Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC448880
McAdams, J.
Defendant Robert Crum appeals from a judgment of conviction, following a jury trial, on charges of conspiracy to commit grand theft, grand theft, and an amended allegation of petty theft. (Pen. Code, §§ 182, subd. (a)(1), 484-487, subd. (a).) On appeal, defendant first challenges two separate rulings by the trial court excluding proffered defense evidence, which he asserts as constitutional violations and as an abuse of discretion. Defendant also contends that the trial court erred by permitting the People to amend count 3 of the information, to allege petty theft, following his successful motion for acquittal on the charge of grand theft as to that count. (Pen. Code, § 1118.1.)
As we explain below, we find no error. We therefore affirm the judgment of conviction.
BACKGROUND
The events that gave rise to this case took place in 2001.
In 2001, defendant was employed as a salesman at Garden City Supply, a restaurant supply company in San Jose owned by Roberta Sardell and her husband John Sardell. The company provides everything a restaurant might need, “except for the food.” Garden City Supply makes sales in two different ways. In one method, a salesman responds to a customer request for a quote; if accepted, the quote becomes an order, which is invoiced for payment to Garden City Supply after the goods or services are delivered to the customer, either from Garden City’s inventory or directly from a vendor. When the customer pays Garden City Supply, the salesman is entitled to a commission. The second method involves direct sales to walk-in customers. Salesmen receive commissions on walk-in sales, too.
The criminal charges in this case arose from two categories of transactions.
The first category involved defendant’s interactions with Zaidullah Haidary, who worked for a company called Bon Appetit. The transactions involving Haidary and Bon Appetit, which took place in January and June 2001, gave rise to the first two counts of the information for conspiracy and grand theft.
The second category comprises two walk-in sales transactions involving defendant alone, which took place in October and December 2001. Those sales transactions, with the owners of El Abuelo Taqueria and Satkar Indian Cuisine, gave rise to the theft allegations of count 3.
Events Involving Bon Appetit
One of the Garden City Supply accounts assigned to defendant was Bon Appetit, a food service management company that runs cafeterias at corporate locations.
January 2001 Transactions
In January 2001, defendant was contacted by Haidary, who was then the general manager at the Bon Appetit facility at the Mervyn’s store in Hayward. At Haidary’s request, defendant created two documents representing nonexistent transactions on two different dates in January 2001. One document purported to be an order for an Everpure Water System, in the amount of $2,477.57. The other document purported to be an order for an ice cream dipper well, priced at $2,300. Each was marked “paid.” Neither the water system nor the ice cream dipper well was ever delivered to Bon Appetit. Nor was Garden City Supply ever paid for either item.
At trial, defendant testified that he created the “fictitious” documents to help Haidary “with a problem he was having” with profit and loss, which “didn’t equal out. … His profit was too high and his expenses were so low, so he had some reason to balance that out.” Defendant understood that Haidary intended to “to lie to his boss” using the documents “as a justification for an expense that didn’t exist.” He admitted that the documents were “phony” and “created out of thin air” and that the “paid” notation on each document was “a lie.” Defendant deleted each of the two bogus documents from his computer at Garden City Supply within minutes after creating them and sending them to Haidary. Defendant knew that what he was doing was “wrong” but he did not think that it was “illegal.”
June 2001 Transaction
In June 2001, defendant engaged in another sham transaction with Haidary, which involved the installation of three ice machines at the Hayward Bon Appetit location. Defendant had ordered the ice machines from the Taylor Freeze Company, which delivered them directly to Bon Appetit. The Taylor Freeze Company then billed Garden City Supply for just over $9,200, including $1,075 for installation. According to testimony by the bookkeeper at Garden City Supply, Jackie Alford, the Taylor Freeze bill caught her attention because “we were being charged for installation and we were not billing the customer installation.”
When Alford asked defendant about the discrepancy, he prepared a document quoting installation at $5,000. After the bookkeeper mailed that document to Bon Appetit, she “received a telephone call from their accounting department questioning” it since “they had already received an invoice and paid an invoice in the amount of $4,945.50.” Alford requested a copy of the paid bill, and Bon Appetit responded by sending a document that she had never seen before. The document was dated June 8, 2001, it had defendant’s sales code, and it purported to be a quotation for installation for “three machines” to be “done on C.O.D. basis only.” The price was quoted at $4,945.50. The document contained the handwritten notation “paid.” At trial, defendant admitted sending Haidary a quote for $4,945.50.
