California Court of Appeal Sep 24, 2013 No. E056310Unpublished
Filed 9/24/13 P. v. Trull CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E056310
v. (Super.Ct.No. RIF10003540)
KEITH DWAYNE TRULL, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Michael B. Donner,
Judge. Affirmed.
Michael Clough, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Senior Assistant Attorney General, and Barry Carlton and
William M. Wood, Deputy Attorneys General, for Plaintiff and Respondent.
1
Defendant Larry Dwayne Trull reported to his insurance company that his
motorcycle had been stolen. He denied having been the victim of any previous
motorcycle thefts. Just a year and a half earlier, however, he had reported another
motorcycle as stolen to another insurance company. Both times, he made the claim
Preliminarily, the prior claim was relevant, even assuming that, as defendant
argues, there was no evidence that it was fraudulent. Defendant could well have
submitted a perfectly honest insurance claim and then, once that was successful, have
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used that as a template for submitting a successful but fraudulent claim. Even assuming
the prior claim was legitimate, it was extremely unlikely that, within a year and a half,
defendant would be the victim of a second motorcycle theft, where both times, the
motorcycle was allegedly stolen less than six months after purchase, the motorcycle was
insured for more than its purchase price, and the motorcycle was allegedly stolen after
defendant left it outside a restaurant. Thus, even a nonfraudulent prior claim was
relevant to intent and plan.
The jury instruction did not limit the jury to considering the prior claim only if it
was fraudulent. The instruction stated that the jury could consider the “evidence that the
defendant committed another offense of insurance fraud” only if the People proved that
defendant had committed an uncharged offense. This left the jury free to consider
evidence of an honest prior claim for any purpose for which it was relevant.
In any event, even assuming the jury understood the instruction as applying to
evidence of a nonfraudulent prior claim, that would have meant that it had to disregard
such evidence if the People failed to prove that it constituted an uncharged offense. This
could only have benefited defendant.
Separately and alternatively, even assuming there had to be evidence that the prior
claim was fraudulent, there was ample evidence of this. Defendant told Haughton that he
had gotten rid of a previous motorcycle by “claim[ing] it was at a restaurant and that’s
where it . . . was stolen from.” He described a fraudulent scheme and said that he had
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“done it before.” After the motorcycle was gone, he told Haney “I got rid of it like my
last one.”
Defendant argues that, under the corpus delicti rule, his statements were
insufficient to prove fraud.2 It has been held, however, that the corpus delicti rule does
not apply to uncharged criminal acts admitted under Evidence Code section 1101,
subdivision (b). (People v. Davis (2008) 168 Cal.App.4th 617, 633-638; People v.
Martinez (1996) 51 Cal.App.4th 537, 543-545; People v. Denis (1990) 224 Cal.App.3d
563, 568-570.)
We therefore conclude that the trial court properly admitted the evidence of
defendant’s prior insurance claim.
III
THE SUFFICIENCY OF THE EVIDENCE OF FALSITY
Defendant contends that there was insufficient evidence that his Harley-Davidson
was not, in fact, stolen.
“‘[W]hen a defendant challenges the sufficiency of the evidence, “‘[t]he court
must review the whole record in the light most favorable to the judgment below to
determine whether it discloses substantial evidence — that is, evidence which is
reasonable, credible, and of solid value — such that a reasonable trier of fact could find
the defendant guilty beyond a reasonable doubt.’ [Citation.]” [Citations.] . . .
2 The People, somewhat unhelpfully, do not respond to this argument.
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“Substantial evidence includes circumstantial evidence and any reasonable inferences
drawn from that evidence. [Citation.]” [Citation.] We “‘“presume in support of the
judgment the existence of every fact the trier could reasonably deduce from the
evidence.”’ [Citation.]” [Citation.]’ [Citation.]” (People v. Lopez (2013) 56 Cal.4th
1028, 1069.)
