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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT, DIVISION EIGHT
THE PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff and Respondent,
v.
CATHERINE WILSON,
Defendant and Appellant.
Case No. B234143
Los Angeles County Superior Court, Case No. BA332035The Honorable Alex Ricciardulli, Judge
RESPONDENT'S BRIEF
KAMALA D.HARRISAttorney General of CaliforniaDANE R.GILLETTEChief Assistant Attorney GeneralLANCE E.WINTERSSenior Assistant Attorney GeneralMARY SANCHEZDeputy Attorney GeneralDAVID ZARMIDeputy Attorney GeneralState Bar No. 245636
300 South Spring Street, Suite 1702
Los Angeles, CA 90013Telephone: (213) 576-1336Fax: (213) 576-1300E-mail: [email protected]
Attorneys for Respondent
COURT OF APPEAL SECOND
ELECTRONICALLY
JOSEPH A. LANE, ClerkDeputy C
Jun 12, 2012
bfisher
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TABLE OF CONTENTS
Page
i
Statement of the Case ................................................................................... 1
Statement of Facts ........................................................................................ 1A. Prosecution .................................................................. 1
1. Appellants Grand Jury Testimony .................. 1
2. Trial Testimony ................................................ 3
3. Scott Carwiles Testimony ............................. 12
B. Defense case .............................................................. 13
1. Appellants Testimony ................................... 13
2. David Chois Testimony ................................ 173. Terri Cohens Testimony ............................... 17
4. Character Testimony ...................................... 18
I. The trial court properly amended the indictment tocorrect a clerical error citing the wrong Penal Codesection for counts 1 through 3 .............................................. 20
II. The trial court properly admittednontestimonialcoconspirator hearsay and instructed onconspiracy ............................................................................. 22
A. Applicable law .......................................................... 22
B. Liyanages and Wangs hearsay testimony wasnot testimonial and was properly admitted ascoconspirator statements; the court properlyinstructed on conspiracy ............................................ 23
III. The trial court properly omitted a unanimityinstruction ............................................................................. 24
A. Applicable law .......................................................... 25
B. The trial court instructions and verdict formsclarified for the jury which acts of bribery andperjury were the basis for the charges of whichit convicted appellant ................................................ 26
1. The Bribery Charges ...................................... 26
2. The Perjury Charges....................................... 27
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TABLE OF CONTENTS(continued)
Page
-ii-
IV. The trial court properly imposed the upper term ................. 28
A. The prosecutors sentencing memorandum andsentencing .................................................................. 29
B. Appellant was properly sentenced under theSixth Amendment ...................................................... 30
1. The Cunningham Decision ............................ 31
2. The Upper Term Was ConstitutionalBecause It Was Within the StatutoryMaximum ....................................................... 31
3. Retrospectively Applying the JudiciallyReformed Version of Section 1170 DoesNot Warrant Relief ......................................... 32
C. Appellant waived any state law claims byfailing to object to the upper term; appellantwas properly sentenced under state law,regardless ................................................................... 35
1. Applicable Law .............................................. 35
2. Appellant Failed to Object to the UpperTerm, but Was Properly Sentenced,Regardless ...................................................... 36
V. Appellant received effective assistance of counsel .............. 38
A. Applicable law .......................................................... 38
B. Trial counsel properly decided not to object towitness testimony on federal confrontationclause grounds ........................................................... 39
C. Trial counsel properly accepted the trial courtsinstructions; appellant was not prejudiced,
regardless ................................................................... 39D. Trial counsel properly decided not to request a
hearing to determine the existence of aconspiracy; appellant was not prejudiced,regardless ................................................................... 40
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TABLE OF CONTENTS(continued)
Page
-iii-
E. Trial counsel properly decided not to object to
imposition of the upper term in appellantssentence on count 1 ................................................... 40
VI. Appellants trial was fair and properly conducted ............... 41
Conclusion .................................................................................................. 42
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TABLE OF AUTHORITIES
Page
iv
CASES
Chrisman v. Superior Court
(1922) 59 Cal.App. 305 ..................................................................... 21
Collins v. Youngblood
(1990) 497 U.S. 37 [110 S.Ct. 2715, 111 L.Ed.2d 30] ...................... 32
Crawford v. Washington
(2004) 541 U.S. 36 [124 S.Ct. 1354, 158 L.Ed.2d 177] .................... 23
Cunningham v. California
(2007) 549 U.S. 270 [127 S.Ct. 856, 166 L.Ed.2d 856] ..................................................................................................................30, 31, 32, 33
Hubbart v. Superior Court
(1999) 19 Cal.4th 1138 ...................................................................... 32
Lynce v. Mathis
(1997) 519 U.S. 433 [117 S.Ct. 891, 137 L.Ed.2d 63] ...................... 33
Miller v. Florida(1987) 482 U.S. 423 [107 S.Ct. 2446, 96 L.Ed.2d 351] .................... 33
Patterson v. Municipal Court
(1971) 17 Cal.App.3d 84 ................................................................... 20
People v. Avalos
(1996) 47 Cal.App.4th 1569 .............................................................. 36
People v. Brock
(2006) 143 Cal.App.4th 1266 ...................................................... 25, 26
People v. Brown
(1991) 234 Cal.App.3d 918 ............................................................... 25
People v. Brown
(1994) 6 Cal.4th 322 .......................................................................... 33
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TABLE OF AUTHORITIES
(continued)
Page
v
People v. Cage
(2007) 40 Cal.4th 965 ........................................................................ 23
People v. Curry
(2007) 158 Cal.App.4th 766 .................................................. 25, 27, 28
People v. Duarte
(2000) 24 Cal.4th 603 ........................................................................ 23
People v. Gann
(2011) 193 Cal.App.4th 994 .............................................................. 23
People v. Gutierrez
(2009) 45 Cal.4th 789 .................................................................. 40, 41
People v. Hamilton
(2009) 45 Cal.4th 863 ........................................................................ 23
People v. Hardy
(1992) 2 Cal.4th 86 ............................................................................ 22
People v. Herrera(2000) 83 Cal.App.4th 46 ............................................................ 22, 40
People v. Jones
(1990) 51 Cal.3d 294 ......................................................................... 25
People v. Jones
(2009) 178 Cal.App.4th 853 ........................................................ 31, 32
People v. Jourdain
(1980) 111 Cal.App.3d 396 ............................................................... 22
People v. Kronemyer
(1987) 189 Cal.App.3d 314 ............................................................... 34
People v. Ledesma
(2006) 39 Cal.4th 641 ......................................................38, 39, 40, 41
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TABLE OF AUTHORITIES
(continued)
Page
vi
People v. Ledesma
(1987) 43 Cal.3d 171 ......................................................................... 39
People v. Pope
(1979) 23 Cal.3d 412 ......................................................................... 38
People v. Rodrigues
(1994) 8 Cal.4th 1060 .................................................................. 23, 24
People v. Rogers
(2006) 39 Cal.4th 826 ........................................................................ 41
People v. Russo
(2001) 25 Cal.4th 1124 ...................................................................... 25
People v. Sandoval
(2007) 41 Cal.4th 825 ................................................................ passim
People v. Scott
(1994) 9 Cal.4th 331 .......................................................................... 36
People v. Seldomridge(1984) 154 Cal.App.3d 362 ............................................................... 34
People v. Silvey
(1997) 58 Cal.App.4th 1320 .............................................................. 38
People v. Smith
(1983) 34 Cal.3d 251 ......................................................................... 33
People v. Tatman
(1993) 20 Cal.App.4th 1 .................................................................... 25
People v. Thompson
(1995) 36 Cal.App.4th 843 .......................................................... 25, 28
People v. Watson
(1956) 46 Cal. 2d 818 ........................................................................ 22
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TABLE OF AUTHORITIES
(continued)
Page
vii
People v. Williams
(2009) 170 Cal.App.4th 587 .............................................................. 41
People v. Wilson
(2008) 164 Cal.App.4th 988 .............................................................. 32
People v. Winters
(1990) 221 Cal.App.3d 997 ......................................................... 20, 21
Strickland v. Washington
(1984) 466 U.S. 668 [104 S.Ct. 2052, 80 L.Ed.2d 674] .............. 38, 39
Wilke & Holzheiser, Inc. v. Dept. of Alcoholic Beverage Control
(1966) 65 Cal.2d 349 ......................................................................... 33
STATUTES
Evid. Code 1223 ................................................................................... 22
Gov. Code, 70373 ................................................................................... 1
Pen. Code, 68 .............................................................................. 1, 20, 21
Pen. Code, 86 ........................................................................................ 20
Penal Code 118 ....................................................................................... 1
Penal Code 1202.4 .................................................................................. 1
Penal Code 1202.45 ................................................................................ 1
Penal Code 1465.8 .................................................................................. 1
CONSTITUTIONAL PROVISIONS
Cal. Const., art. I, 16 ............................................................................. 25
U.S. Const., 6th Amend. .................................................................... 23, 30
U.S. Const., 14th Amend. ........................................................................ 31
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TABLE OF AUTHORITIES
(continued)
Page
viii
COURT RULES
Cal. Rules of Court, rules 4.405-4.452 .................................................... 35
Cal. Rules of Court, rule 4.421 .......................................................... 35, 36
Cal.Rules of Court, rule 4.414 ...............................................29, 35, 36, 37
Cal.Rules of Court, rule 4.423 ................................................................. 37
OTHER AUTHORITIES
Sen. Bill 40 .............................................................................................. 30
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1
STATEMENT OF THE CASE
In a Los Angeles County grand jury indictment returned on June 8,
2009 (case no. BA332035), appellant was charged with three counts of
asking for and/or receiving a bribe (Pen. Code, 68)1
[counts 1-3], and
three counts of perjury ( 118, subd. (a)) [counts 11-13]. Appellant pled
not guilty. (2CT 340-348, 352.)
