Filed 5/31/13 P. v. Delegge CA4/1
                        NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                      COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                    DIVISION ONE

                                             STATE OF CALIFORNIA



THE PEOPLE,                                                          D061383

         Plaintiff and Respondent,

         v.                                                          (Super. Ct. No. SCN288974)

LOUIS DELEGGE,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Aaron H.

Katz, Judge. Affirmed.

         Michael A. Hernandez, under appointment by the Court of Appeal, for Defendant

and Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Ronald A.

Jakob, Deputy Attorneys General, for Plaintiff and Respondent.



         Following a bench trial, the court found Louis Delegge guilty of perjury under oath

and providing false information to a police officer. On appeal, Delegge contends (1) there
was insufficient evidence to support the perjury conviction because his false testimony was

not material to an issue before the court, (2) the testimony supporting his perjury conviction

was not properly corroborated, and (3) his counsel provided ineffective assistance by failing

to object to testimony concerning the absence of a business record. We reject Delegge's

contentions and affirm the judgment.

                    FACTUAL AND PROCEDURAL BACKGROUND

       We limit our recitation to those facts that are pertinent to resolution of Delegge's

claims on appeal.

       In April 2010, Delegge testified under oath at a hearing on his request for a

restraining order against Brad Freeman. At that hearing, Delegge stated he was a Lieutenant

Colonel in the United States Marine Corps. On cross-examination, he testified he was a

"contract Marine" with a "war contract." At the conclusion of the hearing, the court granted

Delegge's request for a restraining order against Freeman. Delegge's testimony at the

restraining order hearing was the basis for the perjury charge against him in this case.

       At trial in the instant case, Lieutenant Commander John Marinez of the California

Highway Patrol testified he pulled Delegge's son over for a traffic stop. While Marinez was

issuing a citation, Delegge arrived on his motorcycle. Marinez noted that Delegge's

motorcycle had a Montana license plate. When Marinez inquired as to why the motorcycle

was registered in Montana, Delegge stated he was in the military but on leave at that time.

Marinez informed Delegge that he was going to look into the information Delegge provided.

Marinez decided to investigate Delegge's military claims instead of issuing a citation for



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failing to register the motorcycle in California because military members are exempt from

certain registration requirements.

       Subsequently, Marinez contacted the California Highway Patrol's Background

Investigations Unit to determine Delegge's military status. Marinez explained that he asked

for the Background Investigations Unit's assistance because they have an ongoing

relationship with the military. He was unable to obtain any records indicating Delegge was

in the military. Through a background check, Marinez learned Delegge was a Carlsbad

resident, did not have a valid California driver's license, and at times used two different

dates of birth. The motorcycle was registered to Jason Voss in Montana and had never been

registered under Delegge's name.

       In addition to Marinez's testimony, the People presented testimony from Wesley

Clarke, an active duty Marine assigned to the Naval Criminal Investigative Service. Clarke

testified it was part of his duties to search various databanks to determine whether a person

is in the military. He performed a search on Delegge but did not find any records of

Delegge ever having served in any branch of the military. Clarke also explained that

although the military utilizes civilian contractors, the designation of "Lieutenant Colonel" is

reserved for officers and does not apply to contractors.

                                        DISCUSSION

                               I. Sufficiency of the Evidence

A. Standard of Review

       Where a defendant challenges the sufficiency of the evidence supporting a

conviction, we review the entire record in the light most favorable to the judgment to

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determine whether it contains substantial evidence from which a rational trier of fact could

have found the defendant guilty beyond a reasonable doubt. (People v. Jennings (1991) 53

Cal.3d 334, 364.) Our sole function is to determine if any rational trier of fact could have

found the essential elements of the crime beyond a reasonable doubt. (People v. Bolin

(1998) 18 Cal.4th 297, 331; People v. Marshall (1997) 15 Cal.4th 1, 34.) Unless it is clearly

shown that "on no hypothesis whatever is there sufficient substantial evidence to support the

verdict," we will not reverse. (People v. Hicks (1982) 128 Cal.App.3d 423, 429.)

