P. v. Shekell
Filed 4/10/13 P. v. Shekell CA4/1
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
JEFF SHEKELL,
Defendant and Appellant.
D059520
(Super. Ct.
No. SCD214526)
APPEAL from
a judgment of the Superior Court
of
County, Francis M. Devaney, Judge. Affirmed.
A jury
found Jeff Shekell, who operated an automobile repair business in El
Cajon, guilty of (1)
Code, § 484) (undesignated statutory references will be to the Penal Code
unless otherwise specified) as a lesser included offense of grand theft of
personal property (count 2; victim: Terry Guishard); (2) grand theft of
personal property (count 4: § 487, subd. (a) (hereafter § 487(a)); victim:
Alan Sup); and (3) attempted grand theft of personal property (count 5:
§§ 487(a), 664; victim: Tony Gallo).
At the sentencing hearing, the
court placed Shekell on five years formal probation.
Shekell raises
three contentions on appeal. First, he
contends the evidence is insufficient to support his theft convictions because
the prosecution alleged he committed theft by false pretenses, but there is no
evidence he "misrepresented a single thing regarding his repair of the
three vehicles involved," and all of the work he did "was done with
the full approval of the customers."
Second, he claims his convictions under the "broader" theft
statutes are barred because the prosecution presented no evidence he defrauded
his customers, and, thus, his conduct is covered only by more specific statutes
codified in the Business and Professions Code, violations of which are
punishable only as misdemeanors. Third,
Shekell contends the court violated his federal constitutional right to due
process by erroneously admitting inadmissible "bad character"
evidence, and his trial counsel's failure to object to that evidence amounted
to ineffective assistance of counsel. We
affirm the judgment.
FACTUAL
BACKGROUND
A.
Eugene
Kendall, a program representative employed by the State Bureau of Automotive
Repair (BAR) which regulates the automotive repair industry under the
Automotive Repair Act
name="_ftnref1" title="">[1]
(hereafter the Act), explained that automobile repair dealers (hereafter repair
shops) in California cannot lawfully operate unless they are registered with
(i.e., licensed by) the BAR. Unlike
repair shops, individual general mechanics are not subject to a registration or
licensing requirement under state law. Kendall
explained that under the Act a repair shop is required to give the customer a
written estimate with a specific price for specific work to be done, and the
customer must authorize that work before any work is done on the customer's
vehicle. The Act requires that the
repair shop call the customer when additional work at a cost beyond the
original estimate is needed. The
customer must give approval, which must be documented on the work order.
Kendall
also explained that the Act authorizes two types of diagnostic estimates for
the repair of a vehicle. A simple
diagnosis estimate can be done by simply writing down "check vehicle"
or "perform diagnostic," specifying a price, getting the customer's signature,
and giving a copy of the estimate to the customer; but the repair shop must
perform the diagnosis for the specified price.
A teardown estimate is a specific price for taking apart a particular
vehicle component, inspecting it, and preparing a written estimate to repair
the vehicle. After receiving the repair
estimate, the customer can either authorize the repair work or decline it, but
if the customer declines the work the repair shop must reassemble the vehicle
and return it to the customer in the same condition it was in when the customer
brought it into the shop.
Shekell
operated a repair shop known as JSA Automotive & Off Road Center (JSA) in El
Cajon, California. Kendall testified that as of December 2,
2005—when he went to the shop, accompanied by some coworkers and a California
Highway Patrol (CHP) officer, as part of an investigation to determine whether
Shekell was operating without a license—Shekell's shop was no longer licensed
to operate. On that date, Kendall asked
for Shekell's automotive repair dealer license that was posted in his shop, and
Shekell gave it to him. Kendall
testified that Shekell's repair shop then should have been closed and should
not have continued working on cars for the public because it was no longer
licensed. However, Shekell continued to
operate his unlicensed repair shop from that date (December 2, 2005) through
2007.
In April
2006 Shekell began displaying to the public, in his unlicensed repair shop, the
license of Any Transmissions Auto Repair, the repair shop business of Ruben
Ramirez Navarro (Ramirez), who was renting space in Shekell's shop in April
2006. Shekell created invoice forms that
Ramirez used at Shekell's repair shop.
Shekell kept those invoice forms, and Ramirez had to ask Shekell for the
forms when he needed them.