Following a jury trial, appellant was found guilty as charged and
sentenced to prison for four years on count 1. Appellant was sentenced to
four years concurrent for each of the remaining counts. Appellant was
ordered to pay: $10,108 in victim restitution ( 1202.4, subd. (f)); a $40
court security assessment for each count, or $240 ( 1465.8, subd. (a)(1)); a
$30 criminal conviction assessment for each count, or $180 (Gov. Code,
70373); a $12,000 restitution fine ( 1202.4, subd. (b)); and a $12,000
parole revocation fine ( 1202.45), which was stayed. Appellant received
no presentence credit. (2CT 414-419, 429-432, 468-470, 474-475; 4RT
1815.)
Appellant filed a notice of appeal. (2CT 472.)
STATEMENT OF FACTS
A. Prosecution1. Appellants Grand Jury Testimony
Appellants grand jury testimony was read to the jury at trial. (See
2RT 316-318.) On December 15, 2008, appellant testified under oath in
front of a grand jury that she was then the mayor of Temple City. (2RT
1Unless otherwise indicated, all further statutory references are tothe Penal Code.
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2
317-322.)2 Appellant had joined the city council in 1990 and was elected
mayor in 2005. (2RT 323.)
Randy Wang had run a development project for a few years that had
been the intermittent subject of council meetings. (2RT 324.) No citycouncil members were directly involved in negotiations for the
development. (2RT 329.) Appellant never interacted with Wang
independent of city council meetings. (2RT 330.)
Wang sued Temple City regarding the development project. (2RT
324.) In his suit, Wang alleged that appellant wanted a condominium in
exchange for support for his project. (2RT 324-325.) There was no truth to
that allegation. In one conversation with Wang, appellant told him it wouldbe nice for someone to have a condominium on the very top of the
development to overlook Temple City. (2RT 325.) Appellant did not mean
that she wanted to be the person with the top condominium. (2RT 326-
327.) Appellant had a house and owned animals at the time and would not
have wanted to be in a condominium when she enjoyed what she already
owned. (2RT 327.) Although appellant could not recall the date of the
conversation or its context, she testified that Councilmember Judy Wong
had not been present. (2RT 326.)
Appellant saw Wang and City Manager Charlie Martin in City Hall
from time to time and would speak to them about the project. (2RT 330-
331.) In one such conversation, appellant told Wang that he should have
kept his project personnel instead of firing them. (2RT 331.) Appellant
initially testified that the new project personnel had not started at the time
and she had nothing against them, just that she trusted the old project
2 Later testimony stated that appellant was only a councilmemberduring that time. (See 2RT 388.)
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personnel. (2RT 332.) Appellant then testified that there was something
that bothered her about the new project personnel. (2RT 333.)
The old project personnel were David Choi and Jagath Liyanage.
Appellant testified that she had no personal or financial interest in eitherone of them. She testified that neither of them had given her money or
made campaign contributions. (2RT 333.) Appellant had never met
Liyanage before the Wang project. (2RT 334-335.)
Appellant had little telephone contact with Wang. (2RT 335-336.)
Wang called to wish appellant Happy Mothers Day and appellant called
Wang to tell him that Dana Baskin,3 a local newspaper editor and supporter
of Wangs project, had died. Wang called appellant a few times other thanthat. (2RT 336.)
In a recorded conversation played by the prosecutor and entered into
the record as Peoples Exhibit 2, someone called Wang and asked to meet
him in private in order to do something to help him. (2RT 336-338.)
Appellant denied that it was her voice and said it sounded like a man.
(2RT 338.)4 On another occasion in the winter of 2006/2007, Wang called
appellant and asked her to meet him at the mall. Appellant said that she
preferred Starbucks, and when they met there, Wang gave her a present in
appreciation for her work on his project. (2RT 338-339.) When appellant
opened it later and discovered that it was a beautiful watch, she returned
it and told Wang that she could not accept presents. (2RT 339.)
2. Trial TestimonyIn September 2004, Wang entered into escrow to purchase a lot on the
corner of Rosemead Boulevard and Las Tunas Drive in Temple City for
3Although he is referred to here as Bascomb, his name appears to
be Baskin. (See 2RT 603; 3RT 910.)4 This assertion was later disputed by two witnesses at trial. (See
2RT 276, 399-400.)
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$10 million. (3RT 902-903, 905.) While in escrow, Wang discovered that
there was an eminent domain suit on the property. (3RT 904-905.) If
Wang had canceled the purchase, he would have lost $1 million, so he
decided to go ahead with the purchase with the idea that he would negotiatewith the city to drop the suit in return for a development project. (3RT
905.)
Wang spoke with city representatives who told him that he had to
purchase three adjacent lots and join them before the city would negotiate
further. (3RT 906-907.) Wang did so, spending a total of $13 million.
(3RT 906-907.) Wang was introduced to Baskin by his realtor in an effort
to network with influential Temple City residents. (3RT 910.) In early2005, Baskin introduced Wang to Liyanage for work on the development
project. (2RT 603-604; 3RT 910.) In April 2005, Wang hired Liyanage to
perform design, development, and project management. (2RT 603-604.)
Liyanages job was to come up with an appropriate project, get it approved
by the city council, build it, and lease it out. (2RT 604.) Liyanage
proposed a mixed use residential-commercial plan. (2RT 605.)
Liyanage was then approached by Martin and told that in order to
negotiate a deal, Wang would have to retain Martins attorney friend, Ralph
Leech. (3RT 907-908, 950.) Wang did so, and then signed a development
contract that gave him four years to develop that land before the city would
take the land from him for $5 million. (3RT 907-908.) Liyanage
recommended Choi as an architect and Wang hired him. (3RT 911-912,
977-978.) In order to complete the project, Liyanage would still need the
approval of the city council, the planning board, the engineering board, and
more technical agencies as the project progressed. (2RT 606.) The city
council approved the plan in June 2006 and removed the condemnation
lawsuit. (2RT 605, 607; 3RT 913.)
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Liyanage first met appellant in March 2005, after she won election, in
City Hall. (2RT 606, 610.) They met several times over dinner and
appellant met Liyanages family. (2RT 639.) In late 2005 or early 2006,
before the approval, appellant said that it would be nice to live in one of thecondominiums in the development, but Liyanage thought she was joking.
(2RT 632-633; 3RT 933.) Wang testified that Liyanage was not there for
the conversation, and said that he could not tell if appellant was joking,
especially because she kept mentioning that Wang would have to take care
of her later. (3RT 933.) Appellant then held out her arm and said that she
did not have a watch, which Wang understood to mean he should buy her
one. (3RT 934.)Wang bought appellant an expensive watch without telling Liyanage.
He gave it to her at a Starbucks cafe. Wang later felt bad about it, and told
Liyanage. Liyanage offered to speak to appellant to get the watch back and
Wang agreed. (3RT 934.) Before Liyanage asked appellant to return the
watch, she approached Liyanage on her own to return it. Liyanage told
appellant that she should return the watch to Wang directly, but she said
that she did not want to be rude and told Liyanage to return it. (2RT
635.) Liyanage knew he would still have to work together with Wang on
the project and did not want to embarrass him, but he did tell Wang that he
should not have given appellant the watch because the project was going
well and the council was going to approve the project. (2RT 635-636.)
