Filed 5/22/18 P. v. Kline CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

JAMES LEE KLINE,

Defendant and Appellant.
H044456
(Monterey County
Super. Ct. No. SS152134A)
Following a jury trial, defendant James Lee Kline was found guilty of theft from an elder of an amount more than $950 in violation of Penal Code section 368, subdivision (d), (count 1) and grand theft of an amount more than $950 in violation of section 487, subdivision (a) (count 2). The crimes involved ATM withdrawals made with the debit card of L.R. (known as Peggy), who was an elderly woman for whom defendant occasionally did handyman work. The court suspended imposition of sentence, granted probation, and placed defendant on three years of formal probation under certain terms and conditions.
Defendant timely appealed. He now argues that (1) his conviction of grand theft cannot stand because it is a lesser included offense of grand theft from an elder and that conviction of both crimes violates double jeopardy and that (2) his counsel rendered ineffective assistance by not moving to exclude some extrajudicial statements of an officer who questioned him in the field and evidence of his homelessness and poverty and by not requesting a limiting instruction. He claims that the multiple instance of ineffective assistance resulted in cumulative prejudice requiring reversal.
We find defendant’s arguments meritless and affirm the judgment.
I
Evidence
Peggy lived in Pacific Grove, California. Tim R., her son, lived in North Hollywood, California. Tim became involved in overseeing her banking after he noticed that she was developing some cognitive and memory problems. Tim became a co-trustee of her trust. He reviewed her banking records before 2014, and he consolidated her four bank accounts into a single account with Monterey Credit Union. Tim monitored his mother’s account, and examined the transactions. She ordinarily withdrew $400 to $600 per month, on average.
In October 2015, Tim noticed some “ATM withdrawals” from his mother’s credit union account, which concerned him because he had never seen such withdrawals. He discovered that the “ATM charges” began in August 2015. He alerted the credit union that there was a problem. Tim then spoke with his mother about the withdrawals because “[s]he ha[d] never mentioned an ATM card to [him] in any context.” She did not recall having a debit card. When he had visited his mother, Tim had observed that she personally withdrew money with a teller in the bank.
At trial, Peggy, who was then 88 years old, was asked how she withdrew money from the bank. She said that she went inside the bank to the counter and that she had never taken money out of an automatic teller machine (ATM). She did not believe that she had a card to use an ATM. She had not given defendant permission to use her ATM card or to take money out of her account.
In fact, however, Peggy had requested and obtained a debit card from the Monterey Credit Union. Her first request for a debit card was made on April 21, 2015 through a teller. On May 8, 2015, Peggy told a teller that she had never received the card in the mail. The card was closed, and a new card was ordered.
On June 8, 2015, Peggy called the Monterey Credit Union to say that she never received the second debit card, and she spoke to a financial loan officer. The second card was cancelled, a third card was ordered, and it was arranged to have the new card sent to the Pacific Grove branch of the credit union instead of her home. When the card was ready for pickup, the financial loan officer called Peggy to let her know.
On August 3, 2015, Peggy went into the Pacific Grove branch of the credit union, and the financial loan officer issued the card to her. The officer had Peggy enter a PIN. At trial, the officer identified defendant as the man who accompanied Peggy and was standing “right by her side” during the transaction. The officer saw Peggy and defendant conversing.
Defendant had worked for Peggy at her home. On occasion, defendant had done odd jobs, cleaned out the gutters, or fixed a fence. Copies of checks made out to defendant were admitted into evidence. Peggy recalled defendant being in her bank when she was there, but she could not recall defendant going to the bank with her. She acknowledged that she could not “remember a lot of the past.”
Peggy had occasionally allowed defendant into her home, such as when he needed to use the bathroom. She trusted defendant, and she had left him alone in the living room at times. Someone in the living room would have access to her mail, which she kept on a counter, because “everything in a mobile home park is very close.”
Numerous ATM withdrawals were made from Peggy’s Monterey Credit Union account during the period of August 2015 through October 2015. There was a surcharge on every ATM withdrawal not made at the credit union, and in addition, her account statements reflect a $2.00 ATM withdrawal fee for each ATM withdrawal not made at the credit union.
