Filed 12/22/15 P. v. Craig CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

KELLI DAWN CRAIG,

Defendant and Appellant.

B256794

(Los Angeles County

Super. Ct. No. GA086289)

APPEAL from a judgment of the Superior Court of Los Angeles County, 

Darrell S. Mavis, Judge. Affirmed.

Athena Shudde, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney 

General, Lance E. Winters, Assistant Attorney General, Stephanie C. Brenan and 

Brendan Sullivan, Deputy Attorneys General, for Plaintiff and Respondent.

_____________________
2

Appellant Kelli Dawn Craig appeals from the judgment entered following her 

convictions by jury on count 3 – perjury, and count 5 – forgery committed by altering, 

corrupting, or falsifying a legal document. (Pen. Code, §§ 118, subd. (a), 470, subd. (c).) 

The court sentenced appellant to prison for two years. We affirm.

FACTUAL SUMMARY

1. People’s Evidence.

Viewed in accordance with the usual rules on appeal (People v. Ochoa (1993) 

6 Cal.4th 1199, 1206), the evidence established that prior to April 14, 2010, Sherry 

Behrle lived in a house in Tujunga. On April 14, 2010, Behrle died. On April 21, 2010, 

Charles Henderson, Behrle’s brother, learned she had died.

Henderson testified as follows. On April 22, 2010, Henderson and his wife went 

to Behrle’s house. Appellant was there and Henderson’s wife asked appellant if appellant 

knew anything about Behrle’s final wishes. Appellant replied Behrle had left everything 

to appellant. Henderson later determined that on April 29, 2010, appellant had filed a 

petition to probate a will as executor of Behrle’s estate (hereafter, petition). Attached to 

the petition was Behrle’s purported will (hereafter, will). The will purported to be signed 

on February 8, 2010, by Behrle as testator, and by Karen Lundquist and Thomas Norman 

as witnesses.

On February 4, 2011, the probate court issued an “order after trial” (order).1 

(Capitalization omitted.) The order (People’s exhibit No. 5) stated, inter alia, “[t]he 

Court finds the purported signature of Sherry Behrle on the purported 2/8/10 will filed 

with the Petition for Probate filed by [appellant] is a forgery and therefore the petition is 

denied for lack of due execution of the will.” The order was admitted into evidence

without objection.

 

1 Henderson testified he did not “go to trial on the merits of [the probate] case” but 

he supplied the probate court with information, including results from a document 

examiner, to help the probate court make its decision.
3

Lundquist testified as follows. Lundquist had been friends with Behrle and 

Norman, and had known appellant. Appellant had lived in the rear unit of Behrle’s 

house. After Behrle died, appellant and Norman came to Lundquist’s house and 

presented the will to Lundquist. At the time, Lundquist did not recall seeing Behrle’s 

signature on the will. Lundquist felt uncomfortable with the will and told appellant not to 

“send it in,” but appellant said the document was an amendment.

Lundquist and Norman signed the will as witnesses. Lundquist erroneously dated 

her signature as February 8, 2010. The will indicated Behrle’s estate would go to 

appellant. Lundquist had known Behrle about 20 years and was familiar with Behrle’s 

signature. Lundquist testified Behrle’s purported signature on the will was not genuine.

In May and June 2010, Lundquist signed declarations (for probate proceedings) 

indicating the will was proper. Lundquist fabricated in a declaration that on February 

“18,” (sic) 2010, Behrle asked Lundquist and Norman to witness the will.

Norman testified as follows. Norman had known Behrle, appellant, and 

Lundquist. Appellant gave Norman a document and told him to sign it. He signed it 

after Behrle’s death. Norman believed the document allowed appellant to continue living 

in the rear unit of Behrle’s house. Norman erroneously dated his signature as February 8, 

2010, because appellant told him to write that date. Norman knew he was doing wrong 

by backdating the document.

