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
COURT OF APPEAL SECOND DIST.

ELECTRONICALLY

Jun 12, 2012

JOSEPH A. LANE, Clerk

Los Angeles County Superior Court, Case No. BA332035 The Honorable Alex Ricciardulli, Judge RESPONDENT'S BRIEF

bfisher

Deputy Clerk

KAMALA D. HARRIS Attorney General of California DANE R. GILLETTE Chief Assistant Attorney General LANCE E. WINTERS Senior Assistant Attorney General MARY SANCHEZ Deputy Attorney General DAVID ZARMI Deputy Attorney General State Bar No. 245636 300 South Spring Street, Suite 1702 Los Angeles, CA 90013 Telephone: (213) 576-1336 Fax: (213) 576-1300 E-mail: DocektingLAAWT@doj.ca.gov Attorneys for Respondent

TABLE OF CONTENTS Page Statement of the Case ................................................................................... 1 Statement of Facts ........................................................................................ 1 A. Prosecution .................................................................. 1 1. 2. 3. B. 1. 2. 3. 4. I. Appellants Grand Jury Testimony .................. 1 Trial Testimony ................................................ 3 Scott Carwiles Testimony ............................. 12 Appellants Testimony ................................... 13 David Chois Testimony ................................ 17 Terri Cohens Testimony ............................... 17 Character Testimony ...................................... 18

Defense case .............................................................. 13

The trial court properly amended the indictment to correct a clerical error citing the wrong Penal Code section for counts 1 through 3 .............................................. 20 The trial court properly admitted nontestimonialcoconspirator hearsay and instructed on conspiracy............................................................................. 22 A. B. Applicable law .......................................................... 22 Liyanages and Wangs hearsay testimony was not testimonial and was properly admitted as coconspirator statements; the court properly instructed on conspiracy............................................ 23

II.

III.

The trial court properly omitted a unanimity instruction ............................................................................. 24 A. B. Applicable law .......................................................... 25 The trial court instructions and verdict forms clarified for the jury which acts of bribery and perjury were the basis for the charges of which it convicted appellant ................................................ 26 1. 2. The Bribery Charges ...................................... 26 The Perjury Charges....................................... 27

TABLE OF CONTENTS (continued) Page IV. The trial court properly imposed the upper term ................. 28 A. B. The prosecutors sentencing memorandum and sentencing .................................................................. 29 Appellant was properly sentenced under the Sixth Amendment...................................................... 30 1. 2. The Cunningham Decision ............................ 31 The Upper Term Was Constitutional Because It Was Within the Statutory Maximum ....................................................... 31 Retrospectively Applying the Judicially Reformed Version of Section 1170 Does Not Warrant Relief ......................................... 32

3.

C.

Appellant waived any state law claims by failing to object to the upper term; appellant was properly sentenced under state law, regardless ................................................................... 35 1. 2. Applicable Law .............................................. 35 Appellant Failed to Object to the Upper Term, but Was Properly Sentenced, Regardless ...................................................... 36

V.

Appellant received effective assistance of counsel .............. 38 A. B. Applicable law .......................................................... 38 Trial counsel properly decided not to object to witness testimony on federal confrontation clause grounds ........................................................... 39 Trial counsel properly accepted the trial courts instructions; appellant was not prejudiced, regardless ................................................................... 39 Trial counsel properly decided not to request a hearing to determine the existence of a conspiracy; appellant was not prejudiced, regardless ................................................................... 40

C.

D.

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TABLE OF CONTENTS (continued) Page E. Trial counsel properly decided not to object to imposition of the upper term in appellants sentence on count 1 ................................................... 40

VI.

Appellants trial was fair and properly conducted ............... 41

Conclusion .................................................................................................. 42

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TABLE OF AUTHORITIES Page C ASES 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 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

TABLE OF AUTHORITIES (continued) Page 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 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 C ONSTITUTIONAL P ROVISIONS 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 C OURT R ULES 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 O THER AUTHORITIES Sen. Bill 40 ..............................................................................................30

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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. Prosecution 1. 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

Unless otherwise indicated, all further statutory references are to the Penal Code.

