parcel tax to fund the financially troubled Fire Authority was presented to the voters through Measure I. Because it was a tax-raising initiative, it required approval by two-thirds of the voters in San Carlos and Belmont.
The campaign committee for the passage of Measure I was headed by appellant, a member of the San Carlos City Council, who was also a former mayor of San Carlos and a professional banker of 40 years. With the campaign committee’s approval, appellant arranged for Collier to manage the campaign. Collier, who was 68 years old at the time of trial, had been a political consultant in San Mateo County for many years and had worked on hundreds of campaigns for numerous ballot measures and elected officials, including appellant.
After the voters rejected Measure I in November 2003, the Fire Authority had to lay off firefighters and demote others. Also, there was no money left in the campaign fund to pay Collier, who was still owed $16,887 for her consulting work.
On March 5, 2004, Jere Kersnar, then Belmont city manager and a member of the management committee responsible for the finances of the Fire Authority, received an invoice from Collier in the amount of $13,320 for “personnel consulting services.” The invoice indicated that it pertained to assisting the laid-off and demoted firefighters in seeking new employment. Kersnar testified that he was troubled when he received the invoice from Collier because Collier was never authorized to render those services, and there was no supporting documentation that Collier ever did the work for which she was seeking payment. Also, since the amount she was seeking was close to what she was owed by the Measure I campaign, he suspected the invoice could be a ruse to collect what she was owed. Kersnar also testified that, among people in local government, it is well known that paying campaign expenses with public funds is a crime.
On April 5, 2004, Kersnar received another faxed invoice from Collier, but it was dated March 31, 2004. In this second fax, the work Collier supposedly did on behalf of the laid-off firefighters was divided into two separate billing periods but still totaled approximately $13,000. Shortly thereafter, Kersnar also received two voice mail messages from Collier inquiring about the status of the invoices; however, he never returned her calls.
Eventually, the district attorney of San Mateo County, James Fox, was alerted to the situation. A surreptitiously recorded telephone call was placed to Collier by Belmont city council member George Metropulos during the district attorney’s investigation of this matter. The taped conversation between Metropulos and Collier occurred on August 20, 1994, and was played for the jury at trial.
Metropulos began by telling Collier that he was returning her calls because “I know you were telling me you’re having trouble getting paid off and stuff.” Collier replied that the invoice she had submitted was “something that [appellant] Mike King wanted me to submit that way because they were gonna [sic] try to pay it a different way.” Collier stated that she did not know “exactly” how the invoice was going to be paid but it “was submitted on Mike’s request just to try to get it out of other funding.” In her conversation with Metropulos, Collier readily admitted that she did not do the work specified on the invoice, but “I did plenty of other work . . . that I was directed to do by Measure I.” Collier explained that it was not a good year financially for her, and that she was out something like $21,000. She stated that appellant told her that “we can pay it out of this niche fund” but it could not be from the campaign, it would have to be billed another way.
Collier stated that she had to drop $1,500 from the invoice, but “I don’t really care.” She expressed her desire to get as much as she could reimbursed. The two continued speaking for some time. Collier continued making her moral case for being paid, stating that she had worked hard on Measure I. At one point she stated that “to be honest with you, if anybody but Mike King asked me to do it, I might not have.” However, she indicated appellant was “just so highly respected by me. I think he can do anything and it’s okay.”
The district attorney pressed charges against Collier, and she eventually entered a plea of no contest to a misdemeanor violation of section 72 in exchange for her truthful testimony at appellant’s trial. Collier testified at appellant’s trial that she had advanced the Measure I campaign with her own money for campaign expenses. In February 2004, appellant called her and was apologetic about the debt. He explained that he was going to submit the invoice “in another way.” That same day, February 9, 2004, appellant faxed Collier a detailed “bill” in the name of “Strategies Personal Services,” a company which Collier testified did not exist. The bill went on to list laid-off firefighters by name and payment owed at $185 per hour for out-placement services, with specific hours listed for work done for each firefighter. Appellant included in the bill the language “below is my time commitment and agreed to hourly fee in connection with my services . . . .” The total of the bill came to $13,320.
Collier admitted that she did not do the work for which the bill requested payment. Collier retyped the information from appellant’s fax, including the handwritten notations, and submitted it to Jere Kersnar because appellant directed her to do so. Collier testified “Of course, [appellant] knew I hadn’t done the work. I didn’t even know the guys, I didn’t even have their names.” Collier testified that she later resubmitted the bill at appellant’s suggestion, this time splitting it into two invoices of less than $10,000 each. This split billing was faxed to Kersnar for payment on April 5, 2004.
Collier insisted that, despite the inaccuracy of her invoices, she did not intend to mislead or defraud anyone. In none of her discussions with appellant did he ever indicate his intent was to defraud anyone.
Appellant testified. He stated that when he faxed Collier a sample invoice on February 9, 2004, he thought Collier had “legitimately” done work to help the laid-off firefighters get jobs. He admitted that he listed the names of the nine firefighters Collier claimed to help, calculated her hourly rate, and itemized the billing for each firefighter on her invoice. However, appellant insisted that the invoice he faxed to Collier was meant to serve as a sample—not an actual bill for her services. Despite his intentions, he acknowledged that the invoice Collier ended up submitting was identical to his sample, including some of the handwritten changes he had made. He claimed it was never his intention to defraud anyone.
In closing argument the defense described appellant’s plight as follows: “[T]his is a case of a good, decent, honorable and ethical man who came up with a plan to compensate Peg Collier for legitimate work . . . and in the execution of a plan, there obviously was just poor communication.” He characterized Collier as “a woman in her 60’s, living in Daly City, a single mom, her office and home together very disorganized, but hustling to make ends meet . . . .” He claimed Collier had simply misunderstood appellant’s suggestion that she use the draft invoice he had sent her as a template or sample. Instead, she had submitted it verbatim without correcting it.
Defense counsel urged to find appellant not guilty of submitting a false or fraudulent claim for payment to the Fire Authority (§ 72) and conspiracy to violate section 72 (§ 182) because appellant had no specific intent to defraud. In accordance with this theory, the jury was instructed that “[i]f you find that the Defendant believes that Margaret Collier would use the form prepared by Michael King, and submit an invoice only for the hours that she actually worked, he did not have the specific intent required for the crimes charged.”
