P. v. Juliar





















Filed 4/23/13 P. v. Juliar CA6

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>NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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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opinion has not been certified for publication or ordered published for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



SIXTH
APPELLATE DISTRICT




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THE PEOPLE, Plaintiff and Respondent, v. JEFFREY SCOTT JULIAR, Defendant and Appellant.

H037625 (Santa Clara County Super. Ct. Nos. 211467, C1089650 & CC806462)

Defendant
Jeffrey Scott Juliar was found guilty by a jury of theft and securities
violations. On appeal he contends that
the trial court committed prejudicial
error by instructing the jury on the doctrine of adoptive admissions. We agree that the evidence cited by
respondent to justify the instruction did not fall within the doctrine, because
the statements defendant adopted were not offered for their truth but as
evidence of false representations
made by defendant to his victims.
However, we cannot say that the error was prejudicial, since the
instruction appears to have been merely superfluous and unlikely to affect the
jury’s verdict in any way harmful to defendant.
Accordingly, we will affirm.

Background

An
information filed February 5, 2009,
charged defendant with two counts of grand
theft in violation of Penal Code sections 484 through 487, subdivision
(a). An indictment filed November 10, 2009, further charged
one count of selling an unqualified
security (Corp. Code, §§ 25110-25440, subd. (a)), two counts of making
untrue statements and material omissions in connection with an offer to sell a
security (Corp. Code, §§ 25401-25540, subd. (b)), and one count of using a
device, scheme, and artifice to defraud another in the sale of a security
(Corp. Code, § 25441). Prior to trial
the prosecutor sought and obtained dismissal of the fraudulent devices charge
(count four of the indictment) on the ground that it was going to be pursued by
Alameda County
authorities. The parties agreed to
consolidate the remaining charges for trial and to incorporate them, for
purposes of instructing the jury, in a single consolidated “information.”

The gist of
the prosecutor’s case was that defendant obtained funds from two couples named
Piekarski and Hernandez (the purchasers) by taking money from them in exchange
for high-interest promissory notes payable by a company known as BluQuest, of
which defendant was a principal. BluQuest
purchased residential properties, apparently on speculation, and defendant
assured the purchasers that their notes would be secured by deeds of trust on
specific properties. In fact the deeds
of trust on the Piekarski and Hernandez notes were never recorded, and there
was not enough equity in the hypothecated properties to secure the notes. After BluQuest defaulted, both couples
surreptitiously recorded conversations with defendant, transcripts of which
were admitted in evidence, in which he could be understood to ratify false
statements about the security of their investments.

The jury
convicted defendant on all counts, and the court sentenced him to an aggregate
term of two years’ imprisonment.href="#_ftn1"
name="_ftnref1" title="">[1] This timely appeal followed.



Discussion

I. >Error

The sole
issue on appeal is whether the trial court committed prejudicial error by
giving an instruction, set forth in the margin here, concerning adoptive
admissions.href="#_ftn2" name="_ftnref2"
title="">[2] That there was no occasion to give such an
instruction seems clear. The adoptive
admission doctrine is codified at Evidence Code section 1221, as follows: “Evidence of a statement offered against a
party is not made inadmissible by the
hearsay rule if the statement is one of which the party, with knowledge of
the content thereof, has by words or other conduct manifested his adoption or his belief in its truth.” (Italics added.) As the first italicized phrase indicates, the
doctrine operates only as an exception to the rule excluding hearsay
evidence. (See Evid. Code, § 1200.) So understood, it comes into play only when a
party raises an otherwise meritorious hearsay objection. (See People
v. Letner (2010) 50 Cal.4th 99, 157 [codefendant’s statement to officer
during traffic stop that he was driving defendant home “was not hearsay, and
therefore whether or not it constituted an ‘adoptive admission’ under the
statute is of no moment”]; see id. at
p. 188, fn. omitted [no error in refusing pattern instruction on adoptive
admissions where codefendant’s statement “was not hearsay, and . . .
was not offered to prove” that second defendant “believed and admitted [the]
statement was true”; pattern instruction “would have been inappropriate and
confusing”].)

