G043832 Super. Ct. No. 08HF0420
Robert F. Somers, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lila E. Garcia, Peter Quon, Jr., and Charles Ragland, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Appeal from a judgment of the Superior Court of Orange County, James Edward Rogan, Judge. Affirmed.
Robert F. Somers, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lila E. Garcia, Peter Quon, Jr., and Charles Ragland, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted James Wilkinson of perjury based on his false statement in traffic court that he was not the driver of a vehicle an officer cited for speeding at 101 miles per hour. He contends collateral estoppel barred his perjury trial because the traffic court acquitted him of the speeding charge. As we explain, the party asserting collateral estoppel bears the burden of establishing the identical issue was necessarily decided in the former proceeding. Here, a fatal flaw in the prosecution's traffic court case — doubt about the driver's identity manifested by the ticketing officer — demonstrates Wilkinson could not establish the traffic court necessarily acquitted him based on an evaluation of his truthfulness. Consequently, collateral estoppel did not bar examination in his later perjury trial of the veracity of his traffic court testimony.
Wilkinson's evidentiary challenges also fail. Wilkinson claims the trial court erroneously admitted other redacted traffic citations that were more prejudicial than probative because they invited the jury to convict him based on his propensity to commit speeding violations, rather than on whether he committed perjury. But the trial court redacted the tickets to eliminate any mention of his speeding offenses and instructed the jury to consider only the signature box of the citations as exemplars of Wilkinson's handwriting. Nor were these exemplars cumulative of Wilkinson's signatures on two driver's licenses, since they showed his handwriting in circumstances similar to when he allegedly received the ticket for speeding at 101 miles per hour.
Similarly, the trial court did not err in admitting documentation concerning another traffic citation that tended to show Wilkinson practiced a common plan to evade tickets by claiming they were issued to a relative or friend visiting from another country. The trial court also properly admitted a 2001 traffic citation issued in the name of one of these alleged visitors. Specifically, introduction of the 2001 citation during a prosecution witness's redirect examination was not barred based on Wilkinson's objection it exceeded the scope of cross-examination. Accordingly, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On January 20, 2007, California Highway Patrol (CHP) Officer Mark Magrann stopped a vehicle traveling 101 miles per hour on the 405 Freeway in Irvine. Magrann contacted the driver, who exhibited an overly self-assured manner during the stop. The driver produced a United Kingdom driver's license issued to "Kendall Wilkinson." The license included a physical description, but not a photograph. Magrann issued a ticket to the driver, noting in the preprinted boxes on the ticket the driver's December 2, 1945, birthdate and physical description. Magrann interacted with the driver for approximately one to two minutes during the stop. He recalled the driver commented that driving at a high rate of speed was normal in other countries. The vehicle was registered to Charmaine Wilkinson, defendant's wife.
On July 30, 2007, Magrann appeared and testified in traffic court at the bench trial Wilkinson requested on the January 20th ticket. There is no record of the traffic court proceedings, which the parties reconstructed in their testimony during the perjury trial. Magrann explained that he identified Wilkinson as the driver he cited, but as he continued his testimony in the traffic case, Wilkinson handed the judge a Nevada driver's license, and the judge passed the license to Magrann to examine. The license bore the name "James Kendell Wilkinson." Magrann conceded the license appeared to be authentic. Magrann admitted, "At that time, once he put that driver's license down with the different name, different date of birth, it was authentic, I've seen Nevada driver's licenses before and it just made me question — made me doubt as to whether he was actually driving the vehicle." (Italics added.) Magrann assured the traffic court judge he was "98 percent sure" Wilkinson "was the one driving the vehicle at that time." Wilkinson testified he was not the driver of the vehicle Magrann stopped for speeding. The traffic court acquitted Wilkinson of the speeding charge.
The record from the perjury trial reflects Magrann became "sure" Wilkinson was the driver he cited when he spoke to Wilkinson in the hallway after the traffic court case. There, Wilkinson made a comment to Magrann that driving in excess of 100 miles per hour was "not that big of a deal" in other countries. Based on that comment, Magrann had no doubt Wilkinson was the driver of the vehicle he had stopped on January 20.
In August 2007, Magrann spoke with Charmaine Wilkinson, the owner of the car he had stopped, to obtain contact information for "Kendall Wilkinson," which she could not provide. Magrann discussed the matter with CHP Investigator Theresa Pines, who obtained electronic copies of Wilkinson's Nevada and California driver's licenses showing his signature. After obtaining and executing a search warrant at Wilkinson's Dana Point residence, Pines found numerous traffic citations issued to "James Kendell Wilkinson" or "Kendall Wilkinson," with signatures similar to Wilkinson's.
