People v. Rottino, G040295 (Cal. App. 6/26/2009)
| Decision Date | 26 June 2009 |
| Docket Number | G040295. |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. ROBERT DENNIS ROTTINO, Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
Appeal from a judgment of the Superior Court of Orange County, No. 06CF2359, Thomas M. Goethals, Judge. Affirmed.
Robert Booher, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Gary W. Schons, Assistant Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Peter Quon, Jr., and Angela M. Borzachillo, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Robert Dennis Rottino appeals his conviction on six counts of insurance fraud (Pen. Code, § 550, subds. (a)(1), (4) & (5))1, and one count of falsely reporting a crime (§ 148.5, subd. (a)). He contends the court erred by instructing the jury with CALCRIM Nos. 223 and 302, claiming these instructions prejudicially undermined the presumption of innocence and shifted the burden of proof to defendant.
We find defendant's contentions lack merit. The record shows the jury was appropriately instructed on both the presumption of innocence and the burden of proof. We therefore affirm the judgment.
In February 2004, defendant worked for Area 51, a distributor of electronic components. On Friday, February 20, 2004, he was unexpectedly called away from work. When he left, his keys and wallet were still on his desk and his red Ford Focus was parked out front. He was gone for around 20 days.
On Monday, February 23, 2004, defendant's car was still parked at Area 51. Defendant called work and asked coworker Jerry Aguins to give Howard Carter, defendant's roommate and lover, defendant's wallet and keys. Aguins, who was not authorized to give anyone defendant's belongings, passed the call to Peter Gosselin, the manager. Defendant also asked his boss, Steven Shammah, the owner of Area 51, to deposit his paycheck and to give his car to Carter.
On Tuesday, February 24, 2004, Carter went to Area 51 to pick up defendant's belongings from Gosselin. Shammah, Aguins, and a number of other employees were out front taking a cigarette break. As they smoked, they watched Carter drive off in defendant's car. Susan Wiedner, Area 51's human resources director, also watched Carter leave in defendant's car. This was not the first time Carter had driven the red Ford Focus; Shammah, Wiedner, and Aguins had all seen Carter drop defendant off at work in the past in defendant's car.
Later that day, California Highway Patrol Officer Mark Magrann found defendant's badly damaged car in the canal adjacent to the Glassell Street off-ramp on the 91 Freeway. Officer Magrann ran the license plate and found that the car was registered to defendant at the Area 51 address, had not been reported stolen, and noted it bore no signs of theft.
When Officer Magrann attempted to locate defendant at Area 51, Wiedner gave him defendant's home address. Unable to contact anyone at defendant's residence, about a quarter of a mile from where he had found defendant's car, Officer Magrann left a traffic collision card on the apartment door.
Wiedner later told defendant his car had been in an accident and there was a CHP officer looking for him. Defendant responded, "That fucking Howard wrecked my car." While defendant was away from work, he called Area 51 almost every day. During his calls, he made various statements to Aguins, Wiedner, and Shammah that he knew "[t]he fucking kid crashed my car off the freeway," and that he was going to report the car stolen.
When defendant returned to work, he told Shammah that although Carter had crashed the car, defendant reported his car stolen so Carter would not get in trouble. Carter was not a licensed driver at the time of the accident. Defendant told Wiedner he had reported the car stolen and told Aguins he thought he would get "a bunch of money," but the insurance company only paid off the car.
On March 10, 2004, defendant made a claim against his Coast National Insurance policy, claiming the car had been stolen. On March 12, 2004, in a telephone statement to an insurance agent, he reported his car had been stolen. At the direction of the insurance company, he made a stolen vehicle report with the City of Orange Police Department on April 16, 2004. On April 26, 2004, the insurance company requested an affidavit of theft, which he provided.
The insurance company determined the car to be a total loss. Because there was an outstanding loan on the car in excess of its actual value, the insurance company directly paid the lienholder the current value of the car. The insurance company received $775 for salvage, and defendant received nothing.
At trial, a field investigator for Coast National Insurance testified that defendant's insurance policy did not cover collisions caused by unlicensed drivers. In addition, the entire policy was void if defendant concealed or misrepresented any material facts or committed fraud.
Defendant was fired from Area 51 on May 27, 2005. Shammah instructed Wiedner to contact the district attorney's office to report defendant's insurance fraud after receiving a demand letter regarding funds owed to him by Area 51.
Defendant argues the jury instructions in this case were inadequate. The People contend defendant forfeited his challenge by failing to object to the flawed instructions in the trial court. However, under section 1259, we must consider challenges to instructions even when no objection was made in the lower court "`if the substantial rights of the defendant were affected thereby.'" (People v. Stitely (2005) 35 Cal.4th 514, 556, fn. 20.) We therefore consider the issue on the merits.
The correctness of jury instructions is a question of law that we review de novo. (People v. Posey (2004) 32 Cal.4th 193, 218.) "If a jury instruction is ambiguous, we inquire whether there is a reasonable likelihood that the jury misunderstood and misapplied the instruction." (People v. Smithey (1999) 20 Cal.4th 936, 963-964 (Smithey).) Instructions are considered "as a whole, in light of one another," without "singl[ing] out a word or phrase," and we assume the jurors are intelligent persons, "`"capable of understanding and correlating"'" all given instructions. (People v. Holmes (2007) 153 Cal.App.4th 539, 545-546.) The arguments of counsel must also be considered in assessing the probable impact of the instruction on the jury. (People v. Young (2005) 34 Cal.4th 1149, 1202.)
The jury was instructed with CALCRIM No. 223 as follows: (Italics added.) Defendant argues that saying the purpose of evidence is to "prove or disprove the elements of a charge" suggests that defendant must disprove an element of the charged offense, not just raise a reasonable doubt, to merit an acquittal.
Additionally, the jury was instructed with CALCRIM No. 302 as follows: (Italics added.) Defendant argues that instructing jurors to "decide what evidence, if any, to believe" implies that defendant must point to believable exculpatory evidence in order to avoid conviction. According to defendant, the highlighted portions of the above instructions imply that the defendant carries a burden of proof, thus violating defendant's due process rights. We disagree.
It is true that the prosecution bears the burden of proving every element of an offense beyond a reasonable doubt. (In re Winship (1970) 397 U.S. 358, 364.) A jury instruction that runs contrary to that principle violates due process. (Sandstrom v. Montana (1979) 442 U.S. 510, 520, abrogated on another ground by Boyde v. California (1990) 494 U.S. 370, 390.) But we find no indication these instructions do that.
CALCRIM No. 223 instructs the jury on evaluating direct and circumstantial evidence. The instruction informs the jury that both types of evidence are an acceptable means of...
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