Former Temple City Mayor's Appeal of Prison Sentence

7/31/2019 Former Temple City Mayor's Appeal of Prison Sentence

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT, DIVISION EIGHT

THE PEOPLE OF THE STATE OF CALIFORNIA,

Plaintiff and Respondent,

v.

CATHERINE WILSON,

Defendant and Appellant.

Case No. B234143

Los Angeles County Superior Court, Case No. BA332035The Honorable Alex Ricciardulli, Judge

RESPONDENT'S BRIEF

KAMALA D.HARRISAttorney General of CaliforniaDANE R.GILLETTEChief Assistant Attorney GeneralLANCE E.WINTERSSenior Assistant Attorney GeneralMARY SANCHEZDeputy Attorney GeneralDAVID ZARMIDeputy Attorney GeneralState Bar No. 245636

300 South Spring Street, Suite 1702

Los Angeles, CA 90013Telephone: (213) 576-1336Fax: (213) 576-1300E-mail: [email protected]

Attorneys for Respondent

COURT OF APPEAL SECOND

ELECTRONICALLY

JOSEPH A. LANE, ClerkDeputy C

Jun 12, 2012

bfisher


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TABLE OF CONTENTS

Page

i

Statement of the Case ................................................................................... 1

Statement of Facts ........................................................................................ 1A. Prosecution .................................................................. 1

1. Appellants Grand Jury Testimony .................. 1

2. Trial Testimony ................................................ 3

3. Scott Carwiles Testimony ............................. 12

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

1. Appellants Testimony ................................... 13

2. David Chois Testimony ................................ 173. Terri Cohens Testimony ............................... 17

4. Character Testimony ...................................... 18

I. The trial court properly amended the indictment tocorrect a clerical error citing the wrong Penal Codesection for counts 1 through 3 .............................................. 20

II. The trial court properly admittednontestimonialcoconspirator hearsay and instructed onconspiracy ............................................................................. 22

A. Applicable law .......................................................... 22

B. Liyanages and Wangs hearsay testimony wasnot testimonial and was properly admitted ascoconspirator statements; the court properlyinstructed on conspiracy ............................................ 23

III. The trial court properly omitted a unanimityinstruction ............................................................................. 24

A. Applicable law .......................................................... 25

B. The trial court instructions and verdict formsclarified for the jury which acts of bribery andperjury were the basis for the charges of whichit convicted appellant ................................................ 26

1. The Bribery Charges ...................................... 26

2. The Perjury Charges....................................... 27


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TABLE OF CONTENTS(continued)

Page

-ii-

IV. The trial court properly imposed the upper term ................. 28

A. The prosecutors sentencing memorandum andsentencing .................................................................. 29

B. Appellant was properly sentenced under theSixth Amendment ...................................................... 30

1. The Cunningham Decision ............................ 31

2. The Upper Term Was ConstitutionalBecause It Was Within the StatutoryMaximum ....................................................... 31

3. Retrospectively Applying the JudiciallyReformed Version of Section 1170 DoesNot Warrant Relief ......................................... 32

C. Appellant waived any state law claims byfailing to object to the upper term; appellantwas properly sentenced under state law,regardless ................................................................... 35

1. Applicable Law .............................................. 35

2. Appellant Failed to Object to the UpperTerm, but Was Properly Sentenced,Regardless ...................................................... 36

V. Appellant received effective assistance of counsel .............. 38

A. Applicable law .......................................................... 38

B. Trial counsel properly decided not to object towitness testimony on federal confrontationclause grounds ........................................................... 39

C. Trial counsel properly accepted the trial courtsinstructions; appellant was not prejudiced,

regardless ................................................................... 39D. Trial counsel properly decided not to request a

hearing to determine the existence of aconspiracy; appellant was not prejudiced,regardless ................................................................... 40


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TABLE OF CONTENTS(continued)

Page

-iii-

E. Trial counsel properly decided not to object to

imposition of the upper term in appellantssentence on count 1 ................................................... 40

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

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


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TABLE OF AUTHORITIES

Page

iv

CASES

Chrisman v. Superior Court

(1922) 59 Cal.App. 305 ..................................................................... 21

Collins v. Youngblood

(1990) 497 U.S. 37 [110 S.Ct. 2715, 111 L.Ed.2d 30] ...................... 32

Crawford v. Washington

(2004) 541 U.S. 36 [124 S.Ct. 1354, 158 L.Ed.2d 177] .................... 23

Cunningham v. California

(2007) 549 U.S. 270 [127 S.Ct. 856, 166 L.Ed.2d 856] ..................................................................................................................30, 31, 32, 33

Hubbart v. Superior Court

(1999) 19 Cal.4th 1138 ...................................................................... 32

Lynce v. Mathis

(1997) 519 U.S. 433 [117 S.Ct. 891, 137 L.Ed.2d 63] ...................... 33

Miller v. Florida(1987) 482 U.S. 423 [107 S.Ct. 2446, 96 L.Ed.2d 351] .................... 33

Patterson v. Municipal Court

(1971) 17 Cal.App.3d 84 ................................................................... 20

People v. Avalos

(1996) 47 Cal.App.4th 1569 .............................................................. 36

People v. Brock

(2006) 143 Cal.App.4th 1266 ...................................................... 25, 26

People v. Brown

(1991) 234 Cal.App.3d 918 ............................................................... 25

People v. Brown

(1994) 6 Cal.4th 322 .......................................................................... 33


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(continued)

Page

v

People v. Cage

(2007) 40 Cal.4th 965 ........................................................................ 23

People v. Curry

(2007) 158 Cal.App.4th 766 .................................................. 25, 27, 28

People v. Duarte

(2000) 24 Cal.4th 603 ........................................................................ 23

People v. Gann

(2011) 193 Cal.App.4th 994 .............................................................. 23

People v. Gutierrez

(2009) 45 Cal.4th 789 .................................................................. 40, 41

People v. Hamilton

(2009) 45 Cal.4th 863 ........................................................................ 23

People v. Hardy

(1992) 2 Cal.4th 86 ............................................................................ 22

People v. Herrera(2000) 83 Cal.App.4th 46 ............................................................ 22, 40

People v. Jones

(1990) 51 Cal.3d 294 ......................................................................... 25

People v. Jones

(2009) 178 Cal.App.4th 853 ........................................................ 31, 32

People v. Jourdain

(1980) 111 Cal.App.3d 396 ............................................................... 22

People v. Kronemyer

(1987) 189 Cal.App.3d 314 ............................................................... 34

People v. Ledesma

(2006) 39 Cal.4th 641 ......................................................38, 39, 40, 41


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(continued)

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vi

People v. Ledesma

(1987) 43 Cal.3d 171 ......................................................................... 39

People v. Pope

(1979) 23 Cal.3d 412 ......................................................................... 38

People v. Rodrigues

(1994) 8 Cal.4th 1060 .................................................................. 23, 24

People v. Rogers

(2006) 39 Cal.4th 826 ........................................................................ 41

People v. Russo

(2001) 25 Cal.4th 1124 ...................................................................... 25

People v. Sandoval

(2007) 41 Cal.4th 825 ................................................................ passim

People v. Scott

(1994) 9 Cal.4th 331 .......................................................................... 36

People v. Seldomridge(1984) 154 Cal.App.3d 362 ............................................................... 34

People v. Silvey

(1997) 58 Cal.App.4th 1320 .............................................................. 38

People v. Smith

(1983) 34 Cal.3d 251 ......................................................................... 33

People v. Tatman

(1993) 20 Cal.App.4th 1 .................................................................... 25

People v. Thompson

(1995) 36 Cal.App.4th 843 .......................................................... 25, 28

People v. Watson

(1956) 46 Cal. 2d 818 ........................................................................ 22


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(continued)

Page

vii

People v. Williams

(2009) 170 Cal.App.4th 587 .............................................................. 41

People v. Wilson

(2008) 164 Cal.App.4th 988 .............................................................. 32

People v. Winters

(1990) 221 Cal.App.3d 997 ......................................................... 20, 21

Strickland v. Washington

(1984) 466 U.S. 668 [104 S.Ct. 2052, 80 L.Ed.2d 674] .............. 38, 39

Wilke & Holzheiser, Inc. v. Dept. of Alcoholic Beverage Control

(1966) 65 Cal.2d 349 ......................................................................... 33

STATUTES

Evid. Code 1223 ................................................................................... 22

Gov. Code, 70373 ................................................................................... 1

Pen. Code, 68 .............................................................................. 1, 20, 21