The district attorney subsequently filed this perjury action against Wilkinson. Charmaine, his wife, testified that Wilkinson's cousin, Kendall Wilkinson, resembled him and was driving her car on January 20, 2007, when Magrann pulled him over for speeding. She was a passenger in the car at the time. She testified Wilkinson was in Las Vegas, Nevada, that day, where he resided, which Wilkinson confirmed in his testimony. The trial court instructed the jury in relevant part on perjury as follows: "The People allege that the defendant made the following false statements: that he was not the driver of the vehicle on January 20, 2007." The jury convicted Wilkinson of perjury based on his false statement in traffic court, and he now appeals.
A. Collateral Estoppel Does Not Apply
Wilkinson argues collateral estoppel barred the perjury charge against him. "Collateral estoppel precludes relitigation of issues argued and decided in prior proceedings." (Lucido v. Superior Court (1990) 51 Cal.3d 335, 341, fn. omitted (Lucido).)The doctrine applies "only if several threshold requirements are fulfilled." (Ibid.)"First, the issue sought to be precluded from relitigation must be identical to that decided in a former proceeding. Second, this issue must have been actually litigated in the former proceeding. Third, it must have been necessarily decided in the former proceeding. Fourth, the decision in the former proceeding must be final and on the merits. Finally, the party against whom preclusion is sought must be the same as, or in privity with, the party to the former proceeding. [Citations.]" (Ibid., italics added.)
The issue in a perjury trial is the witness's veracity. "The elements of perjury are: 'a "willful misstatement, under oath, of any material matter which the witness knows to be false."' [Citations.]" (People v. Garcia (2006) 39 Cal.4th 1070, 1091 (Garcia).)An acquittal, standing alone, does not necessarily speak to a testifying defendant's veracity. "The theory that when a jury acquits a defendant in a criminal proceeding it thereby finds to be true the testimony of all witnesses called upon his behalf is not supported by reason or the common knowledge of mankind." (People v. Housman (1941) 44 Cal.App.2d 619, 623 (Housman).)To the contrary, an acquittal is "'"merely . . . an adjudication that the proof was not sufficient to overcome all reasonable doubt of the guilt of the accused." [Citation.]'" (In re Anderson (1951) 107 Cal.App.2d 670, 672.)
Consequently, a court considering an estoppel claim must look to the "evidence offered in support of the estoppel . . . ." (People v. Frank (1865) 28 Cal. 507, 516-517 (Frank).) Estoppel does not lie "if it be doubtful upon which of several points the verdict was founded . . . ." (Id. at p. 516.) "[I]t is not enough that the proposed evidence tends to show that the precise question may have been involved in such litigation." (Emerson v. Yosemite Gold Mining & Milling Co. (1906) 149 Cal. 50, 57, italics added.) "'If upon the face of a record anything is left to conjecture as to what was necessarily involved and decided, there is no estoppel[.]'" (Beronio v. Ventura County Lumber Co. (1900) 129 Cal. 232, 236; see Garcia, supra, 39 Cal.4th at pp. 1092-1093 (conc. & dis. opn. of Chin, J.) [tracing estoppel requirements].)
The burden rests on the party asserting collateral estoppel to establish its threshold requirements (Lucido, supra, 51 Cal.3d at p. 341), including that the identical issue was necessarily decided in the former proceeding. (Ibid.)Because "the law does not favor estoppels" (Frank, supra, 28 Cal. at p. 517), the burden is a heavy one. If the threshold requirements are satisfied, a further inquiry may remain. (Lucido, at pp. 342-343.) Specifically, courts "have repeatedly looked to the public policies underlying the doctrine before concluding that collateral estoppel should be applied in a particular setting." (Ibid.; see People v. Santamaria (1994) 8 Cal.4th 903, 917, fn. 6 [suggesting California's collateral estoppel doctrine "has a public policy exception"].)
