P. v. Coffman
Filed 4/17/13 P. v. Coffman CA2/6
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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opinion has not been certified for publication or ordered published for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.
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
SIX
>
THE PEOPLE, Plaintiff and Respondent, v. DANIEL COFFMAN, Defendant and Appellant. | 2d Crim. No. B239789 (Super. Ct. No. 2009040732) (Ventura County) |
Daniel Coffman appeals
his conviction by jury of three counts of grand
theft by false pretenses in which he took cash and used the victim's credit
card to make unauthorized purchases. (Pen Code, § 487.)href="#_ftn1" name="_ftnref1" title="">[1] Appellant admitted a prior prison term
enhancement (§ 667.5, subd. (b)), was sentenced to five years four months in
county jail (§ 1170, subd. (h)(5)), and
ordered to pay $56,052 restitution. We
affirm.
Facts
In June 2008, appellant
asked Tracy Clark to loan him money to get his health care business and assets
back from his wife. Appellant said that
his wife (Judy Fercioni) had left him and "froze all his money, his bank
accounts, [and] everything he had . . . ." None of it was true. Appellant was single, had no savings or
assets, and as a term of parole, was prohibited from operating a health care
business. Based on appellant's
assurances that he was wealthy and would pay her back in 30 days, Clark
took out cash advances on her credit card and gave appellant $15,000. Clark later discovered
that appellant used her credit card without her permission to purchase a laptop
and microscope and took cash advances.
Clark
first met appellant in March 2008 at the lavish office of Nu Science
International. Appellant had a lab coat
and doctorate certificates on the wall.
He pricked Clark's finger, took a drop of blood,
and projected the blood on a large computer monitor. Appellant said that her blood "was very
toxic" and the "cells didn't move around like they're supposed to . .
. ." Appellant told Clark
that an "alkalarian lifestyle" and raw food diet would "clean"
her blood and heal "anything wrong with you."
Appellant billed Clark
$645 and said he would waive the fee if she referred clients. Appellant bragged that he customarily made
$645 an hour, owned a million dollar house and a time share in Cabo San Lucas, and bought a $260,000 six-carat wedding ring
for his young wife, Judy Fercioni. After
Clark visited Nu Science, appellant called regularly and
told her "beautiful stories," sang opera to Clark,
and cried about his mother passing.
Appellant said that his first wife left him, took millions of dollars
and his house, and left him with nothing.
Appellant told Clark that he came out to California
and earned everything back by selling millions of bottles of liquid vitamins
and his own oxygen inhaler.
Appellant lived with
Fercioni who set up Nu Science for him, paid the office expenses and
appellant's living expenses. Fercioni
broke off the relationship after she found a message on the office computer
stating that appellant was looking for a gay sugar daddy "who can take
care of me financially and sexually."
Appellant called Clark
on June 6, 2008 (Clark's
birthday), crying about how Fercioni left him and "froze" all his
money and assets. Appellant was
hysterical and said he was about to take "skull cap" pills to end his
life. Clark
offered to help, cared for his dogs, and let appellant move in . . . . Appellant asked for money to get his assets
"unfrozen" and get his art work patented so Fercioni did not steal
it. Appellant said he had $3 million
buried in Mexico
and would pay Clark back in 30 days.
In September 2008,
appellant said that he lost everything and that Fercioni got it all. Clark told appellant
to move out. In November 2008, Clark
spoke to Fercioni and learned that appellant was on parole and owed Claudette
Siah more than $80,000 restitution. Clark
threatened to ask the parole officer for help.
Appellant begged Clark not to go to his parole
officer and gave Clark a $50,059 promissory note for
everything he owed.
Over defense objection,
evidence was received that appellant defrauded three other single women.
Claudette
Siah
Claudette Siah, a
secretary at an insurance company, was laid off in 2000 and received a $47,647
retirement savings check that had to be reinvested in 60 days. Siah met appellant at a BioLink seminar where
appellant was selling a health drink.