B. Materiality

       Delegge argues there was insufficient evidence to support his perjury conviction

because his testimony regarding his occupation at the restraining order hearing was not

material to an issue before the court. We disagree.

       "The elements of perjury are: ' "a willful statement, under oath, of any material matter

which the witness knows to be false." ' " (People v. Garcia (2006) 39 Cal.4th 1070, 1091.)

A false statement is "material" if it could probably have influenced the outcome of the

proceeding. (People v. Rubio (2004) 121 Cal.App.4th 927, 932–933.) "False testimony that

affects the credibility of a witness is material and will support a perjury conviction." (Id. at

p. 935; People v. Macken (1939) 32 Cal.App.2d 31, 39 ["[T]estimony which merely affects

the credibility of a witness is material, for the reason that such evidence usually tends to

strengthen the case of a party to an action or to weaken the defense of his adversary."].)

       In the circumstances of this case, we conclude Delegge's false statement that he was a

Lieutenant Colonel in the Marine Corps was material because it impacted his credibility.

The evidence at the restraining order hearing included testimony from Delegge, Delegge's

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friend who witnessed the incident giving rise to the restraining order, and Freeman. Thus,

the trial court was required to make a determination as to whose version of the events was

credible. Delegge bolstered his credibility by misrepresenting his occupation. This is not a

situation where Delegge's alleged occupation was meaningless. Rather, Delegge

represented that he was a Lieutenant Colonel in the Marine Corps, a high ranking and

revered position. It is reasonable to infer that the purpose of the testimony was to enhance

Delegge's credibility. Further, in this type of proceeding where the evidence consists mostly

of contradicting testimony from the person seeking the restraining order and the alleged

aggressor, credibility is crucial to the trial court's determination. Accordingly, Delegge's

false testimony could probably have influenced the outcome of the proceeding.

C. Corroboration

       Delegge argues there was insufficient evidence to support his perjury conviction

because Clarke's testimony was not corroborated. We disagree.

       "No person shall be convicted of perjury where proof of falsity rests solely upon

contradiction by testimony of a single person other than the defendant. Proof of falsity may

be established by direct or indirect evidence." (Pen. Code, § 118, subd. (b).) "[T]he law

governing the character of corroborative circumstances in a case of perjury is the same as

that governing the character of corroborative circumstances in a case where the guilt of an

accused is sought to be established by the testimony of an accomplice [citations], and that

being so, the corroborative evidence need not be strong, nor even be sufficient in itself

without the aid of other evidence to establish the fact." (People v. Todd (1935) 9

Cal.App.2d 237, 241.)

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       Here, Clarke testified that he did not find any records of Delegge ever having served

in any branch of the military. This testimony was corroborated by Marinez's testimony:

          "[Prosecutor:] All right. So you went back to your office and you
          did some investigation. Did you contact people at Camp Pendleton
          specifically the Marshal at Camp Pendleton?

          "[Marinez:]      Actually, I contacted some of our background -- our
          Background Investigations Unit who has an ongoing [rapport] with the
          military and asked for their assistance so they contacted the military for
          me at this time.

          "[Prosecutor:] Were you able to obtain any type of records indicating
          that Mr. Delegge was in the military?

          "[Marinez:]       No."

Delegge contends the evidence was insufficient because Marinez did not testify as to

whether the military actually provided any assistance or what the Background Investigations

Unit learned. We reject this argument. Although Marinez did not explicitly state the results

of the Background Investigations Unit's inquiry, read as a whole, his testimony indicates the

investigation resulted in no records of Delegge's military status. Thus, Marinez's testimony

was sufficient to corroborate Clarke's testimony.

                        II. Alleged Ineffective Assistance of Counsel

A. Additional Background

       Delegge moved for a new trial on the basis that his counsel provided ineffective

assistance by failing to object to Clarke's testimony that he searched various databanks and

was unable to locate any record of Delegge having served in the military. Specifically,

Delegge asserted the evidence did not satisfy the foundational requirements of Evidence



                                              6
Code section 1272 (section 1272) for admitting evidence of the absence of an entry in

business records.