Pen. Code, 86 ........................................................................................ 20

Penal Code 118 ....................................................................................... 1

Penal Code 1202.4 .................................................................................. 1

Penal Code 1202.45 ................................................................................ 1

Penal Code 1465.8 .................................................................................. 1

CONSTITUTIONAL PROVISIONS

Cal. Const., art. I, 16 ............................................................................. 25

U.S. Const., 6th Amend. .................................................................... 23, 30

U.S. Const., 14th Amend. ........................................................................ 31


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(continued)

Page

viii

COURT RULES

Cal. Rules of Court, rules 4.405-4.452 .................................................... 35

Cal. Rules of Court, rule 4.421 .......................................................... 35, 36

Cal.Rules of Court, rule 4.414 ...............................................29, 35, 36, 37

Cal.Rules of Court, rule 4.423 ................................................................. 37

OTHER AUTHORITIES

Sen. Bill 40 .............................................................................................. 30


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STATEMENT OF THE CASE

In a Los Angeles County grand jury indictment returned on June 8,

2009 (case no. BA332035), appellant was charged with three counts of

asking for and/or receiving a bribe (Pen. Code, 68)1

[counts 1-3], and

three counts of perjury ( 118, subd. (a)) [counts 11-13]. Appellant pled

not guilty. (2CT 340-348, 352.)

Following a jury trial, appellant was found guilty as charged and

sentenced to prison for four years on count 1. Appellant was sentenced to

four years concurrent for each of the remaining counts. Appellant was

ordered to pay: $10,108 in victim restitution ( 1202.4, subd. (f)); a $40

court security assessment for each count, or $240 ( 1465.8, subd. (a)(1)); a

$30 criminal conviction assessment for each count, or $180 (Gov. Code,

70373); a $12,000 restitution fine ( 1202.4, subd. (b)); and a $12,000

parole revocation fine ( 1202.45), which was stayed. Appellant received

no presentence credit. (2CT 414-419, 429-432, 468-470, 474-475; 4RT

1815.)

Appellant filed a notice of appeal. (2CT 472.)

STATEMENT OF FACTS

A. Prosecution1. Appellants Grand Jury Testimony

Appellants grand jury testimony was read to the jury at trial. (See

2RT 316-318.) On December 15, 2008, appellant testified under oath in

front of a grand jury that she was then the mayor of Temple City. (2RT

1Unless otherwise indicated, all further statutory references are tothe Penal Code.


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317-322.)2 Appellant had joined the city council in 1990 and was elected

mayor in 2005. (2RT 323.)

Randy Wang had run a development project for a few years that had

been the intermittent subject of council meetings. (2RT 324.) No citycouncil members were directly involved in negotiations for the

development. (2RT 329.) Appellant never interacted with Wang

independent of city council meetings. (2RT 330.)

Wang sued Temple City regarding the development project. (2RT

324.) In his suit, Wang alleged that appellant wanted a condominium in

exchange for support for his project. (2RT 324-325.) There was no truth to

that allegation. In one conversation with Wang, appellant told him it wouldbe nice for someone to have a condominium on the very top of the

development to overlook Temple City. (2RT 325.) Appellant did not mean

that she wanted to be the person with the top condominium. (2RT 326-

327.) Appellant had a house and owned animals at the time and would not

have wanted to be in a condominium when she enjoyed what she already

owned. (2RT 327.) Although appellant could not recall the date of the

conversation or its context, she testified that Councilmember Judy Wong

had not been present. (2RT 326.)

Appellant saw Wang and City Manager Charlie Martin in City Hall

from time to time and would speak to them about the project. (2RT 330-

331.) In one such conversation, appellant told Wang that he should have

kept his project personnel instead of firing them. (2RT 331.) Appellant

initially testified that the new project personnel had not started at the time

and she had nothing against them, just that she trusted the old project

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


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personnel. (2RT 332.) Appellant then testified that there was something

that bothered her about the new project personnel. (2RT 333.)

The old project personnel were David Choi and Jagath Liyanage.

Appellant testified that she had no personal or financial interest in eitherone of them. She testified that neither of them had given her money or

made campaign contributions. (2RT 333.) Appellant had never met

Liyanage before the Wang project. (2RT 334-335.)

Appellant had little telephone contact with Wang. (2RT 335-336.)

Wang called to wish appellant Happy Mothers Day and appellant called

Wang to tell him that Dana Baskin,3 a local newspaper editor and supporter

of Wangs project, had died. Wang called appellant a few times other thanthat. (2RT 336.)

In a recorded conversation played by the prosecutor and entered into

the record as Peoples Exhibit 2, someone called Wang and asked to meet

him in private in order to do something to help him. (2RT 336-338.)

Appellant denied that it was her voice and said it sounded like a man.

(2RT 338.)4 On another occasion in the winter of 2006/2007, Wang called

appellant and asked her to meet him at the mall. Appellant said that she

preferred Starbucks, and when they met there, Wang gave her a present in

appreciation for her work on his project. (2RT 338-339.) When appellant

opened it later and discovered that it was a beautiful watch, she returned

it and told Wang that she could not accept presents. (2RT 339.)

2. Trial TestimonyIn September 2004, Wang entered into escrow to purchase a lot on the

corner of Rosemead Boulevard and Las Tunas Drive in Temple City for

3Although he is referred to here as Bascomb, his name appears to

be Baskin. (See 2RT 603; 3RT 910.)4 This assertion was later disputed by two witnesses at trial. (See

2RT 276, 399-400.)


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$10 million. (3RT 902-903, 905.) While in escrow, Wang discovered that

there was an eminent domain suit on the property. (3RT 904-905.) If

Wang had canceled the purchase, he would have lost $1 million, so he

decided to go ahead with the purchase with the idea that he would negotiatewith the city to drop the suit in return for a development project. (3RT

905.)

Wang spoke with city representatives who told him that he had to

purchase three adjacent lots and join them before the city would negotiate

further. (3RT 906-907.) Wang did so, spending a total of $13 million.

(3RT 906-907.) Wang was introduced to Baskin by his realtor in an effort

to network with influential Temple City residents. (3RT 910.) In early2005, Baskin introduced Wang to Liyanage for work on the development

project. (2RT 603-604; 3RT 910.) In April 2005, Wang hired Liyanage to

perform design, development, and project management. (2RT 603-604.)

Liyanages job was to come up with an appropriate project, get it approved

by the city council, build it, and lease it out. (2RT 604.) Liyanage

proposed a mixed use residential-commercial plan. (2RT 605.)

Liyanage was then approached by Martin and told that in order to

negotiate a deal, Wang would have to retain Martins attorney friend, Ralph

Leech. (3RT 907-908, 950.) Wang did so, and then signed a development

contract that gave him four years to develop that land before the city would

take the land from him for $5 million. (3RT 907-908.) Liyanage

recommended Choi as an architect and Wang hired him. (3RT 911-912,

977-978.) In order to complete the project, Liyanage would still need the

approval of the city council, the planning board, the engineering board, and

more technical agencies as the project progressed. (2RT 606.) The city

council approved the plan in June 2006 and removed the condemnation

lawsuit. (2RT 605, 607; 3RT 913.)


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Liyanage first met appellant in March 2005, after she won election, in

City Hall. (2RT 606, 610.) They met several times over dinner and

appellant met Liyanages family. (2RT 639.) In late 2005 or early 2006,

before the approval, appellant said that it would be nice to live in one of thecondominiums in the development, but Liyanage thought she was joking.

(2RT 632-633; 3RT 933.) Wang testified that Liyanage was not there for

the conversation, and said that he could not tell if appellant was joking,

especially because she kept mentioning that Wang would have to take care

of her later. (3RT 933.) Appellant then held out her arm and said that she

did not have a watch, which Wang understood to mean he should buy her

one. (3RT 934.)Wang bought appellant an expensive watch without telling Liyanage.

He gave it to her at a Starbucks cafe. Wang later felt bad about it, and told

Liyanage. Liyanage offered to speak to appellant to get the watch back and

Wang agreed. (3RT 934.) Before Liyanage asked appellant to return the

watch, she approached Liyanage on her own to return it. Liyanage told

appellant that she should return the watch to Wang directly, but she said

that she did not want to be rude and told Liyanage to return it. (2RT

635.) Liyanage knew he would still have to work together with Wang on

the project and did not want to embarrass him, but he did tell Wang that he

should not have given appellant the watch because the project was going

well and the council was going to approve the project. (2RT 635-636.)

