Filed 11/25/13 P. v. Bertram CA3
                                           NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                         (Yolo)
                                                            ----




THE PEOPLE,                                                                                  C067175

                   Plaintiff and Respondent,                                       (Super. Ct. No. 103118)

         v.

THOMAS WESLEY BERTRAM,

                   Defendant and Appellant.




         A jury found defendant Thomas Wesley Bertram guilty of using personal
identifying information of another to obtain credit, goods or services in another’s name.
(Pen. Code, § 530.5, subd. (a).)1 Sentenced to three years in state prison, defendant




1   Undesignated statutory references are to the Penal Code.

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appeals. He contends the prosecutor impermissibly shifted the burden of proof and
committed Griffin2 error in her rebuttal closing argument.
        We reject defendant’s contentions and affirm the judgment.
                   FACTUAL AND PROCEDURAL BACKGROUND
        Defendant and his son, Thomas Aaron Bertram (Aaron), have the same first
names and surnames, although they have different middle names. In 2009, Aaron
applied for unemployment benefits but he was unable to qualify. During the course
of his application process, he was informed that the unemployment office had records
of his employment at two different jobs. As Aaron had only been working at one job,
he inquired into the matter. Upon further inquiry, Aaron discovered the name and
address of the supposed employer -- Hatanaka Farms. He had never, in fact, worked
for Hatanaka Farms.
        Aaron visited Hatanaka Farms and spoke with the bookkeeper, who pulled the
employee file containing records listed in his name. The records in the file included a
federal W-4 form and an I-9 Employment Eligibility form, both bearing Aaron’s social
security number. Aaron recognized the handwriting on the completed forms and the
signature on the I-9 form as that of defendant. Additionally, the W-4 form included a
middle initial -- “W.” The file also contained an identification photo, which was a photo
of defendant.
        As Aaron had not given defendant permission to use his social security number, he
went to the sheriff’s office and made a report. He also talked to defendant, who claimed
he had never worked for, or even heard of, Hatanaka Farms. Defendant posited that
Aaron’s maternal uncle, or perhaps an illegal immigrant, had used Aaron’s identifying
information.




2   Griffin v. California (1965) 380 U.S. 609 [14 L.Ed.2d 106] (Griffin).)

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       Defendant was arrested and questioned. He continued to deny ever working for
Hatanaka Farms and claimed to have been working for a different company during the
time period in question. Hatanaka Farms’ business records, however, established that
defendant had been employed with the company beginning on January 28, 2009, through
at least 11 pay periods. David Hatanaka, the owner of Hatanaka Farms, testified that his
company employs between 20 and 60 employees at various times of the year and he is
familiar with every employee. He has known defendant for about 40 years, since high
school. He personally saw defendant working as a truck driver for his business during
each of the 11 pay periods. Defendant was paid a salary, with deductions for federal and
state taxes, social security contributions, and contributions to state disability insurance,
based on the social security number defendant provided.
       This was not the first time defendant had used Aaron’s identity. On February 1,
2004, defendant used Aaron’s social security number, without his permission, on an
application for a credit card at Home Depot. Aaron learned of this incident when
Experian or another credit reporting agency contacted him to inform him of an attempt
to open an account in his name. When Aaron was shown the application bearing his
social security number, he recognized defendant’s handwriting and signature on it. A
police officer stopped a car in which defendant was a passenger and asked if any of the
car’s occupants had just applied for a Home Depot credit card. Defendant said he had
applied for credit but there was a problem with his credit. He claimed that two years
earlier, his brother-in-law had stolen his identity, and his credit had since been “flagged.”
Defendant claimed to be on his way to correct the “misunderstanding” and the officer let
him go. Later, after the officer received a call from “a different subject named Thomas
Bertram,” he called defendant to speak with him again. After the officer informed
defendant that there may be some criminal issues relating to the social security number
that was written on the application, defendant claimed he might have “inadvertently”