The jury rejected this defense and found appellant guilty on both counts. Prior to sentencing, appellant’s motion for a new trial as well as his motion to reduce his convictions to misdemeanors was denied by the trial court. Appellant was then sentenced to a term of three years supervised probation under various conditions, including the condition that he spend 45 days in county jail with the San Mateo County Sheriff’s Work Program recommended. That sentence was stayed pending appeal, and appellant was released on his own recognizance. This appeal followed.
A. Instructional Error on Elements of Section 72
Appellant makes numerous claims of error with regard to the trial court’s special instruction on the elements of the section 72 offense.
We describe first the circumstances which led to the challenged special instruction. As noted, appellant was charged and convicted of submitting a false or fraudulent claim for payment with intent to defraud a public entity or officer (§ 72), and conspiracy to violate section 72 (§ 182). Specifically, section 72 applies to a person who, with intent to defraud, presents for payment to any state, county, city or district board or officer authorized to allow or pay the claim if genuine, a false or fraudulent claim, bill, account, voucher, or writing.
Section 72 reads in relevant part: “Every person who, with intent to defraud, presents for allowance or for payment to any state board or officer, or to any county, city, or district board or officer, authorized to allow or pay the same if genuine, any false or fraudulent claim, bill, account, voucher, or writing, is punishable either by imprisonment in the county jail for a period of not more than one year, by a fine of not exceeding one thousand dollars ($1,000), or by both such imprisonment and fine, or by imprisonment in the state prison, by a fine of not exceeding ten thousand dollars ($10,000), or by both such imprisonment and fine.”
Following the conclusion of the prosecution’s case, the defense moved for dismissal of the charges pursuant to section 1118.1 on the ground that the prosecution’s evidence did not establish each and every element of the crime defined by section 72. In a written motion, appellant first pointed out that section 72 criminalizes false claims submitted to specified governmental entities and their officers (states, cities, counties, and districts) and that the Fire Authority as a joint powers authority, was not an entity defined in section 72. Secondly, appellant claimed that the evidence was insufficient to show the claim had been presented to an officer of the Fire Authority “authorized to allow or pay the same if genuine” as required by section 72. Appellant questioned whether Jere Kersnar, whether acting in his capacity as Belmont city manager or as a fiscal representative of the Fire Authority had the legal authority to pay the claim because the Fire Authority “had never contracted with or obligated itself to pay Peg Collier, or anyone else, for outplacement services for the laid off firefighters.” The court denied appellant’s section 1118.1 motion.
Prior to counsels’ closing arguments, the trial court gave the jury “Special Instruction Count 1,” an instruction that essentially tracked the statutory language of section 72. This was proper. The instruction stated: “The Defendant is charged in Count 1 with presenting any false or fraudulent claim, bill, or voucher for payment to any state, board or officer or to any county, city or district board or officer authorized to pay the same if genuine for payment with the intent to defraud. [¶] To prove that the Defendant is guilty of this crime, the People must prove that one, the Defendant presented any false or fraudulent claim, bill or voucher for payment. Two, the claim, bill or voucher was presented for payment to a state board or officer or to any county, city or district board or officer authorized to pay the same if genuine. Three, when the Defendant presented the claim, bill or voucher he had the intent to defraud. . . .”
On appeal, appellant criticizes this instruction because, while legally correct, it “failed to clearly and expressly enumerate the discrete elements of the offense in the body of the instruction.” Such criticism is unfounded. “The language of a statute defining a crime . . . is generally an appropriate and desirable basis for an instruction, and is ordinarily sufficient when the defendant fails to request amplification. If the jury would have no difficulty in understanding the statute without guidance, the court need do no more than instruct in statutory language. [Citation.]” (People v. Poggi (1988) 45 Cal.3d 306, 327.)
Later, in closing argument, defense counsel argued to the jury: “South County Fire Authority is a Joint Powers Authority not covered by the law. [¶] . . . They’re trying to jam a round peg in to a square hole.” Counsel further argued that appellant was not guilty of violating section 72 because Collier’s invoice had not been properly presented to the Fire Authority for payment as required for liability under section 72. Moreover, he argued Jere Kersnar did not have the authority to pay the invoice.
The prosecutor asked to approach the bench, and the court called a recess. After the jury left the courtroom, the prosecutor stated “my position is I don’t think that’s a factual issue. I think that’s a question of law, and [defense counsel] is now confusing and misleading the jury about whether the law applies, that’s been settled.” The court said, “I agree . . . I have ruled that Penal Code section 72 covers the entity in question . . . . [¶] . . . [¶] The Court decided previously that the South County Fire Protection Authority is covered as a governmental agency within the definition of Penal Code [s]ection 72.” The prosecutor indicated, “I think we will have to do some kind of a special instruction or admonishment to them because now that he has made the argument, I think that it is now—he made it a confusing issue to the jury.”
After the prosecution’s rebuttal argument and just before deliberations began, the court instructed the jury with “Special Instruction No. 2.” This instruction stated, “The public entity called the South County Fire Protection Authority and the commission of the South County Fire Protection Authority created to administer the authority compose [sic] of two members of the San Carlos City Council, and two members of the Belmont Fire Protection District Board of Directors, and the management committee compose [sic] of the finance director of the Belmont Fire Protection District, also known as the City Manager of Belmont, and the City Manager of San Carlos are included in the definition of a state board or officer or any city, county or district board or officer.”
Appellant claims on appeal that this special instruction “removed from the jury’s consideration whether or not the South County Fire Protection Authority was an entity included in [s]ection 72. It also instructed the jury that the City Manager of Belmont and the City Manager of San Carlos were in fact officers of the Authority as a matter of law.” The instruction, in appellant’s view, was tantamount to a directed verdict on several key elements of the offense, it effectively nullified his defense on these points, and it “placed a de facto stamp of approval on the prosecution[’s] case.”
Although appellant did not object to “Special Instruction No. 2” below, we nonetheless reach the substantive merits of his arguments. (§ 1259; People v. Prieto (2003) 30 Cal.4th 226, 247; People v. Higareda (1994) 24 Cal.App.4th 1399, 1406, fn. 5.)