October – November 2001
When these discrepancies came to light, defendant wrote a letter of explanation at the request of his boss, John Sardell, which was later typed on a computer. The typed letter is dated October 8, 2001. It describes the January 2001 transactions as paperwork for Haidary “that would allow him to show a profit to his boss.” Defendant created the documents “out of thin air” to make Haidary’s profit and loss “not show a deficit.” Defendant “faxed over the paperwork” and then deleted the order. Concerning the June 2001 documentation for installation of the ice machines, the letter explains that Haidary requested a change in the installation quote: “He said that he wanted it worded differently, so it would be separate from the equipment. I asked him what he wanted it to say. He told me and I proceeded to change the document.”
The typewritten version of the letter was sent to Bon Appetit in October 2001. In response, Bon Appetit’s internal auditor, Masa Sasaki, wrote to Garden City Supply the following month, seeking reimbursement for the amounts that Bon Appetit had paid out for the Everpure Water System ($2,477.57), the ice cream dipper well ($2,300), and the ice machine installation ($4,945.50).
Events Involving Two Walk-In Customers, El Abuelo and Satkar
El Abuelo Taqueria, October 2001
On October 26, 2001, Alfonso Macias went to Garden City Supply as a walk-in customer. He purchased two 48-inch gas hose connectors for El Abuelo Taqueria, the restaurant that he co-owned with Jesus Rodriguez. Macias paid $412.99 in cash for the two connectors. About an hour later, Macias returned one of the connectors because it did not fit; he received a cash refund for the returned connector. The customer’s copy of the invoice showed that the payment amount had been changed from $412.99 to $206.50. Defendant was the salesman who waited on Macias.
According to the computer system at Garden City Supply, two gas connectors were sold to El Abuelo at 8:48 a.m. on October 26th, one was returned at 9:31 a.m., and the transaction was deleted at 9:33 a.m. The day’s receipts did not include the cash payment by Macias for the one gas connector that he kept; there was a shortage. And the inventory records showed one gas connector missing.
Satkar Restaurant, December 2001
On December 20, 2001, Mukhtiar Singh went to Garden City Supply as a walk-in customer, where he purchased several items for Satkar Indian Cuisine, the restaurant that he co-owned with his wife, Kirandeep Kaur. Singh purchased glasses, tongs, a wooden handle, and a broom, paying $109.61 in cash. After initially identifying defendant’s co-worker Pete Hardy as his “normal salesman,” Singh identified defendant as the salesman who had sold him the items in question on December 20th.
When Roberta Sardell conducted a regular inventory count for Garden City Supply, she discovered missing inventory that matched the items sold to Singh for Satkar Indian Cuisine, as listed in the invoice for that sale. According to the bookkeeper, Jackie Alford, the day’s receipts did not reflect the payment by Singh for the items that he purchased; “the money was missing.” And the computer showed that the entire transaction had been deleted.
Investigation; Employment Termination
John Sardell asked Jackie Alford to investigate. Alford reported her findings about the discrepancies in the El Abuelo and Satkar transactions, and about the customers’ identification of defendant as their salesman.
In January 2002, defendant was called into a meeting with John Sardell and Charles Havercroft, the sales manager for Garden City Supply. Sardell confronted defendant with the two walk-in sales transactions. Defendant’s employment was then terminated.
The following month, Sardell spoke with San Jose Police Detective Barry Barner about the walk-in sales transactions.
Complaint and Preliminary Examination
In April 2004, the People filed a felony complaint against defendant and Haidary. Count 1 charged the two men with conspiracy to commit grand theft. (Pen. Code, § 182, subd. (a)(1).) Count 2 charged defendant with grand theft. (Pen. Code, § 484-487, subd. (a).) The complaint further alleged defendant’s seven prior convictions.
In March 2005, a preliminary examination was conducted for Haidary and defendant. At the conclusion of the hearing, both men were bound over for trial and arraignment was scheduled.