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 city council 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 would be 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 326327.) 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 330331.) 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

Later testimony stated that appellant was only a councilmember during that time. (See 2RT 388.)

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 either one 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 than that. (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 Testimony

In September 2004, Wang entered into escrow to purchase a lot on the corner of Rosemead Boulevard and Las Tunas Drive in Temple City for Although 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.)
3

$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 negotiate with 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 early 2005, 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.)

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 the condominiums 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,

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 366367.) 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 the conference. (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.

(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 to first 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 914915.) 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 that Councilmember 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

would be to use Radini Malleppah, the owner of the school that Liyanages daughter attended, because the owner was close to his family. (2RT 619620; 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 a location 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 $3,000 for 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.)

On cross-examination, in contradiction to the e-mail he sent to Wang, Liyanage testified that he and Choi met appellant and Capra at an El Monte restaurant and that he gave one envelope to appellant and one to Capra. (See 2RT 657-659.)

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 in additional 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 of Wong, 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
6

Wendys last name does not appear in the record.

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 was why 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, he admitted 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 Liyanage testified that he quit because he disagreed with Wangs style (2RT 650), while Wang testified that he fired Liyanage for hiring Choi, who was not licensed as an architect, and for stealing from Wang via the 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 and left 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 fouryear 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 cashiers check 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 609610.) When appellant originally asked Liyanage for the money, she did not mention that it was for Cohen. (2RT 611.) 3. Scott Carwiles Testimony

Appellant 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 their name 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 as part 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 Case 1. 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 about driving 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,

13

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 receipt and 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 12251226.) 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.

14

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 bank records 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

15

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 sounded like 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 had chosen 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 12391240.) 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

16

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 from developers. 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 Testimony

Choi 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 Testimony

Cohen testified that when she met Liyanage, she talked to him about losing her condominium in Mexico because she was behind on her

17

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 the family. (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 say she 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 Testimony

Father 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

18

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 appellant for 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 for 25 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 Depot projects 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 INDICTMENT TO CORRECT A CLERICAL ERROR CITING THE WRONG PENAL CODE SECTION FOR COUNTS 1 THROUGH 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 in counts 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

20

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 (see 2RT 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

21

of which she was properly convicted. Accordingly, appellants claim must fail. II. THE TRIAL COURT PROPERLY ADMITTED NONTESTIMONIALCOCONSPIRATOR HEARSAY AND INSTRUCTED ON CONSPIRACY8 Appellant contends that the trial court improperly admitted out-ofcourt 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 Law

Evidence 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,

Respondents Argument II responds to Argument II and III of appellants 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 outof-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.) Where the 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 Crawford grounds forfeits any such claims on appeal. (People v. Hamilton (2009) 45 Cal.4th 863, 917.) B. Liyanages and Wangs Hearsay Testimony Was Not Testimonial 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 Crawford Confrontation 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-mail exchange 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 Liyanage regarding 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 UNANIMITY INSTRUCTION9 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 of appellants 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 Law

The 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 Forms Clarified 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 Charges

Although 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 clearly used 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 not reasonable 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 found appellant 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 Charges

As 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

27

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 perjury instruction. 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 TERM10 Appellant 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.

Respondents Argument IV responds to Argument V of appellants opening brief. (See fn. 8, above.)

10

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A.