A jury instruction that lessens the prosecution’s burden of proving each element of the crime beyond a reasonable doubt violates the defendant’s due process rights. (Sullivan v. Louisiana (1993) 508 U.S. 275, 277-278; People v. Flood (1998) 18 Cal.4th 470, 481 (Flood).) For example, in People v. Figueroa (1986) 41 Cal.3d 714 (Figueroa), the defendant was charged with sale of unqualified securities, and the trial court instructed the jury that the promissory notes at issue were securities. (Id. at p. 723.) The California Supreme Court concluded the instruction was tantamount to a directed verdict against the defense. (Id. at p. 724.) The court reasoned: “On the issue of whether a ‘security’ had been offered or sold . . ., the trial judge did not confine himself to instructing the jury about abstract legal principles or commenting on the evidence. He usurped the jury’s province and applied the law to the facts as he understood them. The court’s instruction erroneously removed an element of the . . . charge from the jury’s consideration.” (Id. at p. 741.)
Another example is United States v. Gaudin (1995) 515 U.S. 506, in which the defendant was prosecuted for making material false statements on federal loan documents and the trial court instructed the jury that the allegedly false statements were material. The United States Supreme Court held this instruction denied the defendant his constitutional right to have the jury determine whether the prosecution had established each and every element of the charged crime. (Id. at p. 510.)
We agree with appellant that the giving of “Special Instruction No. 2” was error. In this instruction the jury was told that the Fire Authority was included in section 72’s definition of “a state board or officer or any city, county or district board or officer.” Furthermore, the trial court’s special instruction informed the jury that the commission created to administer the Fire Authority, composed of city officials from both Belmont and San Carlos, and was included in the definition of “a state board or officer or any city, county or district board or officer” as used in section 72. Consequently, the jury was effectively told that when the false invoices were presented to Jere Kersnar, the city manager of Belmont, for payment by the Fire Authority, the invoices were unarguably presented to “a state board or officer or any city, county or district board or officer,” thus unambiguously qualifying under the wording of section 72 as a matter of law.
We find it significant that at the end of the prosecutor’s closing argument, in anticipation of the trial court giving “Special Instruction No. 2,” the prosecutor was allowed to argue to the jury: “Judge Mallach has crafted a special instruction . . . . [¶] And I am not going to read you the whole instruction . . . . You will have it to consider, but it essentially . . . says that the Fire Board is an agency that we’re talking about. That Jere Kersnar at the time that he received the bill was a city officer for Belmont but only had authority on the Fire Board because of his position in Belmont. [¶] So what it means is that he has not two separate roles. His role on the Fire Board only exists because he is a certain city officer at Belmont, and when he is receiving the bill, he’s both. He is a city officer from Belmont, city officer, who is authorized as part of the management committee on the Fire Authority to pay the bill.” Counsel’s arguments reinforced what the special instruction essentially conveyed—that the jury was relieved from determining whether several elements of the charged offense were proven beyond a reasonable doubt.
Respondent attempts to justify the removal of these elements from the jury’s consideration because “[s]uch issues are legal ones to be decided by the court, not factual ones for a jury.” To adopt the position advanced by respondent would require us to ignore existing law. “[N]o matter how conclusive the evidence, a trial court cannot directly inform the jury that an element of the crime charged has been established. Absent a stipulation by the defendant that an element is established or is admitted, the trial court must submit that question to the jury. [Citation.]” (People v. Moore (1997) 59 Cal.App.4th 168, 181.) “[I]t matters not whether the issue in question is one of fact or law. Due process requires that it be submitted to the jury. [Citation.]” (People v. Wilkins (1993) 14 Cal.App.4th 761, 778.) “If a judge were permitted to instruct the jury on the basis of assertedly ‘undisputed’ evidence that a particular element had been established as a matter of law, the right to a jury trial would become a hollow guarantee.” (Figueroa, supra, 41 Cal.3d at p. 730.)
As appellant recognizes, the “real question” now becomes whether the trial court’s erroneous instruction requires reversal. Appellant answers this question in the affirmative, claiming the instructional error in this case was “structural” and not subject to harmless error analysis. We disagree. In Flood, supra, 18 Cal.4th 470,the California Supreme Court addressed the harmless error standard in an omitted element case. That case involved an instructional error concerning the charge of evading a pursuing peace officer under Vehicle Code section 2800.3. An element of that crime is that the person driving the pursuing vehicle is a peace officer. (Id. at p. 475.) The trial court, however, failed to instruct the jury that it should determine this issue; rather, it “informed the jury—in conformity with the uncontradicted evidence that had been presented at trial—that the police officers in that vehicle were peace officers, thus effectively removing this element of the crime from the jury’s consideration.” (Ibid.) The California Supreme Court considered whether the error of failing to instruct on this element was subject to harmless error analysis and, if so, whether under the facts presented, the error was harmless.
We note that structural errors “comprise a very limited class of cases” and “have been found where there was a complete denial of counsel [citation], where the trial judge was biased [citation], where there was racial discrimination in the selection of the grand jury [citation], where there was a denial of self-representation [citation], where there was a denial of a public trial [citation], and where the reasonable doubt instruction was defective [citation].” (People v. Magee (2003) 107 Cal.App.4th 188, 193-194.)
The Flood court concluded “that an instructional error that improperly describes or omits an element of an offense, or that raises an improper presumption or directs a finding or a partial verdict upon a particular element, generally is not a structural defect in the trial mechanism that defies harmless error review and automatically requires reversal under the federal Constitution.” (Flood, supra, 18 Cal.4th at pp. 502-503.) The court further concluded that the failure to instruct as to the peace officer element of Vehicle Code section 2800.3 was harmless because “the record establishe[d] beyond a reasonable doubt that the trial court’s instructional error on the peripheral peace officer issue did not contribute to the jury’s guilty verdict . . . .” (Flood, supra, at p. 505; Chapman v. California (1967) 386 U.S. 18 (Chapman).)