Early cases relied in part on public policy to reject any notion collateral estoppel precluded a subsequent perjury trial. For example, Housman stated: "'Justice cannot be administered through a system of courts unless there can be some assurance that the finding of the court is based upon testimony truthfully given. Any rule which tends to encourage the giving of false testimony threatens the peaceable and commendable settlement of controversies by the courts. The general proposition that one can escape punishment for perjury because he succeeded in inducing a jury to credit his false testimony is supported neither by authority nor by reason. If he could, then it follows that the law encourages parties — particularly defendants in criminal cases — to perjure themselves. We must declare that the law is guilty of no such folly. An accused's immunity from punishment for crime must not be made to depend upon the accomplishment of his acquittal in one prosecution by committing the crime for which he claims immunity. It is furthermore the policy of the law that judicial proceedings and judgments shall be fair and free from fraud, and that litigants and parties be encouraged, when sworn as witnesses, to tell the truth, and that they be punished if they do not. The authorities seem now to be unanimous in holding that an acquittal of one charged with crime is no bar to a prosecution for perjury for false testimony given by him at the trial. (Citing numerous cases.)'" (Housman, supra, 44 Cal.App.2d at pp. 623-624, parenthetical in original; see People v. Barnes (1966) 240 Cal.App.2d 428, 433 (Barnes) ["the doctrine of collateral estoppel is not available to the defendant in a prosecution for perjury"].)
Barnes similarly reiterated: "'It would be a monstrous doctrine to hold that a person could go into a court of justice and by perjured testimony secure an acquittal, and because acquitted he could not be tried for his perjury; this would be putting a premium upon perjury and allowing a scoundrel to take advantage of his own wrong. Public policy does not guaranty immunity to criminals, and that is just what we are asked to do in extending the doctrine of res judicata to perjury.'" (Barnes, supra, 240 Cal.App.2d at pp. 432-433.)
Some commentators and courts have criticized "wholesale rejection of the principle of collateral estoppel" in the perjury context. (Levenson & Ricciardulli, Cal. Criminal Law (2010 ed.) § 13:78, pp. 874-875; see, e.g., United States v. Castillo-Basa (9th Cir. 2007) 483 F.3d 890, 905, fn. 15 (Castillo-Basa).)For instance, the rationale that applying collateral estoppel would encourage perjury "is subject to question since a defendant in a criminal case already has a powerful incentive to deny his or her guilt, and it is doubtful whether the inability of the state to prosecute the defendant for perjury in the event of an acquittal would furnish any additional incentive." (Levenson & Ricciardulli, at p. 874; see also Castillo-Basa, at p. 905, fn. 14 [noting federal sentencing enhancement for obstruction of justice as an "immediate deterrent to perjury by criminal defendants"].) The Castillo-Basa majority concluded, for example, "Where the prospect of an enhanced sentence does not deter a particular defendant from committing perjury, we do [not] think that the prospect of a separate perjury prosecution will." (Castillo-Basa, at p. 905, fn. 14.) On the other hand, the purpose of a criminal prosecution is not limited to deterring the defendant (see In re Nuñez (2009) 173 Cal.App.4th 709, 730), but also serves other valid penological goals, including punishing wrongful conduct and deterring others.
In any event, we need not wade into the thicket of competing policy considerations unless the threshold requirements of collateral estoppel are satisfied, including that the identical issue was necessarily decided in the former proceeding. (Lucido, supra, 51 Cal.3d at p. 341.) Such an inquiry "is both premature and unnecessary" (Garcia, supra, 39 Cal.4th at p. 1095 (conc. & dis. opn. of Chin, J.)) if collateral estoppel's "prerequisites" are not met. (People v. Sims (1982) 32 Cal.3d 468, 488.)
Moreover, if the record shows the same issue necessarily was decided in a former criminal proceeding, the United States Supreme Court has explained that collateral estoppel has a constitutional dimension. (Ashe v. Swenson (1970) 397 U.S. 436 (Ashe).) Ashe did not involve a subsequent trial for perjury, but nevertheless illustrates the weighty interests potentially at stake. Specifically, Ashe held collateral estoppel forms an integral part of the Fifth Amendment, "embodied in" the guarantee against double jeopardy. (Id. at p. 445; accord, Harris v. Washington (1971) 404 U.S. 55, 56.) As the high court explained, while "'[c]ollateral estoppel' is an awkward phrase, . . . it stands for an extremely important principle in our adversary system of justice. It means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit." (Ashe, at p. 443.)
In Ashe, the court held the defendant, acquitted by a jury of robbing one of several victims at a poker game, could not be retried in separate, serial prosecutions for robbery of each individual poker player. To do so would reduce the "first trial [to] no more than a dry run for [a] second prosecution" targeting essentially the same robbery: "precisely what the [double jeopardy] guarantee forbids." (Ashe, supra, 397 U.S. at p. 447.) Ashe, however, has limited application here. The defendant in Ashe did not testify at either trial; therefore, his veracity was neither at issue, nor necessarily decided in the first trial.
