Filed 4/29/13 P. v. Cobb 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                        NOT TO BE PUBLISHED IN OFFICIAL REPORTS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,                                                         D061412

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCD229108)

EUGENE COBB,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Kerry

Wells, Judge. Affirmed.



         A jury found Eugene Cobb guilty of five counts of grand theft and found true an

allegation that the aggregate losses to the victims exceeded $200,000. He appeals,

contending (1) the trial court failed to sua sponte instruct the jury that evidence of his

intent to restore the property and subsequent return of the property was relevant to negate

larcenous intent, (2) the trial court erred by excluding evidence of his lack of fraudulent

intent and thereby prevented him from presenting a full defense, and (3) the trial court
erred by ruling that if he testified, the prosecution could impeach him with a prior

conviction for mail fraud. We reject Cobb's contentions and affirm the judgment.

                               FACTUAL BACKGROUND

       Cobb was a part owner of Motorcars Direct San Diego (Motorcars Direct), a high-

end car dealership. In 2008, Michele Ramos handled the accounting for the business.

(All further date references are to the year 2008.) Motorcars Direct was experiencing

problems with its cash flow and having trouble paying its bills and paying off liens on

vehicles purchased by consumers. Ramos decided which bills to pay, wrote the checks

and gave them to Cobb to sign. However, she discussed the company's cash flow

problems with Cobb.

       That same year, Motorcars Direct began losing its flooring lines of credit, which it

used to purchase inventory for the dealership. As a result, Cobb decided to engage in

consignment sales. The consignment sales allowed Motorcars Direct to keep its

inventory up without bank credit. Cobb entered into five transactions that were the

subject of his convictions in this case:

Count 1

       In February, Ralph Frengel entered into a consignment contract with Cobb to sell

Frengel's Porsche, which had a lien on it. In the consignment contract, Frengel agreed to

pay Motorcars Direct a flat rate of $3,000 to sell his car. If the car sold, Motorcars Direct

was required to distribute the proceeds of the sale within 20 days. Motorcars Direct sold

the car to Mark Cappos in April for approximately $76,485, but did not notify Frengel of

the sale. Accordingly, Frengel continued to make loan payments on the car. In July,

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Motorcars Direct paid the lien holder approximately $32,685. Frengel never received any

money from the sale.

      Cappos did not receive title to the car until six to eight months after he took

possession of it. As a result of the delay, Motorcars Direct paid for a year of DMV fees

for Cappos.

Count 2

      In March, Samuel Evans entered into a consignment contract with Motorcars

Direct to sell his Porsche. According to the agreement, Motorcars Direct would receive a

flat fee commission of $3,000 if it sold the car. The car sold in July for $49,500. Evans

did not receive any proceeds from the sale.

Count 3

      In June, Dan Thompson entered into a consignment deal with Motorcars Direct to

sell his Audi, which had a lien on it. In August, Cobb sold the Audi to Todd Harmon for

$60,000. Cobb never paid off the lien holder or Thompson. Motorcars Direct offered to

and did make a loan payment for Thompson because the car was sold and the lien holder

was not paid off. Thompson eventually got the car back through the lien holder.

Count 4

      In June, Charles Scicli consigned his Lamborghini with Cobb. The Lamborghini

had a lien on it in the amount of approximately $113,480. In July, Cobb sold the car to

Bob Rau for $129,999. Cobb never paid Scicli or the lien holder in full and never

delivered title to Rau. Motorcars Direct made three payments on Scicli's loan because it



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wanted to protect Scicli's credit. Scicli, Rau and the lien holder eventually entered into a

settlement and Rau obtained title to the car.

Count 5

       In August, Cobb sold his personal Ferrari to Jorge Chavez for approximately

$109,365. Chavez took possession of the car, but never received title. When Chavez

inquired about the title, Cobb responded by stating that he was filing for bankruptcy and

Chavez should deal with Cobb's lawyer. Cobb also stated that he could not return

Chavez's money because he used it to "pay some expenses."