It appears our state Supreme Court in Flood correctly anticipated the United States Supreme Court’s ultimate resolution of the identical issue in Neder v. United States (1999) 527 U.S. 1 (Neder). There, the high court explained that “[u]nlike such defects as the complete deprivation of counsel or trial before a biased judge, an instruction that omits an element of the offense does not necessarily render a criminal trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence.” (Id. at p. 9.) The court explained that “in typical appellate-court fashion, [a reviewing court] asks whether the record contains evidence that could rationally lead to a contrary finding with respect to the omitted element. If the answer to that question is ‘no,’ holding the error harmless does not ‘reflec[t] a denigration of the constitutional rights involved.’ [Citation.]” (Id. at p. 19.)
Having concluded such instructional error is subject to harmless-error analysis, the United States Supreme Court in Neder has removed any remaining doubt about the applicable standard of review of the instructional error in this case. Accordingly, “even when jury instructions completely omit an element of a crime, and therefore deprive the jury of the opportunity to make a finding on that element, a conviction may be upheld under Chapman where there is no ‘record . . . evidence that could rationally lead to a contrary finding’ with respect to that element. [Citations.]” (People v. Davis (2005) 36 Cal.4th 510, 564, quoting Neder, supra, 527 U.S. at p. 19.)
Utilizing this standard, we conclude that even if the jury had been instructed that they were to decide whether the false invoice was presented for payment to “any state board or officer, or to any county, city, or district board or officer . . .,” the jury’s result would have been the same. On appeal, appellant does not point to any evidence introduced which could support a contrary finding, nor does he provide any plausible basis upon which a rational juror could conclude, that the Fire Authority, the entity to which the false claim was allegedly submitted, was not an entity covered under a legally accurate interpretation of the relevant portion of section 72.
In attempting to raise a dispute as to this element, appellant emphasizes that the Fire Authority was a joint powers agency created under Government Code section 6500, and therefore is “a public entity separate from the parties to the agreement” under Government Code section 6507. Appellant points out that joint powers agencies are not expressly listed in the “any state board or officer, or to any county, city, or district board or officer” language of section 72. Appellant argues that because certain public entities are specifically listed by the statute, but joint powers agencies are not among them, the Legislature intended to exclude joint powers agencies under the familiar statutory interpretation maxim expressio unius est exclusio alterus, or, the express mention of one thing implies the exclusion of another.
Significantly, the court in People v. Richards (1927) 86 Cal.App. 86 (Richards) has rejected the identical argument appellant makes in this appeal and has interpreted section 72 to apply to a public entity that was not expressly listed in the statute. At the time Richards was decided, section 72 criminalized the presentation of a false claim, with intent to defraud, “ ‘to any state board or officer, or to any county, town, city, ward or village board or officer. . . .’ ” (Id. at p. 88.) The pivotal issue was whether the board and officers of the Los Angeles County Flood Control District were encompassed within the meaning of these described entities. The defendant in Richards, like appellant herein, argued that the Legislature’s failure to mention expressly “districts” in section 72 meant that districts were intentionally excluded under the maxim “expressio unius est exclusio alterius.” (Id. at p. 89.)
The court rejected this interpretation, finding instead that it must construe section 72 broadly in conformance with its “evident purpose” which is “to penalize the making of false and fraudulent claims against public funds.” (Richards, supra, 86 Cal.App. at p. 89.) Consequently, the court found that the “enumeration of county, town, and other boards and officers in section 72 is made by way of example and not for purposes of exclusion . . . .” (Id. at p. 90.) The court went on the find “[n]o logical reason can be imagined for excluding” any “public board or officer from the operation of the section.” (Ibid.) The court examined the duties and function of the board and officers of the Los Angeles County Flood Control District and found an officer is a state officer if the tasks he or she performs are accomplished for and on behalf of the state, notwithstanding that his or her duties may be restricted to a particular geographical portion of the state. Consequently, the court found “no reason why they may not by reason of the nature of their functions be also state officers within the meaning of section 72.” (Id. at p. 94.) The Legislature specifically endorsed the Richards holding by promptly adding the word “district” to the list of covered agencies in section 72. (See amendment by Stats. 1927, ch. 467, § 1, p. 790.)
We utilize similar reasoning in concluding the Fire Authority in this case qualifies for protection against fraudulent claims under the language of section 72. The evidence at trial established that the Fire Authority was created pursuant to a joint exercise of powers agreement entered into in 1979 by the City of Belmont and the City of San Carlos to provide fire protection services to both communities. Their action was expressly authorized by state statute. (Gov. Code, § 6500 et seq.) The Fire Authority is a separate and distinct public entity, operated by public officials from both cities. (Gov. Code, § 6507.) As directed by Government Code section 6503, the joint agreement creating the Fire Authority provides “for the method by which the purpose [of the Authority] will be accomplished or the manner in which [its] power will be exercised.”
Bearing in mind that the evident purpose of section 72 was to penalize the making of false and fraudulent claims against public funds, like the Richards court, we see no reason for giving the description of the public entities protected by section 72 any narrow or limited interpretation. (Accord, People v. McCord (1936) 15 Cal.App.2d 136, 138 [endorsing Richards holding that section 72 should be liberally construed in view of its evident purpose “ ‘to penalize the making of false and fraudulent claims against public funds.’ ”] Plainly, a public agency such as a joint powers authority formed by two cities pursuant to state legislation, along with its officers, are covered by the wording and intent of section 72, which the Richards court broadly construed as encompassing any “public board or officer.” (Richards, supra, 86 Cal.App. at p. 90.)
Therefore, the giving of “Special Instruction No. 2,” in which the jury was told “[t]he public entity called the South County Fire Protection Authority and the commission of the South County Fire Protection Authority created to administer the authority . . . are included in the definition of a state board or officer or any city, county or district board or officer” was harmless error. The correct focus of the harmless error analysis is whether “the jury verdict would have been the same absent the error” or “whether the record contains evidence that could rationally lead to a contrary finding with respect to the omitted element.” (See Neder, supra, 527 U.S. at p. 17.) With or without “Special Instruction No. 2,” we have no doubt that the jury would have reached the same conclusion.
For these same reasons, we also find harmless beyond a reasonable doubt another component of “Special Instruction No. 2,” instructing the jury that “the commission of the South County Fire Protection Authority created to administer the authority compose [sic] of two members of the San Carlos City Council, and two members of the Belmont Fire Protection District Board of Directors, and the management committee compose [sic] of the finance director of the Belmont Fire Protection District, also known as the City Manager of Belmont, and the City Manager of San Carlos are included in the definition of a state board or officer or any city, county or district board or officer.”