In contrast, the mother in Garcia may have lied in earlier administrative proceedings to obtain or maintain excess welfare benefits. An administrative law judge noted at the outset of a hearing "three potential causes of the alleged overpayment: (1) 'inadvertent household error,' (2) 'administrative error,' and (3) 'intentional program violations'" (Garcia, supra, 39 Cal.4th at p. 1075.) The Court of Appeal, relying on collateral estoppel, barred subsequent welfare fraud and perjury prosecutions of the mother, apparently based on the mere fact of the prior administrative hearing. The Supreme Court, however, reversed and directed the Court of Appeal to adopt a particularized approach in scrutinizing the administrative record. "Only if the administrative law judge did indeed find that defendant had made no misrepresentations or omissions in her applications for aid would the state be barred from prosecuting her for welfare fraud . . . ." (Id. at p. 1090, italics added.) Similarly, on the perjury charge, "if the administrative decision actually decided that defendant had made no misstatements, collateral estoppel would bar prosecution of defendant for perjury." (Id. at p. 1091, italics added.)
Here, Wilkinson has failed to meet his burden to show the traffic court judge "did indeed find" or "actually decided" (Garcia, supra, 39 Cal.4th at pp. 1090-1091) he was a credible witness. The record does not show the traffic court judge necessarily determined Wilkinson's believability as a witness, a requisite finding necessary to preclude a subsequent perjury trial testing Wilkinson's veracity. (See Lucido, supra, 51 Cal.3d at p. 341 [listing collateral estoppel elements and burden].) To the contrary, the record amply supports the conclusion the trier of fact need not have passed on or weighed Wilkinson's testimony after hearing the government's case. Simply put, the government's only witness — and, in a traffic case, the officer serving in effect as the government's prosecuting agent — expressed some doubt that Wilkinson was the driver he had cited for speeding at 101 miles per hour.
Specifically, Magrann admitted that at the traffic court hearing, when he examined Wilkinson's Nevada driver's license"with [a] different name" and "different date of birth" from the driver Magrann had ticketed, Magrann concluded the license was "authentic." He confessed: "[I]t just made me question — made me doubt as to whether he was actually driving the vehicle." (Italics added.) To be sure, Magrann later may have felt he had been duped. Although Magrann identified Wilkinson as the driver, the damage to the prosecution's case may have been done. "The trier of fact is the sole judge of [witness] credibility . . . because only the trier of fact has the opportunity to observe and hear the witnesses." (People v. Jackson (1992) 10 Cal.App.4th 13, 20.)
Wilkinson bore the burden of proof to establish the elements of collateral estoppel. We simply conclude, consistent with ample precedent, that where the record reflects a substantial reason in the government's evidence to doubt the government's case, Wilkinson has failed his burden to establish the issue of his veracity was necessarily decided in the earlier trial. As the court observed in Housman, "[I]n finding the defendant not guilty of th[e] charges it was not necessary for the jury to pass upon the truth or falsity of his testimony;" rather, "the jury may have disbelieved the testimony of the narcotic officers and may have acquitted the defendant for that reason . . . ." (Housman, supra, 44 Cal.App.2d at p. 623, italics added.) Similarly, an acquittal on charges of grand theft and forgery did not preclude a subsequent prosecution for perjury on the defendant's testimony he did not forge a check, since the verdict may have been based "solely on a finding" of a lack of intent to defraud the victim. (People v. Di Giacomo (1961) 193 Cal.App.2d 688, 700.) "Such a conclusion would be determinative of that case even though the jury did not reach a conclusion as to whether the defendant did or did not sign Mrs. Burney's name to the check." (Ibid., italics added; see also Frank, supra, 28 Cal. at p. 517 ["Upon the evidence offered in support of the estoppel in this case it cannot be affirmed with certainty that the jury passed upon and determined any of the propositions" at issue].)
Wilkinson's reliance on Castillo-Basa is misplaced. There, the majority concluded a defendant's acquittal on illegal reentry charges barred his subsequent trial on charges he perjured himself at the earlier trial. To prove illegal reentry at the first trial, the government was required to establish the defendant received a deportation hearing before he was deported and later reentered the country. The government initially claimed it had an audiotape of the defendant's deportation hearing, but the government failed to produce the tape. After the prosecution rested, the defendant testified he was never called from his holding cell to attend a deportation hearing. Two weeks after the jury acquitted the defendant, the prosecution found the audiotape of the defendant's deportation hearing, which included defendant stating his name for the record. The government filed perjury charges, but the majority in Castillo-Basa concluded collateral estoppel barred prosecution.