Liyanage told Wang, [Y]ou dont need to panic. Wang said that he was
sorry and Liyanage told him that after the project was approved they would
give appellant a gift. (2RT 636.)
Later in 2006, appellant called Liyanage and told him that she needed
$2,000 for a family emergency. (2RT 607.) Liyanage gave her $2,000 in
cash at Cocos Restaurant on Live Oak Avenue -- a location chosen by
appellant. (2RT 607-608.) In 2007, in their one and only meeting,
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Liyanage and his family met appellants daughter, Terri Cohen, at a
restaurant in Arcadia. (2RT 610, 642.) Liyanage denied discussing
Cohens problems making payments on her condominium. (2RT 642-643.)
Eva Hauffen, who was a city council assistant in September 2006,gave appellant an advance of $958.54 for appellant, Wong, and Martin to
attend the California City Conference on September 6, 2006. (2RT 366-
367.) Appellant stayed three nights and Martin and Wong each stayed one
night. (2RT 367.) $111.25 of that money was for 250 miles that appellant
told Hauffen she would be driving. (2RT 368.) If appellant was driven by
a friend in a different car, she would not have been entitled to the money.
Appellant never told Hauffen that she did not drive her own car to theconference. (2RT 374.)
Before the conference, appellant called Liyanage and asked to use his
car to drive to the conference because her car was not in good shape.
Liyanage did not want to give her his car, so her offered to rent a car for her
instead. (2RT 615.) Liyanage was afraid not to give her a car because she
had power over his project. (2RT 615-616.) Although appellant never
threatened him, Liyanage felt he could never say no to her for fear of
offending her. (2RT 616.) Appellant accepted the rental and they went
down to Budget Rent-a-Car together. (2RT 615.) The transaction was
corroborated by Jacqueline Sandoval, who rented the car jointly to
appellant and Liyanage. The rental amount of $108.03 was paid by credit
card and the insurance of $36 was paid in cash. (2RT 356-360.) Liyanage
paid the credit card amount but not the cash. (2RT 643.)
Prior to the grand jury investigation, appellant spoke with Hauffen
twice. The first time, appellant told Hauffen that she did not know why the
grand jury was requesting city records. The second time, she told Hauffen
that she could not remember whether she paid the mileage money back.
(2RT 375.) Hauffen worked for appellant and could recognize her voice.
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(2RT 375-376.) Hauffen identified the speaker on Peoples Exhibit 2 as
appellant. (2RT 376.)
In late 2006, Wong called Wang and asked for help in her re-election
campaign. (3RT 914.) Wang told her, Thats not a problem, but I have tofirst talk to my project manager and discuss this with him a little bit. (3RT
914-915.) Wong and Wang communicated in Mandarin. (3RT 923.)
Wang discussed Wongs request with Liyanage and was told that Liyanage
wanted to ask appellant because Wong was a nemesis of hers. (3RT 914-
915.) Liyanage spoke with appellant and reported back to Wang that it was
appropriate to help Wong. (3RT 916.)
In late 2006 and early 2007, appellant told Liyanage thatCouncilmember Dave Capra looked like he was going to lose an election
and that would mean a loss of support for Liyanages project. Appellant
therefore recommended getting Scott Carwile elected to the city council
and defending Wongs costly seat. (2RT 620.) Liyanage asked appellant,
How can I help you? If you like I can give you some campaign
contributions. Appellant said, That will be very helpful. Liyanage
asked appellant how much and she said $5,000 for Capra and $3,000 for
Carwile. (2RT 621, 624.) On January 11, 2007, Liyanage discussed it with
Wang, who told him to start by giving Wong $5,000 and to organize a pick
up location. (2RT 616-618.)
On January 22, 2007, Liyanage wrote an e-mail to Wang telling him
that he was working with two people, and was going to finalize one that
night. (2RT 617-618.) He wrote, [C]ant leave tracks. So I will call you
as soon as I finalize. (2RT 618.) Liyanage explained that he was telling
Wang that he was in communication with appellant to give her $8,000 for
Wong and Carwile, but that she had not yet told him where to deliver it
when he wrote that e-mail. (2RT 618-621.) Wang wrote back, Okay.
(2RT 618.) Liyanage replied that the best way to get money to Wong
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would be to use Radini Malleppah, the owner of the school that Liyanages
daughter attended, because the owner was close to his family. (2RT 619-
620; 3RT 917-918.) Liyanage told Wang that Wong could either pick the
money up directly from the school or that the owner would bring it to alocation of Wongs choice in Arcadia. Liyanage reminded Wang that
appellant asked him to prepare $3,000 for Carwile. (2RT 619-620.) Wang
responded, [D]o we do the same way as [Wong] to [Carwile]? (2RT
621.) Wang was asking if it was also supposed to be in cash as opposed to
check. (3RT 919.) On January 23, 2007, Wang gave Liyanage $8,000 in
cash for the election campaigns. This transaction was corroborated by a
check from Wang made out to cash. (2RT 622.) Wang withdrew $3,000for Carwile and $5,000 for Wong. (3RT 920.)
On January 25, 2007, Liyanage sent another e-mail to Wang telling
him that he gave appellant the money for Carwile and reminding him that
they needed to do the same for Capra within the week. (2RT 623-625.)
Wang replied that he would meet with Liyanage at Kentucky Fried Chicken
the next day. (2RT 625.) Wang gave Liyanage the $5,000 in cash on
January 26, 2007, and Liyanage passed it on to appellant. (2RT 624, 626.)
The transaction was corroborated by a check made out by Wang to cash for
$5,000. (2RT 625-626.)5
Wong told Wang that she would not pick up the money from anyone
who was not a Chinese national. (3RT 922-923.) Therefore, Liyanage
decided to drop the money off at a yogurt shop in Arcadia owned by the
Chinese boyfriend of Liyanages secretary, Jeannie Thai. (2RT 629-630.)
5On cross-examination, in contradiction to the e-mail he sent to
Wang, Liyanage testified that he and Choi met appellant and Capra at an ElMonte restaurant and that he gave one envelope to appellant and one toCapra. (See 2RT 657-659.)
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Wongs secretary, Wendy,6 picked up the contribution from the yogurt shop
on January 28, 2007. (2RT 627-630.) Wong called Wang and told her that
she received the money. (3RT 927.)
After Wong received her $3,000, she requested $1,800 each inadditional funds for the campaigns of Anthony Portantino and Carol Liu.
Wang complied, as corroborated by checks and receipts for those amounts.
(3RT 928-929.) Wong then requested an additional $1,000 for Lius
campaign and $1,000 cash for herself. Wang complied, as corroborated by
checks and receipts. (3RT 929-931.) Wong made a final request of $1,000
for the campaign of Mike Eng. Wang complied, as corroborated by a
check. (3RT 931.) Wang also testified that he recognized the numbers ofWong, Choi, and Liyanage from his phone records. (3RT 931-932.)
Mary Flandrick, city clerk for Temple City, testified that all
candidates and certain city officials must file a Form 700 Statement of
Economic Interest declaring, under penalty of perjury, gifts and economic
holdings of over $50 in value. (2RT 383-385.) Appellant signed one on
March 22, 2007, for calendar year 2006, and another on March 25, 2008,
for calendar year 2007. Neither form listed any gifts in excess of $50 for
those years. (2RT 386-388.) Wong also submitted a Form 700 for
2006 and 2007 and did not list any gifts over $50. (2RT 389-390.)
Flandrick testified that all candidates who take in over $1,000 in
contributions must file a Form 460 under penalty of perjury that lists donors
and how donations are spent. (2RT 391.) Carwile, who was appellants
treasurer in 2005, ran for city council in 2007. (2RT 392.) His forms for
calendar year 2006 and the first half of 2007 did not list a $3,000
contribution from Wang or Liyanage. (2RT 393-394.) Wongs Form 460
for the period January 21, 2007, through February 17, 2007, did not list any
6Wendys last name does not appear in the record.
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contributions from Wang or Liyanage. (2RT 394-395.) Flandrick also
identified the speaker on Peoples Exhibit 2 as appellant. (2RT 399-400.)
Liyanage differentiated between giving money to councilmembers
before the 2006 project approval and giving after the approval, and that waswhy he was in favor of giving money for the election campaigns. (2RT
634-637.) Liyanage still admitted that the campaign money was also given
to protect the project, but claimed that was Wangs motivation, not his.