The evidence at trial showed, in conformance with the court’s instruction, that the management committee of the Fire Authority was composed of the city managers of the two cities, at all relevant times Jere Kersnar for Belmont and Mike Garvey for San Carlos. By agreement of the parties, the City of Belmont had been designated to conduct the financial aspects of the Fire Authority. At the time Collier submitted the fraudulent invoices at appellant’s direction, she faxed them directly to Jere Kersnar, then the city manager of Belmont, who was also a member of the management committee of the Fire Authority. Consequently, when Jere Kersnar received the fraudulent invoices, they were presented to “a state board or officer or to any county, city, or district board or officer,” thus unambiguously qualifying under the wording of section 72. Under such circumstances, there is no possibility that the error affected the result.
B. Substantial Evidence Supporting Appellant’s Conviction
Attacking his conviction for violating section 72 from an entirely different approach, appellant alternatively claims “the evidence was insufficient to warrant a conviction for that offense or that he conspired to violate that statute.” Appellant argues the evidence was insufficient to show that: (1) the Fire Authority was an entity described in section 72; (2) Collier’s invoices were ever properly “presented” in a manner that the Fire Authority might be authorized to pay them; and (3) Collier’s claim for payment was the sort for which the Fire Authority was authorized to pay.
We have already considered and rejected some of appellant’s arguments in arriving at our determination that the giving of “Special Instruction No. 2,” while error, was harmless beyond a reasonable doubt. (Chapman, supra, 386 U.S. 18.) We recognize that our review for harmless error is distinct from a review for sufficiency of the evidence. When reviewing a conviction for substantial evidence, “the relevant question is whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Jackson v. Virginia (1979) 443 U.S. 307, 319.) Harmless error review, on the other hand, requires the appellate court to assess the strength of the evidence in relation to the significance of the constitutional error, and then make the determination whether the error was harmless beyond a reasonable doubt. [Citation.]” (Chapman, supra, 386 U.S. 18.) Because error which violates a criminal defendant’s constitutional rights can only be found harmless if the evidence against the defendant is so overwhelming that no rational conclusion other than guilt can be reached, our harmless error review easily encompasses and satisfies the more deferential substantial evidence standard.
To summarize, we have determined that the evidence at trial established that the Fire Authority, as a joint powers authority formed between the cities of Belmont and San Carlos pursuant to Government Code sections 6500 et seq., qualifies for protection against fraudulent claims under section 72. We have also determined that the evidence establishes that when Jere Kersnar received the fraudulent invoices, they were presented to “a state board or officer, or to any county, city or district board or officer,” thus unambiguously falling within the wording of section 72.
What remains for discussion are appellant’s claims that the evidence was insufficient to show that: (1) Collier’s invoices were ever properly “presented” as required by section 72, and (2) the invoices were for services that the Fire Authority was authorized to pay if Collier had legitimately rendered the employment services described in the invoices.
Appellant argues that “unless the evidence had demonstrated that a claim had been made directly to and/or considered by the full Board itself, or at least a Board member,” then the evidence was not sufficient to show that the invoices were properly presented. Here, the fraudulent invoices were faxed in the first instance to Jere Kersnar, a member of the management committee of the Fire Authority, a public officer under the terms of section 72. Kersnar testified that below certain limits, the city manager or management committee could pay an invoice without referring it to the full board. He testified that invoices in excess of $5,000 would have to be presented to the full board at a public meeting. Therefore, the evidence supported the prosecution’s theory that the invoices were faxed to a member of the management committee who could either authorize payment himself or forward it to the proper channels for payment.
In arguing this theory to the jury in closing argument, the prosecutor stated: “And in the attempt to get [Collier] paid it was sent to the entity that was going to pay the bill. It’s sent to Jere Kersnar, we see the bill presented to a city officer authorized to pay the same if genuine. Jere Kersnar as the city manager for Belmont, that’s the city officer, sits on the management committee for the South County Fire District that can pay bills if genuine. . . .
Appellant’s argument that the invoices were not properly presented because “Kersnar was simply not authorized to process, let alone honor, such a claim on his own” is unavailing. The gravamen of the offense lies in the ultimate objective that the payment for the fraudulent claim be made from public funds—whether the claim is presented directly to the public entity for payment or through an intermediary is immaterial.
For example, in Smith v. Superior Court (1970) 5 Cal.App.3d 260 (Smith), a defendant who presented false claims for ambulance services under Medi-Cal and Medicare was guilty of presenting false claims to a state agency (§ 72) despite the fact that the claims had been presented, not directly to the state agency, but to Blue Shield as the state’s fiscal intermediary. (Id. at pp. 262-263.) The court based its conclusion on the fact that the defendant knew the claims had to be presented to a state agency for approval and if approved, would be paid from state funds. (Id. at pp. 263-264.) The court reasoned, “It matters not whether he presented the claims directly to the state or indirectly through Blue Shield; there was no way he could succeed in getting the money without violating [section 72].” (Id. at p. 264.)
In this case, the evidence showed Collier, at appellant’s direction, faxed her fraudulent invoices to Jere Kersnar, a member of the two-person management committee of the Fire Authority. By doing so, it can reasonably be inferred appellant intended that Kersnar would either authorize payment himself or forward the invoices to the proper channels for payment. Indeed, Collier’s second bill was tailored into two separate invoices to facilitate payment. Appellant and Collier also knew that, if the invoices were approved, they would be paid by the Fire Authority out of public funds. Given this evidence, appellant cannot escape responsibility by claiming the invoices were not properly presented for payment.
Appellant next contends that the evidence failed to show that the invoices were ones which, if for legitimate work, could by paid by the Fire Authority. To the contrary, both Kersnar and Michael Garvey, members of the Fire Authority’s management committee, testified that Collier’s invoices were ones which, if genuine, could have been paid. Garvey testified and explained that “the management committee is allowed to pay for services rendered up to a certain dollar amount, therefore, if we are comfortable that she had delivered the service, and if she had given us the evidence, we were authorized to make payments for administrative work . . . .” Kersnar testified that if legitimate work had been done, “I could understand that someone would want to do that work and that they might well be compensated for their time.” Ample substantial evidence was presented to the jury on this element.
