P. v. Brown

Filed 5/28/08 P. v. Brown CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

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

Barbara R. Johnson, Judge. Affirmed.

Stephen M. Lathrop, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan D. Martynec and Ellen Birnbaum Kehr, Deputy Attorneys General, for Plaintiff and Respondent.

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Appellant Helen Brown was convicted, following a jury trial, of one count of grand theft by embezzlement exceeding $400 in violation of Penal Code section 487, subdivision (a), and 17 counts of forgery in violation of section 470, subdivision (d). The jury found true the allegations that appellant took more than $50,000 within the meaning of section 12022.6, subdivision (a)(1). The trial court sentenced her to a total term of 28 months in state prison, and imposed a restitution fine of $200, and a stayed parole revocation fine of $200.

Appellant appeals from the judgment of conviction, contending that the trial court erred in restricting cross-examination of a prosecution witness and in her direct examination. We affirm the judgment of conviction.

Facts

Appellant was employed by Legal Options, Inc., from 1999 to 2005. Legal Options provided advertising for attorneys. Beginning in 2002, appellant worked in the collections department of the company. In September 2004, Legal Options' accounting manager, Naira Pogosian, went on maternity leave. According to Pogosian, appellant took over the task of making the company's daily deposits.

On September 17, 2004, appellant attempted to deposit two checks made out to Legal Options to her personal account at First Federal Bank, using an ATM at the bank's La Brea branch. The checks were rejected with the statement: "Cannot deposit a business check to a personal account." A week later the checks were successfully deposited into appellant's account using the Westchester branch of the bank. Legal Options had its account at First Federal Bank and deposited its checks at the La Brea branch.

Over the next 10 months, appellant deposited 48 checks made out to Legal Options into her personal bank account using either the Westchester branch or a branch on Vermont. The checks totaled about $115,000. On all of the checks, appellant's name had been added to the payee line, usually by typing. All the checks had appellant's signature and account number on the back.

Appellant's activities were discovered in June 2005, when Connie Bishop, an accountant at one of Legal Options' clients, received a call from a person who identified herself as Helen Brown. The caller asked Bishop to replace check number 56179, claiming that it had been damaged. Bishop asked for the damaged check to be returned. She also reviewed checks which had cleared, and discovered that check number 56179, issued to Legal Options in February 2005, had been altered. The name Helen Brown had been added to the payee line and the check endorsed with the name Helen Brown and an account number. Bishop called Legal Options and initially spoke with appellant. Eventually, Bishop spoke with Legal Options' president, Stuart Grant, and faxed him a copy of the check.

In July 2005, Grant spoke with appellant about the check. According to Grant, appellant admitted that she had altered the check, but claimed that it was the only check she had altered. Grant fired her. He then checked with First Federal.

About a week later, he learned that there were other altered checks. According to Grant, he spoke with appellant and she admitted that she had altered other checks. Grant contacted the Los Angeles Police Department.

At trial, Grant testified that it was not his practice or policy to deposit checks from clients or collection agencies into any account other than the business account at First Federal. He did not give anyone permission to alter any of the checks, to sign them with their own names or to deposit them into any account other than Legal Options' business account.

Legal Options recovered about $82,000 of the stolen funds from First Federal and the remainder from its insurance company.

Appellant testified in her own defense at trial. She stated that she began a sexual relationship with Grant in July 2004. A few weeks later, she wanted to end the affair. She also wanted to stop lying to Legal Options' clients about the advertising they were receiving and whether they would get refund checks. Grant offered her money to stay with the company and continue the affair. Grant gave her checks from clients to deposit in her personal account. Some of the checks already had her name typed in on the payee line. She wrote in her name on other checks. She acknowledged that she had written her name and account number on the back of all the checks and deposited them in her account. Appellant had permission from Grant to do this.

Appellant testified that she told Grant about her initial difficulty in depositing the checks in the ATM at the La Brea branch of First Federal. He suggested that she try to make the deposit in person at a different branch and add other checks on which her name was printed with the notation "Attention to." She followed this advice and was successful.

Appellant also testified that when Grant learned that the altered checks had been discovered, he asked her to lie and say that she had stolen the money, so that no one would know about the affair. She refused.

Discussion

Appellant contends that the trial court erred in limiting her cross-examination of Grant on issues of bias and motive to lie, and in limiting her testimony about Grant's out-of-court statements to her supporting her defense of consent and authorization. She further contends that the court's errors violated her state and federal right to confrontation and impaired her ability to present her defense in violation of her right to due process.

The trial court initially excluded the evidence identified by appellant on the ground that it was hearsay, and so inadmissible.

"'Hearsay evidence' is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated." (Evid. Code, 1200, subd. (a).) Hearsay evidence is inadmissible, except as provided by law. (Evid. Code, 1200, subd. (b).)

Appellant identifies one specific area where her cross-examination of Grant was limited. Her counsel asked Grant two questions: (1) whether appellant told him about personal problems during a business meeting and (2) whether appellant came to his office with personal problems. The trial court correctly sustained hearsay objections to the questions. Appellant's trial counsel explained that the statements were not being offered to prove the truth of the matter asserted in the statements, that is, it was not being offered to prove that appellant was having personal problems and thus was not hearsay. The trial court disagreed, saying "that's the whole crux of your case; that you're offering her statements to him and their conversation for the truth; that it's actually an affair, and a relationship actually happened."

Appellant's counsel contended that the statements were offered to show that Grant believed that appellant was having personal problems. When asked how this was relevant, appellant's counsel stated: "It is how this relationship begins in that office." The court explained that appellant's counsel "could ask [Grant] about his relationship with [appellant], but you can't ask him about did [appellant] tell him about some troubles with her family. It's hearsay. You're saying that it's not offered to prove that she did have troubles at home. And if it's not offered for that, it's irrelevant." We agree.