Ramirez
testified that when he left Shekell's shop in June 2006 to work elsewhere,
Shekell continued to display his (Ramirez's) BAR license, and Shekell did not
return it to Ramirez until May or June of 2007 after Ramirez made several
requests that he do so. Ramirez stated
he did not work on Guishard's Ford Ranger, he did not write an invoice for
Guishard's Ford Ranger, and he did not give Shekell permission to use his
invoice form to write up a business transaction with Guishard. Ramirez also testified that Shekell asked him
to tell Kendall that he (Ramirez) did work on Guishard's Ford Ranger.
Count 2
Terry
Guishard, the victim of the petty theft offense of which Shekell was convicted
in this matter, testified that he took a Ford Ranger truck to Shekell's repair
shop in June 2006. At the time, Guishard
believed Shekell's shop was licensed.
Guishard told Shekell that a lift kit had been installed on the vehicle,
and there was a vibration in the rear end that he wanted repaired. Guishard gave Shekell a cash deposit of either
$50 or $100, and Shekell gave him a two-page invoice receipt in the name of Any
Transmissions Auto Repair. Guishard
testified he was not dealing with that business at that time. He also stated that in exchange for the
deposit, he anticipated that Shekell would look at the vehicle and call him
later to tell him what the problem was.
Guishard did not authorize any repair work.
Shekell
called Guishard that afternoon, informed Guishard he had already performed work
on the vehicle at a cost of $270 and asked for his permission to replace the
center support bearing at a total cost of $600.
Guishard authorized the repair work.
When Guishard picked up his truck at 5:00 p.m., Shekell told him the
truck was "better," and Guishard paid the balance with a check
payable to Shekell's repair shop, JSA.
Guishard discovered the vibration problem had not been fixed and
testified that he canceled the check because he thought he had been
"unjustly charged."
Sometime
later Guishard purchased a new axle from Shekell for $280. Guishard gave Shekell the old axle to return
to the manufacturer for a refund under a lifetime warranty, and Shekell agreed
to give Guishard the refund less the cost of shipping it to the manufacturer, about
$175. Shekell never gave Guishard the
refund.
On June 12,
2006, Kendall from BAR contacted Shekell and asked to see all of the paperwork
on the Guishard transactions. Kendall
testified that Shekell refused to give him any records, denied doing any work
for Guishard, and told Kendall to ask Ramirez for the paperwork because it was
"[Ramirez's] job."
Count 4
Alan Sup,
the victim of the grand theft offense of which Shekell was convicted, testified
he began talking to Shekell in 2002 about replacing the engine in his 1984 El
Camino. Shekell gave Sup a detailed
estimate in the amount of $1,500, including parts and labor. Sup later purchased an engine and
transmission, and, in 2002 or 2003, Shekell orally told Sup he would charge
$5,000 to install them. Sup saved his
money and took his El Camino to Shekell in March 2005 to have the work
done. Shekell gave Sup a written
estimate of $5,000 for the cost of installing the used replacement engine and
transmission, both of which Sup supplied.
The written estimate was in the name of JSA. Sup testified that he paid Shekell $5,000 in
advance for the work. Sup also testified
that although the El Camino would not pass a smog test when he took it to
Shekell's shop, it would accelerate to freeway speed.
Sup went
back to Shekell's shop in April of that year, saw the engine out of his El
Camino and agreed to the installation of a new water pump at a cost of $250
plus detailing costing an additional $100.
In mid-May, 2005, when Sup next saw his vehicle, the engine and
transmission had been mounted. Shekell
gave him a list of work that had been done, which, with the exception of the
water pump and detailing, Sup assumed was included in the original
estimate. Sup testified that Shekell
"tallied" the work list, which was "well in excess of
$7,000." Sup became upset and
threatened to "pull the plug on the whole project and haul all the parts
home." In response, Shekell asked
Sup to come to the shop to work out a deal.
When Sup
went to Shekell's shop in early June 2005, Shekell presented him with a
detailed listing of costs in the amount of about $13,000. After Sup questioned the amount, Shekell
lowered it to about $11,000. Sup
testified that, "at that point [he] had a choice of taking all [his] parts
home having spent the money, or to have [Shekell] continue the work and have
him complete the project." Sup
reluctantly agreed to the revised estimate of $11,000. Sup testified it was his "understanding
that the vehicle would be complete and running, and a smog-legal
vehicle."