Defense Evidence

       Cobb contacted Mark Lyon, a financial services provider, to get flooring lines of

credit for Motorcars Direct. Lyon tried to obtain credit from Wachovia and informed

Cobb that they were getting "warmer and warmer" in securing it. Lyon explained that

they were ultimately unsuccessful in their attempts to get credit because almost

overnight, the industry stopped giving business credit. Lyon continued his efforts to get

credit for Motorcars Direct, but by the end of 2008, the economy prevented it.

       A forensic accountant who reviewed Motorcars Direct's business records testified

that in August, Cobb put approximately $280,000 into the business. According to the

accountant, the dealership attempted to improve its financial position by paying down

existing lines of credit and reducing expenses. Motorcars Direct's assets dropped from

$1.3 million in January to $164,000 in October. Cobb lost over $750,000 when

Motorcars Direct failed.



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       A realtor testified that in 2008, Cobb attempted to sell his condominium in San

Diego. According to the realtor, "it was common knowledge the real estate market,

starting in about 2007, was all downhill or depreciation. [He thought] it was about

average of 60 percent depreciation of real estate in San Diego County." Cobb initially

listed the condominium for $1.5 million and then reduced the asking price to $1.3

million, which the realtor considered to be an optimistic expectation. Cobb eventually

sold the property through a short sale for approximately $800,000.

                                       DISCUSSION

                               I. Alleged Instructional Error

       Cobb argues the trial court had a sua sponte duty to instruct the jury that evidence

of his intent to restore the property and subsequent return of the property was relevant to

the extent that it showed his intent at the time of the conversion was not fraudulent.

Specifically, he contends evidence that he made monthly car payments on the vehicles,

paid lien holders, and paid DMV fees was inconsistent with fraudulent intent and,

without a relevant instruction, the jury was permitted to disregard the evidence. We

reject Cobb's argument.

       The court "must instruct sua sponte on general principles of law that are closely

and openly connected with the facts presented at trial." (People v. Ervin (2000) 22

Cal.4th 48, 90.) "The 'general principles of law governing the case' are those principles

connected with the evidence and which are necessary for the jury's understanding of the

case. [Citations.] As to pertinent matters falling outside the definition of a 'general



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principle of law governing the case,' it is 'defendant's obligation to request any clarifying

or amplifying instruction.' " (People v. Estrada (1995) 11 Cal.4th 568, 574.)

         Further, the obligation to instruct on defenses arises " 'only if it appears that the

defendant is relying on such a defense, or if there is substantial evidence supportive of

such a defense and the defense is not inconsistent with the defendant's theory of the

case.' " (People v. Barton (1995) 12 Cal.4th 186, 195.) There is no sua sponte duty to

instruct on a defense if the evidence of that defense is minimal or insubstantial. (People

v. Barnett (1998) 17 Cal.4th 1044, 1145; People v. Russell (2006) 144 Cal.App.4th 1415,

1424.)

         Here, the trial court properly instructed the jury with CALCRIM No. 1806

regarding theft by embezzlement on all five counts. That instruction informed the jury

that temporary deprivation of property is sufficient to prove embezzlement and that the

"[i]ntent to restore the property to its owner [was] not a defense" to the crime.

Additionally, the court instructed the jury with CALCRIM No. 1862, which provided the

following: "If you conclude that the People have proved that the defendant committed

Grand Theft, the return or offer to return some of the property wrongfully obtained is not

a defense to that charge." These instructions are consistent with the law. (People v. Pond

(1955) 44 Cal.2d 665, 674 ["Restoration of property feloniously taken or appropriated is

no defense to a charge of theft."].)

         In our view, the trial court properly instructed on the general principles of law

concerning theft by embezzlement. There is nothing in the record indicating that Cobb

objected to CALCRIM Nos. 1806 and 1862 or that he requested any modifications to

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these instructions. When the instructions given are correct and adequate, the court has no

sua sponte duty to provide amplification or explanation. (People v. Mayfield (1997) 14

Cal.4th 668, 778.)

       However, Cobb contends the trial court was required to instruct on restoration or

return of property because his defense was that he did not have a fraudulent intent at the

time of conversion. To make this argument, he relies on People v. Marsh (1962) 58

Cal.2d 732 (Marsh) and People v. Edwards (1992) 8 Cal.App.4th 1092 (Edwards). His

reliance on these cases is misplaced. In Marsh, the court held the trial court erred in

excluding evidence negating the specific intent element for theft by false pretenses.