Here the
hearsay rule itself never came into play because defendant lodged no objection
to the evidence cited by respondent in support of the instruction. That evidence consisted of conversations
between defendant and his investor-victims, as transcribed from recordings made
by the latter. Defendant not only failed
to lodge a hearsay objection, but expressly declared—in the course of objecting
to other documentary evidence—that he had
“[n]o objection” to the transcripts “if corrected.” Hearsay evidence, if not objected to, may be
admitted and considered for any relevant purpose. (See Evid. Code, § 353; People v. Rodriquez (1969) 274 Cal.App.2d 770, 776 [“hearsay
evidence is competent and relevant in the absence of a specific hearsay
objection”].)

Further, a
hearsay objection, if made, would have been unsound. The extrajudicial statements cited by
respondent as adoptive admissions were not offered for the truth of the matters
asserted. On the contrary, under the
prosecution’s theory these statements were false,
and were relevant not to show not the true condition of the purchasers’
investments but the nature of the misrepresentations defendant had made to
induce those investments and forestall discovery. Respondent describes the first cited example
of an adoptive admission as follows (italics added): “During the recorded discussion between
Piekarski and appellant, Piekarski recited that the first mortgage on the
Calistoga Drive property was $271,000 and that $240,000 was due on the
note. Appellant agreed this was correct. [Record citation.] Piekarski stated that with his lien of
$50,000 and a 90 percent loan-to-value the property must be worth at least
$322,000 which would give him an asset of value to foreclose upon. [Record citation.] Again,
appellant agreed. [Record
citation.] When Piekarski represented
that the total encumbrances against the property amounted to $290,000,
appellant did not object or propose any other amount. [Record citation.] In fact, the record clearly demonstrated >there was no equity at all in the Calistoga
Drive property, in fact it was underwater, due to the numerous encumbrances
placed on it by appellant.” In
short, Piekarski made two assertions, both contrary
to fact, with which defendant expressly
agreed. There was nothing “adoptive”
about defendant’s conduct; he explicitly assented to the stated
propositions. Moreover no one contended
that his assent tended to prove their truth; it was all but conceded—and was
certainly the prosecution’s position—that they
were false.

In the
second supposed instance of an adoptive admission, as recounted by respondent,
“Ms. Hernandez asked appellant, ‘You know what the basic question is: is there enough equity in the home?’ Appellant responded, ‘Plenty, we never, we,
we never went over 90 % on this.’
[Record citation.] >This clearly was not true.” (Italics added.) Here defendant did not merely assent to an
assertion but made an affirmative utterance of his own—which was, as respondent
states, “not true.” Again, there was no
adoption of any statement by Ms. Hernandez, but rather a false answer to a
question by her.

In the third case, “Mr. Hernandez indicated that from the
outset the parties understood that their deed of trust was in second position,
‘[W]hen we first met . . . that we were gonna be second
position on the house . . . .’
[Record citation; italics respondent’s.]
Appellant agreed with Hernandez’s
representation, commenting, “Right.”
[Record citation; italics added.]
Again, the evidence showed unequivocally that there were a number of
prior deeds of trust issued by appellant against the property. The
Hernandez lien was not in second place.”
(Italics added.) Here a
factfinder might find a kind of admission, insofar as defendant could be
understood to acknowledge making earlier
representations to the purchasers that their deed would be in second
place. But again any admission was an
express, not an adoptive one.