Norman later learned he had signed a will that gave everything Behrle owned to 

appellant. Norman also signed a declaration regarding appellant’s petition. The 

declaration falsely stated that on February 8, 2010, he stopped by Behrle’s house and she 

asked Norman and Lundquist if they would be willing to witness Behrle’s will. Norman 

signed another declaration indicating Behrle signed the will in his presence. At

appellant’s request, he signed another such declaration. Appellant presented to Norman 

the signature page of the will, a proof-of-subscribing-witness document, and a 

declaration, and he signed because she told him to do so.
4

William Leaver, a Los Angeles Police Department forensic document examiner, 

testified he examined exemplars and the will to determine if appellant, Lundquist, or 

Norman signed Behrle’s purported signature, and the results were inconclusive. Leaver 

also testified Behrle might not have signed the will.

Los Angeles Police Sergeant Robert Grant investigated the present case and 

interviewed appellant. Appellant told Grant the following. Appellant had known Behrle 

a long time and had been her caregiver during the latter part of Behrle’s life. On April 

28, 2010, appellant, Lundquist, and Norman created a will that was submitted to the 

probate court. Norman actually created the will, and Lundquist and Norman were going 

to be witnesses. Appellant signed Behrle’s signature on the will and signed Behrle’s 

initials on the witness page. At some point when appellant, Lundquist, and Norman were 

completing the will, they realized Lundquist and Norman had signed the wrong date, i.e., 

April 28, 2010, on the witness page. A new witness page was signed with the date 

February 8, 2010.

Grant had appellant identify where she had signed or initialed the will. Appellant 

circled and initialed where she had signed. She did the same thing on the second page 

(the witness page) of the will. The interview was tape-recorded but the recording was 

lost. The will (People’s exh. No. 16), with appellant’s circling and initialing, was 

admitted into evidence.

2. Defense Evidence.

In defense, appellant, a bookkeeper, denied committing the charged offenses and 

testified as follows. A few days after Behrle’s death, Norman told appellant about the 

will. Norman said he saw Behrle sign the will and Norman and Lundquist signed as 

witnesses. On April 27, 2010, Norman gave appellant a copy of the will. On April 29, 

2010, appellant filed the probate action. Appellant, acting as her own attorney, gave to 

Norman and Lundquist documents appellant had typed. To the best of appellant’s 

knowledge, the will was genuine. Appellant did not know during probate proceedings 

the will might have been a forgery.
5

According to appellant, when Grant arrested her, he said her former husband was 

an aider and abettor for harboring her as a fugitive. Grant said he would take appellant’s 

children to child protective services if she did not cooperate. Before Grant interviewed 

appellant, she asked for counsel. Grant replied he would have an officer pick up 

appellant’s former husband and her children while Grant and appellant waited for counsel

and handwriting exemplars. Appellant was afraid and proceeded with the interview.

At trial, appellant denied telling Grant she forged the will or gave it to Lundquist 

and Norman to sign, and denied preparing any portion of the will or signing it. Appellant 

circled items on the will because she was afraid Grant would arrest her former husband 

and take her children. Lundquist, Norman, and Grant lied during their testimony and 

only appellant told the truth. Kurt Kuhn, a forensic science consultant, examined the will 

and opined it suggested appellant did not sign Behrle’s purported signature.

ISSUES

Appellant claims (1) the trial court erred by admitting into evidence the order 

reflecting the probate court’s finding Behrle’s signature was forged and (2) insufficient 

evidence supports her convictions.

DISCUSSION

1. The Probate Order Was Admissible.

a. Pertinent Facts.

An amended information alleged that, on April 29, 2010, appellant committed 

forgery by signing Behrle’s name on her will (Pen. Code, § 470, subd. (a); count 1),

perjury by declaration, i.e., “a Petition for Probate,” (count 3) and forgery by altering, 

corrupting, and falsifying a record of, inter alia, a will (count 5). During May 16, 2014 

pretrial discussions, appellant indicated she did not want the entire probate file introduced 

into evidence at the present trial. Appellant’s counsel stated, “I know [the prosecutor] is 

planning to use the order that was entered which supposedly said the will was forged. 

Fine.” Appellant’s counsel added that, nonetheless, she wanted the court to ask the 

prosecutor how many documents from the probate case the prosecutor intended to 

introduce at trial because the present case was not a probate case and “it’s irrelevant.”
6

The prosecutor indicated she did not intend to introduce the entire probate file. 

The parties agreed to review the exhibits the prosecutor intended to introduce. At trial in 

the present case, the People introduced the order into evidence without objection. The 

jury acquitted appellant on count 1 but convicted her on counts 3 and 5.

b. Analysis.