Sup later
agreed to pay Shekell to replace the fuel injectors at an additional cost of
about $1,800 and redo the rear-end differential at a cost of between $1,200 and
$1,500.
In October
2005 Shekell called Sup and told him his car was ready to be picked up. When he arrived at Shekell's shop, Sup, who
had paid $11,000, offered to pay Shekell the additional $3,000 Sup thought he
owed. Shekell did not present Sup with a
bill, but told Sup he wanted an additional $2,000, that is, $5,000 more than
the $11,000 Sup had already paid. Sup
paid Shekell the additional $5,000, for a total of $16,000, but Sup never
received the $750 Shekell said he received when he sold Sup's old engine and
transmission. When asked at trial why he
paid the additional $2,000 Shekell charged him, Sup replied: "I thought that would end the—give me
the car and finally have the whole matter settled and done. When I did pick the car up, the other option
was to say no and walk home essentially.
It's the industrial area of El Cajon and probably a mile to the nearest
shopping center."
Sup
testified that when he drove the El Camino onto the freeway, he had trouble
accelerating to highway speed and his car got "stuck in second
gear." He drove home at 50 miles
per hour in the slow lane. Sup later
called Shekell, who told him to bring the car back to the shop. Sup took the car back to the shop that same
month (October 2005) and expected Shekell to do a warranty repair.
In October
2006 Sup discovered the BAR web site, but he did not contact the BAR because he
believed Shekell's work on the El Camino would cease if he did, and he wanted
to give Shekell "as much latitude as needed to try to get the job
done."
In January
2007 Shekell informed Sup that the work on his El Camino was done. On January 22, when Sup went to Shekell's
shop to pick up the car, Shekell tried to collect an additional $1,294 from
him. Sup testified his El Camino ran
"extremely rough" and still would not reach highway speeds.
Sup
indicated in his testimony that during most of the time he dealt with Shekell,
he believed Shekell was operating a licensed repair shop. In December 2006 or January 2007, Shekell
told Sup that his license had lapsed.
Kendall
testified that on January 22, 2007, an hour after Sup picked up his car, he
(Kendall) returned to Shekell's shop with a coworker and a CHP officer to
investigate a complaint filed by Sup.
Kendall told Shekell he wanted to talk to him about Sup's car and
Shekell's repairs and requested the records of Shekell's work on Sup's car as
well as the records Ramirez told Kendall he (Ramirez) had given to
Shekell. Shekell said he had not worked
on Sup's vehicle and he did not charge Sup any money. Kendall said he had in his hand a copy of a
faxed invoice Sup received. Kendall received that copy from Sup. Shekell would not respond to Kendall's
request for the records Ramirez gave to Shekell. In Kendall's opinion, the original $5,000
estimate for the work on Sup's El Camino was reasonable, but $11,000 and
$16,000 were both very high.
Count 5
Tony
Giralamo, an investigator with the San Diego County District Attorney's Office,
acting in conjunction with the BAR, contacted Shekell while posing as an
automobile repair customer named Tony Gallo.
Giralamo called Shekell on October 17, 2007, and took a pickup truck
supplied by the BAR to Shekell's shop the next day. In a test drive, the truck did not make the
differential noise about which Giralamo complained and Shekell suggested an
inspection.
Several
weeks later, Giralamo requested the differential inspection Shekell had
suggested. After a test drive, during
which the truck again did not make the differential noise Giralamo complained
about, Shekell told Giralamo he did not know exactly what was wrong and he
would have to further inspect the truck.
Giralamo also asked about the cost of purchasing and installing a lift
kit. On the back of a business card,
Shekell gave Giralamo an estimate of $2,290 for that work, and Giralamo gave
Shekell a $1,500 deposit to order the lift kit.
Giralamo dropped the truck off when Shekell notified him the parts had
arrived. Shekell said he would do the
differential inspection with the lift kit installation. They did not discuss a price for the
differential inspection. When Giralamo
picked up the truck in early December 2007, he was required to pay an
additional $1,245, which he had never approved, for a total of $2,745, $455
more than the original $2,290 estimate.