Appellant said that he was a lawyer, knew about stocks, and would help
Siah reinvest the money. Appellant
deposited the retirement savings check in his BioLink account and spent the
money on himself. In September 2001, he
told Siah all the money was lost in the World
Trade Center
terrorist attack. Appellant was
convicted of grand theft and ordered to pay $87,247 restitution but never paid
Siah anything.href="#_ftn2" name="_ftnref2"
title="">[2]
Michele
Inouye
Michele Inouye, a
divorcee and real estate agent, met appellant in 2002 at a self-awareness
seminar. Appellant claimed that an
ex-wife financially destroyed him and that he was homeless and living in his
car. After Inouye let him move into her
Northridge house, appellant said he
wanted to start a business and needed a nicer car. Inouye bought him a Jeep Grand Cherokee for
about $7,000 or $8,000. Appellant said
that he needed a microscope to start up the business and would pay her back after
his mother died and he inherited her house.
Inouye paid for appellant's gas and clothes and bought him a $4,000
microscope and computer, but was never paid back,
Judy Fercioni
In June 2005, Judy
Fercioni was getting a divorce and had a mother who was dying. Appellant said that he was a naturopathic
doctor, had the cure for cancer, and could cure Fercioni's mother. Appellant told Fercioni that he owned a
molecular biology business and a lighting company, a house in Northridge with an expensive art
collection, a Manhattan Beach
estate worth $2.8 million, and a timeshare in Cabo San Lucas.
In December 2006,
appellant moved into Fercioni's house and used her Lincoln Navigator to promote
his health care business. Fercioni set
up Nu Science International for appellant, furnished the office, paid the
office lease, and bought appellant a $4,000 microscope. Appellant had Fercioni buy a $55,000 six
carat engagement ring and promised to pay her back. After Fercioni found the sugar daddy message
on the office computer, she broke off the relationship. Fercioni testified that appellant had no
assets, that she was not married to appellant, and did not "freeze"
any of appellant's assets.
Grand Theft By False Pretense
The jury was instructed
that in order to convict for grand theft by false pretenses, the prosecution
had to prove that (1) appellant made a false pretense or representation to
Clark, (2) with the intent to persuade Clark to let appellant take possession
and ownership of her property, and (3)
that Clark, in reliance on the false pretense or representation, let appellant
take possession and ownership of her property.
(§ 487; CALCRIM 1804.) Consistent
with section 532, subdivision (b), the trial court instructed that a false
pretense must be accompanied by a false writing, by a note or memorandum signed
by the appellant, or by testimony "from a single witness along with other
evidence [which] supports the conclusion that the defendant made the
pretense. To establish corroboration by
multiple witnesses, the witnesses do not have to testify to the same false
pretense. The requirement is satisfied
as long as they testify to the same scheme or type of false pretense."
(CALCRIM 1804.)
Prior Bad Acts
Appellant argues that
the trial court erred in admitting prior bad acts concerning Siah, Inouye and
Fercioni. Although prior bad acts are
inadmissible to prove criminal disposition, they may be admitted to prove a
disputed material fact such as intent, motive, knowledge, common plan or
scheme, identity, or the absence of mistake or accident. (Evid. Code, § 1101, subd. (b): People v.
Ewoldt (1994) 7 Cal.4th 380, 402-403.)
The trial court also determines whether the probative value of the
evidence outweighs the probability that its admission will a create a
substantial danger of undue prejudice, confuse the issues, or mislead the
jury. (Evid. Code, § 352; People v.
Ewoldt, supra, 7 Cal.4th at p. 404.)
The
trial court here found that the prior bad acts evidence was more probative than
prejudicial and would not confuse or mislead the jury. (Evid. Code, § 352; People v.
Miller (2000) 81 Cal.App.4th 1427, 1441.)
Appellant makes no showing that
the ruling was arbitrary, whimsical, or capricious as a matter of law. (People v. Linkenauger (1995) 32 Cal.App.4th 1603, 1614.)
Appellants claims that
the prior bad acts are not identical but there are many similar factors. Clark, like the other victims, was single and
was told that appellant was a professional, owned a health care business, and
was selling a health care product that could cure all ailments. Six years earlier, appellant told Siah that
he was president of BioLink International and that his herbal drink could cure
anything Appellant made a similar pitch
to Inouye and Fercioni, posing as a medical professional who needed money to
buy a microscope for his business.
A "con artist"
in need of a microscope is an unusual and distinct ploy. "[T]he fact that a defendant has made
the same or a similar representation to another, although at a different time
and place, is a corroborating circumstance.
