P. v. Madrigal
Filed 5/16/06 P. v. Madrigal CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, Plaintiff and Respondent, v. BLANCA ELENA MADRIGAL, Defendant and Appellant. | D046146 (Super. Ct. No. CS184663) |
APPEAL from a judgment of the Superior Court of San Diego County, Esteban Hernandez, Judge. Reversed.
A jury convicted Blanca Elena Madrigal of grand theft for stealing over $400 from her employer. (Pen. Code, § 487, subd. (b)(3).) The trial court sentenced her to three years' probation and required her to pay $6,485 in restitution and a $500 fine.
Madrigal appeals, contending, among other things, that: (i) there was insufficient evidence to support her conviction; (ii) the trial court erroneously allowed the prosecution to introduce evidence of her low-income status to establish a motive to steal; (iii) the trial court erroneously limited evidence and argument regarding her employer's payment practices; (iv) her counsel was ineffective for failing to object to improper closing argument; and (v) a probation condition imposed by the trial court requiring that she refrain from associating with any armed person is unconstitutional.
We conclude there was sufficient evidence to support the jury's verdict. We agree with Madrigal, however, that the admission of extensive evidence regarding her low-income status, and the prosecutor's reliance on that evidence to argue that she had a motive to steal from her employer, deprived her of a fair trial.[1] As artfully stated in an analogous case recently decided by Division Three of this District:
" To ensure the fairness of criminal trials, the law provides that evidence of the defendant's poverty is generally inadmissible. In this case, however, the prosecution introduced a considerable amount of evidence showing [the defendant] was in difficult financial straits when she [committed the offense]. Her poverty was used to provide convincing harmony to the factual melody of the crime. The result was a composition that convinced the jury, but contravened the law." (People v. Carrillo (2004) 119 Cal.App.4th 94, 97 (Carrillo).)
Accordingly, we reverse.
FACTS[2]
In the fall of 2002, Isaam Konja started " Talk Cellular," a retail cell phone business, to provide a business opportunity for his nephew. Talk Cellular sold prepaid and contract cell phones, cell phone accessories, and prepaid calling cards. The store also utilized a machine from a company called Precept that allowed customers to purchase airtime minutes for their cell phones. The Precept machine, located behind the store counter and operated by store employees, would print out a receipt with a personal identification number (PIN) which, when entered into the customer's phone, provided a number of airtime minutes corresponding to the amount paid. The machine would then electronically deduct the amount purchased, minus a 10 percent commission, from Talk Cellular's bank account.
In approximately July 2003, Konja's nephew tired of running Talk Cellular, and Konja, who was not interested in personally managing the store, began looking for another employee to run the business. Konja's first hire quit after three months, requiring Konja to again look for an employee. His brother-in-law, Nashwan Jarjis, recommended Madrigal. Jarjis and Madrigal had dated in the past, and Jarjis knew Madrigal had previous experience in cell phone sales.
After meeting with Konja, Madrigal agreed to take the position. She started work in October 2003. Konja trained Madrigal on the job during her first few weeks -- whenever he would go to the store, he would " see some things that are not done" correctly, and " would tell her, you didn't do this, I need this done." Among the instructions Konja gave to Madrigal was to ring up " anything she sells" in the register. She was also told that at the end of the day she should place the cash register receipt, the daily Precept receipt and the day's earnings in an envelope with the date on it, and Konja would collect the cash and receipts " whenever [he] came into the store."
Konja also owned two liquor stores, " La Presa Liquor" and " Village Square Liquor." At approximately the same time he hired Madrigal, Konja decided to allow customers at his liquor stores to remotely purchase cell phone minutes from Talk Cellular. Liquor store customers would pay for the minutes at the liquor store and the liquor store employees would call Madrigal at Talk Cellular. Madrigal would then enter the transaction into the Precept machine, receive a PIN, and communicate the number over the phone to the liquor store employees. Madrigal was supposed to ring these sales into the cash register at Talk Cellular, and the money for the sales would be set aside at the liquor stores. Periodically, Konja would pick up the money from the liquor stores and take it to Talk Cellular. Konja estimated there were no more than 90 such sales made from October through the end of January -- Madrigal's tenure at the store.
