PEOPLE v. NAZARY,







Filed 12/13/10; pub. order 1/6/11 (see end of opn.) (reposted to correct date)








COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, Plaintiff and Respondent, v. WAHID YOSSUF NAZARY, Defendant and Appellant.

D055646 (Super. Ct. No. SCN227608)

STORY CONTINUE FROM PART I….

II
EVIDENTIARY RULINGS
Nazary also contends the trial court committed various evidentiary errors which either alone or together prejudicially effected his trial rendering it unfair and a denial of due process. We address these in turn.
A. The Videotape
In limine, Nazary brought a motion to exclude from evidence certain portions of videotapes obtained by hidden cameras in the manager's office of the ARCO station without his knowledge or consent. He outlined four parts of the videotapes he anticipated the prosecutor would seek to play at trial, noting he had no objection to the admission of the portions showing Casarez counting money during the sting operation or himself counting money and placing it in the room's closet. Rather, Nazary only objected to the parts that purportedly showed him inhaling smoke from aluminum foil while speaking with another person in the office and the one showing the confrontational meeting between him and the three representatives from K.A. As to these portions, Nazary complained they were confidential communications whose admission into evidence was prohibited under section 632. He specifically argued that the admission of the portion showing him inhaling smoke would also violate his due process rights because he had a right to privacy in the manager's office during those times the room was not used to count currency and it should further be excluded under Evidence Code sections 1101, subdivision (a) and 352 as prejudicial uncharged misconduct, which was not relevant to any motive for the alleged embezzlement and grand theft over the 22-month period.
At the hearing on the matter, after the trial court noted it had read Nazary's motion and was tentatively denying it, Nazary's counsel provided further argument, essentially stating Nazary's position was that he had a reasonable expectation his private conversation with the K.A. management during the confrontation in the manager's office was not being recorded and that with regard to the purported narcotics portion he had a reasonable expectation of privacy even though it was not an oral communication. In response to the drug portion of the videos, the prosecutor explained it would be using it to show Nazary's motive to commit these financial crimes, along with evidence of his income, how much heroin costs and how much he was buying of the drug.
Although the court then ruled it was denying Nazary's motion as it related to the videos under section 632, it proceeded to hear argument on whether the drug portions of the videotapes would be admissible under the Evidence Code. When the court noted it was recessing to read cases submitted by the parties on the issue, Nazary's counsel asked the court to also consider the separate issue as to how the confrontation video, which was about 48 minutes long and focused from the top down on Nazary showing "a lot of a bald head, and . . . some fidgeting around, but that's essentially what you see . . . ," would be presented to the jury. Counsel believed that if that portion of the video was played silently while a witness testified about what was being said, then it would not have any relevance.
When the court asked the prosecutor how he intended to proceed, the prosecutor explained that there was a lot of extraneous standing around on the 48-minute videotape, but the key moments reflect that Nazary was confronted "with the videotape of him using drugs in the office and . . . lying about it and then being confronted with the buying of the drugs and then same thing with the thefts. [¶] And at the end, after a rather lengthy confrontation about the thefts and being presented with all of the evidence that the people from K.A. Management had generated, not only the video evidence but the documentary evidence, the defendant then flees the premises." The prosecutor intended to crop the 48-minute video into about a 10-minute video to show the three key portions and have Casarez describe what the jury was seeing "in each clip."
When Nazary's counsel then objected that such procedure would give a false impression of the meeting by taking things out of context and opined that if the video were played with its audio component that a transcript needed to be prepared, the court ruled under Evidence Code section 352, subdivision (a) that it would not review the 48-minute tape at that time, but would wait to review the edited portion that the prosecutor wanted to have admitted into evidence. The court further ruled that the prosecutor would prepare a transcript for such edited portion and noted the court would entertain any defense objections outside the jury's presence to such edited version at that time. The court continued the matter regarding the drug portions of the tape until the next morning to further research the matter.
At that time, the court ruled it was "excluding the videotape of the drug usage and the drug purchase" under both Evidence Code sections 1101 and 352, subdivision (b), which also included any testimony relating to those incidents. The prosecutor noted that he had a transcript for a redacted 10 minute, 48 second version of the original video and also a five minute shortened redacted version that did not include the portions relating to the drugs for which he would shorten the transcript. The court left review of the shortened redacted video and transcript for Nazary's counsel.