C. Accomplice Instruction
Appellant argues that the court erred when, over his objection, it instructed the jury with CALJIC No. 3.18, which admonished the jury that if Collier was an accomplice, they were to view the portions of her testimony that tended to incriminate appellant with caution. He argues that under the facts of this case, an accomplice instruction should have only been given at his request.
As appellant points out, Collier’s testimony was both favorable and unfavorable to the defense. Collier testified in support of the defense that neither she nor appellant had any fraudulent intent when they submitted the invoices and that she had pled guilty to a “no jail” misdemeanor just to “put an end to it.” However, she also gave testimony that incriminated appellant. Specifically, she testified that she submitted the invoices faxed to her by appellant to the Fire Authority at appellant’s direction.
To assist the jury in evaluating Collier’s testimony, they received the following accomplice instructions: “If the crime of presenting false claims in Count 1, and conspiracy to present false claims in Count 2 were [sic] committed, then Margaret Collier was an accomplice to those claims.” The jury was then told that an accomplice’s testimony had to be corroborated by other evidence independent of the accomplice’s testimony. In accordance with CALJIC No. 3.18, the jury was further admonished that “[a]ny statement or testimony of an accomplice that tends to incriminate the Defendant should be viewed with caution. You may not, however, arbitrarily disregard it. You should give the statements or testimony the weight you think it deserves after examining it with care and caution and in light of all the other evidence.” (Italics added.)
An accomplice is “one who is subject to prosecution for the identical offense charged against the defendant. (§ 1111.)” (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 105.) At the time of her testimony, Collier had plead guilty to a misdemeanor violation of section 72. She undoubtedly qualified as an accomplice.
Defense counsel objected to the foregoing instruction. He argued that Collier was innocent, that she plead guilty only because she wanted to avoid a prolonged criminal prosecution, and that her testimony favoring appellant would be tainted by an instruction identifying her as an accomplice and indicating that the jury was to view an accomplice’s testimony “with caution.” But, the court instructed specifically that the cautionary language that an accomplice’s testimony should be viewed “with caution” only applied to testimony which tended to incriminate appellant.
In People v. Guiuan (1998) 18 Cal.4th 558 (Guiuan), the court reviewed the case law regarding accomplice jury instructions in California and expressly prescribed the language contained in CALJIC No. 3.18, which was given to the jury in this case. The court reasoned that whenever an accomplice testifies, the trial court should sua sponte instruct the jury to view with caution the testimony that tends to incriminate the defendant, whether the accomplice was called by the prosecution, defense, or both. (Id. at p. 569.) It also held that the phrase “ ‘care and caution’ ” rather than “ ‘distrust’ ” better articulates the proper approach to be taken by the jury to accomplice evidence. (Ibid.)
The Guiuan court therefore concluded that the jury should be instructed to the following effect whenever an accomplice, or a witness, who might be determined by the jury to be an accomplice, testifies: “ ‘To the extent an accomplice gives testimony that tends to incriminate the defendant, it should be viewed with caution. This does not mean, however, that you may arbitrarily disregard that testimony. You should give that testimony the weight you think it deserves after examining it with care and caution and in the light of all the evidence in the case.’ ” (Guiuan, supra, 18 Cal.4th at p. 569.)
The jury in this case was instructed with the language approved in Guiuan. The trial court’s decision on this issue was correct. Trial courts are obligated to instruct the jury with the language in CALJIC No. 3.18 or its equivalent “ ‘whenever an accomplice, or a witness who might be determined by the jury to be an accomplice, testifies . . . .’ ” (People v. Box (2000) 23 Cal.4th 1153, 1208.) “The rationale for instructing a jury to view with caution an accomplice’s testimony that incriminates the defendant is the accomplice’s self-interest in shifting blame to the defendant. [Citation.]” (People v. Cook (2006) 39 Cal.4th 566, 601.) Absent evidence to the contrary, the law presumes, the jury understood the plain text of this cautionary language, and that did not apply to Collier’s testimony favorable to the defense. (People v. Visciotti (1992) 2 Cal.4th 1, 49.) Appellant’s claim of error has no merit.
D. Admission of Tape-Recorded Telephone Conversation with Appellant’s Coconspirator
Appellant next takes exception to the trial court’s conclusion that Collier’s tape-recorded conversation with George Metropulos, the former Belmont city councilman who was serving on the Fire Authority, was admissible as a statement made by a coconspirator (Collier) in furtherance of the conspiracy for monetary gain. (Evid. Code, § 1223.)
During Metropulos’s testimony, a secretly recorded telephone call was played for the jury in which Metropulos, at the behest of the district attorney investigator, contacted Collier for the ostensible purpose of having her explain whether “she actually did the work and determine if anybody else was involved.” In that phone conversation, Collier stated that she had submitted the invoices at appellant’s request. She admitted that she had not performed the work described in the invoices. She further explained that she had submitted the invoices to make up for the work for which she was still owed as a result of her work on the Measure I campaign. As appellant acknowledges on appeal, the admission of this evidence “was devastating to appellant’s defense . . . .”
Over appellant’s objection, the trial court ruled that the telephone conversation between Collier and Metropulos was admissible under Evidence Code section 1223, the hearsay exception for statements of coconspirators made during the course of and in furtherance of a conspiracy. Hearsay statements by coconspirators may be admitted against a party if the offering party presents independent evidence to establish prima facie the existence of the conspiracy. Once independent proof of conspiracy has been shown, three preliminary facts need to be established: (1) the declarant was participating in conspiracy at time of declaration, (2) the declaration was in furtherance of the objectives of the conspiracy, and (3) at time of the declaration, the party against whom evidence is offered was participating or would later participate in conspiracy. (In re Hardy (2007) 41 Cal.4th 977, 995-996.)
Appellant claims that Evidence Code section 1223 did not apply, and the evidence was improperly admitted, because “[f]irst, both the direct and circumstantial evidence was [sic] insufficient to warrant the conclusion that the conspiracy was still in existence at the time and, second, there was no basis for concluding that the statement was in furtherance of any ongoing conspiracy.”