In the first six weeks of Madrigal's employment, her performance at the store was " very close to perfect" although " [e]very now and then she would be a little bit off." Around the end of 2003, however, Konja noticed that Madrigal was not placing the Precept receipts in the envelopes as he had requested. In January 2004, Konja noticed that his bank account for Talk Cellular had almost a zero balance.
Alarmed by the decrease in his account balance, Konja called the Precept company to obtain documentation of sales made through the Precept machine. He then compared the documentation he received from Precept to Talk Cellular's cash register receipts for the previous months and determined that numerous sales were not rung into the register. By comparing the sales documented by the Precept company to the cash register tape for the previous months, Konja concluded that $6,485 worth of sales had not been rung into the register during the months of December and January.
On Friday, December 10, 2003, after making this discovery, Konja went to the store to confront Madrigal, but found she was crying and therefore did not bring up the shortages. Konja recalled Madrigal stating she was having problems with " either the father of her children or something regarding her child support." Madrigal said she needed to go to an office in Mission Valley to complete paperwork related to the problem, and Konja offered to drive her. During the ride, Konja raised the shortages, and Madrigal denied stealing any money.
The following Monday and Tuesday, Madrigal did not open the store. Konja contacted Madrigal on Wednesday and arranged to meet her at Talk Cellular. When she arrived, Konja again confronted her about the missing money, and offered her an opportunity to pay it back; Madrigal again claimed not to have stolen any money.
The store had a video surveillance system. A single transaction at approximately 4:15 p.m. on January 26, 2004, was shown to the jury. On the tape, Madrigal appears to help a customer purchase minutes from the Precept machine, and receives money; the customer then departs. Madrigal opens the register and simultaneously gets an envelope and writes something on the envelope. She then takes money out of the register, places the money in the envelope and puts the envelope under the counter in the location Konja had instructed her to place envelopes at the end of the day. Konja explained that the Precept records show a sale at that time for $50, but that the corresponding cash register receipt shows only that a " no sale" was rung into the register.[3]
Konja testified he never had a problem with the Precept machine in the time he owned Talk Cellular. He also testified that prior to Madrigal's employment, he never had a low balance in his bank account for the store. In addition, only he and Madrigal had keys to the store during the time she was working there.[4]
Detective David Morris of the San Diego Police Department, the only other witness presented in the prosecution's case-in-chief, testified that when Konja first came to him with receipts and other documents relating to the case, he told Konja they were too " unorganized" and asked him to come back when they were better organized. Two months later Konja returned with the evidence " organized day by day and categorized."
Morris testified he then questioned Madrigal about the shortages. She denied taking the money and suggested that the shortfall may have occurred because of incentives that Konja authorized with respect to cell phone accessories, or problems with the Precept machine. Morris also testified that Madrigal requested an attorney during questioning, leading the court to give a curative instruction that the jury was to disregard Madrigal's request for an attorney. (See People v. Fabert (1982) 127 Cal.App.3d 604, 610.)
Madrigal testified in her defense. She stated she previously worked at a number of jobs, including at the retail electronics store " Good Guys" where she was employed selling cellular phones and accessories, and had never been accused of stealing. She insisted she had not stolen any money from Talk Cellular.
Madrigal contradicted Konja's testimony regarding the Precept sales to Konja's liquor stores. She claimed the total number of sales called in from the liquor stores was much higher than Konja's estimate -- that it started as only four per day, but ballooned to over 10 per day. She also contended that Konja instructed her not to ring the sales into the register, but instead to document them on the Precept receipts and place them in a separate envelope. Madrigal also disputed Konja's testimony regarding some of his other instructions to her regarding how she was to account for transactions, and claimed that the cash register was used primarily for making change as opposed to logging sales.