(Marsh, supra, 58 Cal.2d at p. 741.) In Edwards, the court held that while restoration of

property is not a defense to theft, a defendant is permitted to present evidence to show

that his intent at the time of taking was not larcenous. (Edwards, supra, 8 Cal.App.4th at

pp. 1100–1101.) Neither of these cases discussed whether the trial court has a sua sponte

duty to instruct the jury that efforts to restore or return property taken are relevant to

whether defendant had a wrongful intent at the time of taking.

       Even if the court had a sua sponte duty to instruct the jury that intent to restore the

property or subsequent return of the property was relevant to show nonlarcenous intent,

the evidence was not sufficient to justify the instruction. Cobb points to evidence that on

count 1, Motorcars Direct paid the lien holder approximately $32,685 and paid a year of

DMV fees for the buyer; and on counts 3 and 4, Motorcars Direct made loan payments on

behalf of the consignor. Notably, there is no evidence that Cobb made any efforts to help

the victims in counts 2 and 5, and in count 5, he admitted that he could not return the

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victim's money because he used it to pay his expenses. In our view, the evidence was

minimal and was not sufficient to warrant an instruction that Cobb's intent to restore the

property and subsequent return of the property was relevant to show his intent at the time

of the conversion was not fraudulent.

       Lastly, in his reply brief, Cobb contends for the first time his counsel provided

ineffective assistance by failing to request a clarifying instruction. Cobb's assertion is

waived because he did not raise it in his opening brief. (People v. Adams (1990) 216

Cal.App.3d 1431, 1441, fn. 2.)

                                   II. Alleged Evidentiary Error

A. Background

       At trial, Cobb requested to present testimony from a forensic accountant regarding

the downturn in the economy in 2008 and the impact of the housing market on his efforts

to sell his home and equity in the home. Cobb argued the evidence was relevant to

whether he had a fraudulent intent to deprive the victims of property. The trial court

found that evidence regarding the economy was well known and cumulative of other

testimony. In regard to evidence concerning the housing market, the trial court found it

was not relevant and was well known.

B. Analysis

       Cobb argues the trial court erred by excluding evidence of his lack of fraudulent

intent and thereby prevented him from presenting a full defense. Specifically, he

contends the trial court erred in excluding testimony regarding the economic downturn in



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2008 and the impact of the housing market on his attempts to sell his condominium. We

reject Cobb's contentions.

       A trial court has broad discretion to determine the relevance of evidence and to

exclude evidence it deems irrelevant, confusing, cumulative, or unduly prejudicial.

(People v. Weaver (2001) 26 Cal.4th 876, 933.) We review the trial court's determination

on admissibility of evidence for an abuse of discretion, examining the evidence in the

light most favorable to the court's ruling, and will reverse only if the trial " ' "court

exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted

in a manifest miscarriage of justice." ' [Citations.]" (People v. Ochoa (2001) 26 Cal.4th

398, 437–438.) Application of the ordinary rules of evidence does not impair a

defendant's right to present a defense (People v. Boyette (2002) 29 Cal.4th 381, 427–428)

and we review the erroneous exclusion of evidence to determine whether it was

reasonably probable a result more favorable to the defendant would have been reached in

the absence of the error (id. at p. 429; People v. Watson (1956) 46 Cal.2d 818, 836).

       Here, we cannot conclude that the trial court abused its discretion by excluding

evidence of the economic downturn in 2008 and housing market. The proposed evidence

was cumulative of other evidence. Specifically, an investment banker called by the

prosecution testified that Motorcars Direct hired him to help obtain financing for the

dealership. His efforts failed, however, because the economy "tanked" in 2008 and "the

whole country came down to a standstill." The witness explained that "2008 was a big

crash" and it was difficult to obtain financing during that time. Additionally, Cobb's

realtor testified that beginning in 2007, there was a significant decline in the housing

                                                9
market. Although Cobb listed his condominium for more than $1 million, that was not a

realistic expectation and Cobb eventually sold the home through a short sale for

approximately $800,000. Thus, the jury heard evidence regarding the downturn in the

economy and housing market. Evidence from a forensic accountant on the same topics

would have been cumulative.