(2RT 637, 639-640.) Liyanage also testified that he gave the campaign
money out of a general fear of the councilmembers power. (2RT 667.)
Although Liyanage originally perjured himself in front of the grand
jury and said that he had not given any money to councilmembers, headmitted that was a lie. (2RT 612-613.) Liyanage pled guilty to bribery
and as part of his plea agreement agreed to tell the truth under oath at
appellants trial. (2RT 613.) Liyanage also admitted that he took a 10%
kickback off of the subcontractors on the project (including Choi)
unbeknownst to Wang, but paid taxes on the income. (2RT 637-638.)
Liyanage regretted the kickbacks. (2RT 638.)
Liyanage and Choi left Wangs employment in May 2007. (2RT 604,
650; 3RT 938.)7 Liyanage thought that the project would have been
completed successfully had he stayed on. (2RT 670-671.)
After Liyanage left, Wang was called to meet Martin and appellant in
City Hall. (3RT 938.) They threatened Wang that he had to rehire
Liyanage and Choi, and to use B.L. Construction as a general contractor.
(3RT 938-939.) Wang refused and told them that he had already hired
another contractor, A&W Builder. Martin and appellant were very upset
7Liyanage testified that he quit because he disagreed with Wangs
style (2RT 650), while Wang testified that he fired Liyanage for hiringChoi, who was not licensed as an architect, and for stealing from Wang viathe kickbacks (3RT 938).
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but reluctantly accepted Wangs decision. (3RT 939.) Later that day,
appellant called Wang again and told him to rehire Liyanage and Choi. She
told him that A&W were liars and had lied to the city, but gave no
specifics. (3RT 940.) On July 18, 2008, appellant called Wang again andleft a voice message asking him to rehire Choi and to hire B.L.
Construction. (3RT 942-943.) The message was played for the jury as
Peoples Exhibit 2. (3RT 943-944.)
Wang went ahead with a new architect and they used Chois plans.
Choi sued, claiming they were copyrighted, and Wang filed a claim with
the architect board asserting that Choi was unlicensed. (3RT 940-941.)
That case was being prosecuted by the District Attorney at the time of trial.(3RT 941.)
In early 2008, Temple City sued Wang for breach of contract and
demanded he sell the city his property for $5 million based on the
understanding that he could not finish the project within the contractual
four years because he had hired a new contractor and was unable to get
loans due to the financial crisis. (3RT 941-942.) Wangs attorney
recommended negotiating with the city as a way to avoid litigation. (3RT
944.) Wang made a deal with Hilton Hotels to turn the residential units of
his development into a Hilton franchise. (3RT 945.) Wang informed the
city of the deal and asked to settle the case and restart the clock on the four-
year term, but the proposal was rejected. (3RT 945-946.)
Wang and his counsel decided to countersue. In preparation for the
litigation, Wang collected all of his evidence of wrongdoing and gave it to
his attorney, who passed it on to the District Attorney. (3RT 946.)
Christopher Briggs, a senior investigator for the District Attorneys
Office, interviewed Liyanage in November 2008. (3RT 961, 966.)
Although Liyanage at first denied that he had bribed city officials, in a
successive interview on April 29, 2009, Liyanage admitted that he gave
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$2,000 to appellant. (3RT 966-967, 969.) On May 18, 2009, Briggs sent a
letter to appellant informing her that she was under investigation for
bribery. (3RT 967.)
On May 26, 2009, appellant, posing as Cohen, purchased a cashierscheck for $2,000 at the Temple City branch of Bank of America to repay
Liyanage. (2RT 351-352, 608; 3RT 967-968.) The transaction was
corroborated by Dulce Marroquin, custodian of records for Bank of
America, and an accompanying surveillance video. (2RT 346-353.) Cohen
gave Liyanage the money on May 28, 2009, with a letter of gratitude
thanking him for helping her and inviting Liyanage and his family to
Mexico to vacation with her and look at business opportunities. (2RT 609-610.) When appellant originally asked Liyanage for the money, she did not
mention that it was for Cohen. (2RT 611.)
3. Scott Carwiles TestimonyAppellant and Carwile had been in favor of Wangs development
project from the time when Carwile was treasurer of appellants 2005
campaign. (2RT 678-679.) It was a good project which would have
brought in a lot of jobs and improved the city. (2RT 679.) As treasurer of
appellants 2005 campaign, Carwile and appellant discussed taking money
from developers like Wang and Liyanage, but decided that because the
campaign was so nasty, they did not want any fallback on Wang and
Liyanage if they lost. (2RT 677.)
In one undated incident, Wang handed out $250 gift cards to
councilmembers as thanks for working on his project. (2RT 680-681.) In
another, Carwile told Wang he was trying to raise $3,000 for his campaign
and asked him to donate. (2RT 681.) Wang did not speak English well,
and when he just stood and smiled, Carwile was not sure that Wang had
even understood him. He did not follow up. (2RT 682.)
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Carwile filled out his Form 460 in January 2007 and listed a loan to
himself of $3,500. (2RT 672-673.) $3,000 of that money had come from
appellant. (2RT 673.) Carwile picked up the money in cash from her
house after she told him that it was from somebody that didnt want theirname used. (2RT 676.) Carwile had seen that it was a particularly nasty
campaign and felt he could understand why it would be anonymous. (2RT
677.) The transaction was corroborated by Carwiles bank statements.
(2RT 675-676.)
Carwile and other councilmembers liked Liyanage because he would
fulfill their stupid requests in order to make sure they were happy. (2RT
681-682.) Carwile pled guilty to making a false campaign statement and aspart of his plea agreement agreed to tell the truth under oath at appellants
trial. (2RT 674.) Carwile recognized appellants and Liyanages numbers
from his telephone records. (2RT 677-678.)
B. Defense Case1. Appellants Testimony
Appellant testified that Wangs project was first proposed at the end
of 2005 and that appellant was initially excited about it because of a dearth
of shopping opportunities in Temple City. (3RT 1217-1218, 1220.) As
appellant met Liyanage, she adopted him, as was her custom to adopt
people who do not have parents. Appellant became very close to Liyanage.
(3RT 1221.)
When appellant was going to be driving to the California Cities
Conference, she mentioned to Liyanage that she was concerned aboutdriving her old car. Liyanage said, Well, you know, my wife . . . is in
Shanghai, so her care is just sitting there. Would you like to use it?
Appellant responded, Oh, that would be great, Ill put in the gas and
whatever needs to be done with the car. (3RT 1221.) Two days later,
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Liyanage told her, Oh, I dont have the car, my nephew . . . has it in
Arizona and I cant get it back, so you should rent a car. Appellant
responded, Well, I have never rented a car . . . . Do you have a certain
place that you would recommend for you [sic] to go to? Liyanage said,Yes, Ill take you down to my friends. (3RT 1222.)
They went to Budget to rent the car, and appellant decided to pay the
insurance in cash. (3RT 1222-1223.) When she reached for her credit card
to pay for the rental, Liyanage said, No. No. No. I put it on mine,
because these people know me and I do business with them. Appellant
said, Ill just pay you back when I get my per diem check cashed. (3RT
1223.) After the conference, appellant gave Hauffen the car rental receiptand Hauffen said, Oh. We owe you some money. (3RT 1224.)
Appellant responded, Eva, no, you dont owe me. Anything . . . .
Whatever is given to us in our per diem, that is what, you know -- we dont
get overpaid. (3RT 1224-1225.) Hauffen said, Oh. Okay, as if
appellant was teaching her how the per diem rules worked. (3RT 1225.)
Two weeks later, appellant paid Liyanage the $111. (Sic.) (3RT 1225.)
Neither appellant nor Liyanage ever mentioned the project or appellants
vote and appellant always intended to pay Liyanage back. (3RT 1225-
1226.) Appellant did not divulge the $111 [sic] car rental on her Form
700 because she used her per diem to pay it back. (3RT 1237-1238.)
When Liyanage gave appellant the $2,000, they both understood it
was a loan to Cohen, at Cohens request. (3RT 1226-1227.) Appellant
directly paid Robert Crawford, to whom Cohen owed money. (3RT 1226.)
Appellant sent him a check for $3,000, contributing $1,000 of her own
money. (3RT 1226-1228.) Appellant testified that even though she had
money in the bank, she did not give that money to Cohen because it was in
a certificate of deposit that she did not touch. (3RT 1228.) Appellant never
threatened Liyanage or mentioned his project when she asked for the loan.
