NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of San Diego County No. SCD185054, Gale E. Kaneshiro, Judge.
Marc Levine appeals from a judgment convicting him of three counts of grand theft, one count of grand theft from an elder, and one count of conspiracy to defraud another of property. He argues (1) the trial court erred by using an intent to defraud standard rather than an intent to permanently deprive standard when instructing the jury on the offenses of theft by trick and theft by false pretenses, (2) the trial court erred in admitting hearsay evidence, and (3) the evidence was insufficient to support the jury's guilty verdict regarding victim Stephen Ahn. We find no reversible error and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Appellant Levine, a San Diego attorney, and his former law clerk, Giuliana Bosco, were charged with several counts of theft and with conspiracy to defraud arising from a convoluted web of lies successfully used to extract significant sums of money from multiple victims. Both Levine and Giuliana testified at trial. Levine maintained he was innocent and unaware of Giuliana's fraudulent actions. Giuliana, who pleaded guilty before trial, confirmed Levine's claims of innocence and took full responsibility for the fraud. She admitted that over the course of several years she fabricated tragedies and illnesses, created a fictional person named Carolyn, and otherwise engaged in fraudulent schemes to acquire money from the victims. Rejecting this testimony, the jury found that Levine participated with Giuliana in the fraudulent schemes to steal money.
For clarity, we will refer to some of the people involved in this case by their first names.
The victims of Giuliana's and Levine's schemes included Levine's father (Jerome Levine), Giuliana's aunt and uncle (Rosetta and Carmine Perna), and Levine's colleague and friend (Stephen Ahn). As we shall detail below, the fraudulent acquisition of funds was accomplished by ongoing fabrications made to the victims by both Levine and Giuliana, ultimately culminating in misrepresentations to Jerome that Carolyn needed money for cancer treatment; to the Pernas that Levine had been injured in Fiji and needed money to be flown home in a private plane; and to Ahn that Giuliana needed money for cancer treatment. We summarize the facts concerning each victim.
Jerome did not testify at trial because he suffered from Alzheimer's disease; the facts pertinent to the theft from him were presented by his daughter, Deborah Levine.
Deborah testified that in or about 2001 Levine told family members that he was dating Carolyn Krottedier, a pediatric surgeon living in San Francisco, and that he intended to marry her. No one had ever met Carolyn in person, but a female identifying herself as Carolyn frequently called Levine's family members on the phone. According to Deborah, Carolyn called Levine's father Jerome on a daily basis, sent him cards, and called him "Dad."
Unbeknownst to Deborah, between August 2000 and January 2002, Jerome gave money to Levine based on Jerome's belief that Carolyn had cancer and needed the money for experimental cancer treatment. In truth, Carolyn did not exist; in the phone calls to family members Giuliana was pretending to be Carolyn; and no one needed cancer treatment. Deborah did not know that her father had transferred money to her brother until sometime in 2003 when her father disclosed the transfers to her.
Even before she discovered the money transfers, Deborah began questioning the truth of the information Levine had provided about Carolyn. On one occasion, Deborah (who at the time was living in Maryland) had tried to contact her brother when she was in San Francisco and he was supposedly visiting Carolyn in San Francisco. Before and during her trip, Deborah repeatedly tried reaching Levine on his cell phone and left him messages, but he did not return her call until she was at the airport leaving San Francisco. He claimed that he had left his cell phone at home.
Deborah also thought her brother's description of Carolyn sounded "too good to be true." Deborah, an attorney experienced in research techniques from her work as a prosecutor, discovered numerous discrepancies about the information she had been provided about Carolyn. Contrary to claims made about Carolyn, Deborah discovered no such person went to Harvard Medical School, owned property in Boston, or had a medical license in California or several other states. Further, there was no driving record for this person. Deborah had several conversations with her brother about her findings, but her brother cut the conversations short, merely responding that she must have made mistakes while researching the matter.
Without the knowledge of Levine's family, in May 2001 Giuliana's parents hosted an engagement party for Giuliana and Levine at the parents' home in Wisconsin, and in March 2003 the two were married. Giuliana's relatives traveled from Canada and Italy to attend the wedding. The wedding festivities included a cocktail party at Giuliana and Levine's "trendy, elegant" high-rise condominium in Chicago, a rehearsal dinner, a "grandiose" wedding at Giuliana's childhood church, a "higher-end," black-tie wedding reception with about 200 people in attendance, and a champagne brunch the next day.
In May 2003, Levine visited with his sister and father in Philadelphia. He did not tell them that he had married Giuliana, and instead continued to state that he was dating and engaged to Carolyn. Deborah tried to confront her brother about her suspicions about Carolyn's existence, but Levine did not confirm or deny her statements. He merely answered evasively and stated it was too complicated to explain and she would not understand. At this point Deborah was unaware that her father had given Levine money for Carolyn's cancer treatment.
Sometime after this visit, Jerome finally disclosed to Deborah that he had given money to Levine to pay for Carolyn's cancer treatment. On several occasions after acquiring this information from her father, Deborah tried to discuss the matter with Levine. Deborah asked Levine to explain why there was a cost for experimental cancer treatment and if the money had been used for this purpose. Levine would not give her a direct answer; he would change the subject, cut the conversations short, or tell her that she did not understand. He never disputed that the money was used for Carolyn.
Deborah again communicated her suspicions about Carolyn to her father and requested that he ask Carolyn and her brother questions to try to uncover the fabrication. Deborah's suspicions were confirmed after her father tried to acquire information from Carolyn and Levine about the hospital and clinics where Carolyn was receiving treatment, and no such information was ever provided.
In about October or November 2003, Deborah received several phone calls from Carolyn, during which Carolyn introduced herself to Deborah as Levine's fiancée, talked about the chemotherapy she had been undergoing for her illness, and made various other statements to Deborah that Deborah found incredible. By this point Deborah had surmised that Giuliana was Carolyn because Giuliana was the only person any family member had met personally. Deborah told her brother about the phone calls. Levine seemed very surprised and asked what they had talked about, but did not offer an explanation about Carolyn.
In October 2003, several months after learning about the transfers of money from Jerome to Levine, Deborah received a phone call from San Diego police detective Brett MacFarlane informing her that the police were investigating Giuliana's and Levine's activities.
Deborah estimated that Jerome gave about $500,000 to Levine. The funds came from three sources: stocks in Levine's name that were allocated for him; an irrevocable trust set up by Jerome with both Deborah and Levine as trustees; and money that was solely Jerome's.
Giuliana's aunt and uncle, Rosetta and Carmine Perna, lived in Canada. They met Levine at Giuliana and Levine's engagement party in May 2001. The Pernas observed that Levine called Giuliana's parents "mom" and "dad" and was very warm and affectionate towards them. Levine told the Pernas that he worked for the law firm Baker & McKenzie in Chicago. He also told them that his parents were lawyers at Baker & McKenzie; they were very wealthy; they were close friends with Bill and Hillary Clinton; and they could not attend the engagement party because of work commitments. Levine gave Giuliana lavish gifts at the engagement party and in general acted as though he was very wealthy.
In July 2001, the Pernas again saw Levine when he visited Canada with Giuliana to attend a family wedding. Levine told the Pernas that he and Giuliana would be meeting his parents in Italy to go on a cruise on their yacht. After the relatives had left Canada, Giuliana's mother called the Pernas and told them that Levine's parents had been killed in a car accident in Italy on the way to the yacht. On the next occasion when Carmine saw Levine, Carmine extended his sympathies about the death of Levine's parents and Levine thanked Carmine.
In August 2002, Levine attended another family wedding with Giuliana in Canada. At the wedding reception, the bride and groom took up a collection for a children's charity in Africa; Levine stood up and made an unusually large pledge of $5,000.