Appellant claims “the probate order, and the specific finding, therein, that the 

purported signature of Sherry Behrle on her purported will was a forgery” were irrelevant 

and excludable under Evidence Code section 352. Appellant essentially argues the trial 

court should not have received the order to the extent it recited (1) the probate court’s 

finding that the purported signature of Behrle on the will was a forgery, and (2) the 

resulting ruling denying the petition for lack of due execution of the will (hereafter, the 

challenged evidence). 

We reject appellant’s claim as unavailing. Appellant never objected to the 

introduction into evidence of the order or the challenged evidence. She therefore waived 

the admissibility issues of whether the order and challenged evidence were relevant or 

excludable under Evidence Code section 352. (Cf. People v. Benson (1990) 52 Cal.3d 

754, 786-787, fn. 7; Evid. Code, § 353.)

Even if the issues were not waived, appellant’s claim lacks merit. As to relevance, 

Evidence Code section 210, states, in pertinent part, “ ‘[r]elevant evidence’ means 

evidence . . . having any tendency in reason to prove or disprove any disputed fact that is 

of consequence to the determination of the action.” An appellate court applies an abuse 

of discretion standard of review to any ruling by a trial court concerning relevance. 

(People v. Waidla (2000) 22 Cal.4th 690, 717-718 (Waidla).)

The probate court was tasked with the official responsibility of determining, inter 

alia, whether Behrle’s purported signature as testator was forged and whether the will 

was duly executed. The order stated it was an order “after trial,” accordingly, there was 

evidence the probate court conducted a trial on the issues. Appellant concedes “the 

probate court order was entitled to be presumptively considered as a valid order, entered 
7

upon the court making all the necessary factual findings to support the judgment.”2 

Following that trial, the probate court stated Behrle’s signature was forged and denied the 

petition for lack of due execution of the will.

At issue at trial in the present case was whether appellant forged Behrle’s 

signature on the will in violation of Penal Code section 470, subdivision (a) (count 1), 

perjured herself in violation of Penal Code section 118, subdivision (a) in the petition 

(count 3), and/or committed forgery prohibited by Penal Code section 470, subdivision 

(c) with respect to the will (count 5). The probate court’s statement and ruling (the 

challenged evidence), if true, were evidence from the probate court that Behrle’s 

signature on the will was a forgery and the will was not duly executed. The challenged 

evidence, if true, had a tendency in reason to prove elements of each of counts 1, 3, 

and 5.

There is no dispute the challenged evidence was not inadmissible hearsay.3 

Evidence is generally admitted for all purposes unless a limiting instruction is requested 

(People v. Vinson (1969) 268 Cal.App.2d 672, 675) and appellant did not request one. 

Even if appellant had posed a relevance objection, the trial court would not have abused 

its discretion by admitting into evidence the challenged evidence as relevant.

 

2

Even if a formal probate trial did not occur, there was evidence that, during a 

probate proceeding, the probate court received information, including documentary 

information (see fn. 1, ante) on the issues.

3 Appellant did not pose a hearsay (or any other) objection to the order. Nor does 

appellant expressly assert here that the order was hearsay. We note appellant asserts in 

his opening brief, “official business records [sic] rules and the order’s certification also 

rendered [the order] potentially admissible. (Evid. Code, §§ 1280, 1531.)” Evidence 

Code section 1280 is the official records hearsay exception. Appellant’s above quoted 

assertion is a concession that, in light of the official records hearsay exception (if not also 

because of the business records hearsay exception (section 1271)) the order was not 

inadmissible hearsay.
8

None of appellant’s arguments compel a contrary conclusion. Appellant, citing

Kilroy v. State of California (2004) 119 Cal.App.4th 140 (Kilroy), argues “[p]rinciples of 

judicial notice prohibit a court from taking judicial notice of the truth of the facts or 

findings of fact asserted in orders – unless the order . . . establishes a fact for purposes of 

law of the case, res judicata, or collateral estoppel.” However, judicial notice is a 

substitute for evidentiary proof and a judicially noticed fact cannot be controverted. 

(People v. Rubio (1977) 71 Cal.App.3d 757, 765.) The probate court’s finding and ruling 

were not judicially noticed but were admitted into evidence to permit litigation of the 

issues of whether Behrle’s purported signature was forged, whether the will was duly 

executed, and whether appellant committed the crimes alleged in counts 1, 3, and 5. 

