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In The People of the State of California v. Thomas Moreno, No. B235421 (Cal. App. Dist.2 01/09/2013), defendant Thomas Moreno filed an insurance claim alleging that his customized motorcycle was stolen out of his driveway. Several months after the insurer paid the claim, the police impounded a motorcycle matching the description of Moreno's stolen vehicle.

Moreno attempted to retrieve the impounded vehicle and denied that he had ever filed an insurance claim. He was arrested and charged with insurance fraud (Pen. Code, § 550 subd. (a)(10)), defrauding an insurer (Pen. Code, § 548, subd. (a)) and perjury by declaration (Pen. Code, § 118, subd. (a).)

During a pretrial hearing, a police officer testified that he impounded the motorcycle because a confidential serial number indicated that it had been reported stolen. On cross-examination, the officer asserted that the location of the serial number was privileged under Evidence Code section 1040. The trial court upheld the officer's assertion of privilege and ruled that the information was not material within the meaning of Evidence Code section 1042. The jury convicted Moreno on all counts.

In May of 2007, defendant Thomas Moreno contacted Progressive Insurance and reported that a 1993 Harley Davidson motorcycle that he purchased from William Rausch had been stolen out of his driveway. Moreno met with a Progressive claims adjuster, David Perard, and provided a copy of his driver's license, a photograph of the stolen motorcycle, several receipts for customized parts and a key to the ignition. Moreno estimated that the motorcycle was worth $45,000 because it had a customized paint job by a well-known motorcycle artist. Perard, however, informed Moreno that his insurance policy was limited to the fair value of the vehicle, which was estimated to be approximately $13,000, plus an additional $7,000 for customized components. As part of the claims process, Moreno signed an "affidavit of theft" memorializing his statements under penalty of perjury and assigned ownership of the vehicle to Progressive. Progressive then issued Moreno a payment of approximately $20,000.

Five months after Progressive paid the claim, California Highway Patrolman Robert Holtz and several other members of the CHP's vehicle theft unit attended "the Love Ride" motorcycle festival in Pomona, California. Holtz noticed an unattended motorcycle that did not have any license plates, suggesting that it was unregistered. Based on his visual inspection, Holtz concluded that the vehicle was a special construction motorcycle consisting of numerous Harley Davidson parts that had been attached to a different type of frame. Holtz recovered a secret Harley Davidson serial number from a component of the motorcycle and ran the number through a special database accessible to law enforcement. The database indicated that the part came from a 1993 Harley Davidson that had been reported stolen by Progressive Insurance. Holtz waited for the owner of the vehicle to arrive. The owner, however, never came and Holtz impounded the motorcycle.

Shortly thereafter, Moreno, identifying himself as "Thomas Miranda," called the police and inquired about the impounded motorcycle. Moreno informed Officer Holtz that he had recently built the motorcycle for his friend, Gabriel Castaneda, who did not have time to register the vehicle before attending the "Love Ride" festival. During a subsequent call, Moreno, who continued to identify himself as Thomas Miranda, told Holtz that he wanted to "come clean" about the true owner of the motorcycle. Moreno stated that his step-father, Scott Holloway, was the actual owner of the motorcycle and that he and Holloway would come to the station to provide proof of registration and ownership.

Officer Holtz showed Moreno the photograph of the motorcycle from the Progressive file and Moreno stated that it "looked like" the motorcycle he had built for Holloway. Moreno indicated that the motorcycle was a "special construction" fabricated from various parts he had taken from other motorcycles or obtained at swap meets. During their discussion, Moreno denied that he had ever owned, insured or filed an insurance claim for a 1993 Harley Davidson. When Officer Holtz asked Moreno about the 2007 insurance claim, Holtz said he had forgotten that he filed the claim.

Officer Holtz also spoke to Scott Holloway, who had driven to the police station with Moreno but had elected to stay outside. Holloway informed Holtz that he did not own the impounded motorcycle and had never seen the vehicle. Holloway further stated that he had agreed to come to the police station to help Moreno, but that he did not want to get in any trouble. Holtz then arrested Moreno.

Holtz testified that, after running the VIN, he "checked some other components and at that point . . . realized there was one component part in particular that was from a stolen motorcycle." When asked how he was able to determine that "the particular component was from a stolen bike," Holtz responded "it's a specialized component, but anything other than that I have to invoke 1040, 1042 of the Evidence Code. Request any further discussion of that takes place in an in camera hearing or in the Judge's chambers." Holtz confirmed, however, that he did not have to touch the motorcycle to obtain the secret serial number from the component. He also stated that he ran the serialized component number through a database, which was maintained by law enforcement and the National Crime Insurance Bureau.