Liyanage told Wang, [Y]ou dont need to panic. Wang said that he was

sorry and Liyanage told him that after the project was approved they would

give appellant a gift. (2RT 636.)

Later in 2006, appellant called Liyanage and told him that she needed

$2,000 for a family emergency. (2RT 607.) Liyanage gave her $2,000 in

cash at Cocos Restaurant on Live Oak Avenue -- a location chosen by

appellant. (2RT 607-608.) In 2007, in their one and only meeting,


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Liyanage and his family met appellants daughter, Terri Cohen, at a

restaurant in Arcadia. (2RT 610, 642.) Liyanage denied discussing

Cohens problems making payments on her condominium. (2RT 642-643.)

Eva Hauffen, who was a city council assistant in September 2006,gave appellant an advance of $958.54 for appellant, Wong, and Martin to

attend the California City Conference on September 6, 2006. (2RT 366-

367.) Appellant stayed three nights and Martin and Wong each stayed one

night. (2RT 367.) $111.25 of that money was for 250 miles that appellant

told Hauffen she would be driving. (2RT 368.) If appellant was driven by

a friend in a different car, she would not have been entitled to the money.

Appellant never told Hauffen that she did not drive her own car to theconference. (2RT 374.)

Before the conference, appellant called Liyanage and asked to use his

car to drive to the conference because her car was not in good shape.

Liyanage did not want to give her his car, so her offered to rent a car for her

instead. (2RT 615.) Liyanage was afraid not to give her a car because she

had power over his project. (2RT 615-616.) Although appellant never

threatened him, Liyanage felt he could never say no to her for fear of

offending her. (2RT 616.) Appellant accepted the rental and they went

down to Budget Rent-a-Car together. (2RT 615.) The transaction was

corroborated by Jacqueline Sandoval, who rented the car jointly to

appellant and Liyanage. The rental amount of $108.03 was paid by credit

card and the insurance of $36 was paid in cash. (2RT 356-360.) Liyanage

paid the credit card amount but not the cash. (2RT 643.)

Prior to the grand jury investigation, appellant spoke with Hauffen

twice. The first time, appellant told Hauffen that she did not know why the

grand jury was requesting city records. The second time, she told Hauffen

that she could not remember whether she paid the mileage money back.

(2RT 375.) Hauffen worked for appellant and could recognize her voice.


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(2RT 375-376.) Hauffen identified the speaker on Peoples Exhibit 2 as

appellant. (2RT 376.)

In late 2006, Wong called Wang and asked for help in her re-election

campaign. (3RT 914.) Wang told her, Thats not a problem, but I have tofirst talk to my project manager and discuss this with him a little bit. (3RT

914-915.) Wong and Wang communicated in Mandarin. (3RT 923.)

Wang discussed Wongs request with Liyanage and was told that Liyanage

wanted to ask appellant because Wong was a nemesis of hers. (3RT 914-

915.) Liyanage spoke with appellant and reported back to Wang that it was

appropriate to help Wong. (3RT 916.)

In late 2006 and early 2007, appellant told Liyanage thatCouncilmember Dave Capra looked like he was going to lose an election

and that would mean a loss of support for Liyanages project. Appellant

therefore recommended getting Scott Carwile elected to the city council

and defending Wongs costly seat. (2RT 620.) Liyanage asked appellant,

How can I help you? If you like I can give you some campaign

contributions. Appellant said, That will be very helpful. Liyanage

asked appellant how much and she said $5,000 for Capra and $3,000 for

Carwile. (2RT 621, 624.) On January 11, 2007, Liyanage discussed it with

Wang, who told him to start by giving Wong $5,000 and to organize a pick

up location. (2RT 616-618.)

On January 22, 2007, Liyanage wrote an e-mail to Wang telling him

that he was working with two people, and was going to finalize one that

night. (2RT 617-618.) He wrote, [C]ant leave tracks. So I will call you

as soon as I finalize. (2RT 618.) Liyanage explained that he was telling

Wang that he was in communication with appellant to give her $8,000 for

Wong and Carwile, but that she had not yet told him where to deliver it

when he wrote that e-mail. (2RT 618-621.) Wang wrote back, Okay.

(2RT 618.) Liyanage replied that the best way to get money to Wong


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would be to use Radini Malleppah, the owner of the school that Liyanages

daughter attended, because the owner was close to his family. (2RT 619-

620; 3RT 917-918.) Liyanage told Wang that Wong could either pick the

money up directly from the school or that the owner would bring it to alocation of Wongs choice in Arcadia. Liyanage reminded Wang that

appellant asked him to prepare $3,000 for Carwile. (2RT 619-620.) Wang

responded, [D]o we do the same way as [Wong] to [Carwile]? (2RT

621.) Wang was asking if it was also supposed to be in cash as opposed to

check. (3RT 919.) On January 23, 2007, Wang gave Liyanage $8,000 in

cash for the election campaigns. This transaction was corroborated by a

check from Wang made out to cash. (2RT 622.) Wang withdrew $3,000for Carwile and $5,000 for Wong. (3RT 920.)

On January 25, 2007, Liyanage sent another e-mail to Wang telling

him that he gave appellant the money for Carwile and reminding him that

they needed to do the same for Capra within the week. (2RT 623-625.)

Wang replied that he would meet with Liyanage at Kentucky Fried Chicken

the next day. (2RT 625.) Wang gave Liyanage the $5,000 in cash on

January 26, 2007, and Liyanage passed it on to appellant. (2RT 624, 626.)

The transaction was corroborated by a check made out by Wang to cash for

$5,000. (2RT 625-626.)5

Wong told Wang that she would not pick up the money from anyone

who was not a Chinese national. (3RT 922-923.) Therefore, Liyanage

decided to drop the money off at a yogurt shop in Arcadia owned by the

Chinese boyfriend of Liyanages secretary, Jeannie Thai. (2RT 629-630.)

5On cross-examination, in contradiction to the e-mail he sent to

Wang, Liyanage testified that he and Choi met appellant and Capra at an ElMonte restaurant and that he gave one envelope to appellant and one toCapra. (See 2RT 657-659.)


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Wongs secretary, Wendy,6 picked up the contribution from the yogurt shop

on January 28, 2007. (2RT 627-630.) Wong called Wang and told her that

she received the money. (3RT 927.)

After Wong received her $3,000, she requested $1,800 each inadditional funds for the campaigns of Anthony Portantino and Carol Liu.

Wang complied, as corroborated by checks and receipts for those amounts.

(3RT 928-929.) Wong then requested an additional $1,000 for Lius

campaign and $1,000 cash for herself. Wang complied, as corroborated by

checks and receipts. (3RT 929-931.) Wong made a final request of $1,000

for the campaign of Mike Eng. Wang complied, as corroborated by a

check. (3RT 931.) Wang also testified that he recognized the numbers ofWong, Choi, and Liyanage from his phone records. (3RT 931-932.)

Mary Flandrick, city clerk for Temple City, testified that all

candidates and certain city officials must file a Form 700 Statement of

Economic Interest declaring, under penalty of perjury, gifts and economic

holdings of over $50 in value. (2RT 383-385.) Appellant signed one on

March 22, 2007, for calendar year 2006, and another on March 25, 2008,

for calendar year 2007. Neither form listed any gifts in excess of $50 for

those years. (2RT 386-388.) Wong also submitted a Form 700 for

2006 and 2007 and did not list any gifts over $50. (2RT 389-390.)

Flandrick testified that all candidates who take in over $1,000 in

contributions must file a Form 460 under penalty of perjury that lists donors

and how donations are spent. (2RT 391.) Carwile, who was appellants

treasurer in 2005, ran for city council in 2007. (2RT 392.) His forms for

calendar year 2006 and the first half of 2007 did not list a $3,000

contribution from Wang or Liyanage. (2RT 393-394.) Wongs Form 460

for the period January 21, 2007, through February 17, 2007, did not list any

6Wendys last name does not appear in the record.


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contributions from Wang or Liyanage. (2RT 394-395.) Flandrick also

identified the speaker on Peoples Exhibit 2 as appellant. (2RT 399-400.)

Liyanage differentiated between giving money to councilmembers

before the 2006 project approval and giving after the approval, and that waswhy he was in favor of giving money for the election campaigns. (2RT

634-637.) Liyanage still admitted that the campaign money was also given

to protect the project, but claimed that was Wangs motivation, not his.

(2RT 637, 639-640.) Liyanage also testified that he gave the campaign

money out of a general fear of the councilmembers power. (2RT 667.)