Near the end of Casarez's testimony at trial, the shortened redacted videotape of the confrontation in the manager's office was played for the jury as they followed along with corrected transcripts that deleted any mention of the drugs.
On appeal, Nazary complains that the trial court abused its discretion in admitting into evidence the shortened redacted confrontation video, arguing such admission was a violation of section 632 and his constitutional right to privacy. We disagree.
"Section 632, subdivision (a), provides that it is a crime to 'intentionally and without the consent of all parties to a confidential communication, by means of any electronic amplifying or recording device, eavesdrop[] upon or record[] the confidential communication, whether the communication is carried on among the parties in the presence of one another or by means of a telegraph, telephone, or other device, except a radio.' Subdivision (d) of section 632 prohibits such recordings from being admitted in judicial proceedings." (People v. Nakai (2010) 183 Cal.App.4th 499, 517 (Nakai).)
For purposes of section 632, "communication" includes conduct in addition to oral or written dialogues (People v. Gibbons (1989) 215 Cal.App.3d 1204, 1209), "a video recorder . . . is a recording device" (id. at p. 1208), and the term "confidential communication" includes "any communication carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties thereto, but excludes a communication made . . . in any . . . circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded." (§ 632, subd. (c); Flanagan v. Flanagan (2002) 27 Cal.4th 766, 774 (Flanagan).)
Although we usually review a trial court's decision to admit or exclude evidence for an abuse of discretion (People v. Rodriquez (1999) 20 Cal.4th 1, 9-10), where, as here, the record does not reflect the trial court exercised its discretion in making its ruling regarding section 632, but rather reveals it determined as a matter of law that the facts of the case did not constitute a violation of that section, we apply the standard of review associated with rulings on motions to suppress evidence, essentially conducting a de novo review applying section 632 to the agreed upon facts of this case. (Nakai, supra, 183 Cal.App.4th at pp. 516-517.)
Doing so here, we note that although Nazary may have desired any communications with the owners of K.A. and Casarez during the confrontation be kept confidential, the circumstances of the communication were such that Nazary could reasonably expect that they might be overheard or recorded. Nazary was aware of K.A.'s continuing interest in assuring the safety and security of their property, which had led it to install video surveillance equipment for other areas of the station, including the interior of the minimart, the outside of the premises, and the gas pump islands and the PIC machines. He was also given notice that he was under suspicion when he returned from leave on October 3, 2006, by Casarez giving him a new set of keys for the manager's office and the closet/safe and requiring him to sign a letter regarding the status of the cash in the closet/safe ready for deposit at the next armored transport company's scheduled pickup, which was unusual. Nazary further was aware that cameras had been installed in the ceiling of the manager's office during his absence, plastering over them as soon as he knew of their existence. Moreover, during the confrontation, Nazary was made aware of the evidence against him by the owners and Casarez showing him video proof of his misconduct in the office. Under these circumstances, it was not objectively reasonable for Nazary to expect the communications during the confrontation regarding his embezzlement of cash from the station's PIC machines to be confidential and not overheard or recorded. (Flanagan, supra, 27 Cal.4th at p. 775; Fio v. Superior Court (1988) 203 Cal.App.3d 1480, 1488.) Therefore, the videotaped communications during the confrontation on October 23, 2006 in the ARCO station manager's office were not "confidential communications" that are protected by section 632.
Accordingly, the trial court did not err by denying Nazary's motion to exclude or suppress the videotaped evidence of the confrontation. Nazary's reliance on Coulter v. Bank of America (1994) 28 Cal.App.4th 923 to find otherwise is inapposite. Coulter is readily distinguished by its facts, which involve an employee of the bank recording others in their private offices and not the employer, as here, who has the "lawful right and duty to guard against misuse of its property" to record others for guarding against criminal activity. (See People v. Soles (1977) 68 Cal.App.3d 418, 421, overruled on another point in Ribas v. Clark (1985) 38 Cal.3d 355, 360.)
Moreover, to the extent an error could be found in the court's denial of Nazary's motion to exclude the video, the error was clearly harmless. "When determining whether a trial court's erroneous decision regarding a motion to [exclude or] suppress confidential communications [under section 632] was prejudicial to the defendant, we must decide if it is reasonably probable that a result more favorable to the defendant would have been reached in the absence of the error. [Citation.]" (Nakai, supra, 183 Cal.App.4th at p. 519.)