A $300 cash withdrawal was made at the Monterey Credit Union on August 21, 2015. The debit card was first used at 10:45 a.m. on that same date. A debit purchase was made using the card at Grove Market, and a copy of the receipt reflected the signature of a Peggy R.
Peggy’s debit card was used three times to make ATM withdrawals in August 2015. At 8:49 a.m. on August 23, 2015, a $400 ATM withdrawal was made at the Chase Bank in Pacific Grove, for which there was a $3.00 surcharge, for a total debit of $403 from Peggy’s credit union account. At 7:22 a.m. on August 25, 2015, a $400 ATM withdrawal was made from the Monterey Credit Union. At 8:01 a.m. on August 30, 2015, a $40 ATM withdrawal was made at the Chase Bank in Pacific Grove, for which there was a $3.00 surcharge, for a total debit of $43 from Peggy’s credit union account. In the same month, Peggy also made three cash withdrawals, totaling $1000.
In September 2015, there were additional ATM withdrawals from Peggy’s credit union account. At 5:36 p.m. on September 2, 2015, a $40 ATM withdrawal was made from Wells Fargo Bank in Monterey, for which there was a $3.00 surcharge, for a total debit of $43. At 5:36 p.m. on September 3, 2015, a $100 withdrawal was made from a “stand-alone ATM” located at Cannery Row, for which there was a $5.00 surcharge, for a total debit of $105. At 7:34 a.m. on September 9, 2015, a $200 ATM withdrawal was made at the Chase Bank in Pacific Grove, for which there was a $3.00 surcharge, for a total debit of $203. At 3:04 p.m. on September 13, 2015, a $200 ATM withdrawal was made at a Bank of America in Monterey, for which there was a $3.00 surcharge, for a total debit of $203. At 10:29 a.m. on September 18, 2015, a $200 ATM withdrawal was made from the Monterey Credit Union. At 5:21 p.m. on September 22, 2015, a $100 ATM withdrawal was made from the Wells Fargo Bank in Pacific Grove, for which there was a $3.00 surcharge, for a total debit of $103. At 7:17 a.m. on September 26, 2015, a $100 ATM withdrawal was made from the Monterey Credit Union. At 2:32 p.m. on September 27, 2015, a $100 ATM withdrawal was made from the Wells Fargo Bank in Pacific Grove, for which there was a $3.00 surcharge, for a total debit of $103. In addition, in September 2015, Peggy made one cash withdrawal of $500.
There was one additional ATM withdrawal in October 2015. At 9:11 a.m. on October 4, 2015, a $200 ATM withdrawal was made from the Monterey Credit Union.
The Pacific Grove branch of Monterey Credit union was within two to three miles of Peggy’s home, and it took her approximately two to five minutes by car to get there. Her doctor’s office was within a mile of that credit union branch. Her lawyer’s office was on Pearl Avenue, which was close to the main Monterey branch of the credit union. But, at trial, Peggy indicated that she was unaware of that branch.
The Chase Bank in Pacific Grove was five to 10 minutes by car from Peggy’s home. The Bank of America in Monterey was approximately 10 to 15 minutes from Peggy’s house, depending upon traffic and time of day. The Wells Fargo in Del Rey Oaks was approximately 20 minutes driving distance from Peggy’s home.
At trial, Peggy testified that she had a car, but she no longer drove. Her car had not broken down in the “Monterey area mall” sometime in 2015. It was her recollection that she had “never gone anywhere with [defendant].” She could not recall going to lunch with defendant at a Mexican restaurant or going shopping with him at Grove Market, her neighborhood grocery store. Peggy testified that defendant had never gone to her doctor with her or taken her to her attorney.
At trial, Tim testified that he never had taken his mother to a Del Rey Oaks shopping center near the airport. His mother had never asked him to bring her to a shopping center located near the rear gate to Pebble Beach or to shops near the Monterey waterfront.
After learning that Peggy had some suspect charges on her account, Rachel Beuttler, a patrol sergeant for the City of Pacific Grove, spoke with the credit union’s manager. The sergeant obtained a printout of the ATM withdrawals at issue and still images of the person making those withdrawals. The parties stipulated that as to each image, the “photograph was taken at an ATM machine transaction at the Monterey Credit Union located in Pacific Grove” and that the “information contained within [the] exhibit [was] true and accurate.”