Felony Information
In May 2005, the People filed an information against defendant and Haidary. As with the complaint, count 1 charged the two men with conspiracy to commit grand theft. (Pen. Code, § 182, subd. (a)(1).) The factual allegations were based on the Bon Appetit transactions. Count 2 charged both men with grand theft arising from those transactions. (Pen. Code, § 484-487, subd. (a).) Count 3 charged defendant with grand theft arising out of the El Abuelo and Satkar transactions. As with the prior pleading, the information included special allegations that defendant had suffered seven prior convictions.
Trial Proceedings
In January 2006, trial proceedings began.
In Limine Motions
On January 10th, the court heard motions in limine. Haidary’s case was severed from defendant’s. The prosecutor moved to exclude evidence that pornography had been discovered on computers at Garden City Supply. Defendant sought to tie the pornography to John Sardell, who would be testifying for the prosecution. The court rejected the defense contention, finding the proffered evidence “so speculative as to be outweighed by its undue prejudice” and by the risk of jury distraction. Concerning defendant’s prior convictions, the court ruled that three convictions from 1986 could come in during jury trial. On January 11th, jury selection took place.
The Prosecution Case
On January 17th, after opening statements were given, the prosecution began presenting its case. Prosecution witnesses included Masa Sasaki, Bon Appetit’s internal auditor; Jackie Alford, John Sardell, and Roberta Sardell, all from Garden City Supply; and Alfonso Macias and Mukhtiar Singh, Garden City Supply walk-in customers. The prosecution introduced a substantial amount of documentary evidence as well.
Additional Motions
On January 18th, defense counsel submitted a “bench brief” seeking the admission of evidence of Haidary’s broader criminal scheme, which included three additional thefts from Bon Appetit that did not involve defendant. Counsel asserted that the proffered evidence was relevant to prove the defense theory that defendant was an innocent dupe, not an active participant in a criminal conspiracy with Haidary. The court rejected defendant’s argument, reasoning that whether defendant was duped depended “entirely” on his own “state of mind with respect to these transactions.” And in the court’s view, the proffered evidence had “no logical tendency to prove or disprove the defendant’s state of mind.”
On January 20th, the prosecution filed a proposed first amended information. Three days later, the court heard oral arguments on the question of whether to allow an amendment. Defendant did not object to the prosecution’s request to make minor word changes in the information, and the court permitted those changes. But insofar as the prosecutor sought to allege a new count against defendant for forgery, the court refused to allow the amendment.
On January 23d, following discussion of the request to amend the information, and after the prosecution had rested, defense counsel brought a motion for acquittal as to count 3. (Pen. Code, § 1118.1.) Defense counsel argued that the evidence would not support a finding that property in excess of $400 had been taken in the Satkar and El Abuelo transactions. The court agreed, granting the motion. After further discussion, the court confirmed its grant of the motion for acquittal. The following day, the court clarified that its ruling was limited to the greater offense of grand theft only.
The Defense Case
Starting January 23d, defendant presented the defense case. He testified in his own behalf. Defendant also presented other witnesses, including Rick Freeman, his former co-worker; Jesus Rodriguez, the co-owner of El Abuelo Taqueria; and several character witnesses. Defendant also presented a number of exhibits.
Close of Trial; Verdict
On January 27th, the jury heard closing arguments and instructions.
On January 30th, the jury returned with guilty verdicts on all three counts: conspiracy to commit grand theft, grand theft, and petty theft.
Sentencing
On July 6, 2006, the court conducted a sentencing hearing. The court struck all of defendant’s prior convictions except one. The court imposed and stayed a four-year prison sentence on count 1; it imposed a two-year prison sentence on count 2, with a two-year enhancement for the prior; and it imposed a 10-day jail sentence on count 3, which was deemed served.
Appeal
On July 21, 2006, defendant brought this timely appeal. As noted above, defendant takes issue with two rulings by the trial court excluding proffered defense evidence, which he asserts as constitutional violations and as an abuse of discretion. Defendant also challenges the trial court’s decision to permit the People to amend count 3 of the information, to allege petty theft, following his successful motion for acquittal on the charge of grand theft as to that count.
DISCUSSION
We consider each of defendant’s contentions in turn, beginning with his evidentiary claims.
