P. v. Browning

Filed 9/19/07 P. v. Browning CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Calaveras)

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Based on evidence relating to work orders that had disappeared or had been altered during his employment, a jury found defendant David J. Browning guilty of one count of embezzling from his former employer and the court sentenced him to two years in state prison.

On appeal, defendant contends: (1) the trial court erred in admitting irrelevant evidence of 68 missing work orders; (2) his trial counsel was ineffective in failing to object to the evidence of the missing work orders under Evidence Code section 1101 and on due process grounds; (3) his trial counsel was ineffective in failing to request a limiting instruction regarding the evidence of the missing work orders and in failing to argue to the jury that that evidence of the missing work orders was not linked to defendant; and (4) the trial court erred by failing to instruct the jury with CALJIC No. 4.72.

Finding no error and no ineffective assistance of counsel, we will affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Between 2001 and June 2004, defendant was employed as the service manager at Calaveras Tire, a business owned by Jon Shaffer. In August 2004, defendant was charged with embezzling from the business between October 1, 2003, and June 1, 2004. Although the complaint and information included two counts -- one for violation of Penal Code section 508 (embezzlement by a clerk, agent, or servant) and one for violation of Penal Code section 487, subdivision (b)(3) (grand theft by embezzlement) -- covering the same time period, the trial court ultimately determined that just one offense was alleged.

On the first day of trial, defense counsel complained that he had received no documentation in discovery from the prosecution regarding some 62 missing work orders. Defense counsel anticipated that Shaffer was going to testify that the work orders disappeared during defendants employment and no work orders disappeared after defendants employment. Counsel complained that he did not know the time sequences of the [missing work orders] and was concerned they might be attributable to another employee who had stolen from the business. Counsel asked the court to exclude evidence of the missing work orders and just proceed on the six invoices that we have in which the People have proper records on.

The prosecutor argued that the People have discovered that very information to the defendant, to the defense and that the missing work orders came from a time frame after the other employees employment had ended but during defendants employment. She further argued, the People want to use that evidence as circumstantial evidence [of] theft during that time frame to show that while [defendant] was there all these missing work orders occurred and after he wasnt they stopped. The prosecutor clarified that we have six specific instances we are going to prove up but we have alleged theft during a period of time, not specific instances of these.

The trial court ruled that the prosecutor would be allowed to examine Shaffer about the missing work orders since [they] are within the time period of the allegation of the Complaint. When defense counsel asked that Shaffer not . . . testify . . . today, so that he would have time to prepare, the prosecutor asserted there were basically gonna be two questions -- (1) from . . . October 2003 to when [defendant] quit what were the amount of work-orders missing; and (2) from the date he quit to todays present date, how many are missing. The court ruled that it would allow those questions.

In her opening statement, the prosecutor explained that Shaffer would testify that after he became suspicious of defendant, he discovered . . . a large amount of work-orders were missing from the shop and some other work-orders were altered with Wite-[O]ut. The prosecutor further explained that [o]f the six orders at issue primarily in this case you will have testimony that three of them were altered with Wite-[O]ut and three of them were missing all together.

Shaffer testified for the prosecution that as the service manager, defendant was primarily responsible for filling out and collecting payment on work orders. Shaffer further testified that at some point in time he became suspicious of defendant, and when the prosecutor asked him why, the court overruled defendants objection that now we are getting into areas of 402.^[1] Shaffer answered, Um, one of the main reasons I was suspicious we were losing a lot of work-orders . . . . After testifying about how work orders were to be handled at the business and how corrections were not to be made to them with Wite-Out, Shaffer testified that there were a number of missing work orders from October 2003 to June 2004. When the prosecutor asked Shaffer how many work orders were missing, the court overruled a relevance objection. Shaffer then testified that there were about 50 to 52 work orders missing from that period. After a break in the testimony, during which he had an opportunity to look at his paperwork, Shaffer corrected that figure to 68. He later testified that since defendants employment ended in June 2004, there were no missing work orders.