When Sergeant Beuttler interviewed Peggy, she told the sergeant that defendant had gone with her to the bank. She said that ordinarily defendant remained in a seating area along the back wall of the bank, but, one time, defendant had suddenly appeared standing next to her. Although a written request for an ATM card had been fill out by Peggy, she had no memory of getting an ATM card. The sergeant checked Peggy’s wallet and purse for the card and looked around her house, but the sergeant did not find the card. The card was never found.
Sergeant Beuttler also obtained images of suspect ATM withdrawals from Chase Bank. The parties stipulated that those photographic exhibits and the information they contained was “true and accurate” and that each photograph “was taken at an ATM machine transaction at the Chase Bank [branch] located in Pacific Grove.”
Peggy could not be seen in any of the images provided to Sergeant Beuttler by the credit union or Chase Bank. The sergeant compared an August 25, 2015 image of the ATM transaction at the credit union to defendant’s DMV photograph. The sergeant concluded that the same person appeared in both images. After the sergeant spoke with Paul D., who had referred defendant to Peggy, she determined that it was defendant’s vehicle in the background of that August 25, 2015 image.
Sergeant Beuttler testified at trial that it appeared to her that defendant was the individual in the September 18, 2015, September 26, 2015, and October 4, 2015 images of ATM transactions at the credit union. The truck in the background of the September 26, 2015 image looked like the same truck that defendant was in when the sergeant subsequently contacted him in November 2015.
It appeared to Sergeant Beuttler that defendant was also the individual in the digital video snapshots provided to her by Chase Bank. Those snapshots showed ATM withdrawals from a branch of Chase Bank in the Country Club Gate Center in Pacific Grove on the following dates: August 23, 2015, August 30, 2015, and September 9, 2015. In the sergeant’s opinion, the person in the August 23, 2015 close-up snapshot was defendant wearing eyeglasses, the person in the August 30, 2015 close-up snapshot was defendant not wearing eyeglasses, and the person shown in profile in a September 9, 2015 snapshot was defendant.
Sergeant Beuttler was unable to locate any current residence for defendant. On November 7, 2015, after putting out a flyer and receiving a lead from another officer, the sergeant finally located defendant in the rear parking lot of the Country Club Gate Center, the location of the Chase Bank ATM used to make withdrawals from Peggy’s credit union account. The sergeant observed that the back of defendant’s truck was “completely packed” with his belongings and there were multiple items in the passenger seat area, which led the sergeant to conclude that it would be difficult for someone to sit in the passenger seat.
An audio recording of Sergeant Beuttler’s November 7, 2015 interview of defendant was played for the jury. Defendant told Sergeant Beuttler that he met Peggy through a mutual friend, Paul D., who was a painting contractor. Defendant said that he helped Peggy around her house, did “little repairs,” packed “her Christmas stuff in the shed,” cleaned the roof and gutters, helped with her car, and ran “her all over doings errands.” Defendant said that he had taken her to doctor’s and lawyer’s appointments. Defendant claimed that he had taken her to the bank numerous times and that they had had lunch at the Mexican restaurant across the street from the bank. He said that she usually paid him in cash, but that she had written checks to him a couple of times.
As to ATM withdrawals, defendant indicated to the sergeant that Peggy had a poor memory and that “several times” he had gone over how to use an ATM with her. He also indicated that she picked the date of her birthday for her PIN because she was “just not good at remembering things.” He explained that Peggy wanted an ATM card because she had been “stranded before.” According to defendant, Peggy had been stranded when her car had overheated at the Del Monte Shopping Center, and she had called him on that occasion.
Sergeant Beuttler told defendant that she had seen “ATM images” of him and his vehicle and that she had seen him “withdrawing money from Peggy’s account multiple times.” When the sergeant asked defendant to explain why he had gone to the ATM’s, how much money he had taken out, and what he had done with the money, defendant could not recall. The sergeant asked defendant what he had done with Peggy’s ATM card, and defendant denied having it.