[Citations.] In the present case,
essentially similar representations were made to each of the women. There is not only the similarity in express
representations, but in basic approach . . . ." (People v. Ashley (1954) 42 Cal.2d
246, 268.)
Appellant argues that
the prior bad acts must be "signature-like" but that is only where
the evidence is offered to prove defendant's identity as the perpetrator. (People v. Ewoldt, >supra,
7 Cal.4th> at p. 403.) "[E]vidence that the defendant has
committed uncharged criminal acts that are similar to the charged offense may
be relevant if these acts demonstrate circumstantially that the defendant
committed the charged offense pursuant to the same design or plan he or she
used in committing the uncharged acts.
Unlike evidence of uncharged acts used to prove identity, the plan need
not be unusual or distinctive; it need only exist to support the inference that
the defendant employed that plan in committing the charged offense.
[Citation.]" (Id., at p. 403.) The
least degree of similarity between the uncharged act and the charged offense is
required to prove intent. (>Id., at p. 402.)
Appellant defended on
the theory that he had no intent to steal and that Clark was a spurned lover
who teamed up with Fercioni to get revenge and repayment. The prior bad acts were sufficiently similar
to show intent, knowledge, common plan or design, and to corroborate Clark's
testimony that she was conned by appellant.
(§ 532, subd. (b); People v. Miller, supra, 81
Cal.App.4th at p. 1442 [multiple witnesses required under section 532,
subdivision (b) need not testify to the same instance of pretense].) "Seldom will evidence of a defendant's
prior criminal conduct be ruled inadmissible when it is the primary basis for
establishing a crucial element of the charged offense." (People v.
Garrett (1994) 30 Cal.App.4th 962,
967.)
Parole Status
Appellant contends that
he was denied a fair trial because the jury received evidence about his parole
and parole conditions. Parole status
evidence is generally excluded as propensity evidence but may be admitted to
show motive or intent or to show that the defendant committed criminal acts to
evade detection or punishment for a parole violation. (People v. Fuiava (2012) 53 Cal.4th
622, 667-669; see e.g., People v. Durham (1969) 70 Cal.2d 171, 187-189
[parole status evidence relevant to show motive to kill police officer].)
That was the case
here. In the words of the trial court,
"because of the cross over . . . with the Siah case and this case, . . .
[appellant] locked himself into a situation where all these things became
relevant." We concur. Appellant, as a condition of parole, could
not possess a debit card, work in any health care business, pose as a doctor or
work in a doctor's office, or own or be a partner in any health care
venture. Appellant was prohibited from
representing himself "beyond any validated credentials" and had to inform his parole officer
"within 72 hours of any change of employment location, employer, or
termination of employment." The
parole conditions were properly admitted to show intent to defraud Clark, the
absence of mistake, and to explain why appellant created Nu Science
International as a limited liability company and listed Fercioni as sole owner
and CEO.
Harmless Error
Assuming, arguendo, that
the trial court abused its discretion in admitting the prior bad acts and
parole status evidence, the error was harmless.
(People v. Earp (1999) 20 Cal.4ht 826, 878.) The record shows that the prior bad acts and
parole status evidence was no more inflammatory than the testimony concerning
the charged offenses. (People v. Ewoldt, supra, 7
Cal.4th at p. 405.) It was stipulated
that appellant had been convicted of grand theft and deceptive advertising with
regard to Siah. Clark's testimony was
corroborated by the Nu Science bill for the blood analysis, the Nu Science
brochures and photos, the documents incorporating Nu Science as a
"nutritional microscopy, scientific research & development"
limited liability company, and the credit card and bank records.
The jury was instructed
that appellant's parole and prior bad acts were admitted for the limited
purpose of deciding whether appellant acted with the knowledge and intent to
defraud Clark, to show the existence of a plan or scheme, to determine whether
the alleged acts were the result of mistake or accident, and to corroborate the
allegations that the defendant made the alleged false representations. (CALCRIM 375.) The jury was also instructed to
"consider the similarity or lack of similarity between the uncharged
offenses and/or acts and the charged offenses," and not to consider the
prior bad acts and appellant's parole as propensity evidence. (CALCRIM 375.) We presume that the jury understood and
followed the instructions. (People v.