DISCUSSION
I
Shekell
first contends the evidence is insufficient to support his petty theft, grand
theft, and attempted grand theft convictions because the prosecution alleged he
committed the offenses by false pretenses, but there is no evidence he
"misrepresented a single thing regarding his repair of the three vehicles
involved," and all of the work he did "was done with the full
approval of the customers." We
conclude Shekell has failed to meet his burden of establishing that his
convictions are unsupported by substantial evidence.
1.
a. Theft by false
pretenses
"A
theft conviction on the theory of false pretenses requires proof that (1) the
defendant made a false pretense or
representation to the owner of property; (2) with the intent to defraud the owner of that property; and (3) the owner
transferred the property to the defendant in reliance on the representation.
[Citations.] In this context,
reliance means that the false representation 'materially influenced' the
owner's decision to part with his property; it need not be the sole factor
motivating the transfer.
[Citation.] A victim does not
rely on a false representation if 'there is no causal connection shown between
the [representations] alleged to be false' and the transfer of
property." (People v. Wooten
(1996) 44 Cal.App.4th 1834, 1842, italics added.)
A false
pretense or representation "may be either express or implied from words or
conduct." (People v. Whight
(1995) 36 Cal.App.4th 1143, 1151.)
Reliance on a false pretense or representation may be inferred from all
the circumstances. (People v. Wooten,
supra, 44 Cal.App.4th at p. 1843; see
also People v. Whight, at p. 1151 ["Reliance on a false
representation may be, and in some cases must be, inferred from the
evidence."].)
b. Standard of
review
In
assessing Shekell's challenge to the sufficiency of the evidence, we apply the
substantial evidence standard of review.
(See People v. Perez (1992) 2
Cal.4th 1117, 1124.) Under that standard
of review, we view the evidence "in the light most favorable to the
judgment below to determine whether it discloses substantial evidence—that is,
evidence that is reasonable, credible, and of solid value—such that a
reasonable trier of fact could find the defendant guilty beyond a reasonable
doubt." (People v. Johnson (1980) 26 Cal.3d 557, 578; see also
319.)
The Court
of Appeal recently explained that, "when a criminal defendant claims
insufficiency of the evidence on a particular element of the crime of which he
was convicted, we presume the evidence of that element was sufficient, and the
defendant bears the burden of convincing us otherwise. To do so, the
defendant . . . must set forth in his opening brief all of
the material evidence on the disputed element in the light most favorable to the prosecution, and then must
persuade us that that evidence cannot reasonably support the jury's
verdict." (People v. Battle (2011) 198 Cal.App.4th 50, 62, italics added; see
also People v. Sanghera (2006) 139
Cal.App.4th 1567, 1574 ["If the defendant fails to present us with all the
relevant evidence, or fails to present that evidence in the light most
favorable to the People, then he cannot carry his burden of showing the
evidence was insufficient because support for the jury's verdict may lie in the
evidence he ignores."].)
"The
uncorroborated testimony of a single witness is sufficient to sustain a
conviction [or true finding on an enhancement allegation] unless the testimony
is physically impossible or inherently improbable." (People
v. Scott (1978) 21 Cal.3d 284, 296.)
We do not reweigh the evidence, resolve conflicts in the evidence, or
reevaluate the credibility of witnesses.
(People v. Ochoa (1993) 6
Cal.4th 1199, 1206; People v. Jones (1990) 51 Cal.3d 294, 314.) "Resolution of conflicts and
inconsistencies in the testimony is the exclusive province of the trier of
fact." (People v. Young (2005) 34 Cal.4th 1149, 1181.)
2.
Shekell
acknowledges that the prosecution's theory of
committed theft by false pretenses against Guishard and Sup and attempted theft
by false pretenses against Giralamo by (among other things)
"[misrepresenting] his status as an owner of a licensed automotive repair
shop." Shekell asserts that
"[n]ot a single piece of evidence was presented to show that [he] lied to
Guishard or Sup or Giralamo" to induce them to pay him to work on their
vehicles. "[T]here was no
evidence," he asserts, "to show that there was fraudulent conduct on
his part."