I. Exclusion of Evidence
Defendant claims that the trial court erred in excluding proffered evidence of (1) Haidary’s larger embezzlement scheme and (2) pornography found on the computer at defendant’s workplace. In assessing defendant’s contentions, we first set forth the legal principles that guide our analysis. We then apply those principles to the two evidentiary rulings challenged here.
A. Legal Principles
1. Constitutional Law
As a matter of federal constitutional law, criminal defendants are entitled to “ ‘a meaningful opportunity to present a complete defense.’ ” (Crane v. Kentucky (1986) 476 U.S. 683, 690.) One “essential component of procedural fairness is an opportunity to be heard.” (Ibid.) “That opportunity would be an empty one if the State were permitted to exclude competent, reliable evidence … when such evidence is central to the defendant's claim of innocence.” (Ibid.) “In the absence of any valid state justification, exclusion of this kind of exculpatory evidence deprives a defendant of the basic right to have the prosecutor’s case encounter and ‘survive the crucible of meaningful adversarial testing.’ ” (Id. at pp. 690-691.)
In addition, the Sixth Amendment to the United States Constitution also guarantees confrontation rights. (See, e.g., People v. Brown (2003) 31 Cal.4th 518, 537.) “This federal constitutional right to confront adverse witnesses in a criminal prosecution applies to the states [citation] and is also guaranteed independently by the California Constitution (Cal. Const., art. I, § 15) and by statute ([Pen. Code] § 686).” (Id. at p. 538.) “The primary reason an accused is entitled to confront adverse witnesses is to permit cross-examination.” (Ibid.) “Confrontation clause and fairness principles generally guarantee a criminal defendant the right to explore a witness’s bias on cross-examination.” (People v. Box (2000) 23 Cal.4th 1153, 1203.) “They do not, however, prevent the trial court from imposing reasonable limits on defense counsel’s inquiry based on concerns about harassment, confusion of the issues, or relevance.” (Ibid.)
2. Statutory Principles: Evidence Code section 352
“The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” (Evid. Code, § 352.) “The weighing process under section 352 depends upon the trial court’s consideration of the unique facts and issues of each case, rather than upon the mechanical application of automatic rules.” (People v. Jennings (2000) 81 Cal.App.4th 1301, 1314.)
In the first step in the weighing process, the trial court assesses the probative value of the proffered evidence, which depends on its relevance. Relevance is statutorily defined as “having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (Evid. Code, § 210; People v. Waidla (2000) 22 Cal.4th 690, 718.) “The test of relevance is whether the evidence tends ‘logically, naturally, and by reasonable inference’ to establish material facts such as identity, intent, or motive.” (People v. Garceau (1993) 6 Cal.4th 140, 177.) “The trial court retains broad discretion in determining the relevance of evidence.” (Ibid.)
In the second step in the weighing process, the trial court considers factors permitting exclusion of the proffered evidence, which come into play when “its probative value is substantially outweighed by the probability that its admission will … create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” (Evid. Code, § 352; see People v. Hart (1999) 20 Cal.4th 546, 606 [trial court properly excluded evidence with “only minimal probative value” that “would require the undue consumption of time and would create a substantial risk of confusing the issues and misleading the jurors”].)
3. Constitutional and Statutory Interplay
“Evidence Code section 352 must yield to a defendant’s due process right to a fair trial and to the right to present all relevant evidence of significant probative value to his or her defense.” (People v. Cunningham (2001) 25 Cal.4th 926, 999.) “Although the complete exclusion of evidence intended to establish an accused’s defense may impair his or her right to due process of law, the exclusion of defense evidence on a minor or subsidiary point does not interfere with that constitutional right.” (Ibid.) “Moreover, reliance on Evidence Code section 352 to exclude evidence of marginal impeachment value that would entail the undue consumption of time generally does not contravene a defendant’s constitutional rights to confrontation and cross-examination.” (People v. Brown, supra, 31 Cal.4th at p. 545; see also, e.g., People v. Box, supra, 23 Cal.4th at p. 1203.)
When a defendant raises both constitutional and statutory arguments concerning evidentiary rulings, we address the statutory arguments first, reaching the constitutional questions only if “ ‘absolutely required to do so to dispose of the matter before us.’ ” (People v. Brown, supra, 31 Cal.4th at p. 534.)