For purposes of count 1 (presenting a fraudulent insurance claim), the People had
to prove that defendant’s insurance claim was false or fraudulent. (Pen. Code, § 550,
subd. (a)(1).) Similarly, for purposes of count 2 (presenting a false statement in support
of an insurance claim), the People had to prove that he made a materially false or
misleading statement in support of his insurance claim. (Pen. Code, § 550, subd. (b)(1).)
The only even arguably materially false statement shown by the evidence was that the
motorcycle was stolen.3 The evidence that the motorcycle was not, in fact, stolen was as
follows.
First and foremost, there were defendant’s statements to Haughton and Haney. He
told Haughton that he needed to “make [the motorcycle] disappear” because of his
financial problems. He discussed a number of alternative plans for making it disappear,
including burying it, burning it, and selling off the parts. He also discussed a plan for
3 At first glance, it might seem that defendant could have been found guilty based on his various statements that he had not been the victim of a previous motorcycle theft. The People’s theory, however, was that this was true — the prior theft was staged. Moreover, even if this statement was false, it was not material. Defendant eventually disclosed the prior theft claim to GEICO, but it paid his current claim anyway.
12
claiming it had been stolen from a restaurant. Defendant actually offered to sell the
motorcycle to Haney at a suspiciously low price, or to sell him parts from the motorcycle.
Defendant asks us to disregard Haughton and Haney’s testimony, for three
reasons.4 First, they testified that defendant made these incriminating statements in
August 2009; defendant argues that the statements therefore are not evidence that the
motorcycle was not stolen in October 2009. However, precisely because the statements
were made before the motorcycle disappeared, they are evidence of planning, which in
turn is evidence that the plan was executed. The passage of a few weeks or months does
not make them irrelevant for this purpose.
Second, defendant argues that his statements suggesting various ways that he
could get rid of the motorcycle are not evidence that he did get rid of the motorcycle.
However, this is a reasonable inference, especially when combined with the fact that the
motorcycle did disappear. This is all the more true because, in his statements, defendant
planned to claim that the motorcycle had been stolen from a restaurant, and ultimately,
that is what he did claim.
Third, defendant attacks the witnesses’ credibility. However, “‘[c]onflicts and
even testimony which is subject to justifiable suspicion do not justify the reversal of a
judgment, for it is the exclusive province of the trial judge or jury to determine the
4 Defendant does not contend that Haughton and Haney’s testimony was insufficient under the corpus delicti rule. (See generally People v. Alvarez (2002) 27 Cal.4th 1161, 1177-1180.) Accordingly, he has forfeited any such contention.
13
credibility of a witness and the truth or falsity of the facts upon which a determination
depends.’ [Citation.] Unless it describes facts or events that are physically impossible or
inherently improbable, the testimony of a single witness is sufficient to support a
conviction. [Citation.]” (People v. Elliott (2012) 53 Cal.4th 535, 585.)
In addition to defendant’s statements to Haughton and Haney, there was also
defendant’s prior 2008 stolen motorcycle claim to Progressive. As we have already held,
this evidence was relevant and admissible to show intent and plan. As we have also
already held, there was sufficient evidence (i.e., defendant’s statements to Haughton and
Haney) that the motorcycle in 2008 was not stolen; but even if it was stolen, the
similarities between the two reported disappearances indicated that defendant fabricated
the second disappearance.
Finally, defendant evidently lied about the circumstances of the supposed theft.
He claimed that he had just bought gas at a USA station on Cal Oaks, but there was no
USA station on Cal Oaks. He claimed that he phoned his ex-wife to ask for a ride, but
his phone records contradicted this. He claimed that he was going to take the motorcycle
home in his truck, but there was evidence that it would have been infeasible for a single
person to push it up a standard ramp into a truck bed. And he concealed his prior
motorcycle theft claim from GEICO. These lies are evidence of consciousness of guilt,
which in turn is evidence that defendant was not the mere victim of a theft.
