Opinion
2d Crim. No. B303924
05-18-2021
THE PEOPLE, Plaintiff and Respondent, v. FRED BROWN III, Defendant and Appellant.
Mi Kim, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Paul M. Roadarmel, Jr. and David F. Glassman, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 1507205)
(Santa Barbara County)
Fred Brown III appeals from the judgment after a jury convicted him of insurance fraud. (Pen. Code, § 548, subd. (a).) The trial court placed him on probation for three years.
Further unspecified statutory references are to the Penal Code.
Brown contends: (1) there is insufficient evidence to support his conviction; (2) the trial court erred when it denied his motion for a new trial; (3) the court's conduct during closing argument deprived him of a fair trial; and (4) his three-year probation term must be reduced to two years. We modify the judgment to reduce Brown's probation term, but otherwise affirm.
FACTUAL AND PROCEDURAL HISTORY
In April 2016, Brown reported that his 2010 Dodge Charger rolled over the side of a cliff. California Highway Patrol (CHP) Officer Daniel Ayala responded to the location. There was "heavy fog" and it was "still dark out." The "visibility was about 25 feet." Ayala saw Brown standing by the side of the road. Brown was dressed for a bike ride. Brown said that he had planned to mountain bike that morning.
Brown told Ayala that he parked the Charger in the turnout with his front tires facing the cliff. Brown said he put the transmission in "park," and he believed he removed the key from the ignition. When he got out, he felt the Charger move behind him before the car went over the cliff. Brown and Ayala searched for the key but did not find it. Ayala asked Brown whether the Charger had mechanical issues. Brown said he was not aware of any.
Ayala asked Brown if the Charger was "fully paid for." Brown said that it was. Ayala noted that Brown "became somewhat defensive and frustrated" as questioning progressed.
When the fog burned off, Ayala saw the Charger about 250 feet down the cliff. Ayala also saw two other vehicles down the cliff near the Charger. The two other vehicles appeared to have "been down there for quite a while."
Ayala began "develop[ing] a suspicion about possible vehicle insurance fraud." He contacted Brown's insurance carrier and talked to an insurance investigator. A week later, Ayala met with Brown and the investigator at the scene. The three searched again for the key, but did not find it.
A few days later, the investigator examined the Charger. He did not find the key in or near the Charger. He observed the transmission was in the "park" position; the ignition was in the "on setting"; and the airbags were deployed.
The Charger was insured in October 2015 for $45,000. Brown obtained a $10,000 loan around the same time. The terms of the loan required Brown to make a payment of $1,030.47 on the 30th of each month for four years. Failure to pay the loan would result in the loan company taking possession of the Charger. Brown made two payments on January 27, 2016, one late payment on March 8, and was past due on the March 30 payment at the time of the incident.
A CHP Multi-Disciplinary Accident Investigation Team (MAIT) investigator further examined the Charger. The MAIT investigator observed that the two airbags had deployed. He explained that the ignition needs to be on in order for the airbags to deploy. The MAIT investigator extracted data from the Charger's event data recorder (EDR). The EDR data showed that five seconds before the crash, the Charger was in the "drive" position, the engine was running, and it accelerated. Based on the EDR data, the investigator opined that the Charger went over the side of the cliff "not because of an accidental maneuver, but something that was done more intentionally." He opined that during the crash, the gear shift moved from the "drive" position to the "park" position.
The EDR is a module that records and stores data during an event. --------
After a jury trial, Brown was convicted. Brown moved for a new trial on the ground that the evidence was insufficient to support the verdict. The trial court denied the motion.
The trial court granted Brown probation for three years with terms, including 90 days in county jail.
DISCUSSION
Substantial Evidence
Brown contends his conviction must be reversed because there was insufficient evidence that he committed insurance fraud. We disagree.
We review the judgment for substantial evidence from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 576-577.) Substantial evidence is evidence that is "reasonable, credible, and of solid value." (Id. at p. 578.) We view the whole record in the light most favorable to the judgment and do not reweigh the evidence or reevalute the credibility of witnesses. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206 (Ochoa).) A judgment will be reversed only if there is no substantial evidence to support the verdict under any hypothesis. (People v. Bolin (1998) 18 Cal.4th 297, 331.)