4. Appellate Review
Where the erroneous exclusion of evidence is of constitutional dimension, we assess it under the Chapman standard, and reversal is required unless the error is harmless beyond a reasonable doubt. (Cf., People v. Cunningham, supra, 25 Cal.4th at p. 994, citing Chapman v. California (1967) 386 U.S. 18, 24.)
Where the application of Evidence Code section 352 is questioned, we review the trial court’s decision for an abuse of discretion. (People v. Waidla, supra, 22 Cal.4th at p. 717; People v. Robinson (2005) 37 Cal.4th 592, 625.) A party challenging a trial court’s evidentiary rulings must demonstrate both an abuse of discretion and a manifest miscarriage of justice. (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.) “When the reviewing court applying state law finds an erroneous exclusion of defense evidence, the usual standard of review for state law error applies: the court must reverse only if it also finds a reasonable probability the error affected the verdict adversely to defendant.” (People v. Humphrey (1996) 13 Cal.4th 1073, 1089, citing People v. Watson (1956) 46 Cal.2d 818, 836.)
With those principles in mind, we consider each of defendant’s evidentiary claims in turn.
B. Evidence of Haidary’s Larger Criminal Scheme
1. Background
Concerning counts 1 and 2 (conspiracy and grand theft), the defense theory was that Haidary duped defendant into acting as an unwitting accomplice in three of Haidary’s six thefts from Bon Appetit. In support of that theory, defense counsel sought to introduce evidence of the other three thefts by Haidary, which did not involve defendant.
During trial, defendant submitted a brief seeking the admission of evidence of Haidary’s broader criminal scheme. In it, defendant asserted that the evidence was admissible as evidence of third party culpability. Defendant also argued it was “relevant to corroborate [his] statements that he was an unknowing participant” in the three thefts by Haidary involving defendant. In oral arguments, defense counsel reiterated his contention that Haidary’s larger plan was relevant on the question of whether defendant was an active participant or an innocent dupe.
In opposing admission of the proffered evidence, the prosecutor argued that the other thefts were not relevant, either on the question of third party culpability or on the issue of defendant’s awareness of Haidary’s intentions. As to the latter point, he described the defense argument as a “non sequitur,” since Haidary’s acts could not be used to prove defendant’s intent. The prosecutor further asserted that the proffered evidence was “inconsistent” with “arduously long testimony” already given in the case showing that defendant had in fact created two of the false documents in question.
The court first rejected defendant’s third party culpability argument, concluding that Haidary’s other thefts were “not evidence that he acted alone in committing the crimes in this case” nor would they support that inference. The court likewise rebuffed defendant’s other argument, reasoning that whether defendant was duped “depends entirely” on his own “state of mind with respect to these transactions.” And in the court’s view, the proffered evidence had “no logical tendency to prove or disprove the defendant’s state of mind.”
2. Appellate Contentions
On appeal, defendant takes issue with the second part of the court’s ruling, again urging that the proffered evidence is relevant to the question of whether Haidary duped him. In support of that argument, he asserts: “The prosecutor faced a number of hurdles in overcoming the illogical nature of the charges he filed against appellant.” In defendant’s view, those hurdles included the lack of evidence that defendant ever received any of the money stolen by Haidary or that he had any substantial relationship with the man; defendant’s status as a successful salesman with no financial problems and thus no incentive to jeopardize his employment; the weakness of the evidence supporting the petty theft allegations; and the “ample evidence that appellant had rehabilitated himself” after his earlier convictions and was now “a trustworthy person according to numerous people who knew him and his past.”
To win a conviction on counts 1 and 2, defendant observes, “the prosecutor had to convince the jury that appellant specifically intended to agree with Haidary to commit grand theft and specifically intended to commit grand theft.” (See, e.g, People v. Liu (1996) 46 Cal.App.4th 1119, 1128 [“the crime of conspiracy requires at least two people to have the requisite criminal specific intent”].) Defendant contends that he “never denied providing Haidary with the questioned documents. He merely denied knowing what Haidary intended to use them for.” And he insists that the fact that he was “just a piece of Haidary’s broader scheme was important circumstantial evidence supporting appellant’s testimony that he was trying to help a customer but not engaged in a criminal scheme.” In his view: “Had the jury realized that Haidary was an operator who embezzled money from other sources as well, it would have clearly strengthened appellant’s defense.”