Sergeant Beuttler confronted defendant with the fact that he had been captured on film going to ATM’s multiple times, using Peggy’s card, and entering her PIN, and she told him to explain that. Defendant responded that he did not have to explain that. The sergeant told defendant that Peggy felt defendant had “ripped her off” and stolen from her and that Peggy felt betrayed by him because she liked him. Defendant responded, “I like Peggy.” The sergeant stated that Peggy never gave him permission to take over $2,200 from her bank account with an ATM card and that Peggy did not know her PIN, what an ATM card was, or how to use such card. Defendant indicated that Peggy had “trouble remembering her days.” He indicated that he had taught her to use an ATM at the Pacific Grove branch of her bank. The sergeant said it was “funny how the bank can’t find any [images] of those.” Defendant responded, “Well, I swear it’s there.” When the sergeant accused defendant of lying about not having Peggy’s ATM card, defendant reiterated that he did not have it.
During their exchange concerning defendant’s parking overnight at the shopping center, defendant indicated to Sergeant Beuttler that he had been staying there for a long time without any problem.
At trial, defendant testified in his own behalf. Defendant asserted Peggy and he were friends in addition to their work relationship. He claimed they went “shopping together,” they looked at new cars and mattresses, they went to secondhand stores, they went to doctor and lawyer appointments, they ran errands, and they went out to “[l]unch, coffee, [and] dinners.” According to defendant, while they were out, Peggy would sometimes ask him to “run over there and grab some cash” and hand her debit card to him. Defendant explained that he made the ATM withdrawals instead of Peggy because she could not remember her PIN, she was “very slow,” and it was “a big frustration and hassle for her” to do it.
Defendant testified that Peggy had been prompted to get a debit card by an experience that she had at Macy’s. He said that Peggy had been “frustrated, embarrassed and upset” when she had unsuccessfully tried to use expired credit cards at Macy’s and that defendant had advised her that she “probably should get [a bank card] for security purposes . . . so [that she would have] emergency access to [her] funds.” He acknowledged that he was present when Peggy picked up her debit card at the credit union and when she created her PIN, which was her birthday month and day with a zero in front. He stated that he had suggested adding a zero or the number one to make the requisite four numbers.
Defendant claimed that Peggy was with him when the ATM transactions were conducted and that he immediately handed over the ATM card, the withdrawn money, and the receipt to Peggy. He maintained that he never used her card without her authorization.
Defendant testified that on August 21, 2015, he had accompanied Peggy into the bank and into Grove Market to shop. He was present when she used her debit card to pay for a $103.48 purchase at the grocery store, and he witnessed her sign her name. He said that he “pushed the card.”
Defendant believed that he was the one who withdrew $400 from the Chase Bank ATM on August 23, 2015. According to defendant, he took Peggy to shop at the Rite Aid store in the Country Club Gate shopping area. Defendant claimed that Peggy asked him to go next door to the Chase ATM to get her some cash to pay for her purchases and handed her debit card to him, that he went to the ATM and withdrew money, and that he brought the money and receipt back to Peggy.
Defendant acknowledged that he was also the one who made the $400 ATM withdrawal from the Monterey Credit Union on August 25, 2015. He said that he was with Peggy when she made an ATM withdrawal from the Wells Fargo in Del Rey Oaks on September 2, 2015.
According to defendant, on September 2, 2015, Peggy wanted some cash before going to lunch at Tarpy’s so he withdrew some money from the Wells Fargo ATM in the Safeway in Del Rey Oaks. At other times, defendant inconsistently testified that they went to dinner at Tarpy’s. The September 2, 2015 ATM withdrawal was made at approximately 5:36 p.m. Defendant had no idea why she would make an ATM withdrawal after she had already made a $500 cash withdrawal earlier the same day.
Defendant testified that Peggy used the stand-alone ATM on Cannery Row on the evening that they went to the Whaling Station for dinner. He claimed that she wanted to buy something at a shop and that he “told her it was a good opportunity for her to practice the ATM.” Defendant said that Peggy did that withdrawal herself. Defendant subsequently agreed, somewhat inconsistently, that he helped Peggy make the September 3, 2015 ATM withdrawal at Cannery Row.