As is all
too often the case when a criminal defendant claims on appeal that the evidence
is insufficient to support his or her convictions, Shekell fails to set forth
in his opening brief the material evidence in
the light most favorable to the prosecution, as he is required to do under
the well-established rules (discussed, ante)
governing application of the substantial evidence standard of review. (See People
v. Johnson, supra, 26 Cal.3d at
p. 578; People v. Battle,
The
prosecution successfully argued to the jury that Shekell was guilty of theft
and attempted theft by false pretenses because he falsely represented to the
victims that (among other things) he was operating a licensed repair shop. The record shows the prosecution presented
substantial evidence from which a rational jury could find beyond a reasonable
doubt that Shekell falsely represented to the victims that he was operating a
licensed repair shop, and he did so with intent to deceive them and induce them
to pay him for working on their vehicles.
Specifically,
it is undisputed that Shekell owned and operated JSA, an automobile repair
business on North Magnolia Avenue in El Cajon.
Kendall, the BAR program representative who conducted an investigation
to determine whether Shekell was operating without a license, testified that
JSA was no longer licensed as of December 2, 2005; and Shekell's repair shop
then should have been closed, and it should not have continued working on cars
for the public, because it was not licensed.
According to Kendall, Shekell continued to operate his unlicensed repair
shop from that date through 2007.
The
prosecution also presented evidence that in April 2006, Shekell began
displaying to the public, in his shop, the license of Any Transmissions Auto
Repair, the repair shop business of Ramirez, who started renting space in
Shekell's shop that month. Ramirez
testified that although he left Shekell's shop in June 2006 to work elsewhere,
Shekell continued to display Ramirez's BAR license in his shop. According to Ramirez, Shekell did not return
his license until May or June of 2007 after Ramirez made several
requests—including three that he made in person—that Shekell do so.
The
prosecution also presented evidence that after his shop became unlicensed,
Shekell created invoice forms that used the name of Ramirez's licensed
business, Any Transmissions Auto Repair, and that Shekell gave Guishard an
invoice receipt in the name of Ramirez's business.
In
addition, the prosecution presented Guishard's testimony that when he took his
Ford Ranger to Shekell in June 2006, he believed he was taking his vehicle to a
licensed automotive facility. Sup
similarly indicated in his testimony that during most of the time he dealt with
Shekell, he believed Shekell was operating a licensed repair shop; and it was
not until December 2006 or January 2007 that Shekell told Sup that his license
had "lapsed."
The
foregoing substantial evidence, viewed in the light most favorable to the
judgment, supports Shekell's convictions by establishing that Shekell—by
posting Ramirez's license in his shop even after Ramirez repeatedly asked
Shekell to return it to him and by using the name of Ramirez's licensed business
on his business forms—falsely
represented to the victims that he was the operator of a licensed automotive
repair business during his business dealings with them. The fact that this false pretense was
implied, rather than express, is immaterial.
A false pretense may be implied from words or conduct. (People v. Whight,
Also, from
the foregoing evidence, a reasonable jury could find beyond a reasonable doubt
that Shekell knew his shop was unlicensed and by law he was not permitted to
operate that shop when he made the false representations, that he engaged in
the false pretense with intent to defraud the victims to induce them to do
business with him, and that Guishard and Sup paid money to Shekell in reliance
on Shekell's false representations.
name="_ftnref2" title="">[2] For all of the foregoing reasons, we conclude
substantial evidence supports Shekell's convictions.
However,
without any citation to the trial record, Shekell claims "[t]he
prosecution['s] assertion that [he] committed theft by false pretense when he
'mis-represented' his status as an owner of a licensed automotive repair shop
is belied by the fact that the work that he did on each of the three cars was
as a general mechanic, and as such he does not need to have any licensing. NONE."
In making this claim, Shekell disregards the fundamental legal precept
discussed, ante, that, under the
substantial evidence standard of review, the evidence must be viewed
v. Johnson, supra, 26 Cal.3d at
p. 578; People v. Battle,
favorable to the judgment of conviction, shows that Shekell did
Giralamo's vehicles as just a general mechanic.
It clearly shows Shekell worked on the vehicles as the owner of JSA
under the false and fraudulent
pretense that the facility was a properly licensed automobile repair shop. Shekell's claim is without any legal or
factual support.
II
CLAIM THAT
SHEKELL'S CONVICTIONS UNDER
"BROADER"
Next,
Shekell claims his convictions under the "broader" theft statutes
(§§ 484 & 487(a)) are barred because the prosecution presented no
evidence that he defrauded his customers, and, thus, his conduct is
"covered ONLY" by more specific statutes codified in the Business and
Professions Code, violations of which are punishable only as misdemeanors under
section 9889.20 of that code. This claim
is unavailing.