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IV
THE ADMISSIBILITY OF THE IDENTITY OF THE TIPSTER
Defendant contends that the trial court erred by excluding evidence of the identity
of the tipster.
A. Additional Factual and Procedural Background.
In a motion in limine, the prosecutor objected to any questions regarding the
“[a]nonymous [c]aller[’s]” name, as irrelevant and more prejudicial than probative.
At the hearing on the motion, defense counsel argued that the evidence was
relevant to show that Haughton was involved in the call to GEICO. He represented that
the tipster identified herself as “Iris.”5 He also pointed out that, at defendant’s first trial,
Richter had “specifically testified that it was the wife of Mr. Haughton.”6
The prosecutor conceded that the tipster may have identified herself as Haughton’s
wife but argued that there was no way of knowing who she really was.
5 According to evidence presented later at trial, Haughton’s wife’s name was Iris. 6 Defendant had to be retried after his first trial ended in a hung jury. Defense counsel was referring to the following testimony by Richter at the first trial:
“A. Initially I contacted a tipster named Laura.
“Q. Okay. And then who did you contact after that?
“A. I spoke with her husband, Russ Haughton.”
15
The trial court excluded the evidence, ruling, “[I]t’s not relevant. Also, there is
a[n] issue regarding the validity of any name given . . . .” However, it offered to let either
side reopen the issue by requesting an Evidence Code section 402 hearing. It also
pointed out that the defense could interview or subpoena Haughton’s wife.
When Howe was on the stand, she testified:
“Q Tell me about how you first became aware to this claim.
“A I received a phone call. . . .
“Q Okay. An anonymous phone call?
“A Correct.”
Howe testified generally about the contents of the phone call.
On cross-examination, defense counsel started to ask about the contents of the
conversation. The prosecutor objected, “Hearsay and 402.” The trial court ruled that
defense counsel could ask about the contents of the conversation, but it reaffirmed its
ruling that he could not ask about the tipster’s identity.
Later, when Richter was on the stand, she testified:
“Q Now, when you first learned of this claim, what was the first thing you did?
“A Reviewed the claim file.
“Q What is the next thing you did? [¶] . . . [¶] . . .
“A . . . I actually called the anonymous caller.”
At the next break, the trial court stated:
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“THE COURT: . . . I don’t recall anybody telling me that Ms. Richter actually
contacted this anonymous caller. . . . I recall there being statements made about an
anonymous caller, and there were, clearly, foundational issues with respect to who that
really was . . . . We had no way to lay that foundation. But it appears as if Ms. Richter
actually called this person. Did I understand her correctly?
“[PROSECUTOR]: That’s what she testified to.
“THE COURT: Did she actually connect to someone?
“[PROSECUTOR]: I don’t know. This is the first time I’m hearing about it. I
don’t know.
“THE COURT: Because if she did, this has to be revisited in terms of the
defense’s previous desire to go into who that was, because that’s far different than
receiving an anonymous call.”
The prosecutor filed a supplemental brief, objecting to evidence of the tipster’s
identity as hearsay. In it, she represented that on December 10, 2009, the tipster phoned
GEICO (i.e., Howe). The tipster was female and left a name and a phone number. On
December 16, 2009, Richter called the tipster’s phone number. The person who
answered identified herself as “Laura.” That was not the name (i.e., Iris) that the tipster
had given Howe.
After hearing further argument, the trial court excluded the evidence as
inadmissible hearsay.
17
B. The Admissibility of the Tipster’s Identity.
Defendant contends that the trial court erred by excluding evidence of the tipster’s
identity.
Any testimony, however, by either Howe or Richter about the tipster’s identity
would be hearsay and not based on personal knowledge, because it would necessarily be
based on whatever name the tipster gave. (Evid. Code, §§ 702, 1200.)