       Further, general evidence of the economic downturn and housing crisis in 2008

was not relevant to whether Cobb's intent was fraudulent. As the trial court noted, while

Cobb's attempt to sell his condominium and "to do whatever he could" may have been

relevant to his intent, general evidence of the housing market was not. The same is true

regarding the economy. Along these lines, in addition to the evidence we have already

discussed, the trial court permitted evidence that the economy in 2008 prevented Cobb

from obtaining credit for the dealership; in less than a year, the assets of the dealership

dropped over $1 million; Cobb put a significant amount of money into the business; and

Cobb originally listed his condominium for a price that may have resulted in a profit but

eventually sold it through a short sale. Under these circumstances, we conclude the trial

court acted well within its discretion and did not prevent Cobb from presenting a full

defense because the evidence he sought to present was cumulative and irrelevant.

                          III. Impeachment with Prior Conviction

       Prior to trial, the court granted the prosecutor's request to impeach Cobb with a 20-

year-old conviction for mail fraud if he testified at trial. Cobb did not testify. He now

argues the trial court erred in ruling the prosecution could impeach him with his prior

conviction and the ruling prevented him from testifying. We disagree.

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       A defendant must testify at trial to preserve a claim that the court erred in ruling

on an in limine motion to impeach the defendant with a prior conviction. (People v.

Collins (1986) 42 Cal.3d 378, 383–388 (Collins); People v. Rodrigues (1994) 8 Cal.4th

1060, 1174 (Rodrigues).) As our Supreme Court explained, there are three reasons for

this rule: "First, without the precise factual context that such testimony would have

provided, the appellate court cannot review the balance required to be drawn between the

probative value and prejudicial effect of the prior conviction. [Citation.] Second, the

trial court's in limine ruling is necessarily tentative because the court retains discretion to

make a different ruling as the evidence unfolds. Also, when the defendant does not

testify, there is no way to know whether the prosecutor ultimately would have used the

prior conviction to impeach: if the prosecution's case is strong and the defendant is

impeachable by other means, the prosecutor might elect not to use a questionable prior

conviction. Thus, any possible harm stemming from the in limine ruling is ' "wholly

speculative." ' [Citation.] Third, 'when the trial court errs in ruling the conviction

admissible the reviewing court cannot intelligently weigh the prejudicial effect of that

error if the defendant did not testify.' [Citation.] If such rulings were reviewable on

appeal, ' "almost any error would result in the windfall of automatic reversal; the appellate

court could not logically term 'harmless' an error that presumptively kept the defendant

from testifying." ' [Citations.]" (Rodrigues, supra, 8 Cal.4th at pp. 1174–1175.)

       Here, Cobb did not testify at trial. On appeal, he does not provide a persuasive

reason as to why the Collins rule is not applicable to him. Cobb merely asserts that his

case is distinguishable from Collins because "a full an[d] complete offer of proof of [his]

                                              11
testimony was presented, and it wasn't just presented at the beginning of the case, but

throughout the case, specifically when the defense sought to present evidence of

supporting forensic accounting evidence." Even if there was an offer of proof regarding

Cobb's testimony, that only addresses the first reason for the Collins rule by providing the

nature of his testimony. (Collins, supra, 42 Cal.3d at p. 384.) Without Cobb's testimony,

we are unable to determine whether the prosecutor would have ultimately used the prior

conviction to impeach him or whether the trial court would have changed its ruling as the

evidence unfolded. Further, we cannot weigh the prejudicial effect of the court's ruling,

if any, because Cobb did not testify. Under these circumstances, we conclude Cobb

cannot challenge the trial court's in limine ruling permitting the prosecutor to impeach

him with a prior conviction if he testified.

                                       DISPOSITION

       The judgment is affirmed.



                                                                   MCINTYRE, J.

WE CONCUR:

HUFFMAN, Acting P. J.

O'ROURKE, J.




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