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Appellant admitted that she got the cashiers check for Cohen when it was
time to repay Liyanage. (3RT 1229.) Appellant did not divulge the $2,000
loan on her Form 700 because it was not for her campaign and was not hers
at all. (3RT 1237-1238.) Appellant could not explain why her bankrecords showed that she never deposited the $2,000, and insisted that she
had. (3RT 1247-1249.) Appellant also could not explain why she got a
cashiers check instead of sending a personal check in the mail so that
Liyanage could get the money much sooner. (3RT 1250-1253.) Although
appellant said that using cashiers checks is the way [she does] things,
she had never gotten a cashiers check before and had written many
personal checks. (3RT 1251-1253.)On one occasion, appellant was at a restaurant when Liyanage called.
She told him where she was and he said he was going to come by. (3RT
1230.) Appellant told him that Capra was there with his fiance. (3RT
1230-1231.) Appellant invited Liyanage to join them all for a drink, but he
said he had to go to the airport and only stayed a short while. Liyanage did
not give money to Capra or an envelope to appellant. (3RT 1231.)
In regards to the grand jury investigation, appellant testified that she
was not represented by counsel at the time. (3RT 1232.) Appellant
testified at trial that she had met with Wang and Martin together on two
occasions, once before Liyanage left the project and once after. (3RT
1232-1233.) In the first meeting, Wang updated them on how well the
project was going. (3RT 1232.) In the second meeting, they did not
discuss the change in project managers because it had already happened.
Appellant did meet with Wang alone at City Hall, however, and appellant
asked him, Why did you get rid of [Liyanage]? Wang said, Im not
going to talk about that. Appellant replied, Okay. (3RT 1233.)
Appellant did not know that Liyanage was taking kickbacks when she
spoke with Wang. (3RT 1233-1234.) Appellant never threatened Wang
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that if he did not put Liyanage back on the project, she would no longer
vote for it. (3RT 1236-1237.)
Although appellant originally testified about Peoples Exhibit 2 in
front of a grand jury that she did not recognize the voice and that it soundedlike a man, that was because the version she heard was poor quality and far
away. (3RT 1234.) The prosecutor at the grand jury investigation did not
offer to bring the recording closer or make it louder for her to properly
determine if it was her. (3RT 1234-1235.) After appellant heard the newer,
better quality version in her counsels office, she determined that the voice
was hers and that it was a recording of a call when she asked Wang to meet
with her because she did not trust the construction company Wang hadchosen to complete the project and wanted to discuss it with him. (3RT
1235.) On an earlier occasion, appellant had asked Wang how he chose
A&W, and he told her that he had found them in a mailer left on his office
door. (3RT 1235-1236.) After appellant did some investigation, she found
out that A&W had been in litigation and bankruptcy and that some of it was
still ongoing. (3RT 1236.)
Appellant did not report $8,000 on her Form 700 because she never
received it. Appellant repeated her grand jury testimony that when she
commented on how nice the penthouse would be, she did not mean that she
wanted to live there. (3RT 1239.) She had a nice house and a lot of
animals to care for that would not fit into a condominium. (3RT 1239-
1240.)
Appellant also testified that when Wang gave her the watch she did
not know why he wanted to meet her, but greeted her by saying, I want to
give you something from my parents and my family for all that you have
done for us in helping us and everything that you have done. (3RT 1240.)
Appellant replied, [Wang], you cant be giving me anything. I want this
project just as much as you do . . . . Im, you know, really looking forward
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to it being developed. (3RT 1240-1241.) Wang said, No, its good that I
give it to you. Appellant did not open the package until she got home and
discovered it was a beautiful diamond watch. Appellant called Liyanage
and said, I want to return it . . . but I dont know how to go about this . . . .Could you return it for me? Because I dont want to insult [Wang].
Appellant had not earlier showed Wang her arm without a watch on it.
After the watch was returned, appellant told Wang, I appreciated the
thought, but I cannot receive any gifts. (3RT 1241.)
Appellant did not trust or like Wong. Appellant did not tell Liyanage
that he should support Wong. (3RT 1237.) In a conversation with Carwile,
appellant told him that councilmembers could not accept donation fromdevelopers. She said, This is something you dont do . . . . Its not right.
(3RT 1242.) However, there was nothing illegal about taking donations of
any amount from anybody, including developers. (3RT 1242-1243.)
Appellant admitted that when she was asked about her relationship to
Liyanage in the grand jury she did not testify that he was like a son to her
or any of the other close relationships she testified to at trial. (3RT 1257.)
Appellant did not recall giving Wang 30 days to withdraw his bribery
accusations under threat that otherwise his project would not move forward.
(3RT 1246.)
2. David Chois TestimonyChoi testified on direct examination that he had never been to the
restaurant alone or with Liyanage. (3RT 979.) On cross-examination, Choi
admitted that he did meet Liyanage and Capra at the El Monte restaurant,
but did not see appellant or the envelope. (See 3RT 985.)
3. Terri Cohens TestimonyCohen testified that when she met Liyanage, she talked to him about
losing her condominium in Mexico because she was behind on her
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mortgage payments. (3RT 1202-1203.) Liyanage expressed concern and
said, If theres ever anything I can do to help you, please let me know.
(3RT 1204.) Cohen saw that Liyanage held appellant in great esteem and
even referred to her as Mom because they were considered part of thefamily. (3RT 1206-1207.) Later, as Cohen fell further behind in her
payments, she asked appellant for money and then asked her to ask
Liyanage for money on her behalf. (3RT 1204.) Even though she was
very close to her mother, Cohen did not know at the time if appellant was
mayor of Temple City or just a councilmember. (3RT 1207.) Appellant
did not have the money to lend Cohen and Cohen did not ask any of her
actual siblings for money. Cohen did not know why her mother would sayshe did not have the money to lend Cohen when appellants bank
statements showed otherwise. (3RT 1208.)
The title to Cohens condominium was in the name of Robert
Crawford, and Cohen made payments to him. (3RT 1204-1205.) Appellant
sent the $2,000 directly to Crawford. Cohen understood the money to be a
loan, but she was unable to repay it for a long time because Liyanage was
often out of the country. (3RT 1205, 1209.) When appellant told Cohen
that Liyanage was in town, Cohen asked her mother to give Liyanage a
cashiers check. (3RT 1206.) Cohen could not explain why appellant
testified that she did not have money to pay Liyanage until 2009, when
appellants bank records showed that she did have money. (3RT 1214.)
Cohen could also not explain why she could not have paid Liyanage back
because she did not know where he was and because he was out of the
country, when appellant was in constant contact with Liyanage and knew
where he was weekly. (3RT 1214-1215.)
4. Character TestimonyFather William Ledbetter testified that he had known appellant for the
three and a half years before trial as her priest at the Episcopal church in
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Arcadia. (4RT 1502-1503.) Appellant had a reputation as an honest and
upstanding member of the church for over 40 years. Appellant had
volunteered for many jobs throughout her years at the church. (4RT 1503.)
Father Gene Richard Wallace testified that he had known appellantfor 14 years as her pastor. (4RT 1511-1512.) Appellant was a Sunday
school teacher for 42 years, but also his senior warden, which is the lay
president. (4RT 1512.) A pastor will only choose as senior warden
someone that he has complete confidence in. (4RT 1512-1513.) Father
Wallace had complete confidence in appellant. She was his confidante and
he never feared that anything he told her would be divulged. (4RT 1513.)
Robert Allen Ellingsworth testified that he had known appellant for25 years in their work with the youth of Temple City. (3RT 1504.)
Appellant had a reputation for being hard working and generous with her
time in volunteering. (4RT 1505.)
Anita Menser testified that she had known appellant for 35 years as
parents of children in organized sports and as board members on those
organizations. (4RT 1506-1507.) Appellant had a reputation for honesty
and following the rules. Appellant would not do anything wrong or
jeopardize her reputation. (4RT 1507.)
Regine Paletta testified that she had known appellant for 40 years
through little leagues, on the board of Temple Citys learning center, and as
volunteers in the sheriffs support group to watch children whose parents
have been arrested. (4RT 1508-1510.) Appellants reputation was that she
is honest, reliable, and great. (4RT 1510.)
Ellingsworth, Menser, and Paletta all testified that they would give
appellant $2,000 cash if she or her family needed it, would rent her a car if
she needed it, and had never had to have any project approved by the
Temple City City Council. (4RT 1505, 1507-1508, 1510-1511.)