Defendant indicated that he made the ATM withdrawal from Chase Bank on September 9, 2015 and the ATM withdrawal from Bank of America in Monterey on September 13, 2015. As to the latter withdrawal, defendant said that Peggy and he were running errands in Monterey. Defendant admitted that he made ATM withdrawals with Peggy from the credit union on September 18, 2015, from a Wells Fargo branch in Pacific Grove on September 22, 2015, from the credit union on September 26, 2015, from a Wells Fargo branch in Pacific Grove on September 27, 2015, and from the credit union on October 4, 2015. He agreed with the prosecutor that “quite a bit of money” had been withdrawn within a short time.
Defendant admitted that it was his truck in the background of the photographs of the ATM withdrawals at the credit union.
At trial, the prosecutor questioned defendant about his interview with Sergeant Beuttler that took place in a parking lot. He asked whether defendant was living in his truck at the time, and defendant answered that he was. The prosecutor inquired, “Was it fair to say that you were strapped for money at the time you were living in your truck?” Defendant replied, “Yeah, I guess you could say that.”
II
Discussion
A. Grand Theft Conviction
Defendant asserts that his grand theft conviction must be dismissed because it is a lesser included offense of elder theft in violation of section 368, subdivision (d) and because conviction of both violates double jeopardy. The People agree. The governing law, however, precludes us from accepting the People’s concession.
“Under section 954, as [the California Supreme Court has] interpreted it, ‘a defendant properly may be convicted of two offenses if neither offense is necessarily included in the other, even though under section 654 he or she could not be punished for more than one offense arising from the single act or indivisible course of conduct.’ [Citations.]” (People v. Vidana (2016) 1 Cal.5th 632, 637 (Vidana).) “When a defendant is found guilty of both a greater and a necessarily lesser included offense arising out of the same act or course of conduct, and the evidence supports the verdict on the greater offense, that conviction is controlling, and the conviction of the lesser offense must be reversed. [Citations.] If neither offense is necessarily included in the other, the defendant may be convicted of both, ‘even though under section 654 he or she could not be punished for more than one offense arising from the single act or indivisible course of conduct.’ [Citation.]” (People v. Sanders (2012) 55 Cal.4th 731, 736.)
“ ‘In deciding whether multiple conviction is proper, a court should consider only the statutory elements.’ (People v. Reed (2006) 38 Cal.4th 1224, 1229 (Reed).) ‘Under the elements test, if the statutory elements of the greater offense include all of the statutory elements of the lesser offense, the latter is necessarily included in the former.’ (Id. at p. 1227.) In other words, ‘ “[i]f a crime cannot be committed without also necessarily committing a lesser offense, the latter is a lesser included offense within the former.” ’ (Ibid., quoting People v. Lopez (1998) 19 Cal.4th 282, 288.)” (People v. Delgado (2017) 2 Cal.5th 544, 570.)
Under section 487, subdivision (a), grand theft is committed when a person takes money, labor, or personal or real property exceeding a value of $950. Section 368, subdivision (d)(1) (368(d)(1)) provides that “[a]ny person who is not a caretaker who violates any provision of law proscribing theft, embezzlement, forgery, or fraud, or who violates Section 530.5 proscribing identity theft, with respect to the property or personal identifying information of an elder or a dependent adult, and who knows or reasonably should know that the victim is an elder or a dependent adult, is punishable” in various ways “when the moneys, labor, goods, services, or real or personal property taken or obtained is of a value exceeding nine hundred fifty dollars ($950).”
The crime against elder or dependent adults in violation of section 368(d)(1) is structured so that there are alternative means of committing the same offense, not all of which require the commission of a theft. It may be violated by committing embezzlement, forgery, fraud, or identity theft under section 530.5 in addition to theft. Since section 368(d)(1) may be violated without necessarily committing grand theft, grand theft is not a necessarily included lesser offense. In deciding whether defendant could be convicted of both grand theft (§ 487, subd. (a)) and a violation of section 368(d)(1), it is irrelevant that the People proved the theft form of the latter offense.
Since defendant’s due process and double jeopardy contentions rest upon his claim that grand theft is a lesser included offense of a violation of section 368(d)(1), those contentions fail as well.