Defendant contends that the error in excluding the proffered evidence was prejudicial, whether analyzed under Chapman or Watson.
The People disagree on all points.
3. Analysis
To avoid unnecessary constitutional analysis, we begin with defendant’s statutory claims. (People v. Brown, supra, 31 Cal.4th at p. 534.)
a. Statutory Claims
The two-step statutory balancing process contemplates that the trial court will weigh the probative value of proffered evidence against its potential for prejudice, confusion, and the undue consumption of time. (Evid. Code, § 352.) Here, the trial court resolved the issue in the first analytic step, finding the proffered evidence irrelevant and thus without probative value.
In rejecting the proffered defense evidence on relevance grounds, the trial court did not err. There is no rule that “any evidence, however remote, must be admitted” or even that it must be subjected to the weighing process. (People v. Johnson (1988) 200 Cal.App.3d 1553, 1563.) For example, with third party culpability evidence, after “the defendant’s evidence has been found to raise a reasonable doubt” as to his guilt, “it may only be excluded if it is more prejudicial than probative.” (Ibid.; see also, e.g., People v. Hall (1986) 41 Cal.3d 826, 833; People v. Robinson, supra, 37 Cal.4th at p. 625.)
Here, we find no fault with the trial court’s determination that Haidary’s other thefts do not raise a reasonable inference supporting defendant’s innocence. To be relevant, evidence must tend “ ‘logically, naturally, and by reasonable inference’ to establish material facts such as identity, intent, or motive.” (People v. Garceau, supra, 6 Cal.4th at p. 177.) Here, the only disputed issue was defendant’s intent. And from the trial court’s perspective, the proffered evidence had “no logical tendency to prove or disprove the defendant’s state of mind.” That reasoning is sound. (Cf. People v. Yeoman (2003) 31 Cal.4th 93, 122 [inference of intent “was strong enough to support the court’s discretionary decision to permit the jury to consider the evidence” of uncharged crimes].) Under these circumstances, defendant has failed to demonstrate that “the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner….” (People v. Rodriguez, supra, 20 Cal.4th at pp. 9-10.)
b. Constitutional Claims
For similar reasons, we also reject defendant’s constitutional arguments. This is not a case where defendant was denied “the right to present all relevant evidence of significant probative value to his or her defense.” (People v. Cunningham, supra, 25 Cal.4th at p. 999.) As our high court has said, “the exclusion of defense evidence on a minor or subsidiary point does not interfere with that constitutional right.” (Ibid.) Nor does it “contravene … defendant’s constitutional rights to confrontation and cross-examination.” (People v. Brown, supra, 31 Cal.4th at p. 545.)
In sum, there was no error in excluding the proffered evidence, either statutory or constitutional. That being so, we need not reach the question of prejudice.
C. Pornography Evidence
1. Background
The prosecution filed a written, pretrial motion to exclude evidence that pornography had been discovered on computers at defendant’s employer, Garden City Supply. As an attachment to the motion, the prosecutor included the defense investigator’s report, which concerned discovery of the pornography and other issues. According to that report, the investigator interviewed defendant’s former co-worker, Rick Freeman, in August 2005. Freeman recalled an incident in which he and defendant were approached in defendant’s cubicle by another employee, warehouseman James Clark, who pulled up a site on the computer containing “teen porn.” Freeman stated that he and the others “were dumbfounded by this hidden file on the [company’s] mainframe computer.” The three “had this site on [defendant’s] monitor for approximately 30 seconds to one minute and were joking about this site when John Sardell walked up to the cubicle and said to [defendant] that he needed to work on his computer.” According to Freeman, the men “were stunned by the appearance and request by Mr. Sardell and all three of them then immediately left that cubicle, leaving Mr. Sardell in [defendant’s] cubicle.” A day or two later, “Chuck H[a]vercroft, the sales manager, called a meeting of sales staff and told them that there would be no more porn and no surfing the computer network. The computer network at this company was then changed so that the sales staff did not have the privilege to go in and look through the computer files.”