The Pernas attended Levine and Giuliana's wedding in March 2003. At the lavish festivities, Levine acted like a "regular groom" and made toasts attesting to his happiness. Levine and Giuliana told the Pernas that they would be going to Fiji for their honeymoon. On April 7, 2003, Giuliana called the Pernas. She was crying and told them that Levine had suffered severe head injuries in a water skiing incident in Fiji. She asked the Pernas not to tell her parents because they would become hysterical. On April 8, Giuliana called the Pernas and asked them to loan her money to pay for a private plane with doctors and nurses to fly Levine out of Fiji. The Pernas wired $121,400 to Levine's San Diego bank account. On April 13, Giuliana called the Pernas and stated that after they had been flying for five hours Levine's condition worsened, so they had to turn around and go to Melbourne, Australia. On April 28, Levine called the Pernas and thanked them for saving his life.
On or about May 4, 2003, Giuliana again called the Pernas and stated she needed an additional $78,000 to fly Levine from Melbourne to the United States. When the Pernas told a visiting relative about Giuliana's latest call, the relative stated he had just talked to Giuliana and that Giuliana was in Wisconsin. The Pernas asked Giuliana to give them the name of the hospital and hotel where Levine and Giuliana were staying so they could send flowers. Giuliana provided the information, and the Pernas thereafter discovered no such persons were at the hospital or the hotel. In actuality, Giuliana and Levine had not been in Fiji and Levine had not been injured.
Thereafter, Carmine repeatedly talked to Giuliana to try to get his money back. In June and July 2003, Giuliana wired the Pernas a total of $55,970 in three installments to partially pay them back.
Ahn, a law school graduate who worked as a vice president of a title insurance company, had been a business colleague and friend of Levine since 1998. In late 1999 or 2000, Levine introduced Ahn to Giuliana. Ahn thereafter socialized with Levine and Giuliana on a regular basis. Levine and Giuliana spoke about Giuliana's family members, including her adopted sister Carolyn, her sister Anna, and her parents Aldo and Konie. According to Levine and Giuliana, Levine had met these family members when they were visiting in town from Chicago; the Bosco family was very wealthy; and Levine was handling the family's affairs. In the summer of 2000 Levine told Ahn that Giuliana's mother Konie was interim chief financial officer of Hewlett Packard International (HP). Levine claimed that he had met with Konie on several occasions for dinner and that he had an "opportunity of a lifetime" to represent HP. Levine and Giuliana also told Ahn that Carolyn was a pediatric neurosurgeon at Harvard Medical School living in Boston.
In September 2000, Levine and Giuliana, acting very distraught, told Ahn that Giuliana's father and sister Anna had died in Mexico while cliff-diving. Levine stated that he was involved in securing the return of their bodies to the United States and that he had been given power of attorney to handle the family affairs. According to Levine and Giuliana, Giuliana's mother Konie was so distraught about their deaths that she suffered a miscarriage and a reoccurrence of lymphoma that she had previously overcome. They said they flew Konie to San Francisco, and later to Sweden, for treatment of the lymphoma. Further, Levine and Giuliana told Ahn that Levine was negotiating a dispute between Konie and HP.
In about November 2000, Levine told Ahn that he and Carolyn had developed a romantic relationship; that Carolyn had moved to San Francisco to be closer to Levine; that they made trips to San Diego and San Francisco to visit each other; and that they were engaged. The wedding was to occur in New York or Greece, and Levine asked Ahn to be his best man.
During this time period, Ahn was socializing with Levine and Giuliana about one to three times per month. When Ahn was with Levine, Levine would frequently receive calls on his cell phone without the phone ringing out loud. Levine would normally walk away to take the call, and when he returned he would say the caller was Carolyn. Giuliana was sometimes present when these calls occurred. On one occasion when Ahn saw Levine and Giuliana at a film festival, Levine and Giuliana claimed they had just dropped Carolyn off at the airport.
In 2000 or 2001, Levine and Giuliana told Ahn that Levine and Carolyn had adopted a baby boy named Sebastian from a friend of Konie's who already had 11 other children. Levine told Ahn that he had flown to San Francisco to pick up Sebastian and bring him to San Diego for a visit, and that on other occasions Carolyn and Sebastian came down for a visit.
In or about May 2001, Giuliana moved back to Chicago. Giuliana told Ahn that she was going there to pursue her master's degree in taxation. After her move, Giuliana occasionally returned to San Diego for visits, and Ahn would socialize with her at Levine's home. In the summer or early fall of 2001, Ahn went to Chicago and visited Giuliana at her apartment. In November 2001, Levine and Giuliana told Ahn that Konie had died in Chicago, that Levine had attended her funeral, and that Levine was working with the estate attorneys to settle her estate.
Ahn continued to socialize regularly with Levine in 2002. During this time period Levine continued to represent that he was engaged to Carolyn and that he was visiting with Carolyn and Sebastian either in San Francisco or San Diego. Despite his friendship with Levine and plans to be his best man at his wedding, Ahn never met Carolyn or Sebastian, although he saw a photograph of each of them at Levine's house. Commencing in 2003, Ahn did not see Levine as often, although he still communicated with him. Ahn also remained in touch with Giuliana in Chicago. Neither Levine nor Giuliana told Ahn that they had gotten married in March 2003 in Wisconsin.
Late one night in late April or early May 2003, Ahn received a telephone call from Giuliana, who was still in Chicago. Giuliana was crying hysterically; she told Ahn that she had lymphoma. They discussed her plans to move back to San Diego and her plans for treatment. Giuliana asked Ahn to handle her estate, explaining that she did not want Levine to do so because he had broken up with Carolyn and she wanted to keep things separate. That same night, Carolyn called Ahn, expressing her concern and disbelief about her sister's cancer.
After this call from Carolyn, Carolyn and Ahn began speaking on a weekly basis. In mid-June 2003, Carolyn told Ahn that she had broken up with Levine because he had cheated on her. Carolyn stated that Giuliana thought she (Carolyn) and Ahn might be compatible, and Carolyn suggested that they commence a dating relationship. Ahn was interested even though he had never met Carolyn in person.
Meanwhile, a few days after Giuliana told Ahn she had cancer, Giuliana asked Ahn for financial assistance, explaining that she needed $540,000 to pay for the costs of her treatment not covered by insurance. Giuliana told Ahn that Levine was continuing to work with her deceased mother's estate attorney and that she was expecting a settlement of $1.8 million in October which she could use to pay Ahn back. Ahn agreed to loan Giuliana money for her cancer treatment. He was motivated by his belief that Giuliana had cancer, the expectation that she would be receiving money from her mother's estate, his interest in Carolyn, and the fact that he and Giuliana had entered into what he thought was a potentially lucrative business deal.
The business deal involved a limited liability company that Ahn had set up based on Giuliana's representations that they could acquire a medical patent.
Giuliana moved back to San Diego, and during the months of May and June 2003, Ahn provided her a total of $52,911.36. At Giuliana's suggestion, Giuliana signed a promissory note for the monies he provided her, with a due date of October 30, 2003.
By the time Ahn heard about Giuliana's cancer in May 2003, Ahn and Levine were only communicating on rare occasions. Once Ahn began the dating relationship with Carolyn, he did not call Levine at all because Carolyn told him she and Levine were battling over custody issues and division of their assets.
In late June 2003, Carolyn called Ahn and told him that she had planned a trip for them to the Mexican Riviera. However, when Ahn called the Mexican resort to secure a spa package and discovered no reservations had been made for them, he began to get suspicious. When Ahn discovered that no flights had been booked for the Mexican Riviera trip, he became extremely alarmed. His suspicions had also been raised because Giuliana always wanted the loans he gave her for medical treatment to be in cash.
Ahn began investigating the various representations about Carolyn, and discovered that her residential address was actually an office building and that there had been no physician by her name at Harvard Medical School. Ahn also discovered that various claims made about Giuliana's background were untrue, including representations that she had attended University of San Diego law school, passed the California Bar, and practiced law in Illinois. He discovered that the doctor Giuliana said she was paying for her cancer treatments did not exist. On July 3, 2003, Carolyn canceled plans for a July 4th party at Giuliana's house, claiming that Giuliana had to be suddenly flown to a Mayo Clinic in Minnesota for treatment. However, Ahn learned no such person had been admitted to the Mayo Clinic. After this discovery, Ahn notified the police about his suspicions that he had been defrauded.