Although Liyanage originally perjured himself in front of the grand

jury and said that he had not given any money to councilmembers, headmitted that was a lie. (2RT 612-613.) Liyanage pled guilty to bribery

and as part of his plea agreement agreed to tell the truth under oath at

appellants trial. (2RT 613.) Liyanage also admitted that he took a 10%

kickback off of the subcontractors on the project (including Choi)

unbeknownst to Wang, but paid taxes on the income. (2RT 637-638.)

Liyanage regretted the kickbacks. (2RT 638.)

Liyanage and Choi left Wangs employment in May 2007. (2RT 604,

650; 3RT 938.)7 Liyanage thought that the project would have been

completed successfully had he stayed on. (2RT 670-671.)

After Liyanage left, Wang was called to meet Martin and appellant in

City Hall. (3RT 938.) They threatened Wang that he had to rehire

Liyanage and Choi, and to use B.L. Construction as a general contractor.

(3RT 938-939.) Wang refused and told them that he had already hired

another contractor, A&W Builder. Martin and appellant were very upset

7Liyanage testified that he quit because he disagreed with Wangs

style (2RT 650), while Wang testified that he fired Liyanage for hiringChoi, who was not licensed as an architect, and for stealing from Wang viathe kickbacks (3RT 938).


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but reluctantly accepted Wangs decision. (3RT 939.) Later that day,

appellant called Wang again and told him to rehire Liyanage and Choi. She

told him that A&W were liars and had lied to the city, but gave no

specifics. (3RT 940.) On July 18, 2008, appellant called Wang again andleft a voice message asking him to rehire Choi and to hire B.L.

Construction. (3RT 942-943.) The message was played for the jury as

Peoples Exhibit 2. (3RT 943-944.)

Wang went ahead with a new architect and they used Chois plans.

Choi sued, claiming they were copyrighted, and Wang filed a claim with

the architect board asserting that Choi was unlicensed. (3RT 940-941.)

That case was being prosecuted by the District Attorney at the time of trial.(3RT 941.)

In early 2008, Temple City sued Wang for breach of contract and

demanded he sell the city his property for $5 million based on the

understanding that he could not finish the project within the contractual

four years because he had hired a new contractor and was unable to get

loans due to the financial crisis. (3RT 941-942.) Wangs attorney

recommended negotiating with the city as a way to avoid litigation. (3RT

944.) Wang made a deal with Hilton Hotels to turn the residential units of

his development into a Hilton franchise. (3RT 945.) Wang informed the

city of the deal and asked to settle the case and restart the clock on the four-

year term, but the proposal was rejected. (3RT 945-946.)

Wang and his counsel decided to countersue. In preparation for the

litigation, Wang collected all of his evidence of wrongdoing and gave it to

his attorney, who passed it on to the District Attorney. (3RT 946.)

Christopher Briggs, a senior investigator for the District Attorneys

Office, interviewed Liyanage in November 2008. (3RT 961, 966.)

Although Liyanage at first denied that he had bribed city officials, in a

successive interview on April 29, 2009, Liyanage admitted that he gave


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$2,000 to appellant. (3RT 966-967, 969.) On May 18, 2009, Briggs sent a

letter to appellant informing her that she was under investigation for

bribery. (3RT 967.)

On May 26, 2009, appellant, posing as Cohen, purchased a cashierscheck for $2,000 at the Temple City branch of Bank of America to repay

Liyanage. (2RT 351-352, 608; 3RT 967-968.) The transaction was

corroborated by Dulce Marroquin, custodian of records for Bank of

America, and an accompanying surveillance video. (2RT 346-353.) Cohen

gave Liyanage the money on May 28, 2009, with a letter of gratitude

thanking him for helping her and inviting Liyanage and his family to

Mexico to vacation with her and look at business opportunities. (2RT 609-610.) When appellant originally asked Liyanage for the money, she did not

mention that it was for Cohen. (2RT 611.)

3. Scott Carwiles TestimonyAppellant and Carwile had been in favor of Wangs development

project from the time when Carwile was treasurer of appellants 2005

campaign. (2RT 678-679.) It was a good project which would have

brought in a lot of jobs and improved the city. (2RT 679.) As treasurer of

appellants 2005 campaign, Carwile and appellant discussed taking money

from developers like Wang and Liyanage, but decided that because the

campaign was so nasty, they did not want any fallback on Wang and

Liyanage if they lost. (2RT 677.)

In one undated incident, Wang handed out $250 gift cards to

councilmembers as thanks for working on his project. (2RT 680-681.) In

another, Carwile told Wang he was trying to raise $3,000 for his campaign

and asked him to donate. (2RT 681.) Wang did not speak English well,

and when he just stood and smiled, Carwile was not sure that Wang had

even understood him. He did not follow up. (2RT 682.)


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Carwile filled out his Form 460 in January 2007 and listed a loan to

himself of $3,500. (2RT 672-673.) $3,000 of that money had come from

appellant. (2RT 673.) Carwile picked up the money in cash from her

house after she told him that it was from somebody that didnt want theirname used. (2RT 676.) Carwile had seen that it was a particularly nasty

campaign and felt he could understand why it would be anonymous. (2RT

677.) The transaction was corroborated by Carwiles bank statements.

(2RT 675-676.)

Carwile and other councilmembers liked Liyanage because he would

fulfill their stupid requests in order to make sure they were happy. (2RT

681-682.) Carwile pled guilty to making a false campaign statement and aspart of his plea agreement agreed to tell the truth under oath at appellants

trial. (2RT 674.) Carwile recognized appellants and Liyanages numbers

from his telephone records. (2RT 677-678.)

B. Defense Case1. Appellants Testimony

Appellant testified that Wangs project was first proposed at the end

of 2005 and that appellant was initially excited about it because of a dearth

of shopping opportunities in Temple City. (3RT 1217-1218, 1220.) As

appellant met Liyanage, she adopted him, as was her custom to adopt

people who do not have parents. Appellant became very close to Liyanage.

(3RT 1221.)

When appellant was going to be driving to the California Cities

Conference, she mentioned to Liyanage that she was concerned aboutdriving her old car. Liyanage said, Well, you know, my wife . . . is in

Shanghai, so her care is just sitting there. Would you like to use it?

Appellant responded, Oh, that would be great, Ill put in the gas and

whatever needs to be done with the car. (3RT 1221.) Two days later,


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Liyanage told her, Oh, I dont have the car, my nephew . . . has it in

Arizona and I cant get it back, so you should rent a car. Appellant

responded, Well, I have never rented a car . . . . Do you have a certain

place that you would recommend for you [sic] to go to? Liyanage said,Yes, Ill take you down to my friends. (3RT 1222.)

They went to Budget to rent the car, and appellant decided to pay the

insurance in cash. (3RT 1222-1223.) When she reached for her credit card

to pay for the rental, Liyanage said, No. No. No. I put it on mine,

because these people know me and I do business with them. Appellant

said, Ill just pay you back when I get my per diem check cashed. (3RT

1223.) After the conference, appellant gave Hauffen the car rental receiptand Hauffen said, Oh. We owe you some money. (3RT 1224.)

Appellant responded, Eva, no, you dont owe me. Anything . . . .

Whatever is given to us in our per diem, that is what, you know -- we dont

get overpaid. (3RT 1224-1225.) Hauffen said, Oh. Okay, as if

appellant was teaching her how the per diem rules worked. (3RT 1225.)

Two weeks later, appellant paid Liyanage the $111. (Sic.) (3RT 1225.)

Neither appellant nor Liyanage ever mentioned the project or appellants

vote and appellant always intended to pay Liyanage back. (3RT 1225-

1226.) Appellant did not divulge the $111 [sic] car rental on her Form

700 because she used her per diem to pay it back. (3RT 1237-1238.)

When Liyanage gave appellant the $2,000, they both understood it

was a loan to Cohen, at Cohens request. (3RT 1226-1227.) Appellant

directly paid Robert Crawford, to whom Cohen owed money. (3RT 1226.)

Appellant sent him a check for $3,000, contributing $1,000 of her own

money. (3RT 1226-1228.) Appellant testified that even though she had

money in the bank, she did not give that money to Cohen because it was in

a certificate of deposit that she did not touch. (3RT 1228.) Appellant never

threatened Liyanage or mentioned his project when she asked for the loan.