Substantial evidence supports the conviction. For insurance fraud, the prosecution must prove that Brown "destroyed, or abandoned, or disposed of property that was insured against loss or damage from any casualty other than fire" and that he "intended to defraud the insurer." (§ 548, subd. (a); CALCRIM No. 2004.) Here, the evidence supports a finding that Brown intentionally destroyed his Charger. The Charger's EDR data showed that seconds before the crash, the car's ignition was on, the engine was running, the transmission was in the "drive" position, and the car had accelerated. During their visual inspections, the investigators noted that the airbags were deployed and the ignition was in the "on" setting before the crash. The MAIT investigator opined that the crash was caused "not because of an accidental maneuver, but something that was done more intentionally."
The evidence also showed that Brown intended to commit fraud. Brown had a financial motive for committing the crime. "'[M]otive is an intermediate fact which may be probative of such ultimate issues as intent [citation].'" (People v. Lewis (2001) 26 Cal.4th 334, 370.) The Charger was insured for $45,000. And although Brown initially told Ayala the Charger was "fully paid for," he obtained an extremely onerous $10,000 loan five months before the incident. He made three payments on the loan (at least one of them late), and had one outstanding payment due at the time of the incident. Moreover, Brown's inconsistent statements to Ayala regarding the financial status of the Charger reflected his consciousness of guilt. (See People v. Russell (2010) 50 Cal.4th 1228, 1255 [jury can infer consciousness of guilt from a false statement].) Such evidence was sufficient to establish Brown's intent to commit insurance fraud.
Brown raises several issues regarding the strength of the evidence (e.g., no substantial evidence that "the Charger was in good working order," or "the transmission was in drive," or that the "EDR data was reliable"). But we do not reweigh the evidence, and we view the record in the light most favorable to the judgment. (Ochoa, supra, 6 Cal.4th at p. 1206.)
Moreover, where an appellant argues insufficiency of evidence, they "must set forth in [their] brief all the material evidence bearing on the issue and not merely the evidence favorable to [them], and failure to do so may be deemed a waiver of the claimed error." (Orange County Flood Control Dist. v. Sunny Crest Dairy, Inc. (1978) 77 Cal.App.3d 742, 758; see also People v. Johnson, supra, 26 Cal.3d at p. 577.) Brown did not do so here. This failure alone is grounds to affirm.
Closing Argument
Brown argues that comments the trial court made to the jury during closing argument deprived him of his due process right to a fair trial. This argument lacks merit.
During closing argument, the following occurred:
"[Defense:] It's a criminal case, which means that the People have to prove guilt beyond a reasonable doubt, not just by a preponderance of the evidence. They have to, with the evidence, with the case that they present, have to rule out every other reasonable possibility.
"So in this case—
"[Prosecutor]: Objection as to counsel's recitation of the law. Every other—
"The Court: Sustained.
"[Defense]: I'm paraphrasing.
"The Court: Ladies and gentlemen, I've given you the instructions that are pertinent, so, again, counsel's argument is not evidence. That's either counsel's argument. So it's up to you to make the findings of fact and then refer to the instructions in terms of what the law actually is.
"[Defense]: Right."
Brown argues these comments "undermined" the defense because it "permitted the jury to disregard [defense] counsel's correct statement that the prosecution's evidence must 'rule out every other reasonable possibility.'"
A trial court has the duty "to control all proceedings during trial, and to limit the introduction of evidence and the argument of counsel to relevant and material matters, with a view to the expeditious and effective ascertainment of the truth regarding the matters involved." (§ 1044.) In exercising that discretion, the court must be impartial and must assure that a defendant is afforded a fair trial. (People v. Blackburn (1982) 139 Cal.App.3d 761, 764; Arizona v. Fulminante (1991) 499 U.S. 279, 309 [a defendant has a due process right to an impartial trial judge].) The court commits misconduct if it "'"persistently makes discourteous and disparaging remarks to defense counsel so as to discredit the defense or create the impression it is allying itself with the prosecution." [Citation.]'" (People v. McWhorter (2009) 47 Cal.4th 318, 373 (McWhorter).) Our role is to "'"determine whether the judge's behavior was so prejudicial that it denied [the defendant] a fair, as opposed to a perfect trial." [Citations.]'" (Ibid.)