The majority explained it followed "inexorably" from the defendant's acquittal in the illegal reentry case "that the jury decided that Castillo-Basa's testimony — that he was not present at a deportation hearing — was not untruthful." (Castillo-Basa, supra, 483 F.3d at p. 901.) In other words, the jury ascertained the defendant's veracity on the very statement on which he later faced perjury charges. The majority labeled as "not entirely clear" the view "that 'the jury may simply have found that the Government simply failed to meet its burden of proof that Castillo-Basa was deported'" only after receiving the prerequisite hearing. (Id. at p. 902.) The majority observed that defense counsel in closing argument had pointed out the government failed to produce either the audiotape or a deportation hearing "master list" that should have included the defendant's name, but the majority specified this argument "was not itself evidence on which the jury could have based its decision." (Id. at p. 900; id. at p. 907 (dis. opn. of Trott, J.).) The majority also concluded the jury "cannot have remained agnostic on th[e] question" of whether "Castillo-Basa was lying about his presence at a hearing . . . ." (Id. at p. 902, fn. 9.)
We find nothing compelling in Castillo-Basa. First, decisions by intermediate federal courts are not binding. (Metalclad Corp. v. Ventana Environmental Organization Partnership (2003) 109 Cal.App.4th 1705, 1715.) Second, the majority in Castillo-Basa omits that it is the defendant's burden to establish the elements of collateral estoppel. (E.g., United States v. Richard (9th Cir. 1989) 892 F.2d 761, 763.) Third, in an odd mirror image of this flaw, the majority's observation that the arguments of counsel are not "evidence," while true, overlooks that it is the prosecution's burden to present evidence to meet its burden of proof, which rests solely on the government. The defense need not present any evidence and it is therefore immaterial that a defendant's closing argument "is not," as observed in Castillo-Basa, supra, 483 F.3d at p. 900, "itself evidence on which the jury could have based its decision." Given the burden of proof, it may be enough for the defense to point out gaps in the prosecution's evidence. Fourth and related, it follows inexorably from the prosecution's burden of proof that the trier of fact need not pass on defense evidence, including a defendant's testimony, if it finds the prosecution's case wanting. In Castillo-Basa, the jury simply may have expected the government to produce the tape of the hearing it claimed existed, and found the government's case lacking without it. As observed in Ashe, collateral estoppel does not apply if "'a rational [trier of fact] could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration.'" (Ashe, supra, 397 U.S. at p. 444.)
Put another way, our caselaw teaches it was Wilkinson's burden, in establishing the elements of collateral estoppel, to show the traffic court necessarily decided the issue of his veracity. Given the circumstances here, we may infer the doubt Magrann expressed was apparent to the traffic court. Accordingly, we cannot say Wilkinson established his veracity was necessarily determined at the earlier trial. His contention he could not be tried for perjury therefore fails. B. No Error in Admission of Other Traffic Citations
Wilkinson argues the trial court erred in admitting (1) three earlier traffic citations he received, along with related documentation, (2) a red light traffic violation notice and related documentation, and (3) another speeding ticket issued to Kendall Wilkinson. We address each of these contentions in turn.
1. Three Traffic Citations and Related Documentation
Wilkinson first contends the trial court erroneously rejected his pretrial motion and trial objections that admission of three traffic citations was more prejudicial than probative. (Evid. Code, § 352.) Section 352 authorizes the trial court to exclude relevant evidence "if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." We may not disturb the trial court's ruling absent an abuse of discretion. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.)
All further statutory references are to the Evidence Code unless noted.
Wilkinson suggests the tickets should not have been admitted "because the jury could view other exemplars" of his handwriting, including his signature on Nevada and California driver licenses. The argument fails, however, because the trial court reasonably could conclude exemplars generated in the field rather than solely in a controlled setting merited the jury's consideration. (See § 1417 [trier of fact may assess "genuineness of handwriting"].) Wilkinson now objects to the number of exemplars admitted, but he forfeited the issue by not raising it below, depriving the trial court and the opposing party of the opportunity to consider excising particular exhibits. (§ 353; see People v. Partida (2005) 37 Cal.4th 428, 435 (Partida) [trial court cannot err "in failing to conduct an analysis it was not asked to conduct"].)