As the trial court recognized, the fact of an affair would be relevant to show that Grant had a bias and a motive to lie. An additional showing that Grant chose to have an affair with appellant because she was an unhappily married woman would not increase Grant's bias or motive to lie, however. A showing that appellant confided in Grant that she was having personal problems would not make it more likely that the two were having an affair or that Grant was lying if he denied having an affair.

"[T]rial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant." (Delaware v. Van Arsdall (1986) 475 U.S. 673, 678-679.) "There is no Sixth Amendment violation at all unless the prohibited cross-examination might reasonably have produced 'a significantly different impression of [the witness's] credibility. . . .'" (People v. Belmontes (1988) 45 Cal.3d 744, 780 quoting Delaware v. Van Arsdall, supra.) Thus, assuming that appellant has not waived her constitutional claim,[1]we would see no violation of her Sixth Amendment rights.

Assuming that appellant did not waive her due process claim, we would see no violation of that right. The trial court's ruling did not prevent appellant from presenting her defense. Appellant was permitted to testify about the start of the affair. She testified that she told Grant about problems in her marriage and that he comforted her by telling her that she was beautiful and talented. He talked about his wife and marriage. Appellant and Grant then had sex. Thus, the evidence was before the jury and was not contradicted by other testimony. An admission from Grant that the two discussed personal problems would not have detracted from his credibility or added strength to appellant's case, particularly since appellant's counsel chose not to ask Grant if he were having an affair with appellant.

Appellant also identifies two areas in which her testimony was restricted. The trial court struck her testimony that she lied to clients about refunds because Grant told her to lie. The trial court also sustained an objection to the following question: "Did Mr. Grant tell you why he was going to give you the checks that were coming in as opposed to just writing a check off the Legal Options account?"

In both cases, the court viewed the testimony as containing hearsay. Appellant contends that the testimony was offered to show her state of mind. Appellant did not make this claim in the trial court, and so has forfeited it on appeal. (People v. Dixon (2007) 153 Cal.App.4th 985, 997.)[2] Assuming for the sake of argument that these claims were not waived and that the trial court did err in its rulings, we see no prejudice to appellant.

On direct examination, appellant did not testify about lying but she was able to testify on the topic on cross-examination. She testified: "And I was given this [check] by the president to deposit this into my account, to keep lying to the members and to keep the affair going with him." Later, the prosecutor asked her: "You were lying to them repeatedly, weren't you?" Appellant responded: "Uh, for Stuart Grant. That's his company and that's what he requested of me." She explained the lying: "I was lying to them based about what was being purchased in the market because they weren't getting enough calls and they expected a certain amount of advertising to be purchased in that market and a certain amount of referrals every month, and they weren't receiving that." Thus, appellant was able to tell the jury that she lied to clients about advertising at Grant's direction, and that the checks were intended in part to keep her lying to clients. There could be no possible prejudice to appellant from the court's earlier ruling. (People v. Watson (1956) 46 Cal.2d 818, 836; Cal. Const., art. VI, 13.)

Appellant did not give an answer to her counsel's question about Grant's reasons for giving her client checks rather than Legal Options checks. We presume that she would have testified, in accord with her opening statement, that Grant's purpose was to conceal the payments and thus the affair.[3] Appellant was able to give testimony showing that Grant was very concerned about hiding the affair and the payments. She testified that Bishop's desire to speak to someone higher up at Legal Options about her discovery of the altered check would not be a good thing because that employee "would go to Stuart, and then Stuart would not know what to do because Stuart did not want me to tell anyone about the affair and that's how he was giving me the money." She also testified that once the altered checks were discovered, Grant "called me to tell me that he didn't want anyone to know about the affair. So can I please do him a favor and let my husband know and everybody know that I took the checks illegally and deposited it into my account." This testimony is perhaps not as strong as a direct answer to her counsel's question would have been. Even apart from Grant's testimony, the evidence against appellant was strong, however. Grant fired appellant very soon after receiving the facsimile of the altered check from a client, and called the police promptly upon learning that there were numerous other altered checks, acts inconsistent with appellant's claim that Grant had a strong interest in keeping the affair and payments secret. Appellant began depositing the altered checks when the accounting manager went on maternity leave and made her deposits at inconveniently located bank branches which were not used by Legal Options for its deposits. The altered checks represented a very large sum of money. Thus, we see no reasonable probability that appellant would have received a more favorable outcome if she had been permitted to testify directly that Grant used client checks to keep the payments secret. (People v. Watson (1956) 46 Cal.2d 818, 836; Cal. Const., art. VI, 13.)

Since these claims involved appellant's own testimony, we see no possible violation of her right to confrontation. Since appellant was able to tell the jury that Grant told her to lie and wanted to keep the checks and the affair secret, we see no violation of her right to present a defense.

Disposition

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ARMSTRONG, J.

I concur:

TURNER, P. J.

People v. Helen Brown

B198874

MOSK, J., Concurring

I concur on the basis that even if there were error, such error would be harmless.

MOSK, J.

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[1] Appellant did not raise the constitutional claim in the trial court and so forfeited it. (People v. Alvarez (1996) 14 Cal.4th 155, 186; People v. Raley (1992) 2 Cal.4th 870, 892.)

[2] Again, appellant did not raise her constitutional claims in the trial court and so has waived them. (People v. Alvarez, supra, 14 Cal.4th at p. 186; People v. Raley, supra, 2 Cal.4th at p. 892.)

[3] Appellant did not expressly claim in her opening statement that Grant told her that the purpose was to conceal the payments. She simply stated that by using the client checks "the rewards to her . . . were kept off the book. The accountant wouldn't know about it. The other employees and the other women wouldn't know about it. Mr. Grant's wife wouldn't know about it."