DISCUSSION
I
The Evidence Was Sufficient to Support the Jury's Verdict
Madrigal contends there was insufficient evidence to support the jury's verdict, primarily because the documentary evidence the prosecution presented to prove that money was stolen contained a number of " gaps." We disagree.[5]
Our role in reviewing a challenge to the sufficiency of evidence is a limited one. (People v. Smith (2005) 37 Cal.4th 733, 738 (Smith).) We review " ' " the entire record" ' " in " ' " the light most favorable to the People" ' " to determine whether " ' " a rational trier of fact could find the defendant guilty beyond a reasonable doubt." ' " (Id. at pp. 738-739.) " ' " Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends." ' " (Id. at p. 739.) " ' " Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness's credibility for that of the fact finder." ' " (Ibid.)
The standard of appellate review is the same in cases in which the prosecution relies primarily on circumstantial evidence. (People v. Bean (1988) 46 Cal.3d 919, 932.) " Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court which must be convinced of the defendant's guilt beyond a reasonable doubt." (Id. at pp. 932-933.) " ' " If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment." ' " (Id. at p. 933.) In addition, the " uncorroborated testimony of a single witness is sufficient to sustain a conviction, unless the testimony is physically impossible or inherently improbable." (People v. Scott (1978) 21 Cal.3d 284, 296 (Scott).)
Our review of the record reveals that there was sufficient evidence to support the jury's verdict. Konja testified that his examination of Talk Cellular's business records revealed that $6,485 worth of sales had not been rung into the register during Madrigal's tenure as the store's sole employee. These records were introduced into evidence for the jury to review, along with a summary chart that Konja testified accurately depicted the suspicious transactions. Konja also testified that Madrigal's failure to ring in every transaction was directly contrary to her training, and that prior to and after Madrigal's employment, Konja had not experienced similar losses.
In addition, a videotape showed Madrigal handling at least one $50 sale in a manner that did not accord with her training, and then removing money from the cash register and placing it in an envelope, after hitting " no sale" -- which she stated in her own testimony " could have [been] a mistake."
In light of this circumstantial evidence, the case came down to whether the jury sufficiently credited Konja's testimony regarding what Madrigal was told to do, and the accuracy of his recreation of the store's records to depict what Madrigal actually did while running the store. If the jury credited Konja's testimony on these points, it could reasonably have concluded from the stark conflict between what Madrigal was instructed to do, and what she actually did, that she had stolen the missing money. While Madrigal points out reasons that the jury could have disbelieved or discredited Konja's testimony on a number of crucial points, including his relatively lax accounting practices, the fact remains that it did not do so. As " ' " it is the exclusive province of the . . . jury to determine the credibility of a witness" ' " (Smith, supra, 37 Cal.4th at p. 739), and the " uncorroborated testimony of a single witness is sufficient to sustain a conviction" (Scott, supra, 21 Cal.3d at p. 296), we must therefore conclude that the evidence was sufficient to support the jury's verdict.[6]
II
The Prosecution's Reliance on Generic Evidence of Madrigal's Low-income Status to
Establish Motive for the Theft Was Improper and Requires Reversal
Madrigal contends that she was deprived of a fair trial because the prosecutor introduced and relied on evidence of her low-income status to prove that she stole money from her employer. We agree.
A
Facts Relating to Evidence and Argument of Madrigal's Low-income Status
The prosecutor's three-pronged theme, expressed each time she addressed the jury (i.e., at the commencement of opening, closing and rebuttal closing argument) was " [t]emptation, opportunity, concealment." The first part of this theme, " temptation," referred to Madrigal's motive to steal from her employer; the prosecutor explained in opening statement that Madrigal succumbed to " the temptation of money" because she was " going through a difficult time" and was " worried about child support."