Principles of law of the case, res judicata, and collateral estoppel are inapplicable. 

Appellant’s reliance on Kilroy is misplaced.

As mentioned, appellant conceded that, in light of the official records hearsay 

exception (if not also because of the business records hearsay exception), the challenged 

evidence was not inadmissible hearsay (see fn. 3, ante). Nonetheless, appellant also cites 

Kilroy for the proposition that “[u]nder the business records . . . rules, the records proved 

only the existence of the particular act or document, and ‘not that what is asserted in the 

act is true.’ ” Even if appellant were raising a hearsay issue, Kilroy, as mentioned, 

involved an issue of judicial notice, not admissibility of evidence. Moreover, the 

challenged evidence was admissible under the Evidence Code section 1280 official 

records hearsay exception as against any hearsay objection.

As to Evidence Code section 352, that section states, “The court in its discretion 

may exclude evidence if its probative value is substantially outweighed by the probability 

that its admission will (a) necessitate undue consumption of time or (b) create substantial 

danger of undue prejudice, of confusing the issues, or of misleading the jury.” We 

review for abuse of discretion any claim a trial court erred in its rulings on an Evidence 

Code section 352 issue. (Waidla, supra, 22 Cal.4th at pp. 717, 724.)
9

The challenged evidence was highly probative on the issues of whether Behrle’s 

purported signature was forged and whether the will was duly executed. Admission of 

the order and challenged evidence did not require undue consumption of time. The 

challenged evidence did not state appellant was the person who forged Behrle’s purported 

signature or that appellant caused the will not to be duly executed.

The challenged evidence was no more inflammatory than (1) Lundquist’s 

testimony that Behrle’s purported signature was not genuine, (2) appellant’s effective 

statement to Grant that appellant, Lundquist, and Norman created the will, and 

(3) appellant’s statement to Grant that appellant signed Behrle’s signature on the will and 

affixed Behrle’s initials next to the signatures of Lundquist and Norman. If appellant had 

requested a limiting instruction, the trial court in the present case could have told the jury 

to consider the challenged evidence with the rest of the evidence and that the jury was 

free to accept or reject any evidence in whole or in part. Even if appellant had sought 

exclusion of the challenged evidence under Evidence Code section 352, the trial court 

would not have abused its discretion by failing to exclude the evidence under that section.

None of appellant’s arguments compel a contrary conclusion. In particular, 

appellant argues the trial court should have excluded the order under Evidence Code 

section 352 because the probate court’s factual finding that Behrle’s signature was forged 

was based on a lesser standard of proof and withdrew the issue of forgery from the jury. 

We disagree. The finding was merely evidence; no issue preclusion occurred. In sum, 

we conclude the trial court did not err, constitutionally or otherwise, by admitting into 

evidence the order and challenged evidence.

Even if the trial court erred by receiving the challenged evidence, it does not 

follow we must reverse the judgment. Lundquist testified Behrle’s purported signature 

on the will was not genuine. Appellant herself effectively admitted to Grant that she, 

Lundquist, and Norman created the will. Appellant told Grant she signed Behrle’s 

signature on the will and affixed Behrle’s initials next to the signatures of Lundquist and 

Norman.
10

The trial court never instructed the jury that, based on the challenged evidence, the 

jury was to accept as conclusively established that Behrle’s purported signature was 

forged and the will was not duly executed. The challenged evidence was, itself, evidence

Behrle’s signature on the will was forged but was not, itself, evidence appellant forged 

the signature. If the jury had viewed the challenged evidence as conclusively establishing 

appellant forged Behrle’s purported signature, the jury would not have acquitted 

appellant on count 1.

Moreover, the jury acquitted appellant on count 1 but that merely meant the jury 

was not convinced beyond a reasonable doubt appellant forged Behrle’s signature. The 

acquittal did not necessarily mean (1) the jury was not persuaded to a lesser standard of 

proof that appellant forged the signature, (2) the jury believed appellant did not forge the 

signature, or (3) the jury was not convinced beyond a reasonable doubt appellant signed 

Behrle’s purported initials on the will’s witness page. No prejudicial evidentiary error 

occurred. (Cf. People v. Watson (1956) 46 Cal.2d 818, 836.)