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Appellant admitted that she got the cashiers check for Cohen when it was

time to repay Liyanage. (3RT 1229.) Appellant did not divulge the $2,000

loan on her Form 700 because it was not for her campaign and was not hers

at all. (3RT 1237-1238.) Appellant could not explain why her bankrecords showed that she never deposited the $2,000, and insisted that she

had. (3RT 1247-1249.) Appellant also could not explain why she got a

cashiers check instead of sending a personal check in the mail so that

Liyanage could get the money much sooner. (3RT 1250-1253.) Although

appellant said that using cashiers checks is the way [she does] things,

she had never gotten a cashiers check before and had written many

personal checks. (3RT 1251-1253.)On one occasion, appellant was at a restaurant when Liyanage called.

She told him where she was and he said he was going to come by. (3RT

1230.) Appellant told him that Capra was there with his fiance. (3RT

1230-1231.) Appellant invited Liyanage to join them all for a drink, but he

said he had to go to the airport and only stayed a short while. Liyanage did

not give money to Capra or an envelope to appellant. (3RT 1231.)

In regards to the grand jury investigation, appellant testified that she

was not represented by counsel at the time. (3RT 1232.) Appellant

testified at trial that she had met with Wang and Martin together on two

occasions, once before Liyanage left the project and once after. (3RT

1232-1233.) In the first meeting, Wang updated them on how well the

project was going. (3RT 1232.) In the second meeting, they did not

discuss the change in project managers because it had already happened.

Appellant did meet with Wang alone at City Hall, however, and appellant

asked him, Why did you get rid of [Liyanage]? Wang said, Im not

going to talk about that. Appellant replied, Okay. (3RT 1233.)

Appellant did not know that Liyanage was taking kickbacks when she

spoke with Wang. (3RT 1233-1234.) Appellant never threatened Wang


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that if he did not put Liyanage back on the project, she would no longer

vote for it. (3RT 1236-1237.)

Although appellant originally testified about Peoples Exhibit 2 in

front of a grand jury that she did not recognize the voice and that it soundedlike a man, that was because the version she heard was poor quality and far

away. (3RT 1234.) The prosecutor at the grand jury investigation did not

offer to bring the recording closer or make it louder for her to properly

determine if it was her. (3RT 1234-1235.) After appellant heard the newer,

better quality version in her counsels office, she determined that the voice

was hers and that it was a recording of a call when she asked Wang to meet

with her because she did not trust the construction company Wang hadchosen to complete the project and wanted to discuss it with him. (3RT

1235.) On an earlier occasion, appellant had asked Wang how he chose

A&W, and he told her that he had found them in a mailer left on his office

door. (3RT 1235-1236.) After appellant did some investigation, she found

out that A&W had been in litigation and bankruptcy and that some of it was

still ongoing. (3RT 1236.)

Appellant did not report $8,000 on her Form 700 because she never

received it. Appellant repeated her grand jury testimony that when she

commented on how nice the penthouse would be, she did not mean that she

wanted to live there. (3RT 1239.) She had a nice house and a lot of

animals to care for that would not fit into a condominium. (3RT 1239-

1240.)

Appellant also testified that when Wang gave her the watch she did

not know why he wanted to meet her, but greeted her by saying, I want to

give you something from my parents and my family for all that you have

done for us in helping us and everything that you have done. (3RT 1240.)

Appellant replied, [Wang], you cant be giving me anything. I want this

project just as much as you do . . . . Im, you know, really looking forward


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to it being developed. (3RT 1240-1241.) Wang said, No, its good that I

give it to you. Appellant did not open the package until she got home and

discovered it was a beautiful diamond watch. Appellant called Liyanage

and said, I want to return it . . . but I dont know how to go about this . . . .Could you return it for me? Because I dont want to insult [Wang].

Appellant had not earlier showed Wang her arm without a watch on it.

After the watch was returned, appellant told Wang, I appreciated the

thought, but I cannot receive any gifts. (3RT 1241.)

Appellant did not trust or like Wong. Appellant did not tell Liyanage

that he should support Wong. (3RT 1237.) In a conversation with Carwile,

appellant told him that councilmembers could not accept donation fromdevelopers. She said, This is something you dont do . . . . Its not right.

(3RT 1242.) However, there was nothing illegal about taking donations of

any amount from anybody, including developers. (3RT 1242-1243.)

Appellant admitted that when she was asked about her relationship to

Liyanage in the grand jury she did not testify that he was like a son to her

or any of the other close relationships she testified to at trial. (3RT 1257.)

Appellant did not recall giving Wang 30 days to withdraw his bribery

accusations under threat that otherwise his project would not move forward.

(3RT 1246.)

2. David Chois TestimonyChoi testified on direct examination that he had never been to the

restaurant alone or with Liyanage. (3RT 979.) On cross-examination, Choi

admitted that he did meet Liyanage and Capra at the El Monte restaurant,

but did not see appellant or the envelope. (See 3RT 985.)

3. Terri Cohens TestimonyCohen testified that when she met Liyanage, she talked to him about

losing her condominium in Mexico because she was behind on her


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mortgage payments. (3RT 1202-1203.) Liyanage expressed concern and

said, If theres ever anything I can do to help you, please let me know.

(3RT 1204.) Cohen saw that Liyanage held appellant in great esteem and

even referred to her as Mom because they were considered part of thefamily. (3RT 1206-1207.) Later, as Cohen fell further behind in her

payments, she asked appellant for money and then asked her to ask

Liyanage for money on her behalf. (3RT 1204.) Even though she was

very close to her mother, Cohen did not know at the time if appellant was

mayor of Temple City or just a councilmember. (3RT 1207.) Appellant

did not have the money to lend Cohen and Cohen did not ask any of her

actual siblings for money. Cohen did not know why her mother would sayshe did not have the money to lend Cohen when appellants bank

statements showed otherwise. (3RT 1208.)

The title to Cohens condominium was in the name of Robert

Crawford, and Cohen made payments to him. (3RT 1204-1205.) Appellant

sent the $2,000 directly to Crawford. Cohen understood the money to be a

loan, but she was unable to repay it for a long time because Liyanage was

often out of the country. (3RT 1205, 1209.) When appellant told Cohen

that Liyanage was in town, Cohen asked her mother to give Liyanage a

cashiers check. (3RT 1206.) Cohen could not explain why appellant

testified that she did not have money to pay Liyanage until 2009, when

appellants bank records showed that she did have money. (3RT 1214.)

Cohen could also not explain why she could not have paid Liyanage back

because she did not know where he was and because he was out of the

country, when appellant was in constant contact with Liyanage and knew

where he was weekly. (3RT 1214-1215.)

4. Character TestimonyFather William Ledbetter testified that he had known appellant for the

three and a half years before trial as her priest at the Episcopal church in


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Arcadia. (4RT 1502-1503.) Appellant had a reputation as an honest and

upstanding member of the church for over 40 years. Appellant had

volunteered for many jobs throughout her years at the church. (4RT 1503.)

Father Gene Richard Wallace testified that he had known appellantfor 14 years as her pastor. (4RT 1511-1512.) Appellant was a Sunday

school teacher for 42 years, but also his senior warden, which is the lay

president. (4RT 1512.) A pastor will only choose as senior warden

someone that he has complete confidence in. (4RT 1512-1513.) Father

Wallace had complete confidence in appellant. She was his confidante and

he never feared that anything he told her would be divulged. (4RT 1513.)

Robert Allen Ellingsworth testified that he had known appellant for25 years in their work with the youth of Temple City. (3RT 1504.)

Appellant had a reputation for being hard working and generous with her

time in volunteering. (4RT 1505.)

Anita Menser testified that she had known appellant for 35 years as

parents of children in organized sports and as board members on those

organizations. (4RT 1506-1507.) Appellant had a reputation for honesty

and following the rules. Appellant would not do anything wrong or

jeopardize her reputation. (4RT 1507.)

Regine Paletta testified that she had known appellant for 40 years

through little leagues, on the board of Temple Citys learning center, and as

volunteers in the sheriffs support group to watch children whose parents

have been arrested. (4RT 1508-1510.) Appellants reputation was that she

is honest, reliable, and great. (4RT 1510.)

Ellingsworth, Menser, and Paletta all testified that they would give

appellant $2,000 cash if she or her family needed it, would rent her a car if

she needed it, and had never had to have any project approved by the

Temple City City Council. (4RT 1505, 1507-1508, 1510-1511.)


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Anthony Fellow testified that he had known appellant for 30 years,

first as a political reporter, and later in politics. (4RT 1514-1515.) Fellow

had worked closely with appellant on political projects, including when he

was a councilmember in El Monte and they jointly brought Home Depotprojects to their respective cities. Appellant was the most honest person

that Fellow had ever met. (4RT 1515.) During the Home Depot project,

Fellow never asked any of the developers to give him cash or to rent a car

for him. (4RT 1517.)