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entered his son’s social security number on the credit application. Defendant was not
arrested in connection with the 2004 incident.
       Defendant was charged in a single count information with using personal
identifying information of another to obtain credit, goods or services in another’s name,
in violation of section 530.5, subdivision (a).
       Defendant did not testify. He called one witness, who testified that defendant had
used his own social security number and his true date of birth on forms related to drug
testing at Hatanaka Farms.
                                       DISCUSSION
       Section 530.5, subdivision (a), provides: “Every person who willfully obtains
personal identifying information . . . of another person, and uses that information for any
unlawful purpose, including to obtain, or attempt to obtain, credit, goods, services, real
property, or medical information without the consent of that person, is guilty of a public
offense.” The jury was instructed that: “Someone commits an act willfully when he or
she does it willingly or on purpose. An unlawful purpose includes unlawfully obtaining
[or] attempting to obtain credit, or goods or services or real property or to commit a
crime.” The jury was further instructed on the elements of the crimes of perjury (§ 118)
and tax evasion (Rev. & Tax. Code, §§ 19708, 19709).
       During closing argument, the prosecutor discussed the evidence as it related to
each element of the charged offense, including the evidence of perjury and tax evasion.
Defense counsel then argued at length that the prosecution had failed to prove defendant
had attempted to commit perjury or tax evasion, or had any unlawful purpose at all for
using his son’s social security number. Defense counsel also argued briefly that
defendant had not willfully used his son’s social security number, and then, in her closing
remarks, argued as follows:
       “So now what happens is because the government has the burden of proving
beyond a reasonable doubt, she has the burden of changing the status quo because the

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status quo is the presumption of innocence that was at the beginning of this trial, and it
remains all the way until your verdict comes in. The presumption of innocence is
something that [defendant] and every single one of us is guaranteed. It is the way our
criminal justice works.
       “[The prosecutor] wants you to change the status quo. She wants you to go
from the presumption of innocence to guilt based on the evidence in this case. Because
that burden is so high, it is beyond a reasonable doubt, she gets to go again and I don’t.
And it is not because I wouldn’t love to rebut whatever she’s going to tell you next, but
because it is not my burden, it is her burden. And because that burden is so high, she gets
to talk to you one more time.”
       The prosecutor then commenced her rebuttal argument, focusing on the element of
using the information for an unlawful purpose, arguing defendant used his son’s social
security number to “hid[e] the money.” She concluded her argument as follows:
       “What it comes down to is whether the defendant wrote down that social security
number, and when he did it, why did he do it. We have shown, and it is very clear
beyond a reasonable doubt, that the defendant did it for his own unlawful purposes. He
didn’t do it to help his son. He didn’t do it on mistake. There’s been no evidence of a
lawful purpose because --”
       Defense counsel then objected, stating, “That’s improper burden shifting.” The
objection was overruled and the prosecutor continued as follows:
       “There is no evidence, and all you can use in this case is evidence that was
presented. There’s no evidence --”
       Defense counsel interjected with the same objection and the prosecutor continued,
concluding, “There is no evidence other than the unlawful purposes that have been
presented to you of what the defendant was doing. And, again, he wasn’t hiding himself,
he was hiding the money. [¶] Hold him accountable and find him guilty.”



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       Defendant contends the prosecutor’s final remarks in her rebuttal argument
impermissibly shifted the burden of proof and constituted Griffin error.
                                    I. Burden Shifting
       Defendant contends that the prosecutor’s remarks in her rebuttal closing argument
“improperly shifted” the burden of proof to him. He argues the prosecutor misstated the
law by telling the jury that he, rather than the People, had the burden of proof.
       “[I]t is improper for the prosecutor to misstate the law generally (People v. Bell
(1989) 49 Cal.3d 502, 538), and particularly to attempt to absolve the prosecution from
its prima facie obligation to overcome reasonable doubt on all elements (People v.
Gonzalez (1990) 51 Cal.3d 1179, 1215).” (People v. Marshall (1996) 13 Cal.4th 799,
831 (Marshall).) “When the claim focuses on the prosecutor’s comments to the jury, we
determine whether there was a reasonable likelihood that the jury construed or applied
any of the remarks in an objectionable fashion.” (People v. Booker (2011) 51 Cal.4th
141, 184-185.)
       Defendant claims that “[b]y arguing ‘[t]here’s been no evidence of a lawful
purpose . . . , [t]here is no evidence and all you can use is evidence that was presented--,’
and ‘[t]here’s no evidence other than the unlawful purposes that have been presented to
you of what the defendant was doing,’ the prosecution’s statements could reasonably be
interpreted as suggesting to the jury the prosecution did not have the burden of proving
that critical element of the crime beyond a reasonable doubt.” We reject his strained
interpretation of the prosecutor’s argument.
       The prosecutor had discussed the evidence supporting the elements of the offense
in her initial closing argument and her rebuttal, which included a discussion of the
evidence upon which she was relying to establish defendant’s unlawful purpose for
using his son’s social security number -- to hide the money in order to commit tax
evasion and/or to commit perjury. When the prosecutor made the challenged comment,
she made it in the context of a proclamation that she had succeeded in establishing all the