As evidentiary support for this argument, the prosecutor elicited testimony from Konja that Madrigal was crying when he encountered her in the store in January and told him she was having problems with her " child support." [7] Defense counsel objected to the relevance of the statements, and at sidebar the prosecutor argued statements " regarding [Madrigal's] money problems" were relevant to " show[] motive because she [wa]s having money problems at that time." The court overruled the defense objection.[8]
The prosecutor elicited a more detailed picture of Madrigal's financial situation when Madrigal took the stand. In cross-examination, the prosecutor brought out that Madrigal had worked since she was 14 years old, was living with her mother and grandmother, and that she took public transportation to work and to pick up her children from daycare. After establishing that Madrigal paid rent to her mother, the prosecutor asked, " When you were paying rent, that was also a concern, having to pay rent and not having money come in?" Madrigal responded that the concern was mitigated because her mother was " on Section 8" (a federal program which subsidizes housing for low-income homeowners and renters). The prosecutor asked Madrigal whether she received assistance through Medi‑ Cal to " pay for your child care so that you can work." Madrigal agreed. The prosecutor then asked, " When you were dealing with the Medi‑ Cal issues, that's a financial concern, isn't it?" Madrigal responded, " Yes." [9]
The prosecutor next attempted to pursue a line of questioning related to an alleged statement by Madrigal to Jarjis that her cell phone service had been cancelled due to lack of funds. After another unsuccessful defense objection on relevance grounds, Madrigal testified she had not had her service cancelled. The prosecutor then requested a sidebar, to clarify that she could elicit testimony that Madrigal " told [Jarjis] that [her] phone was cut off because she couldn't pay the bill." The prosecutor argued that the testimony " goes to her credibility and also her motive in this case and the financial needs." [10] The prosecutor repeatedly stated that the evidence showed a motive to steal, stating " that phone ended up getting cancelled because she couldn't pay the bill. So it goes to her financial status at the time of this crime" ; the testimony " goes to her motive in this case. If she's having financial difficulty, then she is turning around, and . . . taking money from Talk Cellular. Her financial status is certainly an issue . . . ." Defense counsel objected, citing Evidence Code section 352. He stated that the evidence " really isn't applicable to motive" ; " [i]f you let in this evidence, they might as well come in with any question about did you pay your gas bill, did you pay your parking meter fine" ; the evidence " is just being used to show the jury that, in fact, the defendant, Ms. Madrigal, has money problems." The court overruled the defense objection.
Despite the court's ruling, the prosecutor put off asking Madrigal about these issues until recross-examination at which point defense counsel again objected, stating the evidence was " more prejudicial than probative" and would " confuse the jury into making them think this case is purely about her overall poverty or close to poverty status, the fact that she lives with her grandmother, the fact that she might have a cell phone bill . . . and she would have to find a way for paying it. It is completely prejudicial . . . ." The court again overruled the objection, stating that " for the reasons previously stated, [t]he court finds it is more probative than prejudicial." The prosecutor then asked Madrigal whether her cell phone number had changed while she worked at Good Guys. She responded, " No."
The prosecution called Jarjis as a rebuttal witness. Jarjis testified that Madrigal had different cell phone numbers during the time he knew her, and that she told him her phone service was cancelled " because . . . her relatives use the phone a lot to . . . call their relatives in Mexico and she ha[d] received a big bill."
The prosecutor in closing argument again tied the evidence that Madrigal was " having financial difficulties" into her theme that Madrigal succumbed to the " [t]emptation" of theft. The prosecutor emphasized that she did not need to " prove why" Madrigal stole the money, but on that question she told the jury, " I offer you temptation. She was having financial difficulties, she was worried about her Medi‑ Cal. She was living with her mother, she had two young children to support."
In rebuttal closing argument, the prosecutor summarized the theme for the final time, stating:
" When the defendant worked for Mr. Konja, she was in financial straights. She had left Good Guys. . . . She was without work. She was unemployed for three weeks and the bills started mounting. She had child care issues to pay. She was dealing with Medi‑ Cal. She needed to get a job. [¶] Needing to get a job is no crime, stealing from your employer when you do is."