I. THE TRIAL COURT PROPERLY AMENDED THE INDICTMENTTO CORRECT A CLERICAL ERROR CITING THE WRONG

PENAL CODE SECTION FOR COUNTS 1THROUGH 3

Appellant contends that the trial court erred by allowing prejudicial

amendment of the grand jury indictment instead of referring the matter back

to the grand jury or filing a new information. (AOB 11-12.) However, the

court merely corrected a transposition error in the supporting Penal Code

section with no prejudice to appellant.

Where a grand jury indictment misstates a Penal Code section, the

trial court may correct the error by amendment without further proceedings.

( 1009; People v. Winters (1990) 221 Cal.App.3d 997, 1003-1004, citing

Patterson v. Municipal Court(1971) 17 Cal.App.3d 84, 88.) Section 68

criminalizes an executive city officer receiving bribes. Section 86

criminalizes a city councilmember receiving bribes. Both sections have an

identical two-three-four sentencing scheme and are otherwise identical. (

68, 86.)

Here, the original grand jury indictment described the charges incounts 1 through 3 against appellant as ASKING FOR/RECEIVING A

BRIBE, in violation of Penal Code section 86, a Felony. (2CT 340-341.)

During jury deliberations, all the parties agreed that the indictment should

be amended to read Penal Code section 68, for counts 1 through 3. (2CT


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427.) The indictment was so amended, as were the verdict forms sent to the

jury. (2CT 427; see 2CT 340-341, 414-416, 420-422.)

Although it appears that there was some confusion among witnesses

whether appellant was Temple Citys mayor or just a councilmember (see2RT 606; 3RT 913), appellant testified to the grand jury that she was mayor

(2RT 322), and thus an executive city officer under section 68. (See also

2CT 457 [Temple City Tribune article referring to appellant as former

Temple City mayor].) For this reason, all parties agreed to amend the

indictment to correct the clerical error that charged appellant with section

86 instead of section 68, pursuant to section 1009. (See People v. Winters,

supra, 221 Cal.App.3d at p. 1003-1004.)Furthermore, because appellant agreed to the change (see 2CT 427),

she has waived any such claim on appeal. Appellant admits that her claim

is based on prejudice (AOB 11, citing Chrisman v. Superior Court(1922)

59 Cal.App. 305), but she can show none. Aside from the difference in

who is accepting the bribe, the statutes are identical with identical

sentencing structures. ( 68, 86.) Contrary to appellants claim of

prejudice (AOB 11), no substantial rights were affected. Also contrary to

appellants claim of prejudice (AOB 11), the original indictment and the

amended interlineated indictment both contained charges against Wong and

Carwile because the amended indictment was just the original indictment

with 86 crossed out and 68 handwritten in. (See 2CT 340-348.)

Appellant also claims that the amended indictment would have confused

the jury (AOB 11), but as she later admits, the jury never saw the

indictment document. (See AOB 16.) Appellants final claim that the

charges were not clear and concise (AOB 12) in violation of the United

States Constitution is unsubstantiated and patently false. Appellant was

clearly and concisely charged with asking for and receiving bribes, charges


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of which she was properly convicted. Accordingly, appellants claim must

fail.

II. THE TRIAL COURT PROPERLY ADMITTEDNONTESTIMONIALCOCONSPIRATOR HEARSAY AND

INSTRUCTED ON CONSPIRACY8

Appellant contends that the trial court improperly admitted out-of-

court testimonial statements in violation of the Sixth Amendments

Confrontation Clause. (AOB 12-15.) Appellant also contends that without

those statements there would have been no evidence of conspiracy and

therefore the court should not have instructed on conspiracy. (AOB 15.)

However, none of the statements were testimonial in nature and they did

not fun afoul of the Confrontation Clause. Because the statements were

properly admitted, the court properly instructed on conspiracy.

A. Applicable LawEvidence Code section 1223 makes hearsay statements by a

coconspirator admissible if (1) the statement was made in furtherance of the

objective of the conspiracy, (2) while participating in the conspiracy, and

(3) if sufficient evidence sustains a finding of conspiracy. (People v. Hardy(1992) 2 Cal.4th 86, 139.) It is not necessary that a conspiracy be formally

charged. (People v. Jourdain (1980) 111 Cal.App.3d 396, 404.) Prima

facie evidence from which a trier of fact could find it more likely than not

that a conspiracy existed at the time the statement was made is sufficient

for the hearsay exception. (People v. Herrera (2000) 83 Cal.App.4th 46,

63.) These facts may be established through the use of circumstantial

evidence. (Id. at p. 64.) Error in the admission of hearsay is subject to

state harmless error analysis under People v. Watson (1956) 46 Cal. 2d 818,

8Respondents Argument II responds to Argument II and III ofappellants opening brief.


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836-837. (People v. Duarte (2000) 24 Cal.4th 603, 618-619.) Even where

a conspiracy is not charged, [o]nce there is proof of the existence of [a]

conspiracy there is no error in instructing the jury on the law of

conspiracy. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1134.)The Confrontation Clause of the Sixth Amendment only prohibits out-

of-court [t]estimonial statements of witnesses absent from the trial.

(Crawford v. Washington (2004) 541 U.S. 36, 59 [124 S.Ct. 1354, 158

L.Ed.2d 177].) Testimonial statements refers to statements that have the

formality and solemnity characteristic of testimony and that are given

and taken primarily . . . to establish or prove some past fact for possible use

in a criminal trial. (People v. Cage (2007) 40 Cal.4th 965, 984.) Wherethe proffered statement is not testimonial, state law may regulate the

admission of evidence by applying statutory hearsay rules without running

afoul of the Confrontation Clause. (Crawford, supra, at p. 68; see generally

People v. Gann (2011) 193 Cal.App.4th 994, 1007-1008.) However, even

testimonial statements do not run afoul of the Confrontation Clause if they

are made in furtherance of a conspiracy. (Gann, at pp. 1009-1011.) Failure

to object to testimony on specific Crawfordgrounds forfeits any such

claims on appeal. (People v. Hamilton (2009) 45 Cal.4th 863, 917.)

B. Liyanages and Wangs Hearsay Testimony Was NotTestimonial and Was Properly Admitted As

Coconspirator Statements; the Court Properly

Instructed on Conspiracy

Appellant cites five trial witness statements that he claims violated the

Confrontation Clause as out-of-court testimonial statements. (AOB 12-13.)

As a preliminary matter, any such claim was forfeit on appeal. Appellant

admits that trial counsel failed to object on CrawfordConfrontation Clause

grounds at trial. (See AOB 23.) That failure forfeit this claim on appeal.

(See People v. Hamilton, supra, 45 Cal.4th at p. 917.) However, even if the

claim was not forfeit, none of the challenged statements were testimonial.


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The first citation is to Liyanages testimony supplementing and

explaining an e-mail exchange between him and Wang regarding their

plans for delivering bribes to appellant and Wong. (2RT 618.) The second

citation is to Liyanages testimony supplementing and explaining an e-mailexchange between him and Wang regarding their plan for delivering a bribe

to Wong. (2RT 629-630.) The third citation is to Wangs testimony

regarding Wongs request to him for a bribe. (3RT 913.) The fourth

citation is to Wangs testimony regarding conversations and an e-mail

exchange he had with Liyanage about their plan to bribe Wong and Carwile

at appellants request. (3RT 918-921.) The fifth citation is to Wangs

testimony regarding an e-mail exchange between him and Liyanageregarding meeting for Wang to give Liyanage money to bribe Wong,

Capra, and appellant. (3RT 924.)

All of the above statements were made by Wang and Liyanage to each

other in completely nontestimonial contexts and as part of a bribery

conspiracy involving appellant. They both testified at trial and were

available for cross-examination. Thus, the statements do not implicate the

Confrontation Clause and were properly admitted under the coconspirator

statements exception to the hearsay rule. For the same reasons, the jury

was properly instructed on conspiracy. (People v. Rodrigues, supra, 8

Cal.4th at p. 1134.) Accordingly, appellants claim should be rejected.

III. THE TRIAL COURT PROPERLY OMITTED A UNANIMITYINSTRUCTION

9

Appellant contends that the prosecutor presented multiple acts of

bribery and perjury and that the court erred in not giving a unanimity

instruction. (AOB 15-17.) However, the court properly omitted a

9 Respondents Argument III responds to Argument IV ofappellants opening brief. (See fn. 8, above.)


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unanimity instruction as the court instructed the jury as to which acts of

bribery and perjury were charged in the indictment.