Finally, appellant, asserting “defense counsel seems to have acquiesced to the 

admission of the probate court order,” argues appellant received ineffective assistance of 

counsel to the extent her claims of error are not preserved for appellate review. We 

disagree. The record sheds no light on why appellant’s trial counsel failed to object to 

the order, the record does not reflect said counsel was asked for an explanation and failed 

to provide one, and we cannot say there simply could have been no satisfactory 

explanation. (Cf. People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-268.) Indeed, for 

the reasons previously discussed, reasonably competent counsel could have concluded 

relevance and Evidence Code section 352 objections to the order would have been 

without merit. Appellant has failed to demonstrate she received ineffective assistance of 

counsel. (See People v. Ledesma (1987) 43 Cal.3d 171, 216-217.)
11

2. Sufficient Evidence Supports Appellant’s Convictions.

Appellant claims insufficient evidence supports her convictions. She argues

Lundquist and Norman were accomplices,4therefore, their testimony alone did not 

constitute sufficient evidence supporting appellant’s convictions, and appellant argues 

there was no evidence, independent of said testimony, that tended to connect appellant 

with the crimes charged in counts 3 and 5. We reject appellant’s claim.

Penal Code section 1111 states, in relevant part, “[a] conviction cannot be had 

upon the testimony of an accomplice unless it be corroborated by such other evidence as 

shall tend to connect the defendant with the commission of the offense; . . .” “To 

corroborate the testimony of an accomplice, the prosecution must present ‘independent 

evidence,’ that is, evidence that ‘tends to connect the defendant with the crime charged’ 

without aid or assistance from the accomplice’s testimony. [Citation.] Corroborating 

evidence is sufficient if it tends to implicate the defendant and thus relates to some act or 

fact that is an element of the crime. [Citations.] ‘ “[T]he corroborative evidence may be 

slight and entitled to little consideration when standing alone.” [Citation.]’ [Citation.]” 

(People v. Avila (2006) 38 Cal.4th 491, 562-563.)

“Moreover, ‘ “only a portion . . . of the accomplice’s testimony need be 

corroborated” ’ [citation] and it is ‘ “not necessary that the corroborative evidence . . . 

establish every element of the offense charged.” [Citations.]’ [Citation.] It is only 

required that the evidence ‘ “ ‘tends to connect the defendant with the commission of the 

crime in such a way as may reasonably satisfy the jury that the [accomplice] is telling the 

truth.’ ” ’ [Citation.]” (People v. Miranda (1987) 44 Cal.3d 57, 100.)

 

4

The court instructed the jury that if the crimes of forgery and perjury by 

declaration were committed, Lundquist and Norman were accomplices to those crimes.
12

The Factual Summary sets forth pertinent facts from the testimony of Lundquist 

and Norman. Appellant does not expressly argue that that testimony, even if 

corroborated, was insufficient evidence supporting appellant’s convictions. That is, there 

is no dispute the testimony of Lundquist and Norman constituted sufficient evidence 

supporting appellant’s convictions if, independent of that testimony, there was slight

corroborative evidence tending to connect appellant with the crimes charged.

Appellant herself effectively admitted to Grant that she, Lundquist, and Norman 

created the will. Appellant told Grant she signed Behrle’s signature on the will and 

affixed Behrle’s initials next to the signatures of Lundquist and Norman. Appellant’s 

statements to Grant constituted the requisite slight corroborating evidence.

The fact appellant was acquitted on count 1 does not compel a contrary

conclusion. That merely meant the evidence did not convince the jury beyond a 

reasonable doubt that appellant forged Behrle’s purported signature. It did not mean the 

evidence was not the requisite slight corroborating evidence. “ ‘[I]f evidence of another 

offense is otherwise admissible, the fact that the defendant was acquitted does not render 

the evidence inadmissible.’ [Citation.].” (People v. Vaughn (1969) 71 Cal.2d 406, 420; 

accord, In re Dunham (1976) 16 Cal.3d 63, 67.)
13

DISPOSITION

The judgment is affirmed. 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

JONES, J.

We concur:

EDMON, P. J.

ALDRICH, J.

 



Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to 

article VI, section 6 of the California Constitution.