In addition to Shaffers testimony regarding the 68 missing work orders, the prosecution offered evidence of six specific instances -- three involving altered work orders (customers Charles Green, William Gill, and James Brauer) and three involving missing work orders (customers Jenny Graham and Donald Hollingsworth) -- tending to suggest that defendant pocketed cash for work that had been done, then either altered or destroyed the businesss copy of the work order to cover up his theft.

Graham testified that defendant helped her when she took her vehicle to Calaveras Tire for repair in March and April 2004. She paid defendant $219.20 in cash the first time and $431.45 in cash the second time. Shaffer later testified that the businesss copies of Grahams work orders were missing. He was able to correlate an entry on an appointment calendar showing she brought her vehicle in for repair in March 2004 with an auto parts receipt for two axel shafts that his business paid for.

Similar evidence was presented relating to a missing work order for repairs on the car Hollingsworth brought in for service.

At defendants request, the court agreed to give CALJIC No. 4.71.5, which required the jury to unanimously agree upon the commission of the same specific act or acts constituting the crime within the period alleged. Defense counsel argued the court should also give CALJIC No. 4.72 (Time Factor When Particular Time Elected),^[2]because he did not want some jurors convicting [defendant] because they think he ripped off Shaffer for sixty invoices and other jurors agreeing that he ripped them off because of these particular five invoices.^[3] The court responded, I dont think the District Attorney is relying on specific dates. Its not like they are saying the crime occurred on October 1st, 2003. Defense counsel disagreed, but the prosecutor responded as follows: Well, the People are going to obviously argue the six specific incidences of theft that we proved up those, but the six months where thefts also occurred and other alterations were also made, those are going to be argued. That is circumstantial evidence to prove up the specific incidences of the theft. Over defense counsels objection, the court concluded it would give CALJIC No. 4.71.5 rather than CALJIC No. 4.72, because the two instructions are inconsistent and [t]he one that fits best is 4.71.5.

In addition to giving CALJIC No. 4.71.5, the court also instructed the jury with CALJIC No. 17.01 (at defense counsels request). In pertinent part, that instruction provided as follows: The prosecution has introduced evidence for the purpose of showing that there is more than one act upon which a conviction may be based. [] Defendant may be found guilty if the proof shows beyond a reasonable doubt that he committed any one or more of the acts. However, in order to return a verdict of guilty, all jurors must agree that he committed the same act or acts.

DISCUSSION

I

Evidence Of Missing Work Orders

Defendant first argues the trial court erred in admitting irrelevant evidence of the 68 work orders that disappeared during defendants employment. We disagree, in large part because defendants challenge to the admission of this evidence is based on a faulty premise.

Defendant starts from the premise that [s]ix incidents of theft were charged. He then argues that the trial court erred in admitting evidence of the 68 other work orders [that] disappeared between October of 2003 and June of 2004 to bolster [the Peoples] theory of the identity of the perpetrator in the six charged thefts. In defendants view, the evidence of the 68 missing work orders represented evidence of other uncharged crimes [that] were not highly similar to the charged offenses and therefore should have been excluded as irrelevant.

The premise underlying defendants argument that he was charged with six incidents of theft and that the 68 missing work orders represented other, uncharged offenses is incorrect. Defendant was in fact charged with one count of grand theft based on money he allegedly embezzled from Shaffer between October 1, 2003, and June 1, 2004. The prosecution sought to prove that one theft charge by offering evidence of: (1) three incidents in which defendant apparently covered up money he embezzled by altering work orders; (2) three incidents in which defendant apparently covered up money he embezzled by destroying work orders; and (3) 65 other incidents in which work orders disappeared^[4]-- all of which occurred between October 1, 2003, and June 1, 2004, the time period of the theft charged in the complaint and the information. This is not a case in which the materiality of evidence of uncharged offenses is to be determined by comparing the uncharged offenses to the charged offenses. Here, the evidence of the 68 missing work orders was evidence of the offense chargedin this case. For this reason, we reject defendants argument that the evidence of the missing work orders was irrelevant evidence of uncharged misconduct and his argument that his trial counsel was ineffective for failing to object to the evidence of the missing work orders under Evidence Code section 1101 and on due process grounds. The evidence was not objectionable on those grounds because it was not evidence of other crimes or uncharged misconduct.