Following police instructions, Ahn tape recorded a phone call with Levine. On August 4, 2003, Ahn told Levine that he had the opportunity to buy a house, but in order to accomplish the purchase he needed to know if Giuliana's mother's probate was going to close on time because he had lent Giuliana money for her cancer. Levine responded that he was not handling the matter and he did not know. Ahn also asked if it was all right that Ahn date Carolyn because Levine and Carolyn were no longer in a relationship. Levine responded that they were still in a relationship and that he regularly visited Carolyn. During the conversation Ahn also expressed his concern about Giuliana's cancer and wondered what they could expect to happen to her; Levine responded that they would "just have to wait and see at this point."
Levine was interviewed by Detective MacFarlane on September 29, 2003, regarding Ahn's concerns about his loan to Giuliana. In a recorded telephone conversation, Levine told Detective McFarlane that Giuliana was like a sister to him; that she had cancer; that he was paying her rent and helping pay for some of her cancer treatment; that he drove her to her appointments at Scripps Clinic when she was in San Diego; and that she was currently being treated in Sweden. Levine claimed he had met Dr. Greenberg who was providing treatment to Giuliana. Levine stated that Giuliana's mother had died of the same illness, and that he was in Sweden when Giuliana's mother died. Levine told the detective that Giuliana's father and sister had died in Mexico, and that he attended their funerals.
Regarding Ahn's loan to Giuliana, Levine acknowledged that he knew "a little bit about" the loan from Ahn, but stated that he "stayed out of it." He commented that he did not know how Ahn came up with the money because as long as Levine had known Ahn, Ahn had always been "flat broke." Levine stated he understood the promissory note to Ahn was due in October, and he did not know if the loan was supposed to be paid from Giuliana's anticipated inheritance from her mother although he would assume this was the plan.
Regarding Carolyn, Levine told Detective McFarlane that he was engaged to her; they had gone together to Chicago to adopt Sebastian and brought him to California; they maintained a long-distance relationship and regularly visited each other in San Francisco and San Diego; and he had talked to Sebastian on the phone the day before. When Detective McFarland stated Ahn questioned whether Carolyn even existed, Levine responded that he did not understand why Ahn would question this because Ahn had seen pictures of Carolyn, Levine and Sebastian. Later during the interview, when Detective McFarlane stated that Giuliana claimed Levine and Carolyn had broken up, Levine acknowledged this but stated they were "trying to work things out."
Levine and Giuliana had correctly represented that Giuliana had a father named Aldo, a mother named Konie, and a sister named Anna. However, in addition to the fabricated existences of Carolyn and Sebastian, Levine's and Giuliana's claims that the Bosco family was wealthy, that Konie worked for HP, that Aldo and Anna had died, that Konie had cancer and had died, and that Giuliana had cancer were all fabrications.
Giuliana's and Levine's Testimony
Both Giuliana and Levine testified at length in an attempt to explain how Giuliana accomplished the fraud without Levine's knowledge and participation. For purposes of evaluating the issues presented on appeal, we need not set forth their testimony in detail. Briefly stated, Giuliana explained that she had a long history of chronic lying, over the years her lies grew more elaborate and she was able to make them seem so real that people believed her, and she had recently been diagnosed with several mental disorders for which she was now receiving treatment. Reinforcing each other's testimony, Giuliana and Levine sought to refute the facts presented by the prosecution in support of its contention that Levine participated in the fraud. For example, they claimed that Levine fully believed Carolyn existed, that she needed money for cancer, and that she was the "love of [his] life"; that based on these beliefs Levine exhausted his own financial resources for Carolyn's cancer treatment before asking his father for money for this purpose; that his father was very willing to help and told him " '[t]he money is yours anyway' "; and that he lied to his friends about actually meeting Carolyn because it was easier than trying to convince them that he was having a long-distance relationship with someone he had not met. They claimed that Levine was essentially ambushed into marrying Giuliana because he thought Giuliana was suicidal and he knew how important Giuliana was to Carolyn. They testified that Levine did not know Giuliana had requested money from the Pernas; that Giuliana arranged to have the money from the Pernas deposited into his account without his prior knowledge; and that another friend of Giuliana's, not Levine, called the Pernas to thank them for the money. They claimed that Giuliana extracted the money from Ahn without Levine's knowledge, and that when speaking to the police Levine corroborated Giuliana's misrepresentations in a misguided attempt to protect Giuliana.
I. Instruction with Intent to Defraud Standard Instead of Intent to Permanently Deprive Standard
When instructing the jury on the intent element for theft by trick and theft by false pretenses, the trial court did not use the intent to permanently defraud standard for these offenses. (See Judicial Council of California Criminal Jury Instructions (2007-2008) CALCRIM Nos. 1805, 1804.) Instead, the trial court modified the CALCRIM instructions and used an intent to defraud standard. As we shall discuss, it is apparent that the trial court made the modification in an effort to provide instructions tailored specifically to the particular facts of this case: i.e., the fraudulent acquisition of money accomplished by misrepresentations regarding the intended use of the money.
Levine's only challenge to the trial court's modification of the CALCRIM instructions is the intent element. He contends the trial court erred in failing to instruct the jury that the intent for theft by trick and theft by false pretenses is the intent to permanently deprive the owner of the property. Because this case involved the theft of money by means of misrepresentations as to the intended use of the money, we hold the trial court did not err in using the intent to defraud standard for both offenses. Alternatively, any error for theft by trick was harmless.
In related arguments, Levine asserts that the omission of the intent to permanently deprive standard from the instructions on theft by trick and theft by false pretenses also caused error in the court's instructions regarding (1) the offense of theft from an elder, and (2) the evidentiary significance of possession of recently stolen property. Based on our analysis regarding theft by trick and theft by false pretenses, we find no reversible error.
A. Legal Principles
To evaluate Levine's claims of instructional error, we review the legal principles applicable to theft by trick and theft by false pretenses. In 1927, the formerly distinct offenses of larceny (which includes larceny by trick), embezzlement, and obtaining property by false pretenses were consolidated into the single crime of theft defined in Penal Code section 484. (People v. Davis (1998) 19 Cal.4th 301, 304, 305, fn. 3.) Based on this consolidation, a defendant may be convicted of theft based on evidence establishing any one of the three offenses, and it is not necessary for the jury to agree on the theory of theft. (People v. Counts (1995) 31 Cal.App.4th 785, 793-794; People v. Ashley (1954) 42 Cal.2d 246, 258.) However, the elements of the three offenses were not changed by the consolidation, and a judgment of conviction of theft can be sustained only if the evidence discloses the elements of one of the consolidated offenses. (People v. Davis, supra, 19 Cal.4th at pp. 304-305.)
Subsequent statutory references are to the Penal Code unless otherwise specified.
The elements of general larceny are: (1) the taking and carrying away of personal property owned or possessed by another, (2) without the owner's consent, and (3) with the intent to permanently deprive the owner of possession of the property. (See People v. Davis, supra, 19 Cal.4th at p. 305.) The phrase "intent to permanently deprive" is not intended literally, but is merely a shorthand way of describing the intent to steal. (People v. Avery (2002) 27 Cal.4th 49, 55.) A defendant's ". . . 'intent to deprive an owner of the main value of his property is equivalent to the intent to deprive an owner of property.' " (Id. at p. 57.) Thus, the intent element is satisfied "by the intent to deprive temporarily but for an unreasonable time so as to deprive the [owner] of a major portion of its value or enjoyment." (Id. at p. 58.) Similarly, the intent to permanently deprive has been deemed to exist if the defendant conditionally offers to return the property to the owner or creates a substantial risk of permanent loss to the owner, for example by offering to sell the property back to the owner or seeking a reward, ransom, or refund in exchange for return of the property. (People v. Davis, supra, 19 Cal.4th at pp. 308-317.)