According to Wilkinson, any probative value in the earlier citations was outweighed by a likelihood the jury would use them to find him guilty because he received several citations in the past. The trial court, however, instructed the jury the tickets were admitted solely to compare signatures, not to establish a propensity for speeding or for any other purpose. We presume the jury heeded the trial court's instructions. (People v. Holt (1997) 15 Cal.4th 619, 662.)
Specifically, the trial court instructed the jury concerning the "traffic citations that bear a signature on them," as follows: "Those are received for a limited purpose. And I want to make sure you understand what that means. [¶] In fact, I think when you get the exhibits, you'll see that whatever the citations were issued for, that information has been blacked out. You're not to consider what they were issued for. The only reason you're getting those exhibits is so that you can look at the signatures on the exhibits and use those signatures to make whatever comparisons you deem appropriate. [¶] I don't want anybody going into the jury room, taking the exhibits and starting to rehash what these tickets might have been for. We're not here to adjudicate or to try any traffic ticket cases. So I want to make sure everybody understands. You'll be getting those exhibits. Just because they have signatures on them, they were seized as exemplars of, purportedly, Mr. Wilkinson's writing. You'll have a chance to look at them and compare them. So I just wanted to make sure you understood that." (Italics added.)
When the trial court asked counsel, "Are both sides satisfied with the limiting instruction?" each answered, "Yes."
Wilkinson asserts it is a "dream" to "believe that jurors are capable of hearing such prejudicial evidence but not applying it in an improper manner." (People v. Gibson (1976) 56 Cal.App.3d 119, 130 ["It is the essence of sophistry and lack of realism to think that an instruction . . . can have any realistic effect" against "highly prejudicial evidence" with only "limited releva[nce]"].) Wilkinson's attack fails for two reasons. First, there is nothing necessarily inflammatory or prejudicial about traffic citations, and therefore we cannot say admitting them here had the "electric effect" required to conclude the jury disobeyed the court's instructions. (People v. Brophy (1954) 122 Cal.App.2d 638, 652 [prosecutor produced in closing argument a missing bullet never admitted in evidence; instruction inadequate to cure prosecutorial misconduct]; see People v. Allen (1978) 77 Cal.App.3d 924, 935 ["It is only in the exceptional case that 'the improper subject matter is of such a character that its effect . . . cannot be removed by the court's admonitions'"].)
In particular, the trial court admitted the tickets after the parties redacted them to eliminate any speeding allegations. True, the tickets still reflect in preprinted boxes that Wilkinson exceeded posted speed limits by varying margins, but the tickets do not indicate speeding was the basis for any of the citations. In any event, Wilkinson ignored the trial court's express invitation for further redaction. Any claim of prejudice is therefore forfeited. (§ 353; People v. Kennedy (2005) 36 Cal.4th 595, 612 (Kennedy)[forfeiture "prevents a party from engaging in gamesmanship by choosing not to object, awaiting the outcome, and then claiming error"].)
The trial court stated to defense counsel: "If you do want any of the material excised, why don't you and [the prosecutor] work on that informally. . . . [¶] If you need the court's assistance in the event you are not able to work out an agreement, then I would be available to do that. [¶] . . . [¶] But I just want to make sure you understand that the offer is there and I'm willing to exercise that. If for trial tactical purposes you make a different decision, that's fine, too."
Second, Wilkinson relies on inapposite authority for the proposition a limiting instruction may be inadequate. For example, in People v. Fritz (2007) 153 Cal.App.4th 949, the court held a nontestifying defendant's claim in a police interview that he had not previously committed a shoplifting offense did not reflect a consciousness of guilt concerning different, subsequent charges. Consequently, an instruction limiting the jury's consideration of the denial to the question of a consciousness of guilt was itself misconceived and did not cure the error of admitting irrelevant evidence. Fritz does not aid Wilkinson because, simply put, irrelevant evidence has no probative value and therefore necessarily fails section 352's probity-prejudice balancing test. Here, in contrast, the trial court reasonably could conclude the signature box of the other traffic citations was relevant for the jury to evaluate the handwriting on the contested speeding ticket. Accordingly, we discern no error in the admission of the redacted citations.