Respondent
appears to confuse the concept of adoptive admissions with the much broader one
of an implied admission, i.e., “[a]n
admission reasonably inferable from a party’s action or statement, or a party’s
failure to act or speak . . . [a]lso termed tacit admission.” (Black’s
Law Dict. (9th ed. 2009), p. 54, col. 1.)
Examples of implied admissions include the inference of guilty knowledge
that may be drawn from a false alibi (e.g., People
v. Allison (1966) 245 Cal.App.2d 568, 576) or false or contradictory
explanations for incriminating facts (People
v. Ford (1962) 200 Cal.App.2d 905, 920, 921), or other false (>People v. Sievers (1967) 255 Cal.App.2d
34, 38) or anomalous statements (People
v. Peyton (2009) 176 Cal.App.4th 642, 648, fn. 4), or omissions (>People v. Palmer (1978) 80 Cal.App.3d
239, 249), or efforts to avoid apprehension (e.g., People v. Garrison (1989) 47 Cal.3d 746, 773). In at least some of these contexts, the term
“admission” may be slightly inapt, since there is no implied >statement attributed to the defendant,
but only an incriminating inference
drawn from his conduct. In the case of
an “adoptive admission,” however, the person against whom the evidence is
offered has manifested a belief in someone else’s statement, the truth of which it is therefore admitted to show.

Here one or
more incriminating inferences might indeed have been drawn from defendant’s
responses to various statements and questions cited by respondent. Most obviously, in failing to contradict
their false beliefs about the state of their investments he could be understood
to ratify the earlier misrepresentations that engendered those beliefs. But nothing cited by respondent or found by
us in this record qualifies as a potential adoptive admission.

II. >Prejudice

We see no
concrete basis to suspect that the giving of an instruction on adoptive
admissions had any effect on the outcome.
The instruction applied by its terms only if the jury found four
preliminary facts, including that defendant “would naturally have denied the
statement if he thought it was not true.”
Here of course the prosecution theory was that defendant >knew the statements were not true, and
refrained from denying them in the hope of continuing to deceive the
victims. Even if jurors were confused
about how the instruction might apply in such circumstances, it operated only
to permit them to “conclude that the defendant admitted the statement >was true.” If they reached that conclusion, however,
they would have been compelled to acquit defendant—or at least disregard the
cited evidence in convicting him. Thus,
while the instruction created a risk of perplexing the jurors, we fail to see
how it might have confused them in a manner detrimental to defendant.

Defendant
asserts that the instruction was especially dangerous “because the elements of
the charged offenses themselves involved [his] statements and omissions.” He notes that the charge of theft by false
pretenses could be proven “by evidence that appellant made ‘a representation
recklessly without information that justifies a reasonable belief in its truth’
and that appellant did not ‘give information when [he had] an obligation to do
so.” (Citing CALCRIM No. 1804.) He also observes that to find him guilty
under Corporations Code section 25401, the jury had to find that he “made an
untrue statement of material fact, or omitted to state a material fact
necessary in order to make the statement made . . . not
misleading.” The instruction on adoptive
admissions, he asserts, “created confusion as to when appellant’s silence,
failure to deny a statement made in his presence, or failure to correct a
misstatement made in his presence could be used to satisfy the elements of the
charged crimes.” We fail to see
how. The instruction only comes into
play when it appears that a defendant has manifested a belief in the >truth of the adopted statement. Defendant points to no specific evidence that
the instruction might have led the jury to misconstrue, or the evaluation of
which it might have affected in any way.
Instead he posits that the evidence was “closely balanced” in that,
while he apparently made false or incomplete statements in connection with the
sale of the promissory notes, the BluQuest business started with legitimate objectives
and became caught up in “the sudden changes in the real estate market brought
on by the recession of 2007-2008.” He
also cites “various negligent and sloppy practices in the running of the
office” as factors. Again, we fail to
see how the jury’s consideration of any of these matters was likely to be
affected by the extraneous instruction he challenges here.

It is an appellant’s burden “ ‘ “not alone to show
error, but to show injury from the error.” ’ ” (In re
Marriage of Falcone (2008) 164 Cal.App.4th 814, 822, quoting >Douglas v. Ostermeier (1991) 1
Cal.App.4th 729, 740.) Defendant has not
made such a showing.

Disposition

The
judgment is affirmed.







______________________________________

RUSHING, P.J.











WE CONCUR:









____________________________________

PREMO, J.











____________________________________

ELIA,
J.