Theft by trick is a subspecies of general larceny. Larceny by trick is committed when the owner's consent to relinquish the property is procured by fraud. (People v. Davis, supra, 19 Cal.4th at p. 305, fn. 3.) When the defendant obtains possession by means of fraud or trickery, the fraud vitiates the owner's consent. (People v. Edwards (1925) 72 Cal.App. 102, 113, disapproved on another ground in In re Estrada (1965) 63 Cal.2d 740, 748.) In the offense of larceny by trick, the owner intends to transfer possession of the property, but not title. (People v. Edwards, supra, 72 Cal.App. at p. 113; People v. Traster (2003) 111 Cal.App.4th 1377, 1387-1388 .) For example, the offense is committed if the owner delivers money to the defendant to be applied by the defendant for a particular purpose, and the defendant uses the money for his or her own purposes instead of applying it to the purpose contemplated by the owner. (People v. Edwards, supra, 72 Cal.App. at p. 113.) In these circumstances, title to the money is deemed to have remained in the owner until the defendant would have used the money for the purpose intended by the owner. (Ibid.; People v. Traster, supra, 111 Cal.App.4th at p. 1388.) The element of intent to permanently deprive the owner of the money is satisfied if at the time of the taking the defendant intended "to convert [the money] to his [or her] use . . . and to exclude [the owner] from all further dominion" over the money. (People v. Edwards, supra, 72 Cal.App. at p. 117.)
In contrast, for the offense of obtaining property by false pretenses, the owner intends to pass both possession and title. (People v. Edwards, supra, 72 Cal.App. at p. 113; People v. Traster, supra, 111 Cal.App.4th at pp. 1387-1388.) Like larceny by trick, the false pretense vitiates the owner's consent. (See People v. Edwards, supra, 72 Cal.App. at p. 113.) As explained in Traster: "[I]f the defendant obtains possession of property for a specific or special purpose, the owner does not relinquish title and the crime committed is larceny by trick. On the other hand, it is theft by false pretenses if the owner of the property gives the property to the defendant . . . intending the defendant . . . to become the unconditional and unrestricted owner." (People v. Traster, supra, at p. 1387.) The rationale for this distinction between larceny by trick and theft by false pretenses is that when the owner intends to pass title based on the defendant's falsity, "there is no larceny, for the goods are then no longer [the owner's] property . . . ." (People v. Delbos (1905)146 Cal. 734, 736.)
Theft by false pretenses requires (1) a false pretense or representation, (2) the intent to defraud the owner of his or her property, and (3) the false pretense or representation materially influenced the owner to part with the property. (People v. Ashley, supra, 42 Cal.2d at p. 259.) To constitute intent to defraud, the defendant must make the misrepresentations knowingly or recklessly and with the intent to deceive. (Id. at p. 264; People v. Marsh (1962) 58 Cal.2d 732, 736, 740 [no theft occurs "if the false representations were made in the actual and reasonable belief that they were true"].)
Unlike larceny by trick, theft by false pretenses also requires corroboration of the falsity. (§ 532, subd. (b); People v. Felsman, supra, 257 Cal.App.2d at p. 443; People v. Miller (2000) 81 Cal.App.4th 1427, 1441; 2 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Crimes Against Property, § 44, p. 70, § 64, p. 92.)
For both theft by trick and theft by false pretenses, the defendant's acquisition of money by means of falsity establishes the theft offense even if the owner perceives the transaction as a loan or if the defendant intends to repay the money. (See, e.g., People v. Felsman (1967)257 Cal.App.2d 437, 442-443 [larceny by trick established based on defendant's receipt of loans from victim based on false statements that defendant needed the money for car payments, to get a divorce, and to prevent him from going to jail]; People v. Katzman (1968) 258 Cal.App.2d 777, 781-782, 790, overruled on other grounds in Rhinehart v. Municipal Court (1984) 35 Cal.3d 772, 780, fn. 11 [theft by false pretenses established based on defendants' receipt of loans based on false collateral even if defendants repaid loans or intended to repay them]; People v. Silver (1975) 47 Cal.App.3d 837, 845-846.) As explained in People v. Wieger (1893) 100 Cal. 352, 357: " ' "The intent to defraud is the intent by the use of such false means to induce another to part with his possession and confide it to defendant, when he would not have otherwise done so. Neither the promise to repay, nor the intention to do so, will deprive the false and fraudulent act in obtaining of its criminality." [Citation.] "The offense is complete when the property or money has been obtained by such means, and would not be purged by subsequent restoration or repayment." ' " Thus, although evidence of the defendant's intent to repay or actual repayments may be admissible to show the defendant did not have an intent to defraud, intent to repay or repayments do not by themselves exonerate a defendant who acquired money with the requisite fraudulent intent. (See People v. Braver (1964) 229 Cal.App.2d 303, 306-307.)
Courts have long defined the intent for theft by trick as an intent to permanently deprive (see, e.g., People v. Edwards, supra, 72 Cal.App. at p. 116; People v. Kagan (1968) 264 Cal.App.2d 648, 658-659; People v. Shannon (1998) 66 Cal.App.4th 649, 654), whereas the intent for theft by false pretenses has been defined as intent to defraud (see, e.g., People v. Ashley, supra, 42 Cal.2d at p. 259; People v. Katzman, supra, 258 Cal.App.2d at pp. 790-791; People v. Kagan, supra, 264 Cal.App.2d at p. 659; People v. Wooten (1996) 44 Cal.App.4th 1834, 1842). CALJIC Nos. 14.05 (theft by trick) and 14.10 (theft by false pretenses) followed this traditional approach and defined the intents in this manner. However, when the standard criminal instructions were revised, the new CALCRIM instructions maintained the intent to permanently deprive standard for larceny by trick, but replaced the intent to defraud standard for theft by false pretenses with the intent to permanently deprive standard. (CALCRIM Nos. 1805 [theft by trick], 1804 [theft by false pretenses].)
Although CALCRIM No. 1804 uses the intent to permanently deprive standard when listing the elements of theft by false pretenses, it also refers to "the purpose . . . to deceive" and "inten[t] to deceive" in sentences defining the term "false pretense," and refers to "intent to defraud" in accompanying notes when discussing the requirement that the intent exist at the time a false promise is made. (CALCRIM No. 1804 (2007-2008) p. 1280, Related Issues, p. 1285.)
Levine requested that the trial court give a general instruction stating that all "[t]heft requires an intent to permanently deprive another of his or her property." He also requested that the trial court use the intent to permanently deprive standard set forth in CALCRIM Nos. 1805 and 1804 when specifically defining theft by trick and theft by false pretenses. After a lengthy discussion, the trial court refused Levine's requests and instead concluded that the appropriate intent standard was intent to defraud. Accordingly, when instructing the jury, the trial court modified CALCRIM Nos. 1805 and 1804 by changing the phrase "intended to deprive the owner of the property permanently" to the phrase "inten[ded] to defraud the owner of his or her property."
Regarding theft by trick, the trial court instructed the jury in relevant part as follows: "To prove this crime, the People must prove beyond a reasonable doubt that: [¶] (1) A person obtained possession of property that he or she knew was owned by someone else; [¶] (2) The property owner consented to the person's possession of the property because that person used fraud or deceit; [¶] (3) When the person obtained the property, he or she had the specific intent to defraud the owner of his or her property; [and] (4) The owner did not intend to transfer ownership of the property . . . . [¶] . . . [¶] Obtaining the owner's consent to the use of property for a specified purpose while intending to use it in a different way constitutes fraud or deceit."
Levine argues the trial court should have used the intent to permanently deprive standard for these offenses, and that the instructional error was prejudicial. The Attorney General (1) agrees the intent to permanently deprive standard applies to theft by trick, but contends the instructional error was harmless, and (2) contends the intent to defraud standard applies to theft by false pretenses.