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Anthony Fellow testified that he had known appellant for 30 years,
first as a political reporter, and later in politics. (4RT 1514-1515.) Fellow
had worked closely with appellant on political projects, including when he
was a councilmember in El Monte and they jointly brought Home Depotprojects to their respective cities. Appellant was the most honest person
that Fellow had ever met. (4RT 1515.) During the Home Depot project,
Fellow never asked any of the developers to give him cash or to rent a car
for him. (4RT 1517.)
I. THE TRIAL COURT PROPERLY AMENDED THE INDICTMENTTO CORRECT A CLERICAL ERROR CITING THE WRONG
PENAL CODE SECTION FOR COUNTS 1THROUGH 3
Appellant contends that the trial court erred by allowing prejudicial
amendment of the grand jury indictment instead of referring the matter back
to the grand jury or filing a new information. (AOB 11-12.) However, the
court merely corrected a transposition error in the supporting Penal Code
section with no prejudice to appellant.
Where a grand jury indictment misstates a Penal Code section, the
trial court may correct the error by amendment without further proceedings.
( 1009; People v. Winters (1990) 221 Cal.App.3d 997, 1003-1004, citing
Patterson v. Municipal Court(1971) 17 Cal.App.3d 84, 88.) Section 68
criminalizes an executive city officer receiving bribes. Section 86
criminalizes a city councilmember receiving bribes. Both sections have an
identical two-three-four sentencing scheme and are otherwise identical. (
68, 86.)
Here, the original grand jury indictment described the charges incounts 1 through 3 against appellant as ASKING FOR/RECEIVING A
BRIBE, in violation of Penal Code section 86, a Felony. (2CT 340-341.)
During jury deliberations, all the parties agreed that the indictment should
be amended to read Penal Code section 68, for counts 1 through 3. (2CT
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427.) The indictment was so amended, as were the verdict forms sent to the
jury. (2CT 427; see 2CT 340-341, 414-416, 420-422.)
Although it appears that there was some confusion among witnesses
whether appellant was Temple Citys mayor or just a councilmember (see2RT 606; 3RT 913), appellant testified to the grand jury that she was mayor
(2RT 322), and thus an executive city officer under section 68. (See also
2CT 457 [Temple City Tribune article referring to appellant as former
Temple City mayor].) For this reason, all parties agreed to amend the
indictment to correct the clerical error that charged appellant with section
86 instead of section 68, pursuant to section 1009. (See People v. Winters,
supra, 221 Cal.App.3d at p. 1003-1004.)Furthermore, because appellant agreed to the change (see 2CT 427),
she has waived any such claim on appeal. Appellant admits that her claim
is based on prejudice (AOB 11, citing Chrisman v. Superior Court(1922)
59 Cal.App. 305), but she can show none. Aside from the difference in
who is accepting the bribe, the statutes are identical with identical
sentencing structures. ( 68, 86.) Contrary to appellants claim of
prejudice (AOB 11), no substantial rights were affected. Also contrary to
appellants claim of prejudice (AOB 11), the original indictment and the
amended interlineated indictment both contained charges against Wong and
Carwile because the amended indictment was just the original indictment
with 86 crossed out and 68 handwritten in. (See 2CT 340-348.)
Appellant also claims that the amended indictment would have confused
the jury (AOB 11), but as she later admits, the jury never saw the
indictment document. (See AOB 16.) Appellants final claim that the
charges were not clear and concise (AOB 12) in violation of the United
States Constitution is unsubstantiated and patently false. Appellant was
clearly and concisely charged with asking for and receiving bribes, charges
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of which she was properly convicted. Accordingly, appellants claim must
fail.
II. THE TRIAL COURT PROPERLY ADMITTEDNONTESTIMONIALCOCONSPIRATOR HEARSAY AND
INSTRUCTED ON CONSPIRACY8
Appellant contends that the trial court improperly admitted out-of-
court testimonial statements in violation of the Sixth Amendments
Confrontation Clause. (AOB 12-15.) Appellant also contends that without
those statements there would have been no evidence of conspiracy and
therefore the court should not have instructed on conspiracy. (AOB 15.)
However, none of the statements were testimonial in nature and they did
not fun afoul of the Confrontation Clause. Because the statements were
properly admitted, the court properly instructed on conspiracy.
A. Applicable LawEvidence Code section 1223 makes hearsay statements by a
coconspirator admissible if (1) the statement was made in furtherance of the
objective of the conspiracy, (2) while participating in the conspiracy, and
(3) if sufficient evidence sustains a finding of conspiracy. (People v. Hardy(1992) 2 Cal.4th 86, 139.) It is not necessary that a conspiracy be formally
charged. (People v. Jourdain (1980) 111 Cal.App.3d 396, 404.) Prima
facie evidence from which a trier of fact could find it more likely than not
that a conspiracy existed at the time the statement was made is sufficient
for the hearsay exception. (People v. Herrera (2000) 83 Cal.App.4th 46,
63.) These facts may be established through the use of circumstantial
evidence. (Id. at p. 64.) Error in the admission of hearsay is subject to
state harmless error analysis under People v. Watson (1956) 46 Cal. 2d 818,
8Respondents Argument II responds to Argument II and III ofappellants opening brief.
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836-837. (People v. Duarte (2000) 24 Cal.4th 603, 618-619.) Even where
a conspiracy is not charged, [o]nce there is proof of the existence of [a]
conspiracy there is no error in instructing the jury on the law of
conspiracy. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1134.)The Confrontation Clause of the Sixth Amendment only prohibits out-
of-court [t]estimonial statements of witnesses absent from the trial.
(Crawford v. Washington (2004) 541 U.S. 36, 59 [124 S.Ct. 1354, 158
L.Ed.2d 177].) Testimonial statements refers to statements that have the
formality and solemnity characteristic of testimony and that are given
and taken primarily . . . to establish or prove some past fact for possible use
in a criminal trial. (People v. Cage (2007) 40 Cal.4th 965, 984.) Wherethe proffered statement is not testimonial, state law may regulate the
admission of evidence by applying statutory hearsay rules without running
afoul of the Confrontation Clause. (Crawford, supra, at p. 68; see generally
People v. Gann (2011) 193 Cal.App.4th 994, 1007-1008.) However, even
testimonial statements do not run afoul of the Confrontation Clause if they
are made in furtherance of a conspiracy. (Gann, at pp. 1009-1011.) Failure
to object to testimony on specific Crawfordgrounds forfeits any such
claims on appeal. (People v. Hamilton (2009) 45 Cal.4th 863, 917.)
B. Liyanages and Wangs Hearsay Testimony Was NotTestimonial and Was Properly Admitted As
Coconspirator Statements; the Court Properly
Instructed on Conspiracy
Appellant cites five trial witness statements that he claims violated the
Confrontation Clause as out-of-court testimonial statements. (AOB 12-13.)
As a preliminary matter, any such claim was forfeit on appeal. Appellant
admits that trial counsel failed to object on CrawfordConfrontation Clause
grounds at trial. (See AOB 23.) That failure forfeit this claim on appeal.
(See People v. Hamilton, supra, 45 Cal.4th at p. 917.) However, even if the
claim was not forfeit, none of the challenged statements were testimonial.
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The first citation is to Liyanages testimony supplementing and
explaining an e-mail exchange between him and Wang regarding their
plans for delivering bribes to appellant and Wong. (2RT 618.) The second
citation is to Liyanages testimony supplementing and explaining an e-mailexchange between him and Wang regarding their plan for delivering a bribe
to Wong. (2RT 629-630.) The third citation is to Wangs testimony
regarding Wongs request to him for a bribe. (3RT 913.) The fourth
citation is to Wangs testimony regarding conversations and an e-mail
exchange he had with Liyanage about their plan to bribe Wong and Carwile
at appellants request. (3RT 918-921.) The fifth citation is to Wangs
testimony regarding an e-mail exchange between him and Liyanageregarding meeting for Wang to give Liyanage money to bribe Wong,
Capra, and appellant. (3RT 924.)
All of the above statements were made by Wang and Liyanage to each
other in completely nontestimonial contexts and as part of a bribery
conspiracy involving appellant. They both testified at trial and were
available for cross-examination. Thus, the statements do not implicate the
Confrontation Clause and were properly admitted under the coconspirator
statements exception to the hearsay rule. For the same reasons, the jury
was properly instructed on conspiracy. (People v. Rodrigues, supra, 8
Cal.4th at p. 1134.) Accordingly, appellants claim should be rejected.
