THE PEOPLE v. RODNEY BARNES (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Rodney Barnes was convicted by a jury of forgery and second degree burglary, following his attempt to cash a fraudulent check.   On appeal, Barnes (1) contests the admission of evidence;  (2) claims he was deprived of his right to testify;  (3) asserts that the prosecution improperly commented on his failure to testify;  and (4) questions the competency of defense counsel.   We find no error and affirm the judgment.

FACTS

On July 23, 2008, appellant entered a bank in Lancaster, handed the teller a check, and asked to have it cashed.   The check proffered by appellant is drawn on the account of a concrete manufacturer called Robertson's.   The check is not genuine:  it lacks security features, such as a border, colored background, invisible fibers, and a special type font.   Robertson's never issued checks that look like the one that appellant sought to negotiate, and appellant's check bore a serial number that was not used by Robertson's.

When appellant handed over the check, the bank teller became suspicious because the texture of the paper and the ink looked like something printed on a home computer.  (The teller received training from the bank to help him identify fraudulent checks.)   Appellant did not have an account at the bank, so the teller asked for identification and placed imprints of appellant's finger on the check.¹  When the check was run through a computerized processing system, it generated an alert.   The teller directed appellant to wait in the lobby while he verified the transaction with a supervisor.

While appellant waited, a bank manager investigated the veracity of appellant's check.   He located photocopies of Robertson's genuine checks, and saw that the characteristics of those checks are entirely different from the one presented by appellant.   He telephoned Robertson's to confirm that the check was fraudulent, then contacted the bank's corporate security department and the sheriff's department.   He noticed that appellant was fidgety and looked around nervously.   After a while, appellant departed the bank without a word, leaving behind his identification and the check.

Two hours later, appellant reappeared at the bank, approached the teller window, and asked for the return of the check and his identification.   The bank manager—who by then knew that the check was fraudulent—tried to stall appellant until the sheriff's department arrived, and asked appellant why he had the check.   Appellant, who still seemed nervous, described it as a payroll check and said that he had to leave for an appointment.   When the manager refused to return the identification or the check, appellant turned around and left.   Appellant did not seem surprised or shocked that the bank refused to cash the check.

After appellant departed (for the second time), a customer turned in a wallet that was left on the counter at the bank.   The wallet contained an ATM card bearing appellant's name, and a business card from the California Department of Corrections.   Appellant did not return to the bank to claim his wallet, his identification, or the check.   The person listed on the CDC card was appellant's parole officer.

The deputy sheriff assigned to the case has special training to detect check fraud.   He testified that it is relatively simple to produce the kind of check that appellant attempted to negotiate.   The check stock and check-writing software can be purchased at a business supply store or online.   The deputy confirmed with Robertson's that the check tendered by appellant is fraudulent.   Based on the deputy's experience, he believes that the check was produced on a home computer, although the identity of its creator is unknown.

The parties stipulated that appellant sent a letter to the court, and it was read to the jury.   It states, “My family is really suffering due to a bad check that was issued to me for my labor, and I had no idea it was bad.   I actually furnished the bank with my California identification card, three fingerprints, and waited for over a half an hour.   So that, in itself, should prove I had no knowledge whatsoever whether the check was genuine or not.”

PROCEDURAL HISTORY

Appellant was convicted of (1) second degree commercial burglary (entering the bank with the intent to commit larceny) and (2) forgery (possessing and attempting to pass a fictitious instrument).  (Pen.Code, §§ 459, 476.)   The court found that appellant has a prior “strike” conviction and a prior prison term.   In the interest of justice, the court dismissed the prison prior.   It sentenced appellant to a prison term of four years on count 1, and stayed imposition of the two-year term on count 2.

DISCUSSION

1. Admissibility of Prosecution Evidence

After the preliminary hearing in this matter, defense counsel handed a document marked “invoice” to the prosecutor, Rachel Bowers.²  Bowers did not recall the exact words spoken by defense counsel;  however, she testified at trial that the invoice was presented to her as “a receipt that was given to the defendant for services rendered.”   The invoice contains Robertson's handwritten name at the top;  indicates that four bedrooms were painted at an address on East Lancaster Blvd.;   and the service was “sold by” appellant.   Upon investigation, the address proved to be a home theatre/auto audio business known as California Sound Works, which does not have bedrooms and has not painted its premises in the last six years.   Robertson's does not operate in Lancaster, and its business is concrete production, not house painting.