1. Instruction on Theft by Trick
As noted, under factual circumstances where money is the property at issue and the owner transfers the money to a defendant for a stated purpose and the defendant intends to use the money for a different purpose, the offense of theft by trick is committed because the owner is deemed to have retained ownership of the money until it would have been used for the stated purpose. (People v. Edwards, supra, 72 Cal.App. at p. 113; People v. Traster, supra, 111 Cal.App.4th at p. 1388.) Under these factual circumstances, both the owner and the defendant assume that the owner is transferring the money to be spent; in this sense both parties intend that the owner be deprived of the money. In this situation, the intent to permanently deprive does not turn on whether the defendant intended to deprive the owner of the actual property, but rather turns on whether the defendant intended to deprive the owner of the intended use of that property.
Even if the transfer of money is a loan, generally the owner still expects to be deprived of the money for a period of time.
Thus, the intent to permanently deprive standard is not an exact, literal fit when the offense involves larceny by trick and the owner intends to be deprived of money by allowing the defendant to spend the money. Akin to the modification of the intent to permanently deprive standard in cases where the deprivation is temporary, the courts have in effect modified the traditional standard to mean that the defendant intended to convert the money from the owner's intended use to the defendant's own use. For example, in Edwards, the court stated the intent to permanently deprive was satisfied when the defendant had the intent "to convert [the money] to his own use . . . and to exclude [the owner] from all further dominion" over the money. (People v. Edwards, supra, 72 Cal.App. at p. 117.) In Delbos, the court stated that larceny by trick was established by the "fraudulent appropriation by the defendant to her own use" with "the intention from the beginning to obtain [the money] for that purpose . . . ." (People v. Delbos, supra, 146 Cal. at p. 737.) In Traster, the court used a hybrid standard, defining the intent for larceny by trick as the intent "to convert [the money] to his own use and to permanently deprive the owner of it . . . ." (People v. Traster, supra, 111 Cal.App.4th at p. 1390.) The drafters of CALCRIM No. 1805 likewise recognized the potential need for further explanation of the requisite intent for larceny by trick. In addition to including the intent to permanently deprive standard, the instruction also includes an optional sentence stating: "Obtaining the owner's . . . consent to use the property for a specified purpose while intending to use it in a different way constitutes fraud or deceit." (CALCRIM No. 1805, supra, p. 1286, italics added.)
The trial court included this optional sentence when instructing the jury here. (See fn. 6, ante.)
In determining whether an instruction is erroneous, we evaluate how a reasonable juror would understand the instruction. (See People v. Jensen (2003) 114 Cal.App.4th 224, 239.) Here, the trial court deviated from the language traditionally used to describe the requisite intent for larceny, in a case where the traditional test was a less than precise fit. The trial court informed the jury that the defendant had to specifically intend to defraud the owner of the money, and that the defendant engaged in fraud or deceit if he obtained the owner's consent by misrepresenting the intended use of the money. Comparable to the intent to permanently deprive based on the defendant's intent to convert money to his or her own use, these instructions required the jury to find that the defendant intended to interfere with the owner's dominion over the money so as to establish the requisite state of mind for theft.
Under the factual circumstances of this case, the trial court's use of the intent to defraud standard for theft by trick adequately informed the jury of the required intent element. This is not a case where the trial court entirely failed to instruct the jury regarding the intent necessary to establish the offense of larceny by trick; rather, the trial court altered the language of the traditional standard to more precisely fit the circumstances of the particular case.
Alternatively, assuming arguendo the trial court should have adhered to the traditional intent to permanently deprive standard used in CALJIC and CALCRIM, the use of the intent to defraud standard was harmless under any standard. (See People v. Flood (1998) 18 Cal.4th 470, 502-504 [instructional error that improperly describes or omits element of offense evaluated under harmless beyond a reasonable doubt standard]; People v. Palmer (2005) 133 Cal.App.4th 1141, 1157 [instructional error that does not amount to federal constitutional error reviewed under reasonable probability of different outcome standard].) When the facts involve the receipt of money to be spent for a specified purpose, the jury's task is not to evaluate whether the defendant intended to deprive the owner of the actual money, but rather to decide whether the defendant intended to convert the money for his or her own purposes. We have no doubt that the jury properly made this assessment based on the instructions given by the trial court, and that the failure to instruct with the intent to permanently deprive standard did not affect the verdict.
2. Instruction on Theft by False Pretenses
As indicated, the intent to defraud standard has long been used to define the intent element for theft by false pretenses. (See, e.g., People v. Marsh, supra, 58 Cal.2d at p. 736; People v. Ashley, supra, 42 Cal.2d at p. 259; People v. Katzman, supra, 258 Cal.App.2d at pp. 790-791; People v. Kagan, supra, 264 Cal.App.2d at p. 659; People v. Fujita (1974) 43 Cal.App.3d 454, 467, 474; People v. Wooten, supra, 44 Cal.App.4th at p. 1842; People v. Miller, supra, 81 Cal.App.4th at p. 1440; 2 Witkin, supra, Crimes Against Property, §§ 45-46, p. 72.) The standard is factually appropriate because when the owner transfers possession and title of property to the defendant, both the owner and the defendant intend that the owner relinquish the property. The criminal intent arises not from the defendant's retention of the property, but from the fraudulent means used to accomplish that retention. Thus, the relevant inquiry is whether the defendant intended to defraud the owner. The trial court did not err in instructing the jury using the intent to defraud standard for theft by false pretenses.
We recognize that the trial court deviated from CALRIM No. 1804 when deciding not to use the intent to permanently deprive standard for theft by false pretenses. As explained, the court's use of the intent to defraud standard was proper here because the theft involved the acquisition of money by misrepresenting the intended use of the money. Although we are not called upon to decide whether the intent to permanently deprive standard set forth in CALCRIM No. 1804 might be appropriate in a particular factual context, we note that theft by false pretenses has traditionally been defined by the intent to defraud standard. (See CALJIC No. 14.10.) Our research has uncovered no case authority using the intent to permanently deprive standard for theft by false pretenses.
One recurring theme in Levine's briefing on appeal is worth noting. Levine suggests that the jury needed to be apprised of the intent to permanently deprive standard because even if he acquired the money dishonestly, if he intended to repay the money he would not be guilty of theft. To the extent he is making this argument, it misconstrues the nature of the criminal intent for theft by trick and theft by false pretenses. It is well established that when a defendant knowingly uses a misrepresentation to cause an owner to transfer money to the defendant that the owner would not otherwise have transferred, the criminal intent arises from the defendant's intentional use of falsity to acquire the money, regardless of whether the defendant intends to repay the money. (People v. Wieger, supra, 100 Cal. at p. 357; People v. Felsman, supra, 257 Cal.App.2d at pp. 442-443; People v. Silver, supra, 47 Cal.App.3d at pp. 845-846.) Levine's suggestion that the jury needed to be instructed on the intent to permanently deprive standard in order to properly evaluate the import of his intent to repay is unavailing.
Given our holding that no reversible error arose from using the intent to defraud standard for both theft by trick and theft by false pretenses, we need not evaluate the parties' dispute about which theory or theories of theft could apply to the three victims.
3. Instruction on Theft from an Elder
The trial court instructed the jury that the crime of theft from an elder is committed when a person takes property valued in excess of $400 from an elder by theft, and the person knew or reasonably should have known the owner was an elder. To determine whether the property was taken by theft, the court instructed the jury to refer to the instructions it gave on theft by trick and theft by false pretenses. Levine argues the instruction was defective because it failed to apprise the jury of the element of intent to permanently deprive. The charged offense of theft from an elder count pertained to Levine's father and was based on the same set of facts as the charged offense of theft by trick or false pretenses involving his father. For the same reasons that the intent to defraud standard used by the trial court for theft by trick or false pretenses did not constitute reversible error, there was no reversible error in the theft from an elder instruction.
4. Instruction Regarding Evidentiary Significance of Possession of Recently Stolen Property
Using the language of CALCRIM No. 376, the trial court, over defense objection, instructed the jury that if it found the defendant knew he possessed property and if it found the property had recently been stolen, (1) it could not convict the defendant of the charged theft offenses based on those facts alone, but (2) if it also found slight supporting evidence proving guilt it could conclude the evidence was sufficient to prove the charged theft offenses. This instruction is based upon the evidentiary rule that "allows a jury to infer guilt of a theft-related crime from the fact a defendant is in possession of recently stolen property when coupled with slight corroboration by other inculpatory circumstances which tend to show guilt," as well as the cautionary rule that "proof of possession of recently stolen property is insufficient by itself to support a guilty verdict as to a theft-related offense." (People v. Barker (2001) 91 Cal.App.4th 1166, 1173-1174.)