The Prosecutors Sentencing Memorandum and Sentencing

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 an active 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

29

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 Sixth Amendment

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 by imposing 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 Decision

In 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 It Was 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 Reformed Version 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 were committed 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
11

See People v. Jones, supra, 178 Cal.App.4th at pp. 867-868 (our Supreme Court [in Sandoval] held it is constitutionally appropriate to apply the amended version of the DSL in all sentencing proceedings conducted after the effective date of the amendments, regardless of whether the offense 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 the statutes 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 because of 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, The court also reasoned that the impact of the Legislatures revision was not as significant as in Miller v. Florida (1987) 482 U.S. 423 [107 S.Ct. 2446, 96 L.Ed.2d 351], because it did not increase the sentence for a crime, because the trial court had an equally increased discretion to impose the lower term as the upper term, and because the difference in the amount of discretion exercised by the trial court under the former DSL, as compared to the [revised] scheme . . . is not substantial. (Sandoval, 41 Cal.4th at pp. 854-855 [the question of whether a change in the sentencing process violates the ex post facto clause depends on the significance of its impact].) 13 When retroactive application of a law raises ex post facto concerns, the California Supreme Court has applied the fundamental principle that if reasonably possible the courts must construe a statute to avoid doubts as to its constitutionality. (People v. Smith (1983) 34 Cal.3d 251, 259; accord, Wilke & Holzheiser, Inc. v. Dept. of Alcoholic Beverage Control (1966) 65 Cal.2d 349, 373; see People v. Brown (1994) 6 Cal.4th 322, 334-335.)
12

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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 appropriate for 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. 848851.) In addition, it would be senseless to require courts in pending and future 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. Sandoval, supra, 41 Cal.4th at pp. 843-852.) This would mean that the trial court would conduct the very same analysis that it already conducted. A resentencing would thus be merely an empty exercise. (See People v. Seldomridge (1984) 154 Cal.App.3d 362, 365 [reversal would be a useless and futile act and would be of no benefit to appellant where the trial court improperly excluded polygraph evidence but appellant would not be permitted to introduce the evidence on retrial because of a new statute prohibiting such evidence]; accord, People v. Kronemyer (1987) 189 Cal.App.3d 314, 351.) Therefore,

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appellants request to reverse his sentence on ex post facto grounds should be alternatively rejected on this basis. If this Court disagrees and finds relief is appropriate, however, it should remand for resentencing under the reformed system prescribed by the California Supreme Court. (See People v. Sandoval, supra, 41 Cal.4th at pp. 843-852.) Under this reformed system, the sentencing court again would exercise its discretion to select among the three available terms, give a statement of reasons for its selection, and not be required to make any additional factual finding or of a statement of ultimate facts. (Id. at pp. 846-847, 852.) The court again would also use the amended rules of court as guidance. (Id. at p. 846; see Cal. Rules of Court, rules 4.4054.452, as amended May 23, 2007.) C. Appellant Waived Any State Law Claims by Failing to Object to the Upper Term; Appellant Was Properly Sentenced under State Law, Regardless

Appellant also contends that the trial court abused its discretion in sentencing appellant to the upper term of four years in prison. (AOB 2021.) By failing to object to the upper term at sentencing, appellant waived any state law claims on appeal. The court properly sentenced appellant to the upper term on one count, regardless. 1. Applicable Law

When sentencing a defendant, a court has broad discretion in the selection of the appropriate term of imprisonment. ( 1170, subd. (b).) California Rules of Court, rule 4.421, sets forth aggravating factors the trial court may consider in making its sentencing choice. These include: vulnerability of the victim (rule 4.421(a)(3)); the defendants leadership in commission of the crime (rule 4.421(a)(4)); the defendant committed perjury in order to interfere with the judicial process (rule 4.421(a)(6)); the defendant committed other crimes for which consecutive sentences could

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have been imposed, but for which concurrent sentences were instead imposed (rule 4.421(a)(7)); the crime was carried out with planning (rule 4.421(a)(8)); the crime involved the taking of a large amount of money (rule 4.421(a)(9)); and the defendant took advantage of a position of trust (rule 4.421(a)(11)). Sentencing courts have wide discretion in weighing aggravating and mitigating factors, and may balance them against each other in qualitative as well as quantitative terms. . . . [The reviewing court] must affirm unless there is a clear showing the sentence choice was arbitrary or irrational. (People v. Avalos (1996) 47 Cal.App.4th 1569, 1582, citations and quotation marks omitted.) Any error from the courts failure to properly make or articulate its discretionary sentencing choices is forfeited on appeal if appellant failed to interpose such a specific objection at the time of the sentencing. (People v. Scott (1994) 9 Cal.4th 331, 356.) 2. Appellant Failed to Object to the Upper Term, but Was Properly Sentenced, Regardless