B. Effective Assistance of Counsel
Defendant argues that defense counsel rendered ineffective assistance by failing to object to questions at trial related to his homelessness and poverty. Defendant also asserts that defense counsel should have moved to exclude Sergeant Beuttler’s opinions regarding his “guilt, credibility, and poverty” from the evidence of the recorded interview. He contends that if defense counsel’s motion had then been denied by the court, defense counsel then would have had a duty to request a limiting instruction precluding the jury from considering the sergeant’s questions for their truth.
1. Establishing an Ineffective Assistance of Counsel Claim
To prevail on an ineffective assistance of counsel claim, a defendant must demonstrate that (1) defense counsel’s performance was deficient and that (2) counsel’s “deficient performance prejudiced the defense.” (Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland).) “Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim.” (Id. at p. 700.) “If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, . . . that course should be followed.” (Id. at p. 697.)
A “defendant must show that counsel’s representation fell below an objective standard of reasonableness.” (Strickland, supra, 466 U.S. at p. 688.) “The proper measure of attorney performance” is “reasonableness under prevailing professional norms.” (Ibid.) “Judicial scrutiny of counsel’s performance must be highly deferential.” (Id. at p. 689.) “[A] court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance” (ibid.) and “the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ [Citation.]” (Ibid.)
As to prejudice, a “defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” (Strickland, supra, 466 U.S. at p. 694.) “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (Ibid.) “It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding.” (Id. at p. 693.)
“In assessing prejudice under Strickland, the question is not whether a court can be certain counsel’s performance had no effect on the outcome or whether it is possible a reasonable doubt might have been established if counsel acted differently. [Citations.]” (Harrington v. Richter (2011) 562 U.S. 86, 111 (Harrington).) “The likelihood of a different result must be substantial, not just conceivable. [Citation.]” (Id. at p. 112.)
2. Evidence of Poverty
“It is true that ‘[e]vidence of a defendant’s poverty or indebtedness generally is inadmissible to establish motive to commit robbery or theft, because reliance on poverty alone as evidence of motive is deemed unfair to the defendant, and the probative value of such evidence is considered outweighed by the risk of prejudice.’ (People v. Wilson (1992) 3 Cal.4th 926, 939, italics added.)” (People v. Harris (2005) 37 Cal.4th 310, 345.) But, even assuming that defense counsel should have objected to any evidence that defendant no longer worked for a construction company, had no residence, was living out of his truck (which he parked in a parking lot, possibly without permission), and was strapped for money, defendant has failed to demonstrate a reasonable probability that the result of the proceeding would have been different if defense counsel had obtained exclusion of that evidence.
The evidence that defendant had used Peggy’s debit card to make unauthorized ATM withdrawals from her account on numerous occasions was strong. It can be inferred from the dates of Peggy’s checks to defendant that he was already doing work for her when she began requesting a debit card from Monterey Credit Union. The evidence showed that defendant was standing with Peggy when she picked up her debit card and created a PIN at the Pacific Grove branch of the credit union in August 2015, and defendant testified that he suggested to Peggy that she use her birthday as her PIN at the time.
The debit card was used for the first time at Grove Market on August 21, 2015. Defendant acknowledged that he was with Peggy at that grocery store, he helped Peggy make her purchase with her debit card, and he “pushed the card.” The first ATM withdrawal was made before 9:00 a.m. on August 23, 2015 from the Chase Bank in the Country Club Gate Center in Pacific Grove, and defendant was later found living out of his truck in the center’s rear parking lot by Sergeant Beuttler. Defendant indicated that he had been staying there for a long time. Two other early morning ATM withdrawals were made at that Chase Bank location.
At trial, defendant admitted to using Peggy’s debit card at various ATM’s and knowing her PIN. He also claimed at trial to have made ATM withdrawals on Peggy’s behalf. But, when Sergeant Beuttler had spoken with him in a parking lot of Country Club Gate Center, defendant had said that he could not “recall” why he had gone to the ATM’s, how much money he had taken out, or what he had done with the money. When told by Sergeant Beuttler that Peggy felt betrayed by him because she liked him, defendant gave the evasive response, “I like Peggy.” Defendant’s initial account of what prompted Peggy to get a debit card, which he had shared with the sergeant, and his trial explanation of her reasons for getting the card were completely different.