III. THE TRIAL COURT PROPERLY OMITTED A UNANIMITYINSTRUCTION
9
Appellant contends that the prosecutor presented multiple acts of
bribery and perjury and that the court erred in not giving a unanimity
instruction. (AOB 15-17.) However, the court properly omitted a
9 Respondents Argument III responds to Argument IV ofappellants opening brief. (See fn. 8, above.)
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unanimity instruction as the court instructed the jury as to which acts of
bribery and perjury were charged in the indictment.
A. Applicable LawThe California Constitution guarantees the right to a unanimous jury
in criminal cases. (People v. Jones (1990) 51 Cal.3d 294, 321; Cal. Const.,
art I, 16.) When a defendant is charged with a single offense, and the
evidence at trial tends to show more than one act that could prove the
offense, either the prosecution must elect the specific act relied upon, or the
court must instruct the jury that it has to unanimously agree upon the act
constituting the offense. (People v. Russo (2001) 25 Cal.4th 1124, 1132.)
However, a unanimity instruction is unnecessary unless there is evidence
based on which reasonable jurors could disagree as to which act the
defendant committed. [Citation.] (People v. Brown (1991) 234
Cal.App.3d 918, 935.)
Failure to give a unanimity instruction qualifies as federal
constitutional error, and is subject to the harmless error test. (People v.
Curry (2007) 158 Cal.App.4th 766, 783.) Where the record indicates the
jury resolved the basic credibility dispute against the defendant and
therefore would have convicted him of any of the various offenses shown
by the evidence, the failure to give the unanimity instruction is harmless.
(Ibid., quoting People v. Thompson (1995) 36 Cal.App.4th 843, 853.)
Jury instructions must be read together and understood in context as
presented to the jury. Whether a jury has been correctly instructed depends
upon the entire charge of the court. (People v. Tatman (1993) 20
Cal.App.4th 1, 10.) Jurors are presumed to be intelligent persons capable
of understanding and correlating jury instructions. (People v. Brock
(2006) 143 Cal.App.4th 1266, 1277.)
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B. The Trial Court Instructions and Verdict FormsClarified for the Jury Which Acts of Bribery and
Perjury Were the Basis for the Charges of Which It
Convicted Appellant
Here, a unanimity instruction was unnecessary and thus properly
omitted because the trial court clarified through its instructions and verdict
forms which acts of perjury and bribery underlay the charges in counts 1
through 6. Any error was harmless, regardless.
1. The Bribery ChargesAlthough the trial courts instructions on counts 1 through 3 did not
specify which acts of bribery were charged in those three counts (4RT
1543-1544; 2CT 409), that is because the court had immediately previously
listed the three acts of bribery in the conspiracy instruction: (1) the over
$100 to Budget Rent-a-Car; (2) the $2,000 cash from Liyanage; and (3)
the $8,000 from Wang, delivered by Liyanage. (4RT 1541; 2CT 408; see
People v. Brock, supra, 143 Cal.App.4th at p. 1277 [[j]urors are presumed
to be . . . capable of . . . correlating jury instructions].) Further, the verdict
forms themselves specified the bribery counts by date. (2CT 414-416.)
Thus, appellants suggestion that the jury might have considered the
watch that Wang gave appellant (and which she shortly returned) to have
been an act of bribery on which one of the counts was based (AOB 17), is
groundless. Further, the conspiracy instruction (4RT 1541; 2CT 408) made
clear that the $3,000 that appellant received outside the restaurant (see
AOB 17) was subsumed in the $8,000 that Wang gave Liyanage to use for
bribes at appellants request. (See 2RT 621.) Accordingly, the jury clearlyused the three acts listed by in the conspiracy instruction as the basis for
counts 1 through 3, and a unanimity instruction as to the bribery counts was
properly omitted.
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Furthermore, any error was harmless. (See People v. Curry, supra, 58
Cal.App.4th at p. 783.) As stated above, appellant lists two possible
additional acts of bribery: the watch and the $3,000 given to appellant
outside of the restaurant. (See AOB 17.) As to the watch, it is notreasonable that the jury would have found appellant guilty of bribery for the
watch, which she soon returned (2RT 635), and not guilty for the rental car,
the $2,000 cash from Liyanage, and the $8,000 from Wang. As to the
$3,000, respondent already described that it was that amount, plus an
additional $5,000, that was included in the $8,000 that appellant requested
from Liyanage and about which the court instructed in the conspiracy
instruction. (2RT 621; 4RT 1541; 2CT 408.) Thus, if the jury foundappellant guilty of requesting $8,000, it found her guilty of requesting the
$3,000 that she received outside the restaurant and any error was harmless
beyond a reasonable doubt. Accordingly, appellants claim as to the
bribery charges should fail.
2. The Perjury ChargesAs appellant admits (AOB 17), the trial court listed in its perjury
instructions exactly which statements made to the grand jury and in Form
700 were perjurious. For count 4, the jury had to find that appellant falsely
testified in front of the grand jury to all of the following: (1) that she had
not been personally involved in negotiation regarding the development; (2)
that appellant urged Wang to rehire Liyanage because he was a great
person; (3) that she had no personal or financial relationship with Liyanage
that affected her desire to see him rehired; (4) that Liyanage never gave her
money; and (5) that she never called Wang and asked to meet with him
alone. (4RT 1548; 2CT 411.)
For count 5, the jury had to find that appellant falsely signed the Form
700 for 2006, omitting the $2,000 from Liyanage. (4RT 1548-1549; 2CT
411.) For count 6, the jury had to find that appellant falsely signed the
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Form 700 for 2007, omitting the $8,000 from Wang, delivered by
Liyanage. (4RT 1549; 2CT 411-412.) Accordingly, the acts that formed
the basis for counts 4 through 6 were clear to the jury, and a unanimity
instruction as to the bribery counts was properly omitted.Furthermore, any error was harmless. (See People v. Curry, supra, 58
Cal.App.4th at p. 783.) The jury could not reasonably have believed that
appellant was guilty of bribery without finding that she had lied in front of
the grand jury about all five statements listed in the perjury instruction.
(4RT 1548; 2CT 411.) Moreover, the jury showed by its other verdicts that
it believed Wang and Liyanage over appellant, and thus that appellant
perjured herself when she lied in the five statements listed in the perjuryinstruction. Where the record indicates the jury resolved the basic
credibility dispute against the defendant and therefore would have
convicted him of any of the various offenses shown by the evidence, the
failure to give the unanimity instruction is harmless. (People v.
Thompson, supra, 36 Cal.App.4th at p. 853.) Accordingly, appellants
claim as to the perjury charges should fail.
IV. THE TRIAL COURT PROPERLY IMPOSED THE UPPER TERM10Appellant contends that the trial court improperly imposed the upper
term of four years in violation of the United States Constitution and
California state law. (AOB 18-21.) The court properly imposed the upper
term of four years.
10 Respondents Argument IV responds to Argument V ofappellants opening brief. (See fn. 8, above.)
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A. The Prosecutors Sentencing Memorandum andSentencing
The prosecutors sentencing memorandum listed seven factors
weighing against probation and in favor of prison time: (1) the seriousness
of the crime as compared with other bribery cases, where appellants crimes
caused Temple City and Wang to lose unquantifiable amounts of money,
and where appellant committed perjury in order to cover up her crimes
(California Rules of Court, rule 4.414(a)(1)); (2) Wang was particularly
vulnerable due the position he was in to lose his property and development
(rule 4.414(a)(3)); (3) Wang and Temple City lost unquantifiable amounts
of money due to appellants crimes (rule 4.414(a)(5)); (4) appellant was anactive participant in soliciting bribes for herself and others (rule
4.414(a)(6)); (5) appellant did not act because of an unusual occurrence or
provocation, but acted over two years in a pattern of corruption (rule
4.414(a)(7)); (6) appellant took advantage of a position of trust both as
mayor and as a long-standing respected leader in Temple City (rule
4.414(a)(9)); and (7) appellant showed no remorse throughout the
proceedings against her, including committing perjury in front of the grand
jury and at trial, and showing disrespect for the courts and the judicial
process in news media (rule 4.414(b)(7)). (2CT 450-454.)
The prosecutor repeated these arguments at the sentencing hearing on
June 23, 2011, and informed the court that appellant was liable for a
maximum total of nine years in prison. (4RT 1804-1806.) The prosecutor
recommended a total of four years in prison made up of consecutive and
concurrent mid and low terms with appellants age as the only mitigating
factor. (4RT 1806-1809; see 2CT 454.)