As a preliminary matter, neither appellant nor trial counsel objected to the imposition of an upper term during sentencing. (See 4RT 1814-1816.) Accordingly, appellant may not raise any state law sentencing claim related to the upper terms on appeal. (People v. Scott, supra, 9 Cal.4th at p. 356.) Additionally, the trial court properly imposed the upper term, regardless. There were seven aggravating factors in this case and no mitigating factors. One of the victims, Wang, was extremely vulnerable to appellants requests for bribes because of the amount of money he had invested in the development project and the control that appellant and her allies had over the project. (California Rules of Court, rule 4.421(a)(3).) Appellant took the leadership position in the bribery of other members of Temple Citys city council, receiving the money and passing it on to the others. (Rule

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4.421(a)(4).) Appellant committed perjury in front of the grand jury in an effort to interfere with the judicial process. (Rule 4.421(a)(6).) Appellant was subject to a maximum of nine years in prison and consecutive terms on each of the six convictions against her, but the trial court instead sentenced her to only four years in prison using the upper term of count 1. (Rule 4.421(a)(7).) Appellant planned the bribery scheme, making requests for other councilmembers as time went on and deciding the amount of their bribes and who would receive them as her political allies. (Rule 4.421(a)(8).) The crime involved the taking of $10,000 directly from Wang and Liyanage, in addition to unquantifiable losses to Wang and Temple City itself. (Rule 4.421(a)(9).) Appellant took advantage of her position of trust both as mayor and as a long-standing leader in Temple City. (Rule 4.421(a)(11).) There were no mitigating factors. Although age may be a factor for probation (see rule 4.414(b)(4); 4RT 1808), it is not a mitigating factor for sentencing once probation is denied. (See generally rule 4.423.) Appellant challenges the single aggravating factor of appellants position of trust with the claim that any politician is in a position of trust. (AOB 20.) While that is true, appellant additionally had been a longrespected leader in Temple City, borne out in her favorable character testimony, a cachet that not all politicians have, and used that reputation in order to keep the bribery a secret for years and later in an attempt to interfere with her prosecution. Regardless, the aggravating factors clearly called for an upper term, especially in light of the additional five convictions that were sentenced concurrently. For the same reason, appellant suffered no prejudice and the trial court would not reduce her sentence were it ordered to resentence appellant without using any upper terms. Accordingly, appellants claim should be denied on state law grounds, as well.

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V.

APPELLANT RECEIVED EFFECTIVE ASSISTANCE OF COUNSEL14 Appellant contends that she did not receive effective assistance of

counsel on three points. (AOB 22-23.) However, respondent received effective assistance of counsel, and cannot show prejudice, in any event. A. Applicable Law

Ineffective assistance of counsel claims are rarely cognizable on appeal. (People v. Silvey (1997) 58 Cal.App.4th 1320, 1329, citing People v. Pope (1979) 23 Cal.3d 412, 426.) To establish that a defendant was not afforded his right to effective assistance of counsel, the defendant must show, first, that his or her counsels performance was deficient, and second, that prejudice occurred as a result. (People v. Ledesma (2006) 39 Cal.4th 641, 745-746; Strickland v. Washington (1984) 466 U.S. 668, 687 [104 S.Ct. 2052, 80 L.Ed.2d 674].) To show a deficiency, it must be established that counsels representation fell below an objective standard of reasonableness . . . under prevailing professional norms. (People v. Ledesma, supra, 39 Cal.4th at p. 746, quoting Strickland v. Washington, supra, 466 U.S. at pp. 691-692.) If the record sheds no light on why counsel acted or failed to act in the manner challenged, an appellate claim of ineffective assistance of counsel must be rejected unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation. (Ledesma, at p. 746, citations and quotation marks omitted.) The means of providing effective assistance are many and as a consequence counsel has wide discretion in choosing which to use. (Id. at p. 747, citations and quotation mark omitted.) Furthermore, to establish Respondents Argument V responds to Argument VI of appellants opening brief. (See fn. 8, above.)
14