Evidence of Madrigal's Financial Status Was Not Admissible;
Its Admission in Concert with the Prosecutor's Explicit Argument to the Jury
That It Demonstrated Motive to Steal Requires Reversal
Madrigal contends that by eliciting evidence of her " financial difficulties" and then explicitly arguing that this evidence demonstrated Madrigal's motive to steal from her employer, the prosecution deprived her of a fair trial. " [O]ver a century" of case law compels us to agree. (Carrillo, supra, 119 Cal.App.4th at p. 101 [" The law respecting the admission of evidence pertaining to the defendant's poverty is well established. Indeed, for over a century courts have recognized the potential unfairness of admitting such evidence" ], citing People v. Kelly (1901) 132 Cal. 430, 431.)
As a general matter, evidence of a person's poverty or " difficult financial circumstances" is not admissible " for the purpose of establishing a motive for theft." (People v. Cornwell (2005) 37 Cal.4th 50, 96; People v. Koontz (2002) 27 Cal.4th 1041, 1076 (Koontz) [evidence of a defendant's poverty " generally may not be admitted to prove a motive to commit a robbery or theft; reliance on such evidence is deemed unfair to the defendant, and its probative value is outweighed by the risk of prejudice" ]; People v. Wilson (1992) 3 Cal.4th 926, 938-939 (Wilson) [same].)[11]
The reasons for this rule have been repeatedly stated. " 'Lack of money gives a person an interest in having more. But so does desire for money, without poverty.' " (Carrillo, supra, 119 Cal.App.4th at p. 102.) " 'A rich man's greed is as much a motive to steal as a poor man's poverty. Proof of either, without more, is likely to amount to a great deal of unfair prejudice with little probative value.' " (Ibid.) " At bottom, the issue is one of fairness: 'It is fundamental to our conception of a fair trial that equality of treatment must be afforded to all without regard to differences in social status or economic condition. In a society which cherishes the ideal of equal justice for all and seeks to accord the equal protection of the laws to all those who are accused of crime, it would be difficult to accept any other view.' " (Ibid.)
In light of this well-established case law, the Attorney General concedes that " evidence of poverty . . . generally should not be admitted," but contends that here " the evidence admitted for motive was evidence of over-spending and inability to pay for a luxury item, not evidence of poverty or low income." We disagree.
The Attorney General's explanation for the admissibility of the evidence, which was characterized by the prosecutor herself as evidence of Madrigal's " financial status," is flawed both factually and legally. Factually, the evidence of Madrigal's financial status went far beyond " overspending and inability to pay for a luxury item" (i.e., Madrigal's cell phone service), spanning a broad spectrum of evidence of Madrigal's being a single mother with two children to support, her reliance on a state low-income assistance program (Medi‑ Cal), a period of unemployment, her use of public transportation to pick up her children from day care, and her living with and paying rent to her mother who also received public assistance.[12]
Legally, the Attorney General's argument also fails, as there is no authority to suggest that " over-spending and inability to pay for a luxury item" constitutes an exception to the general rule that evidence of poverty is inadmissible to prove a motive for theft. Rather, the Attorney General's contention appears to be pure semantics. " Inability to pay for a luxury item" is simply another way, albeit an awkward one, of characterizing someone who is poor -- especially where, as here, the " luxury item" is cell phone service. " Overspending," similarly, is a purely relative term that, at least in the context of this case, has no meaning to any relevant issue except to point out Madrigal's generic lack of wealth.
In addition, we find it significant that this was not a case where incidental facts about Madrigal's financial needs came out in the course of witness testimony regarding other matters. Rather, the prosecutor consciously elicited, and then argued, generic evidence of Madrigal's low-income status that was otherwise irrelevant for the express purpose of establishing motive -- a connection the prosecutor made painfully explicit not only to the trial court, but more importantly to the jury in opening, closing and rebuttal argument. (U.S. v. Romero-Avila (9th Cir. 2000) 210 F.3d 1017, 1022, fn. 2 [" It is one thing for the jury to hear incidental testimony that a defendant is unemployed. It is quite another for a prosecutor to tell the jury, in effect, that a defendant is guilty because he is poor" ].) As discussed above, this type of argument -- that generic indicators of financial need demonstrate a motive to engage in property crime -- is exactly what is prohibited under a line of case law going back for over a century.[13]
Given the failure of the evidence regarding Madrigal's financial status to prove anything but a generic lack of wealth, the facts of this case are directly analogous to those of Carrillo, supra, 119 Cal.App.4th 94, 97. In Carrillo, the defendant was charged with robbery. The prosecution elicited evidence of the defendant's financial needs -- that she supported two small children with assistance from a government program, had been unemployed, and did not have a place of her own to live -- and argued in closing argument that this provided the motive for the crime. (Id. at pp. 100, 103.) The appellate court determined that the admission and argument of this evidence was reversible error.