Shekell
asserts "[i]t was established at trial that [he] violated a number of
Business and Professions Code sections, all of which carry a misdemeanor
punishment." Specifically, he
maintains his conduct is punishable under the following three "more
specific" sections of the Business and Professions Code that regulate the
conduct of an owner of an automotive repair business: (1) section 9884.6, which prohibits a person
from being an automobile repair dealer unless registered; (2) section 9884.8,
which requires that all labor and parts used in service work be recorded and
itemized in an invoice; and (3) section 9884.9, which requires customer
authorization written estimates and subsequent increases. Shekell contends
"the broader charges of felony theft should never have gone forward"
because "there is NO fraudulent conduct shown."
The
Attorney General construes Shekell's contention to be a claim that his
convictions under the general theft statutes are barred under the so-called
"Williamson rule"
because his conduct is covered by the foregoing "more specific"
sections of the Business and Professions Code.
In his reply brief, Shekell objects that the Attorney General
"misunderstands [his] argument," and asserts that "[his]
argument is not that both the theft Penal Code [s]ection and the Business and
Professions Code sections cover the same conduct, but that [his] conduct is
covered ONLY by the Business and Professions Code sections" because
"the prosecution presented no evidence that [he] defrauded his
customers."
We need not
address the issue of whether Shekell's prosecution under what he calls the
"broader charges of felony theft" is barred under the
reply briefs make clear this issue is not before us. Shekell's sole argument here is that the
felony theft charges "should never have gone forward" because
"there is NO fraudulent conduct shown." This argument is an iteration of his claim
(discussed, ante) that his
convictions are not supported by substantial evidence. As we have already concluded that substantial
evidence supports Shekell's convictions, we also conclude this iteration of his
insufficiency-of-the-evidence claim is unavailing.
III
CLAIMS OF
ERRONEOUS ADMISSION OF CHARACTER EVIDENCE AND INEFFECTIVE ASSISTANCE OF COUNSEL
Last,
Shekell contends the court violated his federal constitutional right to due
process by erroneously admitting "inadmissible bad character evidence,
which included evidence that [he] was a liar, a danger, and a violator of
multiple rules and regulations." He
also contends his trial counsel's failure to object to that evidence amounted
to ineffective assistance of counsel.
These contentions are unavailing.
As a preliminary
matter we note (as the Attorney General correctly points out by means of an
objection) that, with but a few exceptions, Shekell does not delineate in his
opening brief the specific evidence he claims the court erroneously admitted to
which his trial counsel failed to object.
Rather, in his two-and-a-half-page argument, he refers to the statement
of facts presented at the beginning of his brief and asserts, "The laundry
list of character assassination efforts, already presented in the statement of
facts above, need not be cut and pasted to this section in order to make the
point that the error was huge."
Offering generalities, Shekell states, for example, that "[
of the evidence was pure hearsay and couldn't have come in even if
relevant" (italics added), but he does not identify the evidence to which
he is referring. He asserts "
and shouldn't have been presented for that reason" (italics added) and
"all of it had
shouldn't have been presented" (italics added), but he again does not
inform this court to what evidence he is referring.
In his
General's objection to these generalities, Shekell, through his current counsel
Allen Bloom, offers several pages of specific points after both criticizing the
Attorney General for failing to "address[] a single factual presentation
made by appellant," and after asserting that the Attorney General's
"failure to address the facts is the legal equivalent of the mythical
ostrich putting its head in the ground in the hopes that those [
is a 200 pound bird with a three foot neck contorted with his head in the
sand." In a lengthy footnote,
quoting from a book titled Animal Facts,
Animal Fables, Shekell offers a history lesson regarding the popular myth
of the ostrich that hides its head in the sand at the first sign of
danger.