A. Applicable LawThe California Constitution guarantees the right to a unanimous jury

in criminal cases. (People v. Jones (1990) 51 Cal.3d 294, 321; Cal. Const.,

art I, 16.) When a defendant is charged with a single offense, and the

evidence at trial tends to show more than one act that could prove the

offense, either the prosecution must elect the specific act relied upon, or the

court must instruct the jury that it has to unanimously agree upon the act

constituting the offense. (People v. Russo (2001) 25 Cal.4th 1124, 1132.)

However, a unanimity instruction is unnecessary unless there is evidence

based on which reasonable jurors could disagree as to which act the

defendant committed. [Citation.] (People v. Brown (1991) 234

Cal.App.3d 918, 935.)

Failure to give a unanimity instruction qualifies as federal

constitutional error, and is subject to the harmless error test. (People v.

Curry (2007) 158 Cal.App.4th 766, 783.) Where the record indicates the

jury resolved the basic credibility dispute against the defendant and

therefore would have convicted him of any of the various offenses shown

by the evidence, the failure to give the unanimity instruction is harmless.

(Ibid., quoting People v. Thompson (1995) 36 Cal.App.4th 843, 853.)

Jury instructions must be read together and understood in context as

presented to the jury. Whether a jury has been correctly instructed depends

upon the entire charge of the court. (People v. Tatman (1993) 20

Cal.App.4th 1, 10.) Jurors are presumed to be intelligent persons capable

of understanding and correlating jury instructions. (People v. Brock

(2006) 143 Cal.App.4th 1266, 1277.)


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B. The Trial Court Instructions and Verdict FormsClarified for the Jury Which Acts of Bribery and

Perjury Were the Basis for the Charges of Which It

Convicted Appellant

Here, a unanimity instruction was unnecessary and thus properly

omitted because the trial court clarified through its instructions and verdict

forms which acts of perjury and bribery underlay the charges in counts 1

through 6. Any error was harmless, regardless.

1. The Bribery ChargesAlthough the trial courts instructions on counts 1 through 3 did not

specify which acts of bribery were charged in those three counts (4RT

1543-1544; 2CT 409), that is because the court had immediately previously

listed the three acts of bribery in the conspiracy instruction: (1) the over

$100 to Budget Rent-a-Car; (2) the $2,000 cash from Liyanage; and (3)

the $8,000 from Wang, delivered by Liyanage. (4RT 1541; 2CT 408; see

People v. Brock, supra, 143 Cal.App.4th at p. 1277 [[j]urors are presumed

to be . . . capable of . . . correlating jury instructions].) Further, the verdict

forms themselves specified the bribery counts by date. (2CT 414-416.)

Thus, appellants suggestion that the jury might have considered the

watch that Wang gave appellant (and which she shortly returned) to have

been an act of bribery on which one of the counts was based (AOB 17), is

groundless. Further, the conspiracy instruction (4RT 1541; 2CT 408) made

clear that the $3,000 that appellant received outside the restaurant (see

AOB 17) was subsumed in the $8,000 that Wang gave Liyanage to use for

bribes at appellants request. (See 2RT 621.) Accordingly, the jury clearlyused the three acts listed by in the conspiracy instruction as the basis for

counts 1 through 3, and a unanimity instruction as to the bribery counts was

properly omitted.


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Furthermore, any error was harmless. (See People v. Curry, supra, 58

Cal.App.4th at p. 783.) As stated above, appellant lists two possible

additional acts of bribery: the watch and the $3,000 given to appellant

outside of the restaurant. (See AOB 17.) As to the watch, it is notreasonable that the jury would have found appellant guilty of bribery for the

watch, which she soon returned (2RT 635), and not guilty for the rental car,

the $2,000 cash from Liyanage, and the $8,000 from Wang. As to the

$3,000, respondent already described that it was that amount, plus an

additional $5,000, that was included in the $8,000 that appellant requested

from Liyanage and about which the court instructed in the conspiracy

instruction. (2RT 621; 4RT 1541; 2CT 408.) Thus, if the jury foundappellant guilty of requesting $8,000, it found her guilty of requesting the

$3,000 that she received outside the restaurant and any error was harmless

beyond a reasonable doubt. Accordingly, appellants claim as to the

bribery charges should fail.

2. The Perjury ChargesAs appellant admits (AOB 17), the trial court listed in its perjury

instructions exactly which statements made to the grand jury and in Form

700 were perjurious. For count 4, the jury had to find that appellant falsely

testified in front of the grand jury to all of the following: (1) that she had

not been personally involved in negotiation regarding the development; (2)

that appellant urged Wang to rehire Liyanage because he was a great

person; (3) that she had no personal or financial relationship with Liyanage

that affected her desire to see him rehired; (4) that Liyanage never gave her

money; and (5) that she never called Wang and asked to meet with him

alone. (4RT 1548; 2CT 411.)

For count 5, the jury had to find that appellant falsely signed the Form

700 for 2006, omitting the $2,000 from Liyanage. (4RT 1548-1549; 2CT

411.) For count 6, the jury had to find that appellant falsely signed the


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Form 700 for 2007, omitting the $8,000 from Wang, delivered by

Liyanage. (4RT 1549; 2CT 411-412.) Accordingly, the acts that formed

the basis for counts 4 through 6 were clear to the jury, and a unanimity

instruction as to the bribery counts was properly omitted.Furthermore, any error was harmless. (See People v. Curry, supra, 58

Cal.App.4th at p. 783.) The jury could not reasonably have believed that

appellant was guilty of bribery without finding that she had lied in front of

the grand jury about all five statements listed in the perjury instruction.

(4RT 1548; 2CT 411.) Moreover, the jury showed by its other verdicts that

it believed Wang and Liyanage over appellant, and thus that appellant

perjured herself when she lied in the five statements listed in the perjuryinstruction. Where the record indicates the jury resolved the basic

credibility dispute against the defendant and therefore would have

convicted him of any of the various offenses shown by the evidence, the

failure to give the unanimity instruction is harmless. (People v.

Thompson, supra, 36 Cal.App.4th at p. 853.) Accordingly, appellants

claim as to the perjury charges should fail.

IV. THE TRIAL COURT PROPERLY IMPOSED THE UPPER TERM10Appellant contends that the trial court improperly imposed the upper

term of four years in violation of the United States Constitution and

California state law. (AOB 18-21.) The court properly imposed the upper

term of four years.

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


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A. The Prosecutors Sentencing Memorandum andSentencing

The prosecutors sentencing memorandum listed seven factors

weighing against probation and in favor of prison time: (1) the seriousness

of the crime as compared with other bribery cases, where appellants crimes

caused Temple City and Wang to lose unquantifiable amounts of money,

and where appellant committed perjury in order to cover up her crimes

(California Rules of Court, rule 4.414(a)(1)); (2) Wang was particularly

vulnerable due the position he was in to lose his property and development

(rule 4.414(a)(3)); (3) Wang and Temple City lost unquantifiable amounts

of money due to appellants crimes (rule 4.414(a)(5)); (4) appellant was anactive participant in soliciting bribes for herself and others (rule

4.414(a)(6)); (5) appellant did not act because of an unusual occurrence or

provocation, but acted over two years in a pattern of corruption (rule

4.414(a)(7)); (6) appellant took advantage of a position of trust both as

mayor and as a long-standing respected leader in Temple City (rule

4.414(a)(9)); and (7) appellant showed no remorse throughout the

proceedings against her, including committing perjury in front of the grand

jury and at trial, and showing disrespect for the courts and the judicial

process in news media (rule 4.414(b)(7)). (2CT 450-454.)

The prosecutor repeated these arguments at the sentencing hearing on

June 23, 2011, and informed the court that appellant was liable for a

maximum total of nine years in prison. (4RT 1804-1806.) The prosecutor

recommended a total of four years in prison made up of consecutive and

concurrent mid and low terms with appellants age as the only mitigating

factor. (4RT 1806-1809; see 2CT 454.)

The court ultimately sentenced appellant to the upper term of four

years for count 1 and concurrent terms for the remaining counts. (4RT

1815.) The court stated that the nature and circumstances of the crime


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outweighed the only mitigation of appellants age. The court said,

Through [appellant]s actions she torpedoed a $75 million project that

would have greatly benefited the residents of Temple City. And there was

really no good reason for doing that other than just selfish petty gain.(4RT 1814.) The court explained that the concurrent sentences were

warranted given appellants age. (4RT 1815.) Appellant did not

specifically object to the imposition of the upper term. (See 4RT 1815.)