Wilkinson also now argues the trial court erred in admitting correspondence related to two of the three traffic citations and in failing to provide any limiting instruction to restrict the jury's use of the correspondence. Specifically, the related correspondence consisted of a signed request in which Wilkinson sought to postpone the hearing on one traffic citation and, with respect to another citation, his handwritten and signed declaration of facts in his request for a trial by written declaration. We conclude Wilkinson forfeited the challenge he now raises by failing to object to the correspondence below. (§ 353.) The record reflects Wilkinson objected to the three traffic citations, and he appears to assume that if the citations had been excluded, the related correspondence also would have been excluded. That may be true, but the trial court properly admitted the citations, and Wilkinson never voiced any separate objection to the correspondence, nor articulated any distinct basis on which it should have been excluded. (§ 353; Partida, supra, 37 Cal.4th at p. 435; Kennedy, supra, 36 Cal.4th at p. 612.) Nor did he request an instruction limiting or clarifying the jury's use of the correspondence. (People v. Jenkins (2000) 22 Cal.4th 900, 1020 [failure to request clarifying instruction forfeits claim].) His challenge on appeal therefore fails.
2. Red Light Traffic Violation Notice and Related Documentation
Wilkinson argues the trial court erred in admitting a red light traffic violation notice Wilkinson received, along with related documentation. The notice had been mailed to Wilkinson as the registered owner of a vehicle that had triggered a red light camera. The notice included a poor quality photograph of the driver of the vehicle and a form on which the registered owner could name someone else, under penalty of perjury, as the driver of the vehicle. Someone filled out portions of the form and identified "Reginald Freuchet," with a mailing address in France, as the driver of the vehicle. The person also handwrote on a separate page the following explanation: "Mr. Freuchet was a visitor from France who was staying at our house at that time and we had leant [sic] him our car to drive on the day of this traffic violation. He has since then returned to live in France." The person who filled out the form and provided the handwritten note left the perjury declaration blank.
The trial court, over defendant's objection, admitted the notice and accompanying documentation under section 1101, subdivision (b), as "common plan" evidence. (People v. Ewoldt (1994) 7 Cal.4th 380, 402-403 (Ewoldt).) As we explain, the trial court did not err.
While evidence of prior conduct is inadmissible to proved bad character or a criminal disposition (§ 1101, subd. (a)), the conduct may be admissible on other issues, like the identity of the perpetrator of the charged crimes, the existence of a common plan or scheme, or the intent with which the perpetrator acted in the charged crimes (§ 1101, subd. (b)). To be admissible, the charged and uncharged conduct must be sufficiently similar to support a rational inference of identity, common plan, or intent. (Ewoldt, supra, 7 Cal.4th at pp. 402-403.) The requisite degree of similarity varies according to the purpose of the evidence.
To prove identity, for example, the charged and uncharged offenses must display a "'pattern and characteristics . . . so unusual and distinctive as to be like a signature.'" (Ewoldt, supra, 7 Cal.4th at p. 403.) A common design or plan, in contrast, requires only common features "indicat[ing] the existence of a plan rather than a series of similar spontaneous acts, but the plan thus revealed need not be distinctive or unusual." (Ibid.)The least degree of similarity between charged and uncharged crimes is required to establish adequate relevance for admission on the issue of intent. (Id. at p. 402.) We review the trial court's ruling under the deferential abuse of discretion standard. (People v. Scheid (1997) 16 Cal.4th 1, 13.)
Wilkinson focuses on the act of running a red light and contends that conduct is not sufficiently similar to the charged offense of perjury concerning a speeding violation. He further distinguishes the alleged incidents as involving, on one hand, a borrowed car, whereas in the disputed speeding incident, he asserts Kendall Wilkinson was not really borrowing the vehicle since Charmaine was with him. These superficial distinctions obscure the point. The relevant comparison does not concern a red light violation versus speeding, nor parsing the degree to which a vehicle is borrowed. Rather, a trier of fact reasonably could find a compelling similarity in the attempts to attribute traffic violations to foreign visitors, reflecting a design or common plan to evade responsibility for traffic tickets. Simply put, a jury reasonably could conclude these were not merely spontaneous attributions, devoid of any similarity or relation, but instead indicated a common plan. That is all that is required. (Ewoldt, supra, 7 Cal.4th at p. 403.) The trial court did not err in admitting the evidence.
Wilkinson insists section 352 should have precluded admission of the notice and related documentation because the evidence he was the driver in the red light incident was "extremely weak," and therefore carried "little probative value to show a common plan . . . ." As noted, however, the trial court could conclude as a threshold matter that the requisite degree of similarity existed for the jury to find a common plan. Moreover, the question of the identity of the red light driver was for the jury to decide in assessing the weight of the evidence, not its admissibility. To that end, the trial court instructed the jury: "You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant, in fact, committed the uncharged offense. . . . [¶] . . . [¶] If the People have not met this burden, you must disregard this evidence entirely." (Italics added.) We presume jurors are intelligent people capable of understanding and applying the court's instructions. (People v. Carey (2007) 41 Cal.4th 109, 130.)