       At the hearing on the new trial motion, Delegge's trial counsel explained that he

believed the requirements of section 1272 had been satisfied. Additionally, Delegge's trial

counsel stated his failure to object was "unquestionably a tactical decision" because he tried

not "to pollute the court with meaningless objections so that when [he did] make an

objection it [stood] out and [got] the attention it deserve[d] from [the] judge."

       In denying the motion, the trial court stated, "[R]egardless of whether [Delegge's trial

counsel] objected or not, there would have been a likelihood that the court would have heard

that testimony under [section] 1272. I'm convinced that, in all likelihood, I would have

heard that testimony regardless of whether there was an objection that was rendered. I think

that [the prosecutor] would have found some way to get that testimony before the court. But

I'm also convinced that [Delegge's trial counsel], who's very experienced, made the tactical

decision -- and while it may be easy to criticize that, looking back, I think that he felt that

that was not necessarily an area that he should pursue an objection to."

B. Analysis

       Delegge contends his counsel provided ineffective assistance by failing to object to

Clarke's testimony concerning the absence of a business record. Specifically, he asserts his

trial counsel should have objected to Clarke's testimony because it did not satisfy the

foundational requirements of section 1272. We reject this argument.

       "Evidence of the absence from the records of a business of a record of an asserted

act, condition, or event is not made inadmissible by the hearsay rule when offered to prove

                                                7
the nonoccurrence of the act or event, or the nonexistence of the condition, if: [¶] (a) It was

the regular course of that business to make records of all such acts, conditions, or events at

or near the time of the act, condition, or event and to preserve them; and [¶] (b) The sources

of information and method and time of preparation of the records of that business were such

that the absence of a record of an act, condition, or event is a trustworthy indication that the

act or event did not occur or the condition did not exist." (Evid. Code, § 1272.)

        An ineffective assistance of counsel claim has two prongs. (Strickland v. Washington

(1984) 466 U.S. 668, 687.) First, the defendant "must show that counsel's representation

fell below an objective standard of reasonableness." (Id. at p. 688.) "Second, the defendant

must show that the deficient performance prejudiced the defense [and] deprive[d] the

defendant of a fair trial . . . ." (Id. at p. 687.) To establish the first prong of deficient

performance on direct appeal, the record must affirmatively disclose that counsel lacked a

rational tactical basis for the challenged omission. (People v. Majors (1998) 18 Cal.4th 385,

403.)

        Here, Delegge has not met his burden to establish ineffective assistance. The record

indicates Delegge's trial counsel made a deliberate tactical decision not to object to Clarke's

testimony because he believed the requirements of section 1272 were satisfied. Because

"the decision whether to object . . . is highly tactical" (People v. Catlin (2001) 26 Cal.4th 81,

165), counsel's "failure to object will rarely establish ineffective assistance." (People v.

Hillhouse (2002) 27 Cal.4th 469, 502.)

        Even if trial counsel's decision was erroneous, however, Delegge has not shown

prejudice. As the trial court noted, "[I]n all likelihood, [it] would have heard th[e] testimony

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regardless of whether there was an objection that was rendered." Further, given the totality

of the evidence, it is unlikely the court would have reached a different result. In addition to

testifying regarding the absence of a record in multiple databanks regarding Delegge's

military service, Clarke also offered testimony disputing Delegge's claim that he was a

"Lieutenant Colonel" with a "war contract." Specifically, Clarke explained that although the

military utilizes civilian contractors, the designation of "Lieutenant Colonel" is reserved for

officers and does not apply to contractors. Based on this testimony along with other

evidence presented in the case, it is not reasonably probable that the trial court would have

rendered a different result absent Clarke's testimony based on his searches of various

databanks. Accordingly, we reject Delegge's claim of ineffective assistance at trial.

                                        DISPOSITION

       The judgment is affirmed.



                                                                       MCINTYRE, J.

WE CONCUR:

MCDONALD, Acting P. J.

AARON, J.




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