B. Appellant Was Properly Sentenced under the SixthAmendment

Appellant claims that under Cunningham v. California (2007) 549

U.S. 270 [127 S.Ct. 856, 166 L.Ed.2d 856], the trial court erred byimposing an upper term based on facts that were neither found by the jury

nor admitted by appellant. Accordingly, she claims that her Sixth

Amendment right to a jury trial was violated and his sentence should be

reversed. (AOB 18-20.) Respondent disagrees. On March 30, 2007, in

Senate Bill 40 (SB 40), the Legislature amended section 1170,

subdivision (b), and on July 19, 2007, the California Supreme Court, in

People v. Sandoval (2007) 41 Cal.4th 825, judicially adopted these

amendments for retroactive application. Because the trial court sentenced

appellant after SB 40 and Sandoval, the upper term was the statutory

maximum under Cunningham and the trial court was no longer required to

find any facts in order to impose the upper term. Accordingly, the upper

term did not violate Cunningham. Furthermore, this Court should reject

appellants ex post facto challenge (see AOB 21) because the California

Supreme Court rejected this same claim in the context of resentencings.

Moreover, the remedy required for an ex post facto violation under

Sandoval would be to order resentencing under the exact same sentencing

procedure that the trial court already utilized.


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1. The Cunningham DecisionIn Cunningham, the United States Supreme Court held that

Californias procedure for selecting upper terms under former section 1170,

subdivision (b), violated the defendants Sixth and Fourteenth Amendment

right to jury trial because it gave to the trial judge, not to the jury,

authority to find the facts that expose a defendant to an elevated upper

term sentence. (Cunningham v. California, supra, 549 U.S. at p. 274.)

The Court explained that the Federal Constitutions jury trial guarantee

proscribes a sentencing scheme that allows a judge to impose a sentence

above the statutory maximum based on a fact, other than a prior conviction,

not found by a jury or admitted by the defendant. (Id. at pp. 274-275.)

2. The Upper Term Was Constitutional Because ItWas Within the Statutory Maximum

On March 30, 2007, the Governor signed into law SB 40, which

amended section 1170, subdivision (b). (Stats. 2007, ch. 3, 3 (Sen. Bill

No. 40).) On July 19, 2007, in Sandoval, the California Supreme Court

judicially reformed the former sentencing law to conform to the new law.

(People v. Sandoval, supra, 41 Cal.4th at pp. 852, 857.) Appellant was

sentenced on June 23, 2011, after this amended statute took effect and

Sandoval became law. (4RT 1801.) Thus, the applicable law at sentencing

was the new version of this statute, not the former version that the United

States Supreme Court addressed in Cunningham. Under the new version, a

court must exercise its discretion in selecting among the three terms, but an

additional factual finding is no longer required to impose an upper or lower

term. ( 1170, subd. (b); see Sandoval, supra, at pp. 843-845.) Because

the upper term became the statutory maximum within the meaning of

Cunningham, the trial court was permitted to consider any facts in the

exercise of its discretion. (Id. at pp. 843-852; People v. Jones (2009) 178


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Cal.App.4th 853, 867; People v. Wilson (2008) 164 Cal.App.4th 988, 992.)

Therefore, there was no constitutional error.

3. Retrospectively Applying the Judicially ReformedVersion of Section 1170 Does Not Warrant Relief

As mentioned, appellants sentencing hearing occurred on June 23,

2011, after the effective date of the amendments to section 1170,

subdivision (b), on March 30, 2007, and after the California Supreme Court

judicially reformed the statute as to any resentencings occurring after

Cunningham, on July 19, 2007. (4RT 1801.) Appellant now argues that

the retroactive application of these amendments violated the ex post facto

clauses of the federal and state Constitutions because her crimes werecommitted before March 30, 2007. (AOB 21.) Respondent disagrees.

Although the California Supreme Courts reasoning in Sandoval suggests

that there may be no ex post facto violation from retroactively applying the

legislation itself,11 this Court need not reach that question because there

was no ex post facto violation from retroactively applying the identical

procedure arrived at by judicial reformation in Sandoval.

[T]he ex post facto clause prohibits those laws which retroactively

alter the definition of crimes or increase the punishment for criminal acts.

(Hubbart v. Superior Court(1999) 19 Cal.4th 1138, 1170-1171, quoting

Collins v. Youngblood(1990) 497 U.S. 37, 41-44 [110 S.Ct. 2715, 111

L.Ed.2d 30].) The determination whether a law violates the ex post facto

clause has two components: a law must be retrospective -- that is, it must

apply to events occurring before its enactment -- and it must disadvantage

11See People v. Jones, supra, 178 Cal.App.4th at pp. 867-868 (ourSupreme Court [in Sandoval] held it is constitutionally appropriate to applythe amended version of the DSL in all sentencing proceedings conductedafter the effective date of the amendments, regardless of whether theoffense was committed prior to the effective date of the amendments).


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the offender affected by it by altering the definition of criminal conduct or

increasing the punishment for the crime. (Lynce v. Mathis (1997) 519

U.S. 433, 441 [117 S.Ct. 891, 137 L.Ed.2d 63], citations omitted.)

Before Sandoval was decided, the Legislature in SB 40 amended thestatutes governing Californias upper term procedure. (People v. Sandoval,

supra, 41 Cal.4th at p. 845.) In Sandoval, the California Supreme Court

exercised its judicial authority and adopted the procedure enacted by the

Legislature for all Cunningham resentencings. (Id. at pp. 845-846.) In so

doing, the court rejected the defendants ex post facto claim, finding that ex

post facto laws applied only to statutory enactments, not to judicial

decisions. (Id. at pp. 852-855.)12

The court further explained that becauseof its limited [judicial] reformation, it did not need to decide whether the

amending legislation itself could apply to cases remanded for resentencing.

(Id. at pp. 845-846, 849.)

Similarly, this Court need not decide whether the trial courts

application of SB 40 violated any retroactivity principles.13 First of all,

12 The court also reasoned that the impact of the Legislaturesrevision was not as significant as inMiller v. Florida (1987) 482 U.S. 423[107 S.Ct. 2446, 96 L.Ed.2d 351], because it did not increase the sentencefor a crime, because the trial court had an equally increased discretion toimpose the lower term as the upper term, and because the difference inthe amount of discretion exercised by the trial court under the former DSL,as compared to the [revised] scheme . . . is not substantial. (Sandoval, 41Cal.4th at pp. 854-855 [the question of whether a change in the sentencingprocess violates the ex post facto clause depends on the significance of itsimpact].)

13

When retroactive application of a law raises ex post factoconcerns, the California Supreme Court has applied the fundamentalprinciple that if reasonably possible the courts must construe a statute toavoid doubts as to its constitutionality. (People v. Smith (1983) 34 Cal.3d251, 259; accord, Wilke & Holzheiser, Inc. v. Dept. of Alcoholic BeverageControl (1966) 65 Cal.2d 349, 373; see People v. Brown (1994) 6 Cal.4th322, 334-335.)


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whether or not SB 40 can be applied retroactively, the California Supreme

Court has made clear in Sandoval that its judicially reformed version of SB

40 can. Furthermore, the same two considerations that caused the

California Supreme Court to hold that judicial reformation was appropriatefor cases remanded for resentencing apply with equal force to cases such as

this one. These considerations were the Legislatures preference for the

option of broad judicial discretion over the options of jury trials at

sentencing and middle term caps, and the Legislatures goal of reducing

sentencing disparity. (People v. Sandoval, supra, 41 Cal.4th at pp. 848-

851.)

In addition, it would be senseless to require courts in pending andfuture cases to apply the old, invalidated law where the crimes were

committed before March 30, 2007, while these same cases, if later

remanded for resentencing, would be governed by the judicially reformed

version of SB 40. A sentencing court would then have full discretion to

sentence to any of three terms on remand, but would lack that discretion at

the initial sentencing. Thus, under Sandoval, the trial court could properly

sentence appellant according to the judicially reformed version of SB 40.

In any event, the remedy for an ex post facto violation here would be

to order the trial court to resentence under the judicial adoption of amended

section 1170, subdivision (b). (See People v.

Former Temple City Mayor's Appeal of Prison Sentence

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Transcript of Former Temple City Mayor's Appeal of Prison Sentence