Fuiava, supra, 53 Cal.4th at p. 669.)
The evidence was
overwhelming. Had the prior bad acts and
parole status evidence been excluded, it is not reasonably probable that
appellant would have obtained a more favorable result. (People v. Welch (1999) 20 Cal.4th
701, 750; People v. Watson (1956) 46 Cal.2d 818, 836.) Appellant asserts that his due process rights
were violated but the application of ordinary rules of evidence do not
impermissibly infringe on a criminal defendant's constitutional rights. (People v. Kraft (2000) 23 Cal.4th
978, 1035; People v. Lindberg (2008) 45 Cal.4th 1, 26.) Because the trial court did not abuse its
discretion under state law, appellant's claim that the admission of this
evidence violated his constitutional right to a fair trial is without
merit. (People v. Fuiava, >supra,
53 Cal.4th at p. 670.)
CALCRIM 220 - Reasonable Doubt
Appellant argues
that the trial erred in not modifying the CALCRIM 220 reasonable doubt
instruction to say that the jury must be "persuaded to a near
certainty."href="#_ftn3" name="_ftnref3"
title="">[3] Our Supreme Court has consistently held that
the standard reasonable double instruction is sufficient and that no further
instruction defining reasonable doubt must be given. (People v. Aranda (2012) 55 Cal.4th
342, 353-354; People v. Freeman (1994) 8 Cal.4th 450, 505 [cautioning against
departing from "abiding conviction" language]; People v. Ramos
(2008) 163 Cal.App.4th 1082, 1088; People v. Campos (2007) 156
Cal.App.4th 1228, 1239.)
Appellant complains that
trial counsel was not permitted to argue that reasonable doubt means "near
certainty." The trial court ruled
that a "near certainty" argument was not a accurate statement of the
law and "would be misleading and/or confusing to the jury. . .
." We reject the argument that the
ruling undermined appellant's right to effective assistance of counsel and a
fair trial. Although defense counsel has
wide latitude in final argument, there is no constitutional right to misstate
the law or argue points of law that confuse the jury, "stray unduly from
the mark," or impede the orderly conduct of the trial. (Herring v. New York (1975) 422 U.S.
853, 862 [45 L.Ed.2d 593, 600]; People v. Marshall (1996) 13 Cal.4th
799, 854-855.)
The jury was instructed
that "[p]roof beyond a reasonable doubt is proof that leaves you with an
abiding conviction that the charge is true." (CALCRIM 220.) Appellant's assertion that "near
certainty" better defines reasonable doubt is mere semantics. (See e.g., People v. Zepeda (2008) 167
Cal.App.4th 25, 31.) Defense counsel
argued at length that there was reasonable doubt about whether appellant
intended to defraud Clark. Given the href="http://www.mcmillanlaw.com/">overwhelming evidence of guilt, it is
inconceivable that the jury would have reached a more favorable result had
counsel been permitted to argue that reasonable doubt means near certainty.
Conclusion.
Appellant's remaining
arguments have been considered and merit no further discussion.href="#_ftn4" name="_ftnref4" title="">[4] Appellant claims that the cumulative effect
of the alleged errors denied him a fair trial.
As our Supreme Court has stated on several occasions, " ' " 'a
defendant is entitled to a fair trial but not a perfect one.' " ' " (People
v. Marshall (1990) 50 Cal.3d 907, 945.)
Our review of the record discloses that none of the purported errors,
either singularly or cumulatively, denied appellant a fair trial. (People v. Jenkins (2000) 22 Cal.4th
900, 1056.)
The judgment is
affirmed.
NOT TO BE PUBLISHED.
YEGAN,
J.
We
concur:
GILBERT, P.J.
PERREN, J.
Brian J. Black, Judge
Superior Court County of Ventura
______________________________
Mark D. Lenenberg, under
appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris,
Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E.
Winters, Senior Assistant Attorney General, Steven D. Matthews, Supervising
Deputy Attorney General, Timothy M. Weiner, Deputy Attorney General, for
Plaintiff and Respondent.
Gregory D. Totten,
District Attorney, County of Ventura, Howard A. Wise, Senior Deputy District
Attorney, Amicus Curiae, for Respondent.