Defendant concedes that Howe “probably” had no independent knowledge of the
tipster’s identity. He argues, however, that Richter did have such knowledge. He notes
that in defendant’s first trial, Richter testified that, after speaking to the tipster, “I spoke
with her husband, Russ Haughton.” For all that appears, however, this just means that
the tipster identified herself not only as “Laura” but also as “Russ Haughton’s wife.”
Both self-identifications were hearsay.
It was potentially significant, as the trial court noted, that Richter phoned the
tipster, because this meant that she had nonhearsay proof of the tipster’s phone number.
Defense counsel, however, never offered to prove what phone number Richter called and
never offered to prove that it was Haughton or Haughton’s wife’s phone number. Thus,
there is no evidence that Richter had any nonhearsay way of identifying the tipster.
Defendant argues that he was prejudiced because the fact that the tipster was
Haughton’s wife would have supported his claim at trial that Haughton was framing him.
This theory of relevance only works, however, if the caller really was Haughton’s wife.
18
If the caller was lying about this, then the evidence was not relevant for this purpose.
This confirms that defendant was seeking to admit the evidence for its truth.
Defendant also argues that the evidence was admissible for the nonhearsay
purpose of “establish[ing] . . . Richter’s state of mind and why she quickly called
Haughton . . . .” Defense counsel forfeited this theory of relevance by failing to assert it
below. (Evid. Code, § 354, subd. (a).) Indeed, the trial court never precluded him from
asking Richter why she called Haughton. Defendant speculates that the answer would
have been that the tipster had identified herself as Haughton’s wife. However, the tipster
must have said more than that. After all, up until that phone call, Richter did not even
know who Haughton was. At a minimum, the tipster must have said that Haughton had
information that would support her tip and must have given his phone number. Richter
could have testified to all this without testifying that the tipster also claimed to be
Haughton’s wife.
In any event, it was not particularly relevant why Richter called Haughton. It
would have been obvious to the jury that she did so based on something the tipster said.
To the extent that her reason for calling Haughton remained unclear, that would seem to
favor the defense, not the prosecution.
Defendant also argues that the evidence was relevant to impeach Haughton,
because Haughton testified that he did not know how GEICO “got on to” him. There
was no evidence, however, that he knew that his wife had called GEICO, or that Richter
told him that his wife had called GEICO. Arguably that evidence would have been
19
admissible to impeach. Absent evidence that Haughton knew that his wife was the
tipster, however, the tipster’s mere hearsay statement that she was his wife was not
relevant to impeach him.
Finally, defendant does not claim that there was any applicable hearsay exception.
In the trial court, defense counsel referred in passing to the contemporaneous statement
exception (Evid. Code, § 1241); however, when the trial court said, “The question is[,] is
there any exception to the hearsay rule,” he conceded, “At this point, no, your Honor.”
“The proponent of hearsay has to alert the court to the exception relied upon . . . .”
we are not convinced that the prosecutor committed misconduct by asking the jury to
consider the statements for their truth.
Separately and alternatively, however, defense counsel once again forfeited this
claim by failing to object. Defendant argues that an objection would have been futile,
because it would have focused the jury’s attention on the tipster’s statements. “This
exception, of course, would swallow the rule requiring a timely objection and request for
admonition, for one always runs the risk of drawing the jury’s attention to an improper
line of argument by registering an objection. The mere concern of highlighting alleged
misconduct by objecting, without more, cannot serve as an exception to the general rule
requiring an objection and request for an admonition.” (People v. Boyette (2002) 29
Cal.4th 381, 432.)
Defendant therefore contends that defense counsel’s failure to object constituted
ineffective assistance. As already noted, we have found no case holding that it is
misconduct to ask the jury to consider evidence that has not been admitted for a limited
purpose. Accordingly, defense counsel was not ineffective in failing to object to the
supposed misconduct. However, this reasoning immediately raises the additional
question of whether defense counsel was ineffective in failing to request a limiting
instruction. Accordingly, we do not resolve defendant’s contention on this ground.