Here, the trial court was impartial. It sustained an objection when defense counsel "paraphras[ed]" the standard for reasonable doubt. The court then appropriately directed the jurors to refer to and apply the legal standards set forth in the jury instructions. We presume the jury followed the instruction. (People v. Cruz (2001) 93 Cal.App.4th 69, 73.) Nothing here reflects that the court's conduct was prejudicial or that Brown was denied a fair trial. (McWhorter, supra, 47 Cal.4th at p. 373.)
Motion for a New Trial
Brown argues the trial court erred when it denied his motion for a new trial. We disagree.
A trial court may grant a new trial when the verdict is contrary to law and evidence. (§ 1181 (6); Porter v. Superior Court (2009) 47 Cal.4th 125, 133.) The trial court "extends no evidentiary deference" to the verdict and "independently examines all the evidence to determine whether it is sufficient to prove each required element beyond a reasonable doubt to the judge, who sits, in effect, as a '13th juror.'" (Porter, supra, at p. 133.) "If the court is not convinced that the charges have been proven beyond a reasonable doubt, it may rule that the jury's verdict is 'contrary to the . . . evidence.'" (Ibid.) We review the trial court's ruling for abuse of discretion. (People v. Fuiava (2012) 53 Cal.4th 622, 730.)
Brown argues the trial court applied the wrong legal standard because it did not independently examine the evidence. But the record does not show the wrong standard was applied. Absent direct evidence to the contrary, courts are presumed to have properly followed applicable law. (People v. Coddington (2000) 23 Cal.4th 529, 644 [reviewing court presumes trial court knew and applied the correct statutory and case law], overruled on another ground in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.) The court's statement that it found "sufficient evidence for the jury to have found Mr. Brown guilty of the crimes as charged beyond a reasonable doubt," does not prove it applied the wrong legal standard. The court stated that it "heard the trial and heard the evidence," which shows it independently examined the evidence before ruling on the motion. Moreover, the parties submitted written motions and presented oral argument, in which they articulated the appropriate legal standard. We presume the court considered the parties' written and oral arguments and applied the correct standard. (People v. Myers (1999) 69 Cal.App.4th 305, 310.) The court did not abuse its discretion.
A.B. 1950
Brown contends he is entitled to seek the reduction of his probation term from three to two years pursuant to Assembly Bill No. 1950 (2019-2020 Reg. Sess.) (A.B. 1950). (Stats. 2020, ch. 328, § 2.) We agree.
Subject to exceptions not relevant here (see § 1203.1, subd. (m)), effective January 1, 2021, A.B. 1950 limits the length of a felony probation term to two years (id., subd. (a)). The provisions of A.B. 1950 apply retroactively to cases not yet final as of its effective date. (People v. Sims (2021) 59 Cal.App.5th 943, 955-964; People v. Quinn (2021) 59 Cal.App.5th 874, 879-885.)
The trial court ordered Brown to serve a three-year probation term. His case is not yet final. He is entitled to the benefit of A.B. 1950. Remand is unnecessary because if the trial court deems it appropriate to modify or terminate probation, it retains the jurisdiction to do so. (§ 1203.3, subd. (a); People v. Quinn, supra, 59 Cal.App.5th at p. 885, fn. 6.) We therefore order that the probation period be reduced to two years.
DISPOSITION
We modify the judgment to reduce the probation term to two years. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED.
TANGEMAN, J. We concur:
GILBERT, P. J.
PERREN, J.
James E. Herman, Judge
Superior Court County of Santa Barbara
Mi Kim, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Paul M. Roadarmel, Jr. and David F. Glassman, Deputy Attorneys General, for Plaintiff and Respondent.