P. v. Senegar

Filed 11/29/05 P. v. Senegar CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, Plaintiff and Respondent, v. RODNEY W. SENEGAR, Defendant and Appellant.

B179870 (Los Angeles County Super. Ct. No. TA075952)

APPEAL from a judgment of the Superior Court of Los Angeles County,

Gary E. Daigh, Judge. Affirmed.

Wayne C. Tobin, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Keith H. Borjon and Sharlene A. Honnaka, Deputy Attorneys General, for Plaintiff and Respondent.

_________________________

INTRODUCTION

Defendant and appellant Rodney W. Senegar appeals from the judgment entered following a jury trial that resulted in his conviction for identity theft. Senegar was sentenced to a prison term of three years.

Senegar contends: (1) the evidence was insufficient to prove identity; and (2) his counsel was ineffective. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

1. Facts.

Viewed in accordance with the usual rules governing appellate review (People v. Rodriguez (1999) 20 Cal.4th 1, 11; People v. Johnston (2003) 113 Cal.App.4th 1299, 1303-1304), the evidence relevant to the issues presented on appeal established the following. On February 22, 2004, Senegar applied to purchase or lease a 2004 Nissan Maxima from Superior Nissan in Carson. Senegar filled out a credit application and other documents using the name and identifying information of David Cheek, including Cheek’s social security number, telephone number, South Carolina address, and employment information. Senegar also presented a driver’s license bearing Cheek’s name but Senegar’s photograph. The real David Cheek lived in South Carolina and had no knowledge of, and had not given consent for, Senegar’s use of his information.

The Nissan dealership approved the deal and Senegar drove away in the new Nissan. While checking the credit application, Nissan Credit Corporation telephoned the real David Cheek, and discovered the identity theft. The vehicle was eventually returned to the dealership.

2. Procedure.

Trial was by jury. Senegar was convicted of identity theft (Pen. Code, § 530.5, subd. (a))^[1] and unlawfully driving or taking a vehicle (Veh. Code, § 10851, subd. (a)). The trial court granted a new trial on the Vehicle Code count, which was subsequently dismissed in furtherance of justice (§ 1385). It sentenced Senegar to a term of three years in prison.^[2] It also imposed a restitution fine, a parole revocation fine, and a court security assessment. Senegar appeals.

DISCUSSION

1. The evidence was sufficient to prove Senegar’s identity.

Senegar contends the evidence was insufficient to prove he was the individual who presented the false application and obtained the Nissan using Cheek’s name. This contention lacks merit.

When determining whether the evidence was sufficient to sustain a conviction, “our role on appeal is a limited one.” (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) “[T]he test of whether evidence is sufficient to support a conviction is ‘whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ [Citations.]” (People v. Holt (1997) 15 Cal.4th 619, 667.) “We draw all reasonable inferences in support of the judgment. [Citations.]” (People v. Wader (1993) 5 Cal.4th 610, 640.) Reversal is not warranted unless it appears that “ ‘upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’ [Citation.]” (People v. Bolin (1998) 18 Cal.4th 297, 331.)

Here, Liliana Radu, the finance manager at the Nissan dealership, identified Senegar as the person who purchased the car in a pretrial photographic lineup and at trial. Nissan sales manager Michael Do and salesperson Rami Tahhan both made tentative identifications of Senegar in pretrial photographic lineups.^[3]

This evidence was more than sufficient. It is well settled that the testimony of a single witness, if believed by the finder of fact, is sufficient to establish that fact. (Evid. Code, § 411; People v. Young (2005) 34 Cal.4th 1149, 1181; People v. Hampton (1999) 73 Cal.App.4th 710, 722; People v. Vega (1995) 33 Cal.App.4th 706, 711.) Radu’s testimony was sufficient to prove identity. Moreover, this evidence was bolstered by Do and Tahhan’s tentative pretrial identifications. The fact Do and Tahhan were unable to identify Senegar in court did not negate the evidentiary value of their out-of-court tentative identifications. (People v. Cuevas (1995) 12 Cal.4th 252, 265-268, 271-272.) Furthermore, Senegar’s photograph was on the driver’s license bearing Cheek’s name, strong evidence that Senegar, not some other identity thief, was the individual who applied for credit at the Nissan dealership.

Senegar argues that the evidence only proved he was the man depicted in the driver’s license, not the man who committed the identity theft. He theorizes that someone else could have been the real identity thief and the employees “based their identification of appellant on the fact that his picture in the driver’s license became ingrained in their memory” rather than on “an independent recollection of actually seeing the appellant at the dealership.”

Senegar’s argument, however, amounts to nothing more than a request that this court reweigh the evidence on appeal. That is not the function of an appellate court. (People v. Young, supra, 34 Cal.4th at p. 1181; People v. Maury (2003) 30 Cal.4th 342, 403; People v. Ceja (1993) 4 Cal.4th 1134, 1139.) The jury was not obliged to adopt Senegar’s argument that the employees assumed he was the person who applied for credit because his photo was on the driver’s license. Moreover, Senegar fails to explain why an identity thief would apply for credit using a driver’s license containing someone else’s photograph, or why, if that was the case, the employees did not notice the discrepancy. In sum, the evidence was sufficient to support the conviction.