At trial, appellant sought to have the invoice excluded from evidence, ostensibly because any testimony from Bowers about the provenance of the invoice was hearsay.   The prosecution contended that the invoice was relevant to prove appellant's guilty state of mind because the invoice was—like the check appellant tried to negotiate—fake.   Appellant's counsel conceded that she gave Bowers the invoice, saying that it was a receipt for work performed by appellant.

Appellant now argues that no foundation was laid for admission of the invoice, reasoning that “it is unknown when the invoice was created, who authored the document, the intent of the author at the time the document was drafted, or whether the document was for services rendered in this case or some other job on some other date.”   Appellant's argument is misplaced.   The invoice was not admitted as true documentation of an actual transaction to paint four bedrooms.   Rather, it was admitted to show appellant's consciousness of guilt:  the invoice was fabricated to exonerate appellant of the criminal charges, to convince the prosecutor that appellant painted a house and legitimately received the check from Robertson's as remuneration for his services.  (See People v. Alexander (2010) 49 Cal.4th 846, 921 [fabrication of exculpatory evidence shows consciousness of guilt].)   Because the prosecution was not trying to prove that this was a genuine invoice, no authentication was required.

A reasonable inference can be drawn that appellant supplied the invoice to his attorney, who passed it on to Prosecutor Bowers.   Defense counsel admitted as much to the trial court.   Presumably, appellant knew who created the document, when it was created, his intent, and whether it reflected services rendered.   Bowers could relate how she came into possession of the invoice, which the jury was free to believe or disbelieve.   Bowers's recollection was bolstered by a letter appellant sent to the court, indicating that “a bad check that was issued to me for my labor,” which goes hand in hand with the invoice he supplied.   No testimony from a work supervisor or employer vouched that appellant earned the check with his labor.   There was no error in admitting the invoice to show appellant's consciousness of guilt.

Even if the invoice was improperly admitted, the error was harmless.   There was abundant evidence of guilt.   Appellant presented a check that appeared to be made on a home computer, with none of the security features used by commercial enterprises.   The check proved to be fraudulent.   During the bank's investigation, appellant was fidgety and looking around nervously.   He slipped out without warning, leaving his identification and a check.   When appellant reappeared two hours later, he was still nervous, but did not seem surprised or shocked that the bank manager refused to cash the check.   An innocent person would be stunned to learn that a payroll check was fraudulent and would be eager to explain the circumstances, rectify the error, and ensure payment.   Instead, appellant turned on his heel, and abandoned his identification, his wallet, and the check at the bank, without explanation.   Appellant would have been convicted even without the invoice.

2. Appellant's Right to Testify

At the close of the prosecution's case, the court asked whether appellant was going to testify.   Counsel replied, “He is not going to take the stand, your Honor,” and rested because there were no other witnesses.   The court reminded the jury that the defense has no obligation to present witnesses because the burden of proof is on the prosecution.   The court excused the jury, and spent the afternoon finalizing jury instructions.

The following day, as the court was preparing to read the jury instructions, defense counsel received a note from appellant, indicating that “he has changed his mind about testifying and he feels that it's something that he needs to do, and he wants to do.”   The court denied appellant's request to reopen, stating, “Both sides have rested.   The People would be prejudiced.   They would not have the opportunity or it would be difficult for them to call any rebuttal witnesses or find any rebuttal witnesses at this point in time.”

Although there is a right to testify in one's own behalf, that right is afforded to a defendant “who timely demands to take the stand.”  (People v. Robles (1970) 2 Cal.3d 205, 215, italics added;  People v. Guillen (1974) 37 Cal.App.3d 976, 984.)   There is no fundamental right to reopen the defense case after the parties have rested and all of the evidence is in.  “A defendant's right to testify is not unqualified.   It must, at times, yield to interests of order and fairness.  [Citation.]  A defendant must exercise the right ‘at the evidence-taking stage of trial.   Once the evidence has been closed, whether to reopen for submission of additional testimony is a matter left to the trial court's discretion.’ ”  (U.S. v. Stewart (8th Cir.1994) 20 F.3d 911, 917.)

The parties agree that the trial court has substantial discretion whether to reopen a case for the introduction of additional evidence.   On review, we consider four factors:  (1) the stage of the proceedings;  (2) the defendant's diligence;  (3) the risk that the jury would give the new evidence “undue emphasis”;  and (4) the significance of the new evidence.  (People v. Jones (2003) 30 Cal.4th 1084, 1110.)   Appellant's request to reopen—after both sides rested and the jury was about to be instructed—would have prolonged the trial, and required the prosecution to locate rebuttal witnesses.  (People v. Earley (2004) 122 Cal.App.4th 542, 546.)   Appellant made no offer of proof in the trial court about the significance of his new evidence.   Indeed, he concedes in his brief that “the significance of appellant's testimony to the case if permitted to reopen was unknown.”   Under the circumstances, the trial court did not abuse its discretion in refusing to reopen because the request “came too late in the proceedings and did not propose to offer any new, particularly significant, evidence.”  (Earley, at p. 546.)