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elements of the offense, including unlawful purpose, beyond a reasonable doubt. A
reasonable juror would not construe the prosecutor’s argument in the manner in which
defendant complains.
       This is particularly true in light of the trial court’s instructions. At the beginning
of the trial, the trial court told the jury, “[t]he prosecution has the burden of proving this
case. The defense has no burden. They can remain silent throughout this trial . . . .” The
court went on to instruct, “[a] defendant is entitled to remain silent, if that is his decision.
It is a constitutional right each of us possess. Therefore, if he chooses to exercise
that right and not testify, you can’t use that against [defendant]. You can’t use it to
help the prosecution, and I would appreciate your understanding that. At the end of the
trial, the trial court gave the standard instructions, telling the jury that: (1) a defendant
is presumed innocent; (2) a defendant has an absolute constitutional right not to testify,
and the fact that he did not testify cannot be considered for any reason; and (3) the
prosecution must prove the elements of the offense beyond a reasonable doubt and
defining reasonable doubt. In fact, the jury was instructed at least five times that the
People had the burden of proof. Additionally, numerous other instructions were couched
in terms of what the People must prove and the burden of proof. And, as we have noted,
defense counsel had just emphasized the prosecution’s burden of proof in her closing
argument.
       In the context of the whole argument and instructions, there is simply no
reasonable likelihood the jury construed the prosecutor’s remarks as placing on
defendant the burden of proof or of establishing a reasonable doubt as to his guilt.
(See Marshall, supra, 13 Cal.4th at pp. 831-832.)
                                      II. Griffin Error
       In a related argument, defendant contends the prosecutor’s remarks impermissibly
commented adversely on his exercise of the Fifth Amendment privilege against self-



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incrimination -- commonly referred to as Griffin error. (Cf. Griffin, supra, 380 U.S. 609.)
We reject this contention, as well.
       Defendant did not object to the prosecutor’s remark on this ground. Instead, the
objection was limited to “improper burden shifting,” which we have already rejected.
Considering the brevity of the comment and the unlikelihood that an adverse inference
would be drawn, the failure to object to the argument on this ground bars defendant from
raising the issue here. (People v. Mincey (1992) 2 Cal.4th 408, 446 (Mincey).) And, in
any event, it was not Griffin error, so there was no cause to object on those grounds.
       The doctrine of Griffin error bars the prosecutor from arguing that the jury should
draw an inference adverse to the defendant because he did not testify at trial in reliance
on his Fifth Amendment privilege against self-incrimination. (Griffin, supra, 380 U.S. at
p. 615.) Defendant asserts the prosecutor’s reference to the nonexistence of evidence of
any lawful purpose for defendant’s acts was a comment on his failure to testify because
the evidence of the unlawful purpose could be contradicted only by defendant testifying
on his own behalf, as only defendant knows why he used his son’s social security
number.
       First, as we have noted, the jury was properly instructed on defendant’s right not
to testify at the beginning and end of the trial.
       Second, it is well settled that “the prosecutor may comment on the state of the
evidence, including the failure of the defense to introduce material evidence or to call
witnesses.” (Mincey, supra, 2 Cal.4th at p. 446.) The lack of evidence is a proper subject
for argument. (People v. Lewis (2001) 25 Cal.4th 610, 670-671.) Here, the prosecutor
did not impermissibly argue that the People’s evidence was uncontradicted or unrefuted
because defendant failed to take the witness stand. (See, e.g., People v. Medina (1974)
41 Cal.App.3d 438, 459-460.) She commented on the state of the evidence. The mere
fact that the evidence, or lack thereof, related to defendant’s state of mind or intent does
not render the comment Griffin error. (See People v. Font (1995) 35 Cal.App.4th 50, 56;

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see also People v. Medina (1995) 11 Cal.4th 694, 755-756 & People v. Hughes (2002)
27 Cal.4th 287, 374.) Moreover, defendant’s intent could be established through means
other than defendant’s direct testimony. The People had presented evidence of
defendant’s unlawful purposes for using his son’s identity. There was no evidence to
suggest any lawful purpose for using his son’s identity. The prosecutor’s comment on
that state of the evidence was not Griffin error.
                                       DISPOSITION
       The judgment is affirmed.




                                                           MURRAY                , J.



We concur:



             RAYE                   , P. J.


         NICHOLSON                  , J.




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