Here, the five minute shortened redacted video of the confrontation provided little evidence of the embezzlement and theft, predominately showing consciousness of guilt by Nazary who was accused of the offenses. Casarez's testimony regarding the precount sting operations, his testimony in conjunction with that of Stegall regarding the PIC machines and the testimony from Jones and Kaseno established that the crimes had taken place. The contents of the recorded conversations were also admitted through witness testimony, with Casarez testifying to Nazary's denial of any theft and his behavior during the confrontation, and Kevin testifying about Nazary's behavior at the close of the confrontation as he fled the scene and asked to be permitted to repay some of the money. Kevin further added that Nazary called him and another owner asking each for more time to do so. In light of this evidence, which includes Nazary's implied admissions, it is not reasonably probable that a result more favorable to Nazary would have been reached had the video not been admitted.^[1]
B. Stegall's Testimony
During Stegall's testimony, after he had explained his qualifications and experience with regard to the maintenance of the hardware and software used to run the PIC machines for over 200 gas stations in the western United States, had described in detail the hardware of the PIC machines, had explained how the machines worked, and had described the testing of the machine's hardware at the ARCO station by his two top technicians, Nazary's counsel objected on the basis of "lack of foundation of personal knowledge." The trial court denied Nazary's implied motion to strike Stegall's answer to the last question as to what the technicians had done, stating the answer would stand and the prosecutor could ask the next question. Then later on cross-examination, after Stegall confirmed that he did not do the actual testing on the PIC machines and was not present when his technicians did the testing, Nazary's counsel renewed his motion to strike Stegall's testimony about the testing of the PIC machines on grounds that testimony was hearsay. The court again denied the motion to strike, saying Stegall's testimony would remain.
On appeal, Nazary asserts the trial court committed reversible error by denying his motions to strike that portion of Stegall's testimony regarding the testing of the PIC machines because a proper foundation showing Stegall's personal knowledge of the matter was not shown and his testimony merely consisted of inadmissible hearsay. In his reply brief, Nazary objects to the People supporting the court's rulings as being proper under the theory that Stegall was testifying as an expert witness on the issues of the testing and the proper working of the PIC machines. Nazary specifically argues that because the prosecutor did not attempt to qualify Stegall as an expert and the court did not expressly designate him as one (see People v. Jablonski (2006) 37 Cal.4th 774, 823), that the People may not now justify his testimony and the court's rulings on the ground Stegall testified as an expert. We disagree.
The record here does not reflect any objection to Stegall being qualified or testifying as an expert. Although the trial court did not make an express ruling that Stegall was testifying as an expert, it was not called upon to do so. Because the record clearly shows the prosecutor elicited testimony of Stegall's special knowledge, skill, experience, training and education with regard to the electrical and mechanical workings of the PIC machines and their maintenance without any objection, Nazary cannot now complain that Stegall was not properly qualified as an expert to testify regarding the testing of the PIC machines done by his technicians whose work he reviewed to form his opinion that the minor problems uncovered during those tests on the station's PIC machines would not have accounted for the cash loss in this case. (See Evid. Code, § 353; People v. Fauber (1992) 2 Cal.4th 792, 831 [claim forfeited as not being raised as ground against admissibility in trial court].)
California law permits a person qualified in a particular field to give expert opinion testimony if the subject matter of the testimony is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact (Evid. Code, §§ 720, 801, 802; People v. Harvey (1991) 233 Cal.App.3d 1206, 1226-1227), and permits the qualified expert in doing so to "rely upon and testify to the sources on which they base their opinions [citations], including hearsay of a type reasonably relied upon by professionals in the field. [Citations.]" (People v. Cooper (2007) 148 Cal.App.4th 731, 746-747.)
By the time Stegall had answered the questions to which Nazary finally objected, there was sufficient evidence of Stegall's personal knowledge of and intimate familiarity with the particular field of PIC machines and the type of testing that he was overseeing for the maintenance of those machines to provide a foundation for his responses based on his expertise in the field and his reliance on the materials he had reviewed, which included his technician's reports and his discussions with them. The reports prepared by his technicians, which showed the results of their general diagnostic testing of the entire main board on each of the eight PIC machines at the station, was not offered for the truth of the facts stated but merely as the basis for Stegall's expert opinion that none of the problems uncovered during that testing would have accounted for the cash loss. This is precisely the type of hearsay information that an expert in Stegall's field could properly rely upon to determine whether the PIC system had an internal problem which might explain any shortages. Because this testimony regarding the basis of Stegall's expert opinion was properly admitted, the trial court did not abuse its discretion in denying Nazary's motions to strike it on foundational and hearsay grounds. No evidentiary error is shown in this regard.