In People v. Saling (1972) 7 Cal.3d 844 (Saling), our Supreme Court stated: “It has long been the law in this state that a conspirator’s statements are admissible against his coconspirator only when made during the conspiracy and in furtherance thereof. [Citations.] The conspiracy usually comes to an end when the substantive crime for which the coconspirators are being tried is either attained or defeated. [Citations.] It is for the trier of fact—considering the unique circumstances and the nature and purpose of the conspiracy of each case—to determine precisely when the conspiracy has ended. [Citations.] Particular circumstances may well disclose a situation where the conspiracy will be deemed to have extended beyond the substantive crime to activities contemplated and undertaken by the conspirators in pursuance of the objectives of the conspiracy. [Citations.]” (Id. at p. 852.)
Here, the trial court accepted the prosecutor’s position that the object of the conspiracy was to obtain payment for the fraudulent invoices; consequently, the conspiracy did not end with the submission of the invoices, but continued so long as payment was not yet received. The trial court noted that the telephone conversation happened before Collier knew that there was any investigation and at that point, she was still “intent and hopeful of being paid . . . .” The record bears out the court’s observation. During the taped conversation, Collier stated that she had had to drop $1,500 from the bill, but “I don’t really care.” She was emphatic that what she cared about was getting reimbursed as much as she could. At another point in the conversation, she said that she had been “talking to different people” with the objective that “you guys do what you think you can do to get me what you think you can.” She was talking in the present tense of her continuing desire to have the bill paid.
Given this evidence, the trial court acted well within its discretion in finding that Collier’s statements to Metropulos were made while the conspiracy was ongoing. (See, e.g., People v. Noguera (1992) 4 Cal.4th 599, 625-626 [where conspiracy embraced “successive but interdependent objectives,” one of which was securing life insurance proceeds and other property, statements made after homicide but before attainment of proceeds and property were made during conspiracy]; People v. Hardy (1992) 2 Cal.4th 86, 143-144 [where primary goal of conspiracy was acquisition of insurance benefits, conspiracy continued until coconspirators received insurance proceeds or were disabled from legally collecting same]; Saling, supra, 7 Cal.3d at p. 852 [statements made following homicide but before payment to killer made during conspiracy where payment was one of main objectives of conspiracy as far as defendant was concerned].)
Furthermore, the statements made by Collier to Metropulos were in furtherance of the objective of the conspiracy because they were intended to justify her submission of the invoices for work she admittedly did not do, presumably in an attempt to gain Metropulos’s sympathy and support in getting reimbursed.
Appellant also contends the admission of this evidence violated his Sixth Amendment right to confront witnesses against him. In People v. Brawley (1969) 1 Cal.3d 277, the California Supreme Court determined that hearsay statements of a coconspirator falling within California’s statutory exception do not violate the Sixth Amendment right of confrontation. (Id. at p. 291.) This argument has also been rejected in the federal courts, where it has been held that a statement admitted pursuant to the coconspirator’s exception to the hearsay rule is not testimonial and does not implicate the confrontation clause under Crawford v. Washington (2004) 541 U.S. 36. (U.S. v. Reyes (8th Cir. 2004) 362 F.3d 536, 540-541 & fn. 4.)
E. Admission of Collier’s Plea Agreement
Appellant next contends that the admission of the terms of Collier’s plea bargain prejudiced him because, through it, both the prosecutor and trial judge were allowed to vouch for Collier’s credibility.
During Collier’s testimony, she acknowledged that prior to appellant’s trial, she entered a plea of no contest to a misdemeanor violation of section 72. The prosecutor further elicited that under the terms of her plea agreement, Collier was to receive a grant of probation and serve up to 30 days of county jail time; however, sentencing in her criminal case was deferred until after her testimony in appellant’s case. Collier acknowledged that as a condition of her plea agreement she would have to “testify truthfully and completely” and that whether or not she testified truthfully “will be determined by the trial judge . . . .” Defense counsel did not object to the questions which garnered these responses, nor did he move to strike Collier’s responses, and therefore the issue has been waived. (See People v. Sanders (1995) 11 Cal.4th 475, 526, fn. 17 [constitutional errors waived due to failure to object].)
On appeal, appellant acknowledges that defense counsel did not object “for tactical reasons.” We are constrained to conclude that his decision not to object was informed by a view that Collier’s testimony that she had entered into a plea agreement requiring her to testify truthfully was not unduly harmful given the fact that she testified that neither she nor appellant had an intent to defraud when she billed the Fire Authority for employment services.
Nevertheless, on appeal, appellant claims “[t]he admission of the condition of the plea bargain that Collier’s truthfulness ‘will be determined by the trial judge in any subsequent proceeding’ was fraught with potential error.” Appellant claims the provision concerning her obligation to testify truthfully constituted impermissible vouching because “the jury was left to speculate how this determination would be made and could well have inferred that if Judge Mallach did not believe any part of Collier’s [trial] testimony they would be so informed.”
Our Supreme Court’s decision in People v. Fauber (1992) 2 Cal.4th 792 (Fauber) guides our resolution of this argument. In Fauber, our Supreme Court stated that the existence of a witness’s plea agreement is relevant impeachment evidence and must be fully disclosed to the jury. “ ‘[F]ull disclosure of any agreement affecting the witness is required to ensure that the jury has a complete picture of the factors affecting the witness’s credibility.’. . .” (Id. at p. 821, quoting People v. Phillips (1985) 41 Cal.3d 29, 47.) Noting that “[f]ull disclosure is not necessarily synonymous with verbatim recitation,” the Fauber court nonetheless held that full disclosure included informing the jury of the consequences to the witness of failing to testify truthfully. (Fauber, supra, at p. 823.)
In Fauber, as here, the defendant on appeal complained that admission of the terms of the plea agreement improperly vouched for the witness’s credibility because it stated that if a dispute occurred, the truthfulness of the witness’s testimony would be determined by the trial court. (Fauber, supra, 2 Cal.4th at pp. 820-821.) Also, as in this case, the defense counsel in Fauber waived the matter by failing to object to introduction of this provision of the plea bargain below. (Id. at p. 821.) The Fauber court further held that even if the defendant had preserved his claim for appeal, there was no reversible error.
