Friday, May 03, 2019

People v. Salcido (Cal. Ct. App. - May 3, 2019)

When you're reviewing a conviction for sufficiency of the evidence, the deference given to the factual findings below is fairly significant.  For that reason, on the merits, I'm not sure that this opinion is wrong.

The language (and approach) that Justice Ramirez employs nonetheless seems a little bit strong.

It's an unsophisticated defendant, Sara Salcido, who's acting as an "immigration consultant" even though a formal immigration consultant has to jump through various hoops to be licensed.  Ms. Salcido is "helping" immigrants get green cards, etc., except that at least in several cases, it appears that she's simply taking their money and not doing much actual work (e.g., not filing the relevant papers).  So the state charges her not only with the relevant crime of "unlawfully engaging in the business of an immigration consultant, a misdemeanor," but also with grand theft -- a much bigger deal.

Fair enough.  She's arguably guilty of those offenses, and the trial court so found.

But one of the big sticking points of those offenses is that the government had to prove that Ms. Salcido had fraudulent intent.  Here's what Justice Ramirez says about that:

"The trial court could also reasonably find fraudulent intent. . . . At the preliminary hearing, she testified: “Q. . . . [Y]ou’re aware that the State of California requires you to pass a background check, right? “A. I didn’t know about that until 2015. “Q. And you’re aware that you’re also required to have a $100,000 bond on file; correct? [¶] . . . “[A.] Yes, I read about that. “Q. . . . You did know that? “A. Yes.” Because she carefully specified when she learned about the background check requirement, but she did not specify when she learned about the bond requirement, it is fairly inferable that she knew about the bond requirement at all relevant times."

Respectfully, that's not the inference (at all) that I would draw from that testimony.  Nor is it how normal people talk -- or what they mean -- when they say what Ms. Salcido says.

They asked her if she knew about the background check, and she said that she knew about it now, sure (she had, after all, been criminally charged with it by that point), but volunteered that this was something she had just learned, and didn't know about it until 2015.  They then immediately asked her about the closely bond related requirement, and she she said that she "read about that" as well.  But didn't at that point spontaneously re-volunteer the words that she had just said -- that this was something she had read about now, but didn't know before 2015.

You could draw the inference that because she didn't restate the same thing that she had just stated seconds ago, she was deliberately drawing a distinction between the two.  But I don't think that's how normal people talk -- much less what Ms. Salcido actually meant.  She made the point that, yes, she knew about the relevant rules now, but said she didn't know about them before.  Then she was asked about a different (related) rule, and she said, yeah, again, she's "read about that," just like she read about the background check thing.  I think it's plausible -- indeed, likely -- what what she meant was to say that, yes, she read about that, just like she read about the other thing, but not until recently.  I don't think she meant to admit -- as the Court of Appeal basically holds -- that she at all times knew about the bond (but not the background check), and hence was confessing her guilt.  I think she just didn't feel the need to repeat the same point that she had volunteered just a second or two previously.

Nor did the prosecutor bother to ask her:  "So, you say you didn't know about the background check until 2015, but you admit that you knew about the bond requirement before then, right?"  For good reason.  Since I'm fairly positive that Ms. Salcido would have said:  "No, I learned about both of them at the same time, when I read about them in 2015.  That's what I meant."

To me, it might be a permissible inference -- one that a skeptical factfinder that disbelieved Ms. Salcido might well come to -- that she knew about the one requirement (or both) before 2015.  But I don't think that, as Justice Ramirez says, that Ms. Salcido's claim "at trial . . . that she did not learn that she needed a bond until September or November 2013" was "contradicted" by her testimony about the background check.  Seems to me like she was just speaking loosely.

Like normal people often do.  Particularly when they're under stress; e.g., at their preliminary hearings.