C. PIC Receipts
During Casarez's testimony, when the prosecutor identified exhibit 17, a PIC receipt for the October 11, 2006 canister pull, Nazary's counsel objected to it as "[h]earsay as far as the time." The court overruled the objection, which it treated as a motion to strike as to hearsay. Later, when the prosecutor showed Casarez a modified PIC receipt and deposit slip, showing pull errors on October 13, 2006, which was identified as exhibit 28, and asked to enter it into evidence, Nazary's counsel objected "to the question which is the PIC receipt is hearsay." Again, the court overruled the objection as to hearsay.
Similarly, when the prosecutor sought to enter into evidence exhibit 29, which was identified by Casarez as his own writings regarding his precount for October 13, 2006 and a copy of the PIC receipt for that day, Nazary's counsel objected "to the portion . . . which is the PIC receipt, particularly the portions which govern current, actual, business date, and canister pull error as hearsay." The court overruled the objection and admitted exhibit 29 into evidence.
Subsequently, Casarez testified about exhibit 30, which he identified as his writing of the figures the assistant manager told him over the telephone during the second successful precount of the money in the canisters from the PIC machines, about exhibit 31, which he identified as the assistant manager's writing of the amount of cash in the canisters during that precount, and about exhibit 32, which he identified as a copy of the October 16 PIC receipt and deposit slip that had been created for that count by Nazary. The court overruled Nazary's counsel's objection "to the one which is prepared by somebody other than [Casarez], which [he thought was] No. 31." Casarez was then questioned without objection on exhibit No. 34, which was the October 6, 2006 PIC receipt and deposit slip, and explained about comparing its figures with those on other dates during the precount.
When the court took its noon recess, Nazary's counsel asked the court whether he could have a continuing objection to the PIC receipts as hearsay "because [he did not] think there's been testimony from the proper witness about how these PIC receipts are generated and whether or not they are generated with accuracy." Counsel wanted a continuing objection "rather than having to do it every time we get to these things." The court was uncomfortable in doing so because it did not think that a continuing objection made a clear record. The court explained that its initial thought in overruling the hearsay objections regarding exhibits 30 through 33 was that it understood those PIC receipts were not being offered to necessarily prove the truth of the information contained within them as it related to the PIC machine totals. It also noted that even assuming they were being offered for the truth of the matter, it was comfortable with the written notations on those exhibits assuming the defense objection was only going to the "actual machine-generated aspect of [the PIC receipts.]"
Defense counsel clarified that that was exactly the objection because there had been no testimony yet that "these PIC receipts are prepared in such a way as to be accurate. So when they're being introduced and given to the jury as here is how much money, according to the PIC, was in a canister, they're accepting that as, well the PIC machine says there should be that much money there. But there's no exception to the hearsay rule that's been established to say that they can accept that. [¶] And that's why I was making that objection."
In response, the court explained that it had overruled the objections because it understood that at some later point the reliability of the actual PIC receipt would be dealt with through the testimony of Stegall and that Casarez had testified to those portions that he and other people he had observed counted and recorded on the PIC receipts in exhibits 30 through 33. Nazary's counsel agreed that the parts that Casarez said he counted were perfectly admissible, but that the machine printed part was not without Stegall or some other witness laying the foundation for its admission "because we have no idea if these PIC receipts are generated in such a way as to be at all accurate." Understanding the defense position, the court asked the prosecutor to make a record of his position on the matter.
The prosecutor believed the court was viewing the issue exactly the way he was trying to present it, that the PIC receipts are not being admitted for their truth at that point, but rather for the nonhearsay purpose of showing "what did K.A. understand the problem to be, how did they determine what the problem was, and what evidence did they generate to support their belief of what this problem was." The prosecutor intended to bring in Stegall to talk about "how these PIC machines work and how they're accurate to within a few dollars, depending upon the occasional crumpled up bill, then I will argue to the jury that K.A. was right because we know now from an independent source that these machines were right. Thus, the defendant must have been stealing. [¶] But . . . Casarez's and K.A.'s conclusion of that isn't the final evidence of it. But it's their investigation. It's their belief based on what they're looking at."