The Attorney General's only effort to distinguish Carrillo is a conclusory statement in a footnote that in Carrillo " a considerable amount of evidence had been introduced about [the defendant's] financial problems." Our analysis of the opinion in Carrillo, however, does not support this distinction. In fact, there appears to have been less evidence of the defendant's financial status elicited in Carrillo than was introduced here, and far less argument by the prosecutor regarding that evidence.[14]
In contrast to the Attorney General, then, we do not believe that Carrillo can be distinguished. Rather, we follow Carrillo – which we find to be a persuasive interpretation of controlling case law on directly analogous facts – and conclude that the admission of evidence of Madrigal's lack of wealth, along with the prosecutor's explicit argument that this evidence demonstrated Madrigal's motive to steal was error. (Carrillo, supra, 119 Cal.App.4th at pp. 100-104; see also Wilson, supra, 3 Cal.4th at pp. 938-939 [" evidence of defendant's [$13,000] debt was admitted for the improper purpose of establishing defendant's motive to commit the robbery" ].)[15]
We next determine whether the error requires reversal. (See Carrillo, supra, 119 Cal.App.4th at p. 103 [erroneous introduction of evidence regarding defendant's poverty requires reversal if, under People v. Watson (1956) 46 Cal.2d 818, 836, " it is reasonably probable the defendant would have obtained a more favorable result had the evidence been excluded" ].) Given the closely balanced evidence in this case, we conclude that it does.
While, as we determined in the previous section, the evidence was sufficient to support the jury's verdict, the question is a close one. The prosecution relied both entirely on circumstantial evidence and exclusively on the testimony of one witness, Konja. Thus, the verdict came down to a credibility contest between Madrigal and Konja, with an additional and not insignificant hurdle for the prosecution that even if the jury believed Konja's testimony, they could still have concluded that the documentation presented (i.e., his post hoc recreation of Talk Cellular's sales from a number of different documentary sources) was insufficient circumstantial evidence to support a conviction. As Madrigal points out, there were deficiencies in this documentary evidence, as well as inconsistencies in Konja's testimony regarding the instructions she was given for documenting sales. There were also legitimate questions raised at trial regarding the remote sales made to Konja's liquor stores (whose employees Konja indicated had also stolen from him), Konja's loose oversight of the store and its finances, and the peculiar absence of additional videotape evidence.[16] Finally, Madrigal's testimony, while not credited by the jury, provided a plausible explanation of her innocence that was unfairly and improperly undercut by the prosecution's reliance on her " financial status" to prove her guilt. (See People v. Allen (1978) 77 Cal.App.3d 924, 935 [error found prejudicial where " [a]n examination of the record reveals an extremely close case in which the jury had to make its fact determination based upon the credibility of the appellant and his witnesses and of the credibility of the prosecution's witnesses" ]; People v. Roberson (1959) 167 Cal.App.2d 429, 432 [finding error prejudicial where " the case depends on a determination of whether one prosecution witness or the defendant is to be believed by the jury" ].)
Given these circumstances, we again find guidance in Carrillo, supra, 119 Cal.App.4th 94, 97. The Carrillo court determined that the erroneous admission of evidence of the defendant's financial difficulties required reversal under the Watson standard because the prosecution's case " was entirely circumstantial, and [the defendant] offered the jury a marginally plausible explanation of events that was consistent with her claim of innocence." (Carrillo, at p. 104.) While the court noted that Carrillo's defense was flawed, the defense " deserved to be considered without regard to Carrillo's penury. Instead, knowing Carrillo was an unemployed, unwed mother on government assistance, the jurors may very well have been inclined to view her as a feckless pauper whose station in life and lack of support for her two children provided her with a motive to steal." (Ibid.) We believe the same sentiments apply here. Consequently reversal is required.[17]
DISPOSITION
Reversed.