We reject the People's assertion that Levine's trial objection to the instruction was insufficient to preserve his appellate challenge to the instruction.
Levine argues that because the trial court failed to include the element of intent to permanently deprive when instructing the jury on theft by trick and theft by false pretenses, the jury was not apprised of the definition of "stolen" property, and it could have inferred his guilt based on slight evidence of guilt merely because he possessed someone else's property. The assertion is unavailing. The jury knew that Levine was charged with theft based on the theories of theft by trick or theft by false pretenses. Further, the jury was instructed that theft by trick or false pretenses requires an intent to defraud. Thus, the jury knew that in this case stolen property meant property acquired with an intent to defraud. Based on the instructions given to the jury, the jury could not have inferred guilt from Levine's possession of someone else's property unless it first found that the property was fraudulently acquired. There was no instructional error in this regard.
Levine also argues the instruction was confusing and inapplicable to the facts of this case. Evidence was presented showing that Giuliana fraudulently acquired money from the Pernas and that the money was placed in Levine's bank account. This evidence supported an inference that Levine possessed stolen money. Based on this evidence, the trial court properly instructed the jury regarding the limitations on and permissible use of evidence that Levine possessed stolen property.
II. Admission of Hearsay
Levine challenges the trial court's ruling allowing Deborah to testify that her father (Jerome) told her that her brother (Levine) had told Jerome that Carolyn was ill and needed money for experimental cancer treatment. Levine argues the court's ruling violated (1) the hearsay rule and (2) his constitutional confrontation right under Crawford v. Washington (2004) 541 U.S. 36 (Crawford).
We hold that the two layers of out-of-court statements contained in Deborah's testimony were admissible as nonhearsay statements reflecting Jerome's state of mind. Alternatively, assuming the evidence was offered for the truth of the matter, we hold the two layers were admissible under the statutory hearsay exceptions for a party statement (Levine's statement to Jerome) and for an unavailable declarant's previously existing state of mind (Jerome's statement to Deborah). We also reject Levine's Crawford challenge because the statements were not testimonial.
By the time of trial, the parties agreed that Levine's father, Jerome, was unable to testify because he had Alzheimer's disease. The prosecution indicated its intent to introduce Jerome's statement to Deborah about Levine's representation to him concerning Carolyn. On the basis of the hearsay and Crawford rules, Levine moved to exclude Deborah's testimony about Jerome's statement.
Regarding his hearsay challenge, Levine argued that the evidence was offered for the truth of the matter to prove that he made the misrepresentation about Carolyn to his father and that his father gave him the money to use solely for Carolyn. Levine asserted the evidence should not be admitted because he could not cross-examine Jerome about these matters. The prosecution argued the evidence was nonhearsay because it was not offered to prove the truth of the matter regarding Carolyn (who did not exist), but rather to prove (1) Jerome's state of mind when providing the money to Levine, and (2) the operative fact that Levine made a misrepresentation to induce his father to give him the money. The prosecution also pointed out that Levine's statement to his father was corroborated by Levine's adoptive admission to Deborah when Deborah confronted him about the use of the money and he failed to deny that he told his father he needed the money for Carolyn's treatment. The trial court ruled the evidence was nonhearsay evidence admissible to show Jerome's state of mind and to prove the corpus of the crime.
Regarding his Crawford challenge, Levine made an offer of proof that Jerome's out-of-court statement was testimonial because the statement was made when "law enforcement interviewed Jerome Levine by phone, with Deborah Levine on the line" and "at that point they [knew] there [was] a legal action afoot." The prosecution asserted Jerome's statement was not testimonial because Jerome was simply talking to his daughter and was not responding to police interrogation. The trial court ruled that Jerome's statement was not testimonial and was not hearsay, and accordingly the Crawford rule was not implicated.
Hearsay evidence is "evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated." (Evid. Code, § 1200, subd. (a).) Because an out-of-court statement is not made under oath and cannot be tested by cross-examination, hearsay is not admissible unless it qualifies under an exception to the hearsay rule. (Evid. Code, § 1200, subd. (b); People v. Davis (2005) 36 Cal.4th 510, 535; People v. Cudjo (1993) 6 Cal.4th 585, 608.)
However, out-of-court statements are not hearsay if they are "offered for some purpose other than to prove the fact stated therein." (Sen. Com. on Judiciary com., 29B pt. 4 West's Ann. Evid. Code (1995 ed.) foll. § 1200, pp. 3-4.) "Evidence of an out-of-court statement is . . . admissible if offered for a nonhearsay purpose—that is, for something other than the truth of the matter asserted—and the nonhearsay purpose is relevant to an issue in dispute." (People v. Davis, supra, 36 Cal.4th at pp. 535-536.) An out-of-court statement that is not offered for the truth of the matter does not present a hearsay problem because the trier of fact may consider the evidence on a relevant issue without needing to determine whether the facts contained in the statement are true or false. (See People v. Turner (1994) 8 Cal.4th 137, 189, disapproved on another point in People v. Griffen (2004) 33 Cal.4th 536, 555, fn. 5.)
We review a trial court's ruling on the admissibility of evidence for abuse of discretion. (People v. Guerra (2006) 37 Cal.4th 1067, 1113.)
Here, the complained-of portion of Deborah's testimony was derived from two layers of out-of-court statements: (1) Levine's statement to Jerome that Carolyn needed money for cancer treatment, and (2) Jerome's statement to Deborah that Levine made this representation. When evidence consists of multiple layers of hearsay, the evidence is admissible if each layer separately meets the requirements of a hearsay exception. (People v. Arias (1996) 13 Cal.4th 92, 149; People v. Perez (1978) 83 Cal.App.3d 718, 730; Evid. Code, § 1201.) That is, a second layer of admissible hearsay can be used to admit a first layer of otherwise admissible hearsay. (See Cal. Law Revision Com. com., 29B pt. 4 West's Ann. Evid. Code, supra, foll. § 1201, p. 25.) Likewise, multiple layers of out-of-court statements are admissible if they are nonhearsay because they are not offered for the truth of the matter. (See People v. Dehnel (1979) 99 Cal.App.3d 404, 408-409.)
When testifying that her father told her that he had given money to Levine to pay for Carolyn's cancer treatment, Deborah did not expressly state that her father's knowledge of Carolyn's need was derived from Levine's statement to her father. However, the parties agreed this was the source of the information, and Deborah's testimony on this point was permitted based on the court's pretrial ruling that she could testify about these statements.
Evidence Code section 1201 states: "A statement within the scope of an exception to the hearsay rule is not inadmissible on the ground that the evidence of such statement is hearsay evidence if such hearsay evidence consists of one or more statements each of which meets the requirements of an exception to the hearsay rule."
As found by the trial court, both the first and second layers of the statements were relevant to show Jerome's state of mind regardless of the truth of the stated fact that Carolyn needed money for cancer treatment. As to the first layer, regardless of whether Carolyn existed and needed money, Levine's statement to Jerome about Carolyn was relevant to prove that the effect of Levine's statement on Jerome was to motivate Jerome to transfer the money. A statement that is offered to prove the effect on the hearer is nonhearsay because " 'it is the hearer's reaction to the statement that is the relevant fact sought to be proved, not the truth of the matter asserted in the statement.' " (People v. Scalzi (1981)126 Cal.App.3d 901, 907; People v. Duran (1976) 16 Cal.3d 282, 295.)