The court ultimately sentenced appellant to the upper term of four
years for count 1 and concurrent terms for the remaining counts. (4RT
1815.) The court stated that the nature and circumstances of the crime
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outweighed the only mitigation of appellants age. The court said,
Through [appellant]s actions she torpedoed a $75 million project that
would have greatly benefited the residents of Temple City. And there was
really no good reason for doing that other than just selfish petty gain.(4RT 1814.) The court explained that the concurrent sentences were
warranted given appellants age. (4RT 1815.) Appellant did not
specifically object to the imposition of the upper term. (See 4RT 1815.)
B. Appellant Was Properly Sentenced under the SixthAmendment
Appellant claims that under Cunningham v. California (2007) 549
U.S. 270 [127 S.Ct. 856, 166 L.Ed.2d 856], the trial court erred byimposing an upper term based on facts that were neither found by the jury
nor admitted by appellant. Accordingly, she claims that her Sixth
Amendment right to a jury trial was violated and his sentence should be
reversed. (AOB 18-20.) Respondent disagrees. On March 30, 2007, in
Senate Bill 40 (SB 40), the Legislature amended section 1170,
subdivision (b), and on July 19, 2007, the California Supreme Court, in
People v. Sandoval (2007) 41 Cal.4th 825, judicially adopted these
amendments for retroactive application. Because the trial court sentenced
appellant after SB 40 and Sandoval, the upper term was the statutory
maximum under Cunningham and the trial court was no longer required to
find any facts in order to impose the upper term. Accordingly, the upper
term did not violate Cunningham. Furthermore, this Court should reject
appellants ex post facto challenge (see AOB 21) because the California
Supreme Court rejected this same claim in the context of resentencings.
Moreover, the remedy required for an ex post facto violation under
Sandoval would be to order resentencing under the exact same sentencing
procedure that the trial court already utilized.
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1. The Cunningham DecisionIn Cunningham, the United States Supreme Court held that
Californias procedure for selecting upper terms under former section 1170,
subdivision (b), violated the defendants Sixth and Fourteenth Amendment
right to jury trial because it gave to the trial judge, not to the jury,
authority to find the facts that expose a defendant to an elevated upper
term sentence. (Cunningham v. California, supra, 549 U.S. at p. 274.)
The Court explained that the Federal Constitutions jury trial guarantee
proscribes a sentencing scheme that allows a judge to impose a sentence
above the statutory maximum based on a fact, other than a prior conviction,
not found by a jury or admitted by the defendant. (Id. at pp. 274-275.)
2. The Upper Term Was Constitutional Because ItWas Within the Statutory Maximum
On March 30, 2007, the Governor signed into law SB 40, which
amended section 1170, subdivision (b). (Stats. 2007, ch. 3, 3 (Sen. Bill
No. 40).) On July 19, 2007, in Sandoval, the California Supreme Court
judicially reformed the former sentencing law to conform to the new law.
(People v. Sandoval, supra, 41 Cal.4th at pp. 852, 857.) Appellant was
sentenced on June 23, 2011, after this amended statute took effect and
Sandoval became law. (4RT 1801.) Thus, the applicable law at sentencing
was the new version of this statute, not the former version that the United
States Supreme Court addressed in Cunningham. Under the new version, a
court must exercise its discretion in selecting among the three terms, but an
additional factual finding is no longer required to impose an upper or lower
term. ( 1170, subd. (b); see Sandoval, supra, at pp. 843-845.) Because
the upper term became the statutory maximum within the meaning of
Cunningham, the trial court was permitted to consider any facts in the
exercise of its discretion. (Id. at pp. 843-852; People v. Jones (2009) 178
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Cal.App.4th 853, 867; People v. Wilson (2008) 164 Cal.App.4th 988, 992.)
Therefore, there was no constitutional error.
3. Retrospectively Applying the Judicially ReformedVersion of Section 1170 Does Not Warrant Relief
As mentioned, appellants sentencing hearing occurred on June 23,
2011, after the effective date of the amendments to section 1170,
subdivision (b), on March 30, 2007, and after the California Supreme Court
judicially reformed the statute as to any resentencings occurring after
Cunningham, on July 19, 2007. (4RT 1801.) Appellant now argues that
the retroactive application of these amendments violated the ex post facto
clauses of the federal and state Constitutions because her crimes werecommitted before March 30, 2007. (AOB 21.) Respondent disagrees.
Although the California Supreme Courts reasoning in Sandoval suggests
that there may be no ex post facto violation from retroactively applying the
legislation itself,11 this Court need not reach that question because there
was no ex post facto violation from retroactively applying the identical
procedure arrived at by judicial reformation in Sandoval.
[T]he ex post facto clause prohibits those laws which retroactively
alter the definition of crimes or increase the punishment for criminal acts.
(Hubbart v. Superior Court(1999) 19 Cal.4th 1138, 1170-1171, quoting
Collins v. Youngblood(1990) 497 U.S. 37, 41-44 [110 S.Ct. 2715, 111
L.Ed.2d 30].) The determination whether a law violates the ex post facto
clause has two components: a law must be retrospective -- that is, it must
apply to events occurring before its enactment -- and it must disadvantage
11See People v. Jones, supra, 178 Cal.App.4th at pp. 867-868 (ourSupreme Court [in Sandoval] held it is constitutionally appropriate to applythe amended version of the DSL in all sentencing proceedings conductedafter the effective date of the amendments, regardless of whether theoffense was committed prior to the effective date of the amendments).
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the offender affected by it by altering the definition of criminal conduct or
increasing the punishment for the crime. (Lynce v. Mathis (1997) 519
U.S. 433, 441 [117 S.Ct. 891, 137 L.Ed.2d 63], citations omitted.)
Before Sandoval was decided, the Legislature in SB 40 amended thestatutes governing Californias upper term procedure. (People v. Sandoval,
supra, 41 Cal.4th at p. 845.) In Sandoval, the California Supreme Court
exercised its judicial authority and adopted the procedure enacted by the
Legislature for all Cunningham resentencings. (Id. at pp. 845-846.) In so
doing, the court rejected the defendants ex post facto claim, finding that ex
post facto laws applied only to statutory enactments, not to judicial
decisions. (Id. at pp. 852-855.)12
The court further explained that becauseof its limited [judicial] reformation, it did not need to decide whether the
amending legislation itself could apply to cases remanded for resentencing.
(Id. at pp. 845-846, 849.)
Similarly, this Court need not decide whether the trial courts
application of SB 40 violated any retroactivity principles.13 First of all,
12 The court also reasoned that the impact of the Legislaturesrevision was not as significant as inMiller v. Florida (1987) 482 U.S. 423[107 S.Ct. 2446, 96 L.Ed.2d 351], because it did not increase the sentencefor a crime, because the trial court had an equally increased discretion toimpose the lower term as the upper term, and because the difference inthe amount of discretion exercised by the trial court under the former DSL,as compared to the [revised] scheme . . . is not substantial. (Sandoval, 41Cal.4th at pp. 854-855 [the question of whether a change in the sentencingprocess violates the ex post facto clause depends on the significance of itsimpact].)
13
When retroactive application of a law raises ex post factoconcerns, the California Supreme Court has applied the fundamentalprinciple that if reasonably possible the courts must construe a statute toavoid doubts as to its constitutionality. (People v. Smith (1983) 34 Cal.3d251, 259; accord, Wilke & Holzheiser, Inc. v. Dept. of Alcoholic BeverageControl (1966) 65 Cal.2d 349, 373; see People v. Brown (1994) 6 Cal.4th322, 334-335.)
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whether or not SB 40 can be applied retroactively, the California Supreme
Court has made clear in Sandoval that its judicially reformed version of SB
40 can. Furthermore, the same two considerations that caused the
California Supreme Court to hold that judicial reformation was appropriatefor cases remanded for resentencing apply with equal force to cases such as
this one. These considerations were the Legislatures preference for the
option of broad judicial discretion over the options of jury trials at
sentencing and middle term caps, and the Legislatures goal of reducing
sentencing disparity. (People v. Sandoval, supra, 41 Cal.4th at pp. 848-
851.)
In addition, it would be senseless to require courts in pending andfuture cases to apply the old, invalidated law where the crimes were
committed before March 30, 2007, while these same cases, if later
remanded for resentencing, would be governed by the judicially reformed
version of SB 40. A sentencing court would then have full discretion to
sentence to any of three terms on remand, but would lack that discretion at
the initial sentencing. Thus, under Sandoval, the trial court could properly
sentence appellant according to the judicially reformed version of SB 40.
In any event, the remedy for an ex post facto violation here would be
to order the trial court to resentence under the judicial adoption of amended
section 1170, subdivision (b). (See People v.