Tuesday, October 17, 2006
C.A. Upholds Conviction for Forgery of Cameron Diaz Signature
Justices Reject New Trial Bid by Photographer Who Sought Millions From Actress for Racy Pictures
By Kenneth Ofgang, Staff Writer
The attempted grand theft, perjury and forgery convictions of a well-known photographer, who used the threat of bad publicity in an attempt to sell topless photos of Cameron Diaz to the actress for $3.5 million, were affirmed yesterday by this district’s Court of Appeal.
Justice Earl Johnson Jr., writing for Div. Seven, rejected John Rutter’s contentions that prosecutors failed to turn over discovery in a timely manner and that an erroneous jury instruction required reversal of the perjury conviction.
Los Angeles Superior Court Judge Michael Pastor sentenced Rutter to three years, eight months in prison last year following a trial in which Diaz testified that the photographer, who shot some racy pictures of her in 1992 when she was a 19-year-old model, forged a purported release.
Rutter, she said, told her that he had magazines willing to pay him as much as $5 million for the photographs, and that if they bought them, they would publish them around the time of the release of the film Charlie’s Angels II, making her appear to be the “bad angel.”
The perjury charged stemmed from a declaration filed by Rutter in a civil action in which Diaz obtained an injunction barring the photographer from releasing the photos or a video of the photo shoot. Rutter claimed in that declaration that the signature on the release was “not a forgery or a phony as Ms. Diaz claims,” at the criminal trial, he acknowledged that the release was apparently forged but claimed that he was assured by his assistants that they had obtained Diaz’s signature.
When Rutter tried to sell her the pictures, Diaz went to the police, who obtained a warrant to search the photographer’s apartment. They seized two computers, an external hard drive and a stack of CD-ROMs; the computers and the CD-ROMS contained numerous copies of the purported release, and prosecution experts testified that the signature on those copies was forged.
Five days before trial, a consultant to the prosecution turned over to prosecutors a 113-page summary of the evidence found on the computers, which was turned over to the defense the next day. On the day of trial, defense attorney Mark Werksman moved to suppress expert opinion testimony regarding the computer evidence, based on the late disclosure.
Pastor denied the motion, after the defense declined his offer of a continuance to have their own expert examine the computers. The judge noted that the defense had the same access to the evidence that the prosecution did and could have conducted its own testing if it wished.
Johnson said the trial judge was correct, citing Penal Code Sec. 1054.7. The statute requires that discovery be furnished 30 days before trial, or immediately upon the prosecution becoming aware of the material, whichever is later.
“In this case it is undisputed the prosecution immediately turned over its expert’s report to Rutter,” the justice wrote. “Thus the prosecution satisfied section 1054.7 as to the computer expert’s report. Nothing in the record suggests the prosecution learned of its expert’s opinion based on the laptop evidence prior to receiving his written report.”
Johnson went on to agree with the defense that Pastor had erred in giving an instruction based on Penal Code Sec. 125 with respect to the perjury charge. The statute says that “[a]n unqualified statement that something is true, when the person making the statement does not know whether it is true or not true, is equal to a knowing false statement.”
The statute, the justice explained, “has confused juries, attorneys and judges for more than 100 years.” Because an instruction based on the statutory language may potentially confuse jurors into convicting a defendant based on an honest mistake of fact, Johnson added, the Supreme Court has held that it should only be given in “those rare cases in which the evidence would support a finding the defendant asserted the truth of something which might or might not be true but as to which he himself was totally ignorant.”
Here, Johnson said, Rutter was not “totally ignorant” of whether the signature was or was not forged; either he forged the release or knew it was forged and therefore perjured himself by saying it was not forged, or he did not forge the release and honestly believed it was not forged and was therefore not guilty.
The error was harmless, however, the justice said, because the instructions as a whole made it clear that jurors could not convict on the basis of an honest mistake, and because it was improbable that a properly instructed jury would have convicted Rutter of forgery but acquitted him of perjury.
Attorneys on appeal were David H. Goodwin for Rutter and Deputy Attorneys General Mary Sanchez and Theresa A. Patterson for the prosecution.
The case is People v. Rutter, 06 S.O.S. 5495.
Copyright 2006, Metropolitan News Company