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prejudice, it is not enough to show some conceivable effect on the outcome of the proceeding. It must be shown there is a reasonable probability that, but for counsels unprofessional errors, the result of the proceeding would have been different. (Id. at p. 746, citing Strickland, at p. 694.) B. Trial Counsel Properly Decided Not to Object to Witness Testimony on Federal Confrontation Clause Grounds

Appellant argues that although trial counsel did object to some coconspirator testimony, he did not object on federal Confrontation Clause grounds. (See AOB 23.) As discussed above in Argument II(B), there were no such grounds on which to object. Thus, appellant can show neither ineffective assistance of counsel nor prejudice. (See Strickland v. Washington, supra, 466 U.S. at 687.) Accordingly, appellants claim should be denied. C. Trial Counsel Properly Accepted the Trial Courts Instructions; Appellant Was Not Prejudiced, Regardless

Both trial counsel and the prosecutor accepted the courts jury instructions as drafted by the court. (4RT 1519, 1521-1522.) Appellant argues that the mere acceptance of a trial courts jury instructions constitutes ineffective assistance of counsel. Appellant gives no examples of what instructions trial counsel might have objected to or which pinpoint instructions counsel should have requested. (See AOB 23.) The failure to offer an unspecified better jury instruction does not constitute ineffective assistance of counsel because it both offers no argument as to why counsels decision was below the objective standard of reasonableness and also fails to show how the defendant could have achieved a more favorable result in the absence of the posited ineffectiveness. (People v. Ledesma, supra, 43 Cal.3d at pp. 215, 217-218.) Accordingly, appellants claim should be denied.

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D.

Trial Counsel Properly Decided Not to Request a Hearing to Determine the Existence of a Conspiracy; Appellant Was Not Prejudiced, Regardless

Appellant generally argues that trial counsel should have requested a hearing to determine the preliminary fact of the existence of a conspiracy as to the unrelated parties without specifying which parties and what conspiracy needed to be proven. (See AOB 23.) Assuming that appellant is referring back to the conspiracy between Wang and Liyanage to bribe appellant and members of the Temple City City Council (see Argument II, above), counsel reasonably decided not to waste the courts time with a hearing where the standard of evidence was so low and the evidence so strong. (See People v. Herrera, supra, 83 Cal.App.4th at pp. 63-64.) Not only did Liyanage and Wang admit to the conspiracy, but records of emails and telephone call lists supported their testimony. (See generally Argument II(B), above.) Counsels decision not to waste the courts time with futile argument did not constitute ineffective assistance. (People v. Gutierrez (2009) 45 Cal.4th 789, 805.) For the same reasons, appellant has failed to show prejudice. (See People v. Ledesma, supra, 39 Cal.4th at p. 746.) Accordingly, appellants claim should be denied. E. Trial Counsel Properly Decided Not to Object to Imposition of the Upper Term in Appellants Sentence on Count 1

Appellant argues that trial counsel should have objected to imposition of the upper sentence on count 1. (AOB 23.) As discussed above in Argument IV(C)(2), the court had seven aggravating factors on which to base its decision. Most importantly, the court could have just as easily followed the prosecutors recommendation and sentenced appellant to the same term, or more, via consecutive sentencing on the other five counts using only low and mid terms. (See 4RT 1806-1809; 2CT 454.) Thus, by objecting, not only would appellant have gained nothing, but counsel would