The images taken during the suspect ATM transactions at the credit union and Chase Bank show defendant and sometimes his truck as well. Peggy was not in any of the images. There were no recorded images of defendant teaching Peggy to make ATM withdrawals at the Pacific Grove branch of the credit union as he had claimed had happened when speaking to the sergeant. The prosecutor never suggested in argument that defendant was motivated to commit theft because he was poor or needed money.
There is no reasonable probability that defendant would have obtained a more favorable result had defense counsel successively moved to exclude, or objected to, any evidence of his homelessness or poverty. Defendant has not established the prejudice prong of this ineffective assistance of counsel claim (see Strickland, supra, 466 U.S. at pp. 693-694; Harrington, supra, 562 U.S. at pp. 111-112), and consequently, the claim must be rejected.
3. Evidence of Sergeant’s Statements Indicating Defendant was Lying and Guilty
Defendant contends that defense counsel should have moved to exclude as inadmissible hearsay Sergeant Beuttler’s statements, made during her interview of defendant, indicating that she thought he was lying and guilty. Defendant asserts that the sergeant “made at least six personal opinion statements about [his] guilt that effectively restated the prosecution’s case in the form of hearsay.”
Defendant has failed to establish that the challenged statements were admitted “to prove the truth of the matter stated” (Evid. Code, § 1200, subd. (a)), and that consequently, they were inadmissible hearsay. (Evid. Code, § 1200.) Under the statutory definition of hearsay, “a statement that is offered for some purpose other than to prove the fact stated therein is not hearsay. [Citations.]” (Sen. Com. on Judiciary com., 29B pt. 4 West’s Ann. Evid. Code (2015 ed.) foll. § 1200, p. 3.)
Defendant cites People v. Sanders (1977) 75 Cal.App.3d 501 (Sanders) and People v. Sundlee (1977) 70 Cal.App.3d 477 (Sundlee) for the proposition that an interrogator’s statements that are not in question form are inadmissible hearsay. Both cases are easily distinguishable.
In Sanders, an officer interrogating the defendant made “narrative statements . . . which embraced a multitude of facts and were not even in question form.” (Sanders, supra, 75 Cal.App.3d at p. 507.) “The People argue[d] that the officer’s narrative statements were admissible as adoptive admissions (Evid. Code § 1221)” (id. at p. 508), that is for hearsay purposes. The appellate court observed that the officer’s “extrajudicial statements concerning information he had received from others” was double hearsay. (Ibid.) It concluded that it was “fundamentally unfair to expect point by-point denials of long narrative statements, containing several facts as well as theories and inferences—particularly where the statements are not in question form.” (Ibid.) In this case, defendant has not shown, and the People have not argued, that any of Sergeant Beuttler’s statements or questions was offered to prove the truth of the matter stated.
In Sundlee, defendant was suspected of setting a number of fires, and “employees of the State Division of Forestry formed a surveillance team in order to watch defendant.” (Sundlee, supra, 70 Cal.App.3d at p. 481.) A tape recording and transcript of the comments and observations of the team’s members that were exchanged over radio as they surveilled defendant were admitted into evidence. (Id. at pp. 481-482.) The appellate court concluded that the recorded out-of-court statements “were aimed at convincing the jury that the events described in the conversations had in fact taken place” (id. at p. 482) and therefore, they were inadmissible hearsay to which defense counsel should have objected since such objection would have been sustained. (Id. at p. 482-484.) The out-of-court statements at issue in Sundlee were not made during an interview of a suspect or offered at trial for a nonhearsay purpose.
As defendant acknowledges, an officer’s questions to a defendant during an interview “may be considered by the jury to provide meaning for the defendant’s answers. (People v. Maciel (2013) 57 Cal.4th 482, 524.)” The same hold true for an officer’s statements or accusations to which a defendant responds or reacts during such interview.
In Maciel, the California Supreme Court concluded: “[T]he officers’ statements that defendant [Marciel] had ‘set . . . up’ the murders in this case were not ‘inadmissible hearsay.’ Rather, they served the nonhearsay purpose of giving context to defendant’s responses. [Citation.]” (Maciel, supra, 57 Cal.4th. at p. 524.) The court did not “agree with defendant’s arguments that the officers’ statements reasonably can be characterized as analogous to statements by a ‘witness in a criminal case . . . express[ing] an opinion concerning the guilt of an accused[.]’ ” (Ibid.)