The trial court remarked outside the presence of the jury, "In fact, if this is the quality of the photograph that's going to be submitted to the jury, I'm not sure it hurts the defense."
Additionally, contrary to Wilkinson's claim, the evidence he was the driver in the red light traffic violation was not so weak the trial court erred in submitting the issue to the jury. Although the trial court observed the quality of the photograph was poor, it depicted a male resembling Wilkinson and other evidence also pointed to him as the driver. Investigators found the violation notice and related documentation at Wilkinson's home in a folder labeled, "Jim's tickets," which included other tickets indisputably issued to him. The handwritten note reflected the perspective of the homeowner, using the phrases "our house" and "our car," but Wilkinson's wife denied she was the author. The jury was entitled to weigh these facts and to compare the handwriting on the note to determine if Wilkinson wrote it (§ 1417), and the jury was entitled to evaluate his credibility when he claimed he had never seen the violation notice or copy of the note seized in his home. In sum, the trial court did not err in admitting these items.
3. 2001 Speeding Ticket Issued to Kendall Wilkinson
Wilkinson asserts the trial court erred by admitting during Investigator Pines's redirect examination a 2001 speeding ticket issued to Kendall Wilkinson. The court did not err. Wilkinson argues that disclosing the citation exceeded the scope of Pines's cross-examination; to the contrary, however, the record reveals the defense opened the door on this topic.
Specifically, defense counsel elicited that Pines knew Magrann and defendant's wife discussed locating "Kendall Wilkinson" after the traffic court trial, and defense counsel asked Pines whether she attempted to find this "Kendall Wilkinson," suggesting Pines instead simply fixated on defendant Wilkinson as her target for a perjury charge. Defense counsel also asked whether Pines attempted to contact anyone besides Wilkinson in her investigation after the failed prosecution of the January 2007 traffic citation. Pines admitted she failed to contact anyone else but, on redirect examination, explained that in her attempt to trace Kendall Wilkinson, she found a 2001 speeding ticket in his name in traffic court records. Like the disputed 2007 citation, the 2001ticket had been issued to a Kendall Wilkinson who presented a United Kingdom driver's license, and the record also shows the driver's license numbers appeared to be the same, but the 2001 and 2007 citations listed different birthdates for Kendall Wilkinson. Pines was unable to contact this Kendall Wilkinson. We have no difficulty concluding the trial court did not err in admitting the 2001 citation because defendant opened the door by attacking the focus and thoroughness of Pines's investigation. (See, e.g., People v. Bell (1989) 49 Cal.3d 502, 536 ["defendant's criticism of the police investigation invited the remark"].)
We also find no merit in Wilkinson's claims the trial court erred in overruling his foundation objections concerning authentication of the 2001 ticket. Although writings must be authenticated before they are received into evidence (§ 1401), the authentication requirement is a burden of producing evidence (§ 1400), and "a document is authenticated when sufficient evidence has been produced to sustain a finding that the document is what it purports to be." (Jazayeri v. Mao (2009) 174 Cal.App.4th 301, 321; see also §§ 1410 [no restriction on "the means by which a writing may be authenticated"]; 1411 [author or subscribing witness's testimony unnecessary]; 1421 [writing may be authenticated by content].) "As long as the evidence would support a finding of authenticity, the writing is admissible. The fact conflicting inferences can be drawn regarding authenticity goes to the document's weight as evidence, not its admissibility. [Citations.]" (Jazayeri v. Mao, at p. 321.) Here, Pines testified she obtained the 2001 citation from traffic court records, and the trial court admitted the ticket, which appeared to be original and genuine. Wilkinson pointed to nothing to undermine the ticket's authenticity. There was no error.
Wilkinson's generalized "foundation" objection is similarly unavailing. Wilkinson objected that the information in the date of birth and registered owner ("James Wilkinson") portions of the ticket lacked foundation, which he claims rendered the ticket as a whole untrustworthy. But a jury finding the ticket to be authentic reasonably could find it trustworthy. In particular, the official duty presumption in section 664 shifts the burden of proving the foundational issue of trustworthiness to the party objecting to the admission of the document (People v. Martinez (2000) 22 Cal.4th 106, 129-130), and Wilkinson pointed to nothing to undermine the ticket's trustworthiness. Consequently, there is no merit to Wilkinson's challenge.
The judgment is affirmed.
MOORE, ACTING P. J.