3. Prosecutorial Misconduct

During closing argument, the prosecutor discussed appellant's creation of a false invoice following his arrest, referring to it as “this lie.”   The prosecutor reasoned that the false invoice was appellant's postarrest attempt to wriggle out of criminal charges by pretending that he legitimately earned the check with his labors.³  On appeal, appellant contends that the prosecutor's argument was an improper comment on appellant's failure to testify, in violation of Griffin v. California (1965) 380 U.S. 609, 614–615.

Appellant waived this claim by not objecting to the prosecutor's argument.   His failure to object ordinarily bars consideration of such a claim on appeal.   Had appellant objected at trial, a prompt admonition by the court to disregard the impropriety could have cured any harm.  (People v. Cornwell (2005) 37 Cal.4th 50, 91;  People v. Prieto (2003) 30 Cal.4th 226, 259.)

Even if the claim had not been waived, appellant's argument would not succeed.   The prosecutor did not address appellant's failure to testify.   In context, the closing argument highlighted appellant's failure to “tell the truth” before trial to the police and prosecution, i.e., that he knew the check was fraudulent.   Telling the police the truth about the check would get him “immediately convicted.”   Instead, appellant—fearing the truth—concocted a flimsy story about the provenance of the check.   If appellant were innocent, he would not have made up “the lie and the fake evidence.”

The prosecutor alluded to the phony exculpatory evidence because it showed appellant's consciousness of guilt.  (See People v. Cunningham (2001) 25 Cal.4th 926, 1001 [prosecutor may comment on evidence showing the defendant's consciousness of guilt].)   The argument was a “comment ‘ “on the state of the evidence.” ’ ”  (People v. Cornwell, supra, 37 Cal.4th at p. 90) It does not refer, in any way, to appellant's silence at trial, and the jury could not reasonably have construed it as a reference to appellant's failure to testify.

4. Ineffective Assistance of Counsel

Appellant asserts that he received ineffective assistance of counsel, who failed to preserve claims by asserting timely objections in the trial court.   It is true that defense counsel failed to object to the prosecutor's argument.  (See People v. Turner (2004) 34 Cal.4th 406, 420 [counsel's failure to preserve a claim by objecting in the trial court may give rise to a claim for ineffective assistance of counsel].)   However, the explanation for this may be tactical:  counsel may have decided not to object because it would highlight the issue.  (People v. Stewart (2004) 33 Cal.4th 425, 509.)   In any event, the challenged argument did not refer to appellant's decision not to testify at trial and did not constitute prosecutorial misconduct, as discussed in section 3 of this opinion.   As to appellant's other claims, defense counsel timely objected to admission of the invoice, and sought to reopen when appellant belatedly indicated that he wanted to testify.   Appellant received effective assistance of counsel.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

We concur:

FOOTNOTES

FN1. Appellant stipulated that his fingerprints are on the check..  FN1. Appellant stipulated that his fingerprints are on the check.

FN2. A different prosecutor handled the trial..  FN2. A different prosecutor handled the trial.

FN3. The prosecutor's argument reads:  “[A]fter he's arrested, he makes up this lie with the invoice, right?   He makes up a lie.   Only guilty people do this.   Only people who knew the check was fake do this.   Because if the truth is something that will help you out, [if] the truth is something that you will show that you didn't know what was going on, you would tell the truth.   There's only one person who has to be afraid of the truth, and that's someone who is guilty.   Innocent people don't have to do this, because they can tell the truth.   He can't.   He can't tell the truth because if he told the truth, he would get—he knows he would get immediately convicted.   And he created this fake evidence, you know.   It's the same thing, basically, the lie and fake evidence.”.  FN3. The prosecutor's argument reads:  “[A]fter he's arrested, he makes up this lie with the invoice, right?   He makes up a lie.   Only guilty people do this.   Only people who knew the check was fake do this.   Because if the truth is something that will help you out, [if] the truth is something that you will show that you didn't know what was going on, you would tell the truth.   There's only one person who has to be afraid of the truth, and that's someone who is guilty.   Innocent people don't have to do this, because they can tell the truth.   He can't.   He can't tell the truth because if he told the truth, he would get—he knows he would get immediately convicted.   And he created this fake evidence, you know.   It's the same thing, basically, the lie and fake evidence.”

DOI TODD, J. ASHMANN–GERST, J.