Likewise, as to the second layer, regardless of the truth of Carolyn's need for money, Jerome's statement to Deborah about Levine's representation concerning Carolyn was relevant to prove Jerome's state of mind—i.e., that he was led to believe that Carolyn needed money and as a result transferred the money. Statements that circumstantially prove state of mind regardless of the truth of the contents of the statements are nonhearsay. (People v. Ortiz (1995) 38 Cal.App.4th 377, 389; People v. Spencer (1969) 71 Cal.2d 933, 944; Assem. Com. on Judiciary com., 29B pt. 4 West's Ann. Evid. Code, supra, foll. § 1250, p. 281.)
Further, Jerome's state of mind was relevant to the issues in dispute. Jerome's motivation for providing the money to Levine was relevant to the issues of whether Jerome provided the money for a specific purpose (theft by trick), and whether he was induced to part with the money because of the defendant's misrepresentation (theft by false pretenses). Deborah was available for cross-examination on the issue of whether Jerome did indeed make this statement reflecting his state of mind. The trial court did not abuse its discretion in ruling the evidence was admissible for this nonhearsay purpose.
Levine argues that the evidence was offered to prove the truth of the matter because the evidence was offered to prove that he did in fact make certain statements to his father. Arguably, the first layer (Levine's statement to Jerome) can be viewed as offered to prove the truth of the matter in the sense that the statement was relevant to show an essential element of the charged theft offense—i.e., that Levine made a representation to Jerome (that was shown to be false based on other evidence). However, Levine's statement to Jerome was admissible under the hearsay exception for party statements. Under this exception, a defendant's own hearsay statements are admissible when offered against him or her. (Evid. Code, § 1220 ; People v. Davis, supra, 36 Cal.4th at p. 535; People v. Horning, supra, 34 Cal.4th at p. 898.) Because Levine was a party and the evidence was offered against him, his statement to Jerome was admissible under this exception.
The fact that the trial court did not rely on a particular hearsay exception does not preclude our consideration of the exception to determine if it was legally applicable. We review the legal correctness of the court's ruling, not the court's rationale. (People v. Zapien (1993) 4 Cal.4th 929, 976.) Because the party statement exception applies here, we need not evaluate whether Levine's statement was also admissible as a nonhearsay operative fact. (See 1 Witkin, Cal. Evidence (4th ed. 2000) Hearsay, § 31, p. 714.)
Evidence Code section 1220 states: "Evidence of a statement is not made inadmissible by the hearsay rule when offered against the declarant in an action in which he is a party in either his individual or representative capacity, regardless of whether the statement was made in his individual or representative capacity." (See People v. Horning (2000) 34 Cal.4th 871, 898, fn. 5 [all party statements are admissible as evidence against the party, even if they are not incriminating admissions].)
The second layer of hearsay (Jerome's statement to Deborah regarding Levine's representation) can also arguably be viewed as offered for the truth of the matter because the statement reflected Jerome's state of mind only if it was true that Levine actually made the representation to Jerome, and because Jerome was in effect expressly stating his state of mind (i.e., that he transferred the money because of Levine's representation). (See People v. Spencer, supra, 71 Cal.2d at pp. 944-945 [state of mind evidence is hearsay if offered to show that "statements were in fact true and being so, indicated [declarant's] true state of mind"]; People v. Green (1980) 27 Cal.3d 1, 23-24, fn. 9, overruled on other grounds as stated in People v. Dominguez (2006) 39 Cal.4th 1141, 1155, fn. 8; 1 Jefferson, Cal. Evidence Benchbook (3d ed. 2007) State of Mind, § 14.11, p. 219 [statement that directly asserts declarant's state of mind is hearsay].) Assuming the statement was hearsay, it qualifies for admissibility under a statutory hearsay exception for a declarant's state of mind. Distinct from the rule permitting admission of nonhearsay statements that show a declarant's or hearer's state of mind regardless of the truth of the matter, there are two statutory hearsay exceptions for statements that rely on the truth of the matter to show a declarant's state of mind. (See Evid. Code, §§ 1250 [allowing admission of hearsay statements of declarant's "then existing" state of mind if statements were not made under untrustworthy circumstances], 1251 [allowing admission of hearsay statements of declarant's previously existing state of mind if statements were not made under untrustworthy circumstances and declarant is unavailable]; People v. Spencer, supra, 71 Cal.2d at pp. 944-945; People v. Ortiz, supra, 38 Cal.App.4th at p. 389.)
Jerome's statement about Levine's representation meets the requirements of the Evidence Code section 1251 hearsay exception allowing admission of a statement showing the previously existing state of mind of an unavailable declarant to show that state of mind. Jerome's statement to Deborah showed his state of mind at the time he transferred money to Levine. The parties agreed that Jerome could not testify due to Alzheimer's disease, which established his unavailability based on mental infirmity. (Evid. Code, § 240, subd. (a)(3); 1 Witkin, Cal. Evidence, supra, Hearsay, § 22, p. 702; People v. Alcala (1992) 4 Cal.4th 742, 778-780; People v. Gomez (1972) 26 Cal.App.3d 225, 228.) Regarding trustworthiness, there is nothing in the record to suggest that, when speaking with his daughter, Jerome had a motive to fabricate why he gave money to his son. The trustworthiness of the evidence was also buttressed by Deborah's testimony that when she confronted Levine about the use of the money for Carolyn, Levine did not deny that the money was used for this purpose.
Evidence Code section 1251 states: "Subject to Section 1252 [precluding statements made under untrustworthy circumstances], evidence of a statement of the declarant's state of mind, emotion, or physical sensation (including a statement of intent, plan, motive, design, mental feeling, pain, or bodily health) at a time prior to the statement is not made inadmissible by the hearsay rule if: [¶] (a) The declarant is unavailable as a witness; and [¶] (b) The evidence is offered to prove such prior state of mind, emotion, or physical sensation when it is itself an issue in the action and the evidence is not offered to prove any fact other than such state of mind, emotion, or physical sensation."
In short, even construing both Levine's and Jerome's statements as hearsay, the rules applicable to multiple hearsay permitted the use of Jerome's statement—which was admissible to show his state of mind under Evidence Code section 1251—to admit Levine's statement, which was admissible as a party statement under Evidence Code section 1220.
Levine asserts that the party statement exception cannot be applied here because Jerome (who heard the party statement) did not testify at trial. This assertion is unavailing to the extent it is premised on hearsay rules. The principle permitting admission of multiple hearsay does not turn on whether the hearer of a layer of hearsay is available for cross-examination at trial, but rather on whether all layers fall within an exception to the hearsay rule. (Evid. Code, § 1201.) We recognize that there may be circumstances where fundamental fairness might require a trial court to exercise its discretion to exclude double hearsay even if it technically meets the requirements for admissibility. (See People v. Green, supra, 27 Cal.3d at p. 26; People v. Ortiz, supra, 38 Cal.App.4th at pp. 391-392.) However, no such unfairness exists here. Although Levine did not have the opportunity to cross-examine Jerome about whether he (Levine) made the statement, and although a party declarant's right to cross-examine the hearer is a factor supporting the party statement hearsay exception (see People v. Wheelwright (1968) 262 Cal.App.2d 63, 69; Cal. Law Revision Com. com., 29B pt. 4 West's Ann. Evid. Code, supra, foll. § 1220, p. 71), the crux of the exception is premised on a policy determination that a party cannot complain about admission of his own hearsay statement. "[A]s a matter of policy, a party cannot be permitted to object to his or her own hearsay statement as being unreliable and untrustworthy because of the absence of an oath when the statement was made, or the lack of opportunity to engage in cross-examination at that time." (1 Jefferson, Cal. Evidence Benchbook, supra, Admissions and Confessions, § 3.12, pp. 88-89; 2 McCormick on Evidence (6th ed. 2006) § 254, p. 179.)