An officer’s out-of-court statement that is offered at trial for the nonhearsay purpose of showing the context for a defendant’s responses during an interview is not an opinion offered to prove the truth of the matter stated. (See Evid. Code, § 1200.) In this case, defendant has not demonstrated that Sergeant Beuttler’s statements to defendant that he had stolen from Peggy and was lying were introduced as opinion evidence for their truth. Consequently, he has not established that hearsay objections would have been meritorious and that defense counsel rendered ineffective assistance by not moving to exclude those statements on hearsay grounds. Defense counsel is not ineffective for failing to make meritless objections or motions. (See People v. Thompson (2010) 49 Cal.4th 79, 122; People v. Ochoa (1998) 19 Cal.4th 353, 463.)
Defendant also argues that, “[t]o the extent the long statements could be considered to be indirectly eliciting information, the officer’s statements were unduly prejudicial compared to their probative nature” and that “[a] reasonably competent defense counsel . . . would at a minimum have objected that they were unduly prejudicial compared to their probative value.” We deem defendant’s conclusory assertions waived since they are not accompanied by specific citations to the record or meaningful, substantive analysis. “ ‘[E]very brief should contain a legal argument with citation of authorities on the points made. If none is furnished on a particular point, the court may treat it as waived, and pass it without consideration. [Citations.]’ [Citations.]” (People v. Stanley (1995) 10 Cal.4th 764, 793; see Estate of Randall (1924) 194 Cal. 725, 728-729; Cal. Rules of Court, rule 8.204(a)(1)(A) & (B).)
4. Failure to Request Limiting Instruction
Defendant argues that defense counsel should have requested a limiting instruction preventing the jury from considering Sergeant Beuttler’s questions for the truth of the matters asserted. He suggests that an acceptable limiting instruction could have been an instruction like the one given in Maciel, supra, 57 Cal.4th at p. 524, which told the jury that the officers’ statements were not received for their truth, or an instruction analogous to the “pattern instruction explaining that questions and statements from attorneys are not evidence.” Defendant points out that the sergeant insinuated that he possessed the victim’s ATM card by repeatedly asking him what he did with it and telling him that there were photographs of him withdrawing money at certain times on certain dates. He claims that those insinuations were “especially prejudicial.”
As we have indicated, the officer’s questions and statements during the interview of defendant were relevant and admissible for the nonhearsay purpose of giving context to defendant’s responses. (See Maciel, supra, 57 Cal.4th at p. 524; Evid. §§ 210, 351, 1200.) While defendant would have been entitled to a limiting instruction upon request (Evid. Code, § 355), defense counsel may have decided against making such request to avoid focusing the jury’s attention on the officer’s questions and statements to defendant and his responses and reactions. (Cf. People v. Hinton (2006) 37 Cal.4th 839, 878; People v. Freeman (1994) 8 Cal.4th 450, 495.) It can be a reasonable tactical decision to forego a limiting instruction where counsel believes that the risks of such instruction “outweigh[s] the questionable benefits such instruction would provide. [Citation.]” (People v. Maury (2003) 30 Cal.4th 342, 394.) Defendant has not established that defense counsel rendered ineffective assistance by failing to request a limiting instruction.
“On direct appeal, a conviction will be reversed for ineffective assistance only if (1) the record affirmatively discloses counsel had no rational tactical purpose for the challenged act or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there simply could be no satisfactory explanation. All other claims of ineffective assistance are more appropriately resolved in a habeas corpus proceeding. [Citations.]” (People v. Mai (2013) 57 Cal.4th 986, 1009.)
5. Cumulative Prejudice
Defendant maintains that the cumulative prejudice of defense counsel’s errors resulted in an unfair trial and requires reversal. Since we have rejected each of defendant’s claims of ineffective assistance, we reject his further claim that the cumulative prejudice of the alleged instances of ineffective assistance deprived him of a fair trial.
DISPOSITION
The judgment is affirmed.




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ELIA, ACTING P. J.

WE CONCUR:



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BAMATTRE-MANOUKIAN, J.



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MIHARA, J.