26
We do conclude, however, that the asserted ineffective assistance was not
prejudicial in light of the whole record. Haughton and Haney already corroborated each
other. Of course, defendant claimed that Haughton was attempting to frame him.
However, he could not explain why Haney would conspire with Haughton. The
prosecutor’s argument that the tipster corroborated Haughton and Haney was weak, at
best, because there was no evidence that the tipster had any source of information other
than Haughton and Haney themselves; the jury had to realize that the tipster knew
Haughton and perhaps also Haney, because Richter testified that she phoned them
immediately after she phoned the tipster. In all other respects, the evidence of
defendant’s guilt was strong. Thus, we see no reasonable possibility that, even if defense
counsel had objected to the asserted misconduct, the outcome would have been any
different.
D. Misstating the Evidence in Closing Argument.
1. Additional factual and procedural background.
In closing argument, the prosecutor stated: “All of the parts of the bike had to
have been gone and disposed of by October 24th . . . .”
Similarly, she stated: “The bike was in pieces all over the country, probably . . . .”
Finally, she stated: “The parts were across the country.”
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2. Analysis.
Defendant claims there was no evidence that he sold parts of the bike to anyone,
and therefore the prosecutor committed misconduct by misstating facts in closing
argument.
“For a prosecutor to misstate the evidence is prosecutorial misconduct.
[Citations.]” (People v. Davis (2005) 36 Cal.4th 510, 550.) However, “‘“[p]rosecutors
have wide latitude to discuss and draw inferences from the evidence at trial. [Citation.]
Whether the inferences the prosecutor draws are reasonable is for the jury to decide.”’
[Citation.]” (People v. Abel (2012) 53 Cal.4th 891, 926.)
Here, there was evidence from which it was reasonably inferable that defendant
had disposed of the motorcycle in parts. Defendant had told Haughton that you could get
rid of a motorcycle by selling all the parts except the engine block and the frame. He had
offered to sell Haney the motorcycle twice; when Haney would not bite, he offered to sell
him parts from the motorcycle. This strongly suggests that he had decided to dispose of
it in parts. Admittedly, he also discussed alternative ways of getting rid of a motorcycle,
such as burning it or burying it. Presumably, however — particularly in light of his
financial difficulties — he would rather make some money off of it. The bottom line is
that this is one reasonable inference that the prosecutor could properly draw.
We also note that, once again, defense counsel forfeited the asserted misconduct
by failing to object. For the reasons already discussed (see part V.C.2, ante), an
objection would not have been futile. Defense counsel did not render ineffective
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assistance by failing to object because, as already discussed, there was no misconduct.
However, even if there was, the failure to object was not prejudicial. Precisely how
defendant disposed of the motorcycle was not particularly relevant. What mattered was
that he was making various plans for “disappearing” the motorcycle shortly before it, in
fact, disappeared.
VI
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RICHLI J.
We concur:
McKINSTER Acting P. J.
MILLER J.
29
AI Brief
AI-generated · verify before citing
Holding. The court held that the trial court did not abuse its discretion in admitting evidence of a prior insurance claim to show intent and plan, nor did it err in excluding hearsay evidence regarding the identity of an anonymous tipster. The evidence was sufficient to support the defendant's convictions for insurance fraud and presenting a false statement.
Issues
Did the trial court err by admitting evidence of the defendant's previous insurance claim?
Was there sufficient evidence to support the conviction that the current insurance claim was false?
Did the trial court err by excluding evidence of the tipster's identity?
Did the prosecutor commit misconduct, and was defense counsel ineffective for failing to object?
Disposition. Affirmed
Quotations verified verbatim against the opinion
“The prior claim was relevant, even assuming that, as defendant argues, there was no evidence that it was fraudulent.”
“We therefore conclude that the trial court properly admitted the evidence of defendant’s prior insurance claim.”