IRION, J.
WE CONCUR:
NARES, Acting P. J.
HALLER, J.
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[1] As we determine that reversal is required on this basis, we need not resolve Madrigal's other contentions.
[2] Where facts are in dispute, we summarize the facts in the light most favorable to the judgment.
[3] Konja testified in the prosecution's case-in-chief that he never told Madrigal to take money out of the register in this manner during the middle of the day, but only to do so at the end of the day, when closing the store. Konja contradicted this testimony on rebuttal, however, stating he had instructed Madrigal that if " she had a lot of money in the register for . . . one day, instead of leaving all the money in the register," she should have the day's envelope " ready for that day," and should " take some of the money out [of the register] and put it in an envelope so that [she] d[id]n't have all the money in the register" in case the store was robbed.
[4] While the prosecution's evidence established that only Madrigal and Konja had keys during the relevant time period, it did not establish that Madrigal's access was exclusive. Rather, the prosecution witnesses testified that Madrigal's sister worked at the store alone at times, and that Jarjis, who used a computer at the store for personal matters throughout the relevant time period, occasionally assisted customers during busy times.
[5] Although we reverse Madrigal's conviction, we still must consider her challenge to the sufficiency of the evidence, " because the double jeopardy clause would preclude retrial . . . if the evidence was insufficient to support" a conviction. (People v. Grant (2003) 113 Cal.App.4th 579, 594.)
[6] Madrigal's argument that there might have been documentary evidence that was not presented to the jury, and that there were gaps in the evidence the jury did receive is essentially an effort to reargue the case on appeal. These points simply go to the credibility of Konja's testimony regarding the evidence that was admitted, and do not constitute grounds for reversal.
[7] Konja testified Madrigal told him " she was having problem[s] with . . . either the father of her children or something regarding her child support" and he offered to drive her to an office in Mission Valley so that she could attempt to resolve the problem.
[8] After Konja's testimony, defense counsel elicited further information from Madrigal in an apparent attempt to clarify this incident. Madrigal explained that the problem regarding child care referenced in the discussion with Konja was that Medi‑ Cal was refusing to accept the checks she received from Konja as proof she was employed, and accordingly was going to stop paying for her child care. She stated that the Mission Valley office that Konja drove her to was a Medi‑ Cal office.
[9] " Under the Medi‑ Cal legislative scheme, California grants financial assistance to beneficiaries who are unable to afford medical services and care." (Simi Valley Adventist Hospital v. Bontá (2000) 81 Cal.App.4th 346, 348.)
[10] We see no merit to the suggestion that the evidence was relevant to impeach Madrigal's credibility (an argument the Attorney General does not pursue on appeal); the subject of Madrigal's cell phone service arose only in the prosecution's cross-examination and had no relevance to any issue except an improper one -- motive to steal for financial gain. " [I]t is improper to elicit otherwise irrelevant testimony on cross-examination merely for the purpose of contradicting it . . . ." (People v. Mayfield (1997) 14 Cal.4th 668, 748, citations omitted.) " This is especially so where the matter the party seeks to elicit would be inadmissible were it not for the fortuitous circumstance that the witness lied in response to the party's questions." (People v. St. Andrew (1980) 101 Cal.App.3d 450, 461.)
[11] " In some circumstances, however, evidence of a defendant's poverty is admissible for the limited purpose of refuting a claim that [s]he did not commit the offense because [s]he did not need the money, or to eliminate other possible explanations for sudden wealth after the occurrence of a theft offense." (Koontz, supra, 27 Cal.4th at p. 1076.) The Attorney General concedes the evidence was not introduced for these purposes.