After holding an in camera hearing with Holtz and the district attorney, the court announced that it was "going to uphold the privilege at this juncture as to two things. Number one, exactly which part this number is located on as well as the exact location on that part. . . . Other than that, counsel's been allowed to cross examine and gotten all of the information as it pertains to what the officer did in his investigation." The court stated that it would "appoint an expert" to "double check on the veracity of the information provided by the investigating officer . . . but deny the 1538.5 with an opportunity to renew it." The court then directed the parties to select an expert.

After hearing argument on the issue of materiality, the trial court ruled that the prosecution had provided substantial, independent evidence indicating that Holtz's statements and findings regarding the secret serialized component number "[j]ust can't be incorrect information." The court also stated that, even if the information was incorrect, "it's not that important because the rest of the investigation was the critical part of the investigation. Yes [the serialized component] led to the potential impounding of the motorcycle, but the crux of the case followed after that. It just seems . . . there is no way the bike would have been just impounded on a whim . . ."

Rausch, the prior owner, provided testimony, stating that he had examined the impounded motorcycle and believed it was the vehicle he had sold to Moreno. According to Rausch, the impounded motorcycle had the same customized paint job, which included a red decal on the front fender and specialized pinstriping. The impounded vehicle also had the same oil drain hose, which Rausch had fabricated with his father, the same "aftermarket" designed gas cap , the same wear marks on the seat and the same suction cup marks on the rear fender. Rausch also reported that the impounded vehicle had the same foot controls, tires, wheels, gas shut off valve, odometer, handlebars, "fishtail exhaust system," rear splash pan, kickstand, rear turn signal, dash assembly, throttle cables, braided steel brake cable and brake rotors. Rausch believed that, with the exception of some newly added parts, the impounded motorcycle was "exactly the same" as the one he sold to Moreno.

Thomas Moreno testified on his own behalf. On direct examination, he asserted that, six or seven months after purchasing a motorcycle from William Rausch, he "deconstructed the bike" by removing several components. The motorcycle was then stolen and he filed a claim with Progressive. Moreno further testified that, after receiving the insurance payment, he built the motorcycle that was later impounded by Officer Holtz.

According to Moreno, when building the impounded motorcycle, he used several parts that were originally on the stolen vehicle, including, in part, the speedometer, the odometer, the lock ignition and the fenders. He argued that other similarities between the two motorcycles were coincidental. In support of his assertion that he had built the impounded motorcycle after his initial motorcycle was stolen, Moreno provided receipts for several parts he purchased after the insurance claim was filed.

In this case, Officer Holtz asserted the privilege as to the identity of the component on which the confidential serial number was located. According to Holtz, the serial number was a theft prevention mechanism known only to law enforcement and Harley Davidson. Holtz further indicated that, by utilizing the serial number and a special database, law enforcement is able to determine the vehicle that the component originally came from. This serialized component appears to aid vehicle theft prevention in two ways. First, if an individual has tampered with or removed a vehicle identification number from a motorcycle, the confidential number on the component provides an alternative mechanism of identifying the vehicle. Second, if an individual has removed the serialized component from a stolen vehicle, and placed it on a separate vehicle, the serial number enables law enforcement to determine that the part came from a stolen vehicle.

At trial, Officer Holtz indicated that the utility of the confidential serial number would be compromised if its location were disclosed to the public and that disclosing the location of a confidential VIN would destroy its very purpose and would remove a valuable investigatory device that may lead to the discovery of vehicle thefts.

Given Moreno's testimony - which specifically acknowledged that many of the components on the impounded motorcycle were taken off a motorcycle that was reported stolen - the appellate court could not see how the disclosure of the specific component on which the number appeared would result in the defendant's exoneration.

There is no reasonable possibility that revealing the location of the serial number would have exonerated the defendant is also supported by the overwhelming evidence of his guilt presented at trial. In a recorded conversation, Officer Holtz told Moreno that, based on his investigation, it appeared that certain parts on the impounded vehicle appeared to be the same parts that were on the motorcycle Moreno had previously reported stolen.

In response, Moreno repeatedly told Officer Holtz that it was "impossible" that any parts from the stolen vehicle were on the impounded vehicle. These recorded statements directly contradicted Moreno's defense at trial, which was predicated on the assertion that he had taken parts off the motorcycle before it was stolen and then placed them on the impounded vehicle.

Mr. Moreno should be one of the many "Darwin Award Winners" whose ability to reproduce infects the gene pool with a lack of intelligence. He lied so many times that he could not remember the lies he told and contradicted himself during his trial for insurance fraud. He is the type of fraud that is caught and prosecuted.

Intelligent fraud perpetrators would never take a motorcycle they claimed stolen to a public event where it could be seen by a police officer and then compound the stupidity by using a false identity, using his father-in-law as a fake owner of the motorcycle, and other idiotic moves. He then adds insult to injury by seeking reversal of his conviction by claiming the fact that he could not know of the location of the secret VIN deprived him of justice.