The prosecutor additionally noted that the PIC receipts appeared to be "at least accurate in the sense that this is what the machine spits out. [¶] So these aren't manufactured. . . . This is what comes out of those machines or what can be produced at the cash register. [¶] So for purposes of [Casarez's] investigation and what we're showing to the jury his investigation and K.A.'s investigation is, they're relying on that. Certainly, [defense counsel] can cross-examine and argue that they shouldn't rely on it because they're not reliable. But they're not the evidence of the shortage, at least not yet."
When the court agreed there was some indicia of reliability for the PIC receipts, but that the foundation for their admission for their truth was not yet completely laid, the prosecutor suggested that the PIC receipts were a business record generated in the normal course of business. When the court expressed its uncertainty that Casarez could qualify as the custodian of those records or receipts, defense counsel concurred, pointing out that Casarez had testified he did not have the slightest idea what certain printed abbreviations on the PIC receipt meant and thus was not qualified to testify as to its mode of preparation.
At that point, the court ruled it was continuing to consider the PIC receipts as being offered not for the truth of the matters contained within them and was therefore overruling Nazary's counsel's hearsay objection with regard to exhibits 31 through 33, and admitting them at that time. The court noted, however, that at the conclusion of the case it would consider "a limiting instruction as it relates to the actual numbers on the PIC machine [receipts] being admitted for the truth that that's what this particular canister contained because at least at this point, there is not that indicia of reliability in the actual process itself." The court further commented that the PIC canister amounts might become irrelevant in light of the accounting evidence that was yet to be presented by the prosecution, which the prosecutor had represented would show the total amounts lost other than just the two or three days that were on the PIC receipts in evidence at that time.
When Stegall subsequently testified, he explained the hardware mechanics of how a receipt was printed by the PIC machines at the time of a canister pull, explained what the various printed abbreviations and terms meant on the PIC receipt, and explained about the slight overage or shortage that could occur on the PIC receipt if a canister failed to register as pulled and the PIC machine continued to accumulate cash totals until the next pull when it did register. On cross-examination, Stegall conceded he had not specifically checked the PIC receipts in this case for printed problems, but explained he did not do so because no problem with the mechanical printing of the PIC receipts had been reported by K.A.
At the conclusion of all evidence in the case, when the court asked Nazary's counsel if he objected to the admission of any of the exhibits that had not yet been entered into evidence, which included exhibits 17, 33 and 34, counsel objected to certain photographic exhibits (1 through 15) and stated he was not objecting to the remaining exhibits "other than my previous objections, which were overruled." The court overruled counsel's specific objections and received the remaining exhibits into evidence.^[2] The record does not reflect that either counsel requested any limiting instructions with regard to any of the exhibits showing the printed numbers on the PIC receipts.
On appeal, Nazary complains that the trial court erred when it overruled his hearsay objections to exhibits 17, 28, 29, 32, 33 and 34 because the machine-generated information contained on the receipts was offered for its truth to establish that he had stolen money from the PIC machines at the station. We find no prejudicial error.
Aside from the facts that Nazary did not specifically object to the admission of exhibit 34 and only objected to the "time" printed on exhibit 17, he did not press the trial court to revisit his hearsay objections to the admission of the various PIC receipt exhibits after the court had originally ruled they were admissible during Casarez's testimony for the nonhearsay purpose of showing K.A.'s on going investigation into the shortages in the cash from the PIC machines at the Arco station and the court had denied his request to have a continuing objection to the exhibits. Thus, the trial court was not asked to rule on whether the subject exhibits could properly be admitted for the truth of their machine-generated printed information under the business records exception to the hearsay rule after Stegall's testimony or asked to exclude or limit the jury's consideration of the machine-generated portions of the PIC receipts that had already been admitted into evidence. Under these circumstances, we find that Nazary has not shown an abuse of discretion in the court's earlier ruling admitting the objected-to exhibits for the nonhearsay purpose of showing K.A.'s investigation into the thefts at the station, and has technically waived the right to complain on appeal that the printed portion of the PIC receipts were admitted for their truth.
Moreover, even if we consider Nazary's counsel's statement at the close of trial renewing his earlier hearsay objections as preserving the issue, we conclude the trial court properly overruled them and admitted the printed portion of the exhibits.