Here, the truth of the fact contained in Jerome's out-of-court statement that the jury had to determine was simply whether a party (Levine) had made a particular statement. This is a determination that falls readily within the purview of the policy rule precluding a party from complaining about the use of hearsay to show the party's own statements. Further, Deborah was available for cross-examination regarding whether Jerome made the statement about Levine's representation and regarding any other statements Jerome may have made pertinent to his motivation for transferring the money. As noted, there is nothing in the record to suggest that, when speaking to his daughter, Jerome had a motive to fabricate his reasons for transferring money to Levine, and evidence corroborating Levine's representation and Jerome's motivation was presented via Deborah's testimony that Levine did not deny the money was used for Carolyn's cancer treatment when Deborah confronted him about the money. The trial court reasonably exercised its discretion to allow admission of Deborah's testimony derived from Jerome's statement to her about Levine's representation concerning Carolyn.
Even if the hearsay rule was not violated, Levine asserts that admission of the statement violated his constitutional right of confrontation under the Crawford rule.
The Sixth Amendment of the federal Constitution provides that a defendant has the right to confront the witnesses against him. (U.S. Const., 6th Amend.) The right of confrontation is not limited to in-court witnesses, but also applies to the admission of hearsay statements. (People v. Cooper (2007) 148 Cal.App.4th 731, 740.) In Crawford, the United States Supreme Court held that admission of a "testimonial" hearsay statement by a declarant who does not appear for cross-examination at trial violates the confrontation clause unless the defendant had a prior opportunity to cross-examine the witness and the witness is unavailable to testify at trial. (Crawford, supra, 541 U.S. at pp. 59, 68.) This rule applies even if the hearsay statement is otherwise admissible under a hearsay exception. (Id. at pp. 50-51, 55-56.) However, the confrontation clause does not bar admission of out-of-court statements that are nonhearsay because they are not offered for the truth of the matter, nor does it bar admission of hearsay statements that are not testimonial. (Id. at pp. 59-60; Davis v. Washington (2006) 547 U.S. 813, [126 S.Ct. 2266, 2274]; People v. Cage (2007) 40 Cal.4th 965, 981; People v. Cooper, supra, 148 Cal.App.4th at pp. 740-741, 744.)
Testimonial statements consist of "statements, made with some formality, which, viewed objectively, are for the primary purpose of establishing and proving facts for possible use in a criminal trial." (People v. Cage, supra, 40 Cal.4th at p. 984, fn. 14, italics omitted.) For example, testimonial statements include prior testimony at a preliminary hearing, grand jury proceeding, or former trial; statements during police interrogations; and statements contained in formalized testimonial materials such as affidavits, depositions, or confessions. (Crawford, supra, 541 U.S. at pp. 51-52, 68.) In contrast, "an informal statement made in an unstructured setting" does not generally constitute a testimonial statement. (People v. Morgan (2005) 125 Cal.App.4th 935, 947; see People v. Cooper, supra, 148 Cal.App.4th at p. 742; Davis v. Washington, supra, 126 S.Ct. at pp. 2273-2274; People v. Cage, supra, 40 Cal.4th at pp. 970, 991.)
Assuming arguendo that Levine's and Jerome's statements presented in Deborah's testimony were hearsay statements because they were offered for the truth of the matter, they were not testimonial. Both Levine and Jerome were speaking informally to family members. Levine's contention that Jerome made the statement while being interviewed by the police over the phone, with Deborah also on the line, is not supported by the record. Deborah testified that her father told her he had given money to Levine to pay for Carolyn's cancer treatment, and that several months after this disclosure the San Diego police first contacted her about its investigation of Levine and Giuliana. Thus, Jerome told Deborah about Levine's representation concerning Carolyn before Deborah was aware of the criminal investigation. This shows the statement occurred during a conversation between family members, not during a police investigation. We also reject Levine's assertion that Deborah's profession as an attorney working as a prosecutor in another state rendered Jerome's statement testimonial. There is nothing to suggest that Deborah was speaking with her father in any manner other than as a concerned daughter.
Because the statements were not testimonial, Levine's constitutional confrontation rights were not violated by admission of the evidence.
III. Sufficiency of the Evidence to Support Levine's Participation in Theft from Ahn
Levine challenges the sufficiency of the evidence to support the jury's finding that Levine participated in Giuliana's scheme to steal money from Ahn. He points to the facts that Levine made no overt representations to Ahn about Giuliana having cancer and that Levine and Ahn were no longer in regular communication in 2003 when this theft occurred.
When reviewing a challenge to the sufficiency of the evidence, we consider the whole record in the light most favorable to the judgment to determine whether there is substantial evidence from which a reasonable trier of fact could find guilt beyond a reasonable doubt. (People v. Thomas (1992) 2 Cal.4th 489, 514.) " '[T]he reviewing court must . . . presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment.' " (People v. Crittenden (1994) 9 Cal.4th 83, 139.) The same standard applies when the prosecution relies primarily on circumstantial evidence. (People v. Thomas, supra, 2 Cal.4th at p. 514.)
The jury was presented with evidence from which it could infer that when the theft from Ahn occurred in May and June 2003, Levine and Giuliana still maintained a close relationship and were engaging in fraudulent activities together. They had been married in March 2003, and on April 28, 2003, Levine actively participated in the scheme to steal from the Pernas by calling the Pernas and thanking them for saving his life by sending him money. During this same time period in late April or early May 2003, Giuliana called Ahn and asked him for money for her cancer treatment. The jury was not required to credit Levine's and Giuliana's testimony disputing the claim that Levine called the Pernas and otherwise seeking to dispel the inferences of guilt arising from the prosecution's evidence.
In addition to the evidence showing that Levine was participating in Giuliana's fraudulent activities towards the Pernas in the same time period as Giuliana's fraudulent request for money from Ahn, the jury was presented with evidence from which it could infer that Levine knew Giuliana did not have cancer and that she was not going to inherit money, and when given the opportunity to advise Ahn of these facts, Levine failed to do so. During the recorded interview with the police in September 2003, Levine stated that he had personally met the doctor (Dr. Greenberg) who was treating Giuliana's cancer. In fact, no such doctor existed. Further, Levine told the police that he was in Sweden when Giuliana's mother died and that he attended the funerals of Giuliana's father and sister. In fact, none of these people had died. From this evidence, the jury could reason that in 2003 Levine was aware of, and participating in, Giuliana's ongoing fabrications, including the false claim that she was acutely ill with cancer. Further, the jury could infer that Levine was specifically participating in the fraudulent activity directed towards Ahn based on the fact that when Ahn called Levine in August 2003 to discuss the loan for Giuliana's cancer and the progress of the estate settlement, Levine did not disclose to Ahn that Giuliana had lied about having cancer and about her mother's death.
Based on the evidence showing Levine's awareness of and participation in Giuliana's fraudulent representations, and his continued close contact with Giuliana during the time period when Giuliana fraudulently acquired the money from Ahn, the record supports the jury's finding that Levine participated in the theft from Ahn.
The judgment is affirmed.
WE CONCUR: McCONNELL, P. J., HUFFMAN, J.
Regarding theft by false pretenses, the trial court instructed the jury in relevant part as follows: "To prove this crime, the People must prove beyond a reasonable doubt that: [¶] (1) A person knowingly made a false pretense to the owner of the property; (2) The person made the false pretense with the specific intent to defraud the owner of his or her property; [¶] (3) The owner of the property relied on the false pretense and it was an important or material factor in inducing the owner to part with the property; [¶] [and] (4) The owner of the property intended to transfer both possession and title to the property . . . ."
The instruction stated: "If you conclude that the defendant knew he possessed property and you conclude that the property had, in fact, been recently stolen, you may not convict the defendant of grand theft of personal property, theft from an elder (over $400), or conspiracy to defraud another of property based on those facts alone. However, if you also find that supporting evidence tends to prove his guilt, then you may conclude that the evidence is sufficient to prove he committed grand theft of personal property, theft from an elder (over $400), or conspiracy to defraud another of property. [¶] The supporting evidence need only be slight and need not be enough by itself to prove guilt. You may consider how, where, and when the defendant possessed the property, along with any other relevant circumstances tending to prove his guilt of grand theft of personal property, theft from an elder (over $400), or conspiracy to defraud another of property. [¶] Remember that you may not convict the defendant of any crime unless you are convinced that each fact essential to the conclusion that the defendant is guilty has been proved beyond a reasonable doubt."