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have put appellant at risk of greater sentence. Regardless, counsels decision not to waste the courts time with futile argument did not constitute ineffective assistance. (People v. Gutierrez, supra, 45 Cal.4th at p. 805.) For the same reasons, appellant is unable to show prejudice. (See People v. Ledesma, supra, 39 Cal.4th at p. 746.) Accordingly, appellants claim should be denied. VI. APPELLANTS TRIAL WAS FAIR AND PROPERLY CONDUCTED Appellant contends in Argument VII that the cumulative effect of the errors alleged in Arguments II through IV and VI of her brief resulted in a fundamentally unfair trial. (AOB 23-24.) However, those allegations are refuted in Arguments II, III, and V of this brief, and cannot, therefore, combine to support a claim of cumulative error. When an appellant alleges cumulative error, the reviewing court must review each allegation and assess the cumulative effect of any errors to see if it is reasonably probable the jury would have reached a result more favorable to defendant in their absence. When the cumulative effect of errors deprives the defendant of a fair trial and due process, reversal is required. (People v. Williams (2009) 170 Cal.App.4th 587, 646, quotation marks and citations omitted.) As discussed in respondents previous arguments, there was no error to cumulate. Moreover, any errors that this Court finds harmless individually, as discussed in those argument sections, are similarly harmless collectively. (See People v. Rogers (2006) 39 Cal.4th 826, 911.) Accordingly, appellants claim should be denied.

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CONCLUSION For the aforementioned reasons, respondent respectfully requests that the judgment be affirmed. Dated: June 12, 2012 Respectfully submitted,

KAMALA D. HARRIS Attorney General of California DANE R. GILLETTE Chief Assistant Attorney General LANCE E. WINTERS Senior Assistant Attorney General MARY SANCHEZ Deputy Attorney General

DAVID ZARMI Deputy Attorney General Attorneys for Respondent

LA2011504133 60797108.doc

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CERTIFICATE OF COMPLIANCE I certify that the attached RESPONDENT'S BRIEF uses a 13 point Times New Roman font and contains 12,642 words. Dated: June 12, 2012 KAMALA D. HARRIS Attorney General of California

DAVID ZARMI Deputy Attorney General Attorneys for Respondent

DECLARATION OF SERVICE BY U.S. MAIL Case Name: Case No.: I declare: I am employed in the Office of the Attorney General, which is the office of a member of the California State Bar, at which member's direction this service is made. I am 18 years of age or older and not a party to this matter. On June 12, 2012, I electronically filed the attached RESPONDENT'S BRIEF with the Clerk of the Court using the Online Form provided by the California Court of Appeal, Second Appellate District. I am familiar with the business practice at the Office of the Attorney General for collection and processing of correspondence for mailing with the United States Postal Service. In accordance with that practice, correspondence placed in the internal mail collection system at the Office of the Attorney General is deposited with the United States Postal Service with postage thereon fully prepaid that same day in the ordinary course of business. On June 12, 2012, I served the attached RESPONDENT'S BRIEF by placing a true copy thereof enclosed in a sealed envelope in the internal mail collection system at the Office of the Attorney General at 300 South Spring Street, Suite 1702, Los Angeles, CA 90013, addressed as follows: Stuart J. Faber Attorney at Law 3699 Wilshire BLVD., Suite 700 Los Angeles, CA 90010 The Hon.Alex Ricciardulli, Judge Los Angeles County Superior Court 210 W. Temple Sreet, Department 032 Los Angeles, CA 90012-3210 The one copy for the California Appellate Project was placed in the box for the daily messenger run system established between this Office and California Appellate Project (CAP) in Los Angeles for same day, personal delivery. I declare under penalty of perjury under the laws of the State of California the foregoing is true and correct and that this declaration was executed on June 12, 2012, at Los Angeles, California. J.R. Familo Declarant
LA2011504133/60799284.doc

The People of the State of California v. Catherine Wilson B234143

Sean Hassett Deputy District Attorney L.A. County District Attorney's Office 210 West Temple Street, Suite 18000 Los Angeles, CA 90012

Signature