As the People point out in their respondent's brief, this case is similar to the situation in People v. Hawkins (2002) 98 Cal.App.4th 1428 (Hawkins), where a hearsay objection was made to a computer printout showing the time certain computer files were last accessed. (Id. at p. 1446.) After considering various cases that held computer printouts admissible if they fit within the hearsay exceptions of business or official records and noting those cases did not draw a distinction between printouts, which reflected information entered by human operators and those which reflected information the computer generated on its own, the court in Hawkins found that this second category of printout generated on its own is not hearsay. (Id. at p. 1449.) In doing so, the court cited Evidence Code section 1200, subdivision (a), which defines "hearsay evidence" as "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"; Evidence Code section 225, which defines "statement" as "(a) oral or written verbal expression or (b) nonverbal conduct of a person intended by him as a substitute for oral or written verbal expression"; and Evidence Code section 175, which defines person to include "a natural person, firm, association, organization, partnership, business trust, corporation, limited liability company, or public entity." (Hawkins, supra, at p. 1449.) From its review of these sections, the court in Hawkins concluded that, "[t]he Evidence Code does not contemplate that a machine can make a statement." (Ibid.)
The court in Hawkins went on to note that the evidentiary issues concerning this machine-generated evidence are foundational, and that the test of admissibility is whether the machine was operating properly at the time of the reading, and that the mechanical recordings of information are subject to impeachment through evidence of machine imperfections or by cross-examination of the expert who explained or interpreted the information in the device. (Hawkins, supra, 98 Cal. App.4th at pp. 1449-1450.)
We agree with the analysis in Hawkins. The printed portions of the PIC receipts, including the date, time, and totals were not statements inputted by a person, but were generated by the PIC machine. "The essence of the hearsay rule is a requirement that testimonial assertions shall be subjected to the test of cross-examination. [Citation.] The basic theory is that the many possible deficiencies, suppressions, sources of error and untrustworthiness, which lie underneath the bare untested assertion of a witness, may be best brought to light and exposed by the test of cross-examination. [Citation.]" (Buchanan v. Nye (1954) 128 Cal.App.2d 582, 585; People v. Fields (1998) 61 Cal.App.4th 1063, 1068.) Under no possible scenario could the PIC machines have been cross-examined. Rather the witnesses who explained the data printed on the PIC receipts, Casarez, Stegall and Jones, could have been, and were. The imperfections and malfunctions of the PIC machines were the subject of considerable testimony, including that the PIC receipts occasionally miscounted the cash in the PIC machine canisters or showed that certain canisters had not been pulled, when in fact, they had been pulled. All of this testimony was presented to the jury for its consideration in determining the reliability of those receipts and the weight to be given them. That is all that was required.
In his reply brief, Nazary argues that even if this court follows Hawkins, supra, 98 Cal.App.4th 1428, the trial court erred in overruling his objections to the admission of the PIC receipts because the prosecutor had not satisfied the foundational requirement of showing that the PIC machine was operating properly at the time of the various printouts to enable it to assert the accuracy or reliability of the printed information on the receipts. However, as Nazary concedes, such issue was not raised at trial. Further, as our Supreme Court noted in People v. Martinez (2000) 22 Cal.4th 106, courts in California "have refused to require, as a prerequisite to admission of computer records, testimony on the 'acceptability, accuracy, maintenance, and reliability of . . . computer hardware and software.' [Citation.] [A]lthough mistakes can occur, . . . such matters may be developed on cross-examination and should not affect the admissibility of the [receipt] itself." [Citation.]' [Citations.]" (Id. at p. 132.) Here, the accuracy, reliability and maintenance of the PIC machines and the receipts they printed were fully explored and challenged on cross-examination. No error is shown.
D. Cumulative Error
Finally, Nazary contends that even if the multiple evidentiary errors in this case were not sufficient in and of themselves to require reversal, the cumulative effect of such errors requires reversal of the judgment as violative of his due process and fair trial rights. We disagree. Because we have found no prejudicial error in any of Nazary's claimed instances of evidentiary error, he cannot show cumulative prejudicial error (People v. Beeler (1995) 9 Cal.4th 953, 994), or that he was denied due process or a fair trial in this regard. (See People v. Kronemyer (1987) 189 Cal.App.3d 314, 349.)
DISPOSITION
The judgment is affirmed.



HUFFMAN, Acting P. J.

WE CONCUR:



NARES, J.



IRION, J.

Filed 1/6/11
COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, Plaintiff and Respondent, v. WAHID YOSSUF NAZARY, Defendant and Appellant.

D055646 (Super. Ct. No. SCN227608) ORDER CERTIFYING OPINION FOR PUBLICATION

THE COURT:
The opinion filed December 13, 2010 is certified for publication.
The attorneys of record are:
Susanne C. Washington, under appointment by the Court of Appeal; Appellate Defenders, Inc., San Diego, and Cindi B. Mishkin, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Pamela Ratner Sobeck and Meredith A. Strong, Deputy Attorneys General, for Plaintiff and Respondent.


HUFFMAN, Acting P. J.

Copies to: All parties





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