[12] The Attorney General in large part ignores this evidence elicited by the prosecutor at trial, and fails to address or even acknowledge the prosecutor's comments in closing argument, despite Madrigal's emphasis of these comments as " the most damaging" aspect of the erroneous admission of the evidence. In fact, the Attorney General argues, in direct contradiction to the case law cited above, that the evidence of the cancellation of Madrigal's cell phone " was relevant to the prosecution theory that she had money problems and embezzled funds by not ringing up all sales on the cash register" and contends that any error in admitting evidence of Madrigal's financial status was harmless because, paradoxically, the evidence, including that Madrigal " had money problems," conclusively demonstrated her guilt.
[13] In fact, there was not even a temporal connection between the mild evidence of Madrigal's financial needs (e.g., that she lived with her mother) and the theft alleged. While the theft was alleged to have begun six weeks after Madrigal started at Talk Cellular, almost all of the evidence of Madrigal's financial status elicited and argued by the prosecutor considerably predated that time period.
[14] We also note that while defense counsel did not object to every aspect of testimony elicited with respect to Madrigal's financial situation, " defense counsel's objections and colloquy with the court made it clear he believed the prosecutor's questions in this area were irrelevant and improper" ; thus we do not deem this contention forfeited. (Carrillo, supra, 119 Cal.App.4th at p. 101 [rejecting claim that defense forfeited challenge to error of financial condition despite failure to object to some of the questioning that elicited the evidence].) Similarly, although defense counsel did not object during closing argument, the trial court had already ruled repeatedly that evidence of Madrigal's financial needs was relevant and admissible to prove motive; therefore it would have been futile to object to the prosecutor's reliance on that evidence as proof of motive in closing argument. (Ibid., citing People v. Hill (1998) 17 Cal.4th 800, 821.) Given this conclusion, we need not address Madrigal's alternative contention that her counsel was ineffective for failing to preserve the error for review.
[15] The Attorney General also contends in a conclusory statement that the evidence " was relevant to [show] intent." As the Attorney General does not provide any argument or authority for this conclusory statement, the contention is forfeited. (See People v. Williams (1997) 16 Cal.4th 153, 215.) In any event, we are not aware of any case law that suggests that evidence of low-income status in theft cases is admissible to prove " intent" to steal, which -- at least in the context of this case -- is no different from motive to steal.
[16] Only one transaction from the time-stamped store surveillance tape was shown to the jury, leaving the jurors with an obvious question as to why surveillance tapes showing the other suspect transactions were not shown. (See Evid. Code, § 412 [" If weaker and less satisfactory evidence is offered when it was within the power of the party to produce stronger and more satisfactory evidence, the evidence offered should be viewed with distrust" ].) In fact, it appears this evidence was not presented because neither Madrigal's counsel nor the prosecution actually reviewed the balance of the surveillance videotapes. Defense counsel told the trial court just before the videotape was played that he was not previously aware of the videotapes. On cross-examination, Konja testified he had the " rest of the videos," but had never given them to the prosecutor because the prosecutor " never asked" ; Konja himself had looked at a " couple" of the tapes and noticed there were problems with the recording on " some of them."
[17] We need not resolve Madrigal's final contention that the trial court erred in limiting cross-examination and argument regarding the purportedly unlawful method used by Konja to pay her. The trial court's ruling rested largely on Madrigal's failure to demonstrate that Konja's payment practices were unlawful. For the first time on appeal, however, Madrigal offers authority suggesting that the payment practices may have been illegal. In the event of a retrial, the trial court will need to reconsider the admissibility of this evidence in light of this revised offer of proof, keeping in mind the centrality of Konja's credibility to the question of guilt. (See Evid.Code, § 780 [allowing " jury [to] consider in determining the credibility of a witness any matter that has any tendency in reason to prove or disprove the truthfulness of his testimony" ]; Pennsylvania v. Ritchie (1987) 480 U.S. 39, 56 [" criminal defendants have . . . the right to put before a jury evidence that might influence the determination of guilt" ].)