The court explained that even though the provision detailing the judge’s responsibility for determining the accomplice’s credibility carried “some slight potential for jury confusion,” Fauber was not prejudiced by its admission. (Fauber, supra, 2 Cal.4th at p. 823.) The court concluded that (1) the jury could not reasonably have understood this portion of the plea agreement to relieve it of the duty to decide, in the course of reaching its verdict, whether the accomplice’s testimony was truthful; (2) the context of the remarks made it clear that such a determination would occur only if the prosecutor sought to repudiate the plea agreement; (3) the jury was otherwise instructed by CALJIC No. 2.20 that it was the “ ‘sole judge[] of the believability of a witness and the weight to be given to his testimony’ ”; and (4) it presumed the jury understood and followed CALJIC No. 2.20. (Ibid.)
As in Fauber, we conclude that appellant was not prejudiced by the admission of the terms of Collier’s plea bargain that she was to “testify truthfully and completely” and that whether she testified truthfully “will be determined by the trial judge . . . .” The jury could not reasonably have understood this provision of the plea bargain to relieve it of the duty to determine whether Collier’s trial testimony was truthful. As in Fauber, supra, 2 Cal.4th at page 823, the jury was instructed that “[y]ou alone must judge the credibility or believability of the witnesses in deciding whether testimony is true and accurate . . . .” (Italics added.) Moreover, while the prosecutor questioned Collier generally about her agreement, he did not dwell on its truthfulness aspect or the trial judge’s role in determining whether Collier’s trial testimony was truthful. In other words, there was no particular attempt to focus the attention of the jury on that aspect of the agreement.
Appellant nevertheless claims the jury was left with the false impression “that if Judge Mallach did not believe any part of Collier’s testimony they would be so informed.” However, this argument ignores the fact that in defense counsel’s closing argument, he emphasized that the trial court would determine the truthfulness of Collier’s testimony, after the trial, in considering her sentence. Defense counsel’s closing argument focused on the credibility of Collier’s trial testimony that neither she nor appellant had any intent to defraud the Fire Authority. Counsel argued, “[Collier] has an extraordinary interest in making them happy because she knows if she makes them happy, they’ll stand up in front of the judge and say we believe she told the truth, give her the deal. [¶] What would make them happy. If Peg Collier were to have come in here and said, I act with intent to defraud and so did Mike King . . . that’s what would make them happy. She knows that, but what did she do instead, took an incredible personal risk to tell the truth as she knows it, knowing that full well that by telling the truth, she puts herself at risk of going to jail for a year.” Counsel later returned to this line of argument, “And God bless her for giving truthful testimony instead of the correct testimony.” Contrary to appellant’s argument on appeal, defense counsel was allowed to exploit fully the “truthfulness” term of Collier’s plea bargain to his advantage.
In sum, the jury was entitled to full disclosure regarding the existence and various terms of Collier’s plea agreement, which our Supreme Court has expressly and repeatedly condoned as important evidence bearing on the witness’s credibility. (People v. Bonilla (2007) 41 Cal.4th 313, 337; Fauber, supra, 2 Cal.4th at p. 821; People v. Frye (1998) 18 Cal.4th 894, 971; People v. Williams (1997) 16 Cal.4th 153, 257.) We further conclude that appellant has failed to show that the admission of the terms of Collier’s plea agreement into evidence allowed the prosecution to improperly bolster and vouch for the incriminating aspects of her testimony. We find instead that both the prosecutor and the defense were allowed to urge competing inferences from the terms of the plea agreement. Also, as in Fauber, we see no possibility that the jury could have reasonably understood the agreement to relieve it of the duty to decide, in the course of reaching its verdict, whether Collier’s testimony was truthful. (Fauber, supra, 2 Cal.4th at p. 823.)
F. Prosecutorial Misconduct
Appellant’s final contention is that the prosecutor committed misconduct in closing argument, first by falsely implying that the district attorney’s office would play no role in assessing whether a violation of the plea agreement occurred; and second, by telling the jury that they should convict appellant so as not to “leave Collier to hold the bag.”
First, appellant claims the prosecutor “falsely describ[ed] the manner in which Collier’s compliance with the plea bargain would be reviewed” when he improperly argued that “[it] doesn’t have anything to do with the D.A.’s office.” Appellant points out that “the procedure in San Mateo County at least, by which Collier’s plea agreement might be abrogated, if she were to testify falsely, could only be commenced on motion by the District Attorney’s Office.”
“When a defendant believes the prosecutor has made remarks constituting misconduct during argument, he or she is obliged to call them to the court’s attention by a timely objection. Otherwise no claim is preserved for appeal.” (People v. Morales (2001) 25 Cal.4th 34, 43-44.) Appellant concedes that he did not object to this comment. Consequently, he has waived his claim that this portion of the prosecutor’s argument constituted misconduct.
In any event, when the prosecutor’s argument is read in context, it does not amount to misconduct. Here, theprosecutor was merely explaining to the jury that the ultimate sentencing decision was not the district attorney’s and that the trial court would determine the truthfulness of Collier’s testimony after the trial. The prosecutor did not, as appellant contends, improperly “misstate[] to the jury the manner in which Ms. Collier’s credibility would be determined were she to testify falsely.”
Appellant next argues that the prosecutor was improperly appealing to the jury’s sympathy or emotions when he asked the jury not to let Peg Collier “hold[] the bag.” Once again, appellant failed to contemporaneously object in the trial court, thus waiving the claim on appeal.
Even if the comment was improper, appellant has not demonstrated prejudice. (People v. Simington (1993) 19 Cal.App.4th 1374, 1379-1380.) Prejudice is shown where there is a reasonable probability, but for counsel’s errors, the result of the proceeding would have been different. (In re Harris (1993) 5 Cal.4th 813, 832-833.) It is not reasonably probable that the prosecutor’s argument convinced the jury to base its verdict on sympathy for Collier rather than on the strong evidence of appellant’s intent to assist Collier in defrauding the Fire Authority. Therefore, we find no merit to appellant’s ineffective assistance of counsel claim for failure to object. The lack of prejudice alone defeats appellant’s claim of ineffective assistance of counsel. (Strickland v. Washington (1984) 466 U.S. 668, 697 [when an ineffective assistance claim can be resolved solely on lack of prejudice, a reviewing court need not determine whether counsel’s performance was objectively deficient].)
IV. Disposition
The judgment is affirmed.
We concur: Sepulveda, J., Rivera, J.