On January 10, 2006, the court held an extensive hearing on the motion, addressing the nature and scope of the defendant’s offer of proof and the parties’ legal arguments. Beyond what was contained in his investigator’s report, defense counsel reminded the court of evidence from the preliminary hearing that “Mr. Sardell had a lap top computer.” In addition, counsel said, “uniquely Mr. Sardell named various computer names. Names from the Bible.” Later, counsel offered “our strong belief” that the pornography was Sardell’s.
At the outset of the hearing, defense counsel agreed with the court’s stated understanding that the pornography evidence was “being offered as, one, motive to fabricate evidence against the defendant. Two, motive for firing the defendant and, three, to establish the bad character of Mr. Sardell and thus impeach his credibility as a witness.” With that understanding in mind, the court addressed all three points.
The court first discussed the defense concern that Sardell might fabricate evidence, more specifically, that he might falsely testify that he personally witnessed defendant pocket money from the El Abuelo transaction. Having examined the existing evidentiary record, including Sardell’s statements to police and his testimony at the preliminary hearing, the court found “that the alleged pornography incident is not relevant because there is … no basis to believe” that Sardell would give fabricated testimony about the El Abuelo incident. The court confirmed that defense counsel was “certainly free to raise the issue again if, in fact, Mr. Sardell should so testify which would … be clearly inconsistent with his previous testimony….”
Taking up the “next ground” for admitting the proffered pornography evidence – as demonstrating “motive on the part of Mr. Sardell to fire the defendant” – the judge first observed: “I don’t think there’s any dispute in the evidence that he was fired.” In response, the prosecutor advised the court that he did not “intend to elicit the reasons” for defendant’s termination, characterizing it as a “peripheral issue” and “really not central to this case at all.” Defense counsel disagreed, saying it was “critical to our case … that Mr. Sardell took action” – which included “starting the investigation” – with “an intention to fire” defendant because he had discovered the pornography. The prosecutor countered that there was no evidence showing that “defendant was treated differently” after discovery of the pornography. He also argued that the proffered defense evidence was “not probative of whether or not he created fictitious invoices.”
In response to the court’s inquiry, the prosecutor described the “essential subject” of Sardell’s anticipated testimony as “going over business records of the company.” The court accepted that description, finding no evidence that Sardell’s testimony “as a witness that depends largely or in any way significantly on his credibility.”
Further explaining its ruling, the court noted the prosecutor’s representation that he would not introduce the reasons for defendant’s firing, having concluded that they were “irrelevant to the issues to be decided by the jury” – defendant’s involvement in the thefts. The court also expressed concern about a foundational issue, whether “the Defense can tie the presence of that pornography on the computer to Mr. Sardell or any other person specifically” given evidence that other “employees had access to the computers.”
Finally, the court said, even accepting the possibility that “Sardell was harboring some secret intent to fire the defendant it’s, one, not relevant on the basis of the offers of proof and, two, … so speculative as to be outweighed by its undue prejudice, and that is that the jury will be distracted from the issues truly presented in this case and may tend to focus on what is a highly inflammatory subject involving sexual pornography on a … minimally relevant issue.” The court thus granted the prosecution’s motion, stating: “There will be no reference to the presence of alleged pornography on any company computer or the discovery thereby of the defendant and the three others named in the [defense investigator’s] statement.”
Several times thereafter, the court was called upon to revisit its ruling.
On January 11th, the prosecution decided not to offer a letter written by defendant when he was terminated, which it considered an admission, after the court indicated that it would allow defendant to introduce the pornography evidence to explain what he meant in the letter.
On January 12th, during the defense opening statement, the court sustained a prosecution objection to references to the reason for defendant’s firing. The court reiterated its “finding that the motive of Garden City Supply in terminating [the defendant] is irrelevant” and its ruling “that there would be no reference to the so-called motive for firing the defendant.”
Also on January 12th, after an intervening discussion on an unrelated matter, defense counsel apprised the court that he might need to address the pornography ruling again. Framed as an offer of proof, counsel explained that defendant “said basically I did it” – without more – when he was fired in January 2002, and that he would now need to explain that he was referring to having conducted the El Abuelo transaction, not having stolen money from Garden City Supply. “And if he is not allowed to say that and why he then left without saying any more,” counsel asserted, “we get ourselves back into the pornography incident, the pornography issue.” The court rejected that argument, saying: “The district attorney is prohibited from introducing evidence on the motive to terminate any more than