To the
extent Shekell raises specific claims of evidentiary error for the first time
in his reply brief, we conclude
he has forfeited them for purposes of this appeal. "Points raised
for the first time in a reply brief
will ordinarily not be considered, because such consideration would deprive the
respondent of an opportunity to counter the argument." (American
Drug Stores, Inc. v. Stroh (1992) 10 Cal.App.4th 1446, 1453; see also Varjabedian
v. Madera (1977) 20 Cal.3d 285, 295, fn. 11 ["Obvious reasons of fairness
militate against consideration of an issue raised initially in the reply brief of an appellant."]; Reichardt
v. Hoffman (1997) 52 Cal.App.4th 754, 764 ["We refuse to consider the
new issues raised by defendant in his reply
brief."].) The Court of Appeal has also explained that
"'[o]bvious considerations of fairness in argument demand that the
appellant present all of his points in the opening brief. To withhold a point until the closing brief
would deprive the respondent of his opportunity to answer it or require the
effort and delay of an additional brief by permission. Hence the rule is that points raised in the
reply brief for the first time will not be considered, unless good reason is
shown for failure to present them before.'" (Neighbours
v. Buzz Oates Enterprises (1990) 217 Cal.App.3d 325, 335, fn. 8.) As Shekell makes no attempt to offer a good
reason for his failure to properly raise his points in his opening brief,
considerations of fairness require that they be deemed forfeited.
One of the
claims of error that Shekell appears to be making in his opening brief, and is
inappropriately set forth in the statement of facts, is his claim that the
court erroneously admitted evidence that Shekell's "previous license to
operate an auto repair business had been revoked." In support of this claim, Shekell cites pages
9 and 30 of the reporter's transcript.
The Attorney General correctly points out that Shekell's page references
are to pretrial proceedings. Our review of the trial record discloses that Kendall testified that as of December
2, 2005, Shekell's repair shop was "no longer licensed"; and Sup
testified that in December 2006 or January 2007, Shekell told him that his
license had "just lapsed" and he needed to renew it. Shekell has cited no trial evidence showing
he was unlicensed due to revocation, and our review of the trial record has
disclosed no such evidence. We conclude
this claim of error is without merit.
Shekell
also claims the court prejudicially erred by admitting Kendall's testimony that
he was accompanied by a CHP officer when he went to Shekell's shop on December
2, 2005, because he did not feel safe going alone due to some unspecified prior
"incidents." The record shows
that this testimony consisted of a few brief statements, the references to
prior incidents did not directly implicate Shekell, Kendall did not attribute
those incidents to any particular person, and he did not testify to any
difficulty during his contact with Shekell that would suggest Shekell was
dangerous. Assuming arguendo the court
erroneously admitted this evidence, we conclude that, in light of the strong
evidence of Shekell's fraudulent conduct (discussed, ante), any such error did
not render the trial fundamentally unfair, and Shekell has failed to meet his
burden of showing a reasonable probability he would have obtained a more
favorable outcome in the absence of the error.
(See People v. Partida
(2005) 37 Cal.4th 428, 439 ["[T]he admission of evidence, even if
erroneous under state law, results in a due process violation only if it makes the trial fundamentally unfair. [Citations.]
Absent fundamental unfairness, state law error in admitting evidence is
subject to the traditional Watson
test: The reviewing court must ask
whether it is reasonably probable the verdict would have been more favorable to
the defendant absent the error."]; People v. Watson (1956) 46 Cal.2d 818, 836.)
We need
not, and do not, reach the merits of Shekell's ineffective assistance of
counsel claim, which is based on his trial counsel's alleged failure to object
to evidence, as Shekell acknowledges his trial counsel asked for sidebar
conferences at various points during the trial, the recording of these
conferences was not requested, and "[i]t is possible, perhaps even likely,
that during these sidebars the defense articulated certain objections to
testimony or evidence." Shekell
also acknowledges that "since the content of these sidebars is not part of
the record, [he] is unable to know if the defense entered objections to a
number of issues which objection was then overruled by the court, or if no
objection was ever made." Shekell's
claim of ineffective assistance of counsel is based on speculation.
DISPOSITION
The judgment is affirmed.
NARES,
Acting P. J.
WE CONCUR:
HALLER, J.
McINTYRE, J.
name="_ftn1" title="">[1] Business and Professions Code section 9880 et seq.; see 10
Witkin, Summary of California Law (10th ed. 2005), Sales, section 332, pages
308-309.
name="_ftn2" title="">[2] With respect to Shekell's conviction of attempted grand
theft, the evidence shows Giralamo was working undercover on behalf of the BAR,
and, thus, he did not rely on Shekell's false pretense. Proof of actual reliance by Giralamo was not
required for that conviction because Shekell was only charged with