2. Senegar’s ineffective assistance claim lacks merit.

a. Additional facts.

During cross-examination of Detective Jon Thorne, the following transpired:

“[Defense counsel]: Regarding the documents that you had and the signatures that were purported to be from a David Cheek, did you ever have the handwriting analyzed at all or handwriting analysis or comparison done?

“[Detective Thorne]: No. The suspect would not provide that to me.

“[Defense counsel]: Did you ever ask for a court order to get one?

“[Detective Thorne]: No, I did not.

During closing argument, defense counsel argued there was insufficient evidence that Senegar, rather than someone else, was the person who committed identity theft at the Nissan dealership. Counsel attempted to discredit the identifications, arguing, as Senegar does here, that the employees simply assumed Senegar was the thief because his photo was on the driver’s license. Counsel next argued that the police investigation was inadequate. She pointed out that no evidence tied Senegar to a Los Angeles address and telephone number that the thief had listed on the credit application; there was no evidence police investigated the name and address of a person listed as the thief’s cousin on the credit application; and the prosecutor had not shown, through a handwriting comparison, that the signature on the credit application was Senegar’s. In the latter regard, counsel argued that although the detective claimed Senegar refused to provide a handwriting sample, Senegar “doesn’t have to give a sample without a court order.” Defense counsel explained that the prosecutor could “come into court and ask for an order that there be a handwriting sample. None of that was ever done.”

b. Discussion.

Senegar argues counsel should have moved to strike the detective’s response that Senegar would not provide a writing sample. He urges that the detective’s statement was non-responsive; was “irrelevant because there was no foundation that appellant’s refusal was not the product of invoking the Fifth Amendment”; and was unduly prejudicial under Evidence Code section 352. We are unpersuaded.

“A meritorious claim of constitutionally ineffective assistance must establish both: ‘(1) that counsel’s representation fell below an objective standard of reasonableness; and (2) that there is a reasonable probability that, but for counsel’s unprofessional errors, a determination more favorable to defendant would have resulted. [Citations.] If the defendant makes an insufficient showing on either one of these components, the ineffective assistance claim fails.’ ” (People v. Holt, supra, 15 Cal.4th at p. 703; People v. Carter (2003) 30 Cal.4th 1166, 1211; Strickland v. Washington (1984) 466 U.S. 668, 687.) A reasonable probability is a probability sufficient to undermine confidence in the outcome. (People v. Bolin, supra, 18 Cal.4th at p. 333.) Tactical errors are generally not deemed reversible. (Ibid.) We presume that counsel’s conduct “ ‘falls within the wide range of reasonable professional assistance’ [citations], and we accord great deference to counsel’s tactical decisions. [Citation.] Were it otherwise, appellate courts would be required to engage in the ‘ “perilous process” ’ of second-guessing counsel’s trial strategy. [Citation.]” (People v. Frye (1998) 18 Cal.4th 894, 979; People v. Carter, supra, at p. 1211; People v. Jones (2003) 29 Cal.4th 1229, 1254.) A court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. (People v. Boyette (2002) 29 Cal.4th 381, 430-431.)

Compulsion of a handwriting exemplar is permissible under the Fifth Amendment. (Gilbert v. California (1967) 388 U.S. 263, 266-267; People v. Clark (1993) 5 Cal.4th 950, 1003.) A defendant’s refusal to provide an examplar in violation of a court order is admissible evidence of the defendant’s consciousness of guilt. (People v. Clark, supra, at p. 1003.)

Here, the record demonstrates that counsel had a tactical reason for asking Detective Thorne whether he had obtained a handwriting exemplar. The defense trial strategy – which Senegar concedes was basically sound – was mistaken identification and an inadequate investigation by police. Given the case against Senegar, that defense does not appear unreasonable.

Even assuming arguendo it was a mistake to bring up the handwriting exemplar issue or fail to move to strike the testimony, Senegar has not established prejudice. Had the fact Senegar declined to provide a writing sample been omitted, there is no reasonable probability he would have obtained a more favorable result. Contrary to Senegar’s argument, we do not see this as a “close case.” There was no dispute the identity fraud occurred. Senegar’s photograph was on the driver’s license provided by the thief at the Nissan dealership. One Nissan employee positively identified Senegar in a pretrial photographic lineup and at trial, and two others made tentative pretrial photographic identifications. Senegar presented no evidence contradicting the People’s case. Under these circumstances, Senegar has failed to establish prejudice, and his ineffective assistance claim fails.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ALDRICH, J.

We concur:

CROSKEY, Acting P.J.

KITCHING, J.

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^[1] All further undesignated statutory references are to the Penal Code.

^[2] It also sentenced him to a consecutive eight month term in an unrelated case.

^[3] Tahhan and Do were unable to identify Senegar at trial.