To the extent defendant can be understood to argue the evidence of the missing work orders was irrelevant because no testimony connected [him] with the disappearance of the 68 work orders, that argument fails as well. Although there was no direct evidence that defendant was responsible for the missing work orders, the prosecutions evidence taken as a whole supported a reasonable inference that he was responsible. The 68 missing work orders Shaffer testified to included the three missing work orders related to the work performed for Graham and Hollingsworth, with respect to which the prosecution offered evidence tending to suggest defendant pocketed the cash paid for that work, then covered up his embezzlement by making the businesss copies of the work orders disappear. As we have explained, for example, Graham testified she paid defendant cash for the work performed on her vehicle in March and April 2004, and Shaffer testified the businesss copies of the work orders for those services were missing. More generally, Shaffer also testified that the 68 work orders disappeared during defendants employment, that defendant was primarily responsible for filling out and collecting payment on work orders, and that no work orders disappeared after defendant left his employment. As a whole, the prosecutions evidence was sufficient to make the evidence of the 68 missing work orders relevant in proving the theft charge against defendant. (See Evid. Code, 210 [Relevant evidence means evidence . . . having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action,] italics added.)

Because the evidence of the 68 missing work orders was evidence of the offense charged in this case, and not evidence of other crimes, an instruction limiting the jurys use of other crimes evidence would have been improper. Accordingly, we reject defendants argument that defendants trial counsel was ineffective in failing to request such an instruction. We likewise reject defendants argument that defense counsels argument was deficient because defense counsel did not argue to the jury the degree of distinctiveness required to prove identity under Evidence Code section 1101, subdivision (b), and failed to point out that nothing at all linked [defendant] to those missing work orders. Evidence Code section 1101 had no bearing here because, as we have explained, the evidence of the 68 missing work orders was evidence of the offense charged in this case. Furthermore, the evidence taken as a whole did tend to link defendant circumstantially to the missing work orders. Trial counsel was not ineffective in failing to argue otherwise.^[5]

II

Failure To Instruct With CALJIC No. 4.72

That brings us to defendants final argument, which is that the trial court erred by failing to instruct the jury with CALJIC No. 4.72. Defendant asserts [i]t is error for the court not to require an election by the prosecution before the case goes to the jury or at least to give an instruction to the jury that they must unanimously agree on the acts committed. But here the trial court gave two unanimity instructions. The court instructed the jury with CALJIC No. 4.71.5, which required the jury to unanimously agree upon the commission of the same specific act or acts constituting the crime within the period alleged. The court also instructed the jury with CALJIC No. 17.01, which informed the jury that in order to return a verdict of guilty, all jurors must agree that [defendant] committed the same act or acts.

Defendant contends CALJIC No. 4.72 was also required to ensure the jury did not find him guilty of some uncharged offense related to the 68 other allegedly missing work orders. As we have repeatedly explained, however, the evidence of the 68 missing work orders was not evidence of other crimes or uncharged misconduct; rather, it was evidence of the single offense charged in this case. CALJIC Nos. 4.71.5 and 17.01 more than adequately directed the jury, in finding defendant guilty, to unanimously agree on the act or acts that constituted that crime. No more was required, and thus the trial court did not err in refusing to give CALJIC No. 4.72.

DISPOSITION

The judgment is affirmed.

ROBIE , J.

We concur:

BLEASE , Acting P.J.

DAVIS , J.

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^[1] Apparently this referred to Evidence Code section 402 and the objection defendant had raised before trial about the lack of discovery on the missing work orders.

^[2] As requested, CALJIC No. 4.72 read as follows: The People have elected to rely on the acts testified as to having occurred on the ____ day of ________, ____, as constituting the crime charged against the defendant. [] You must not find the defendant guilty of the offense charged against him/her unless you find that he/she committed this crime at that particular time, regardless of your belief as to his/her commission of the crime at some other time.

^[3] The prosecutions case actually involved five customers, but six incidents.

^[4] The 68 work orders that disappeared necessarily included the three missing work orders that related to the work performed for customers Graham and Hollingsworth.

^[5] Trial counsels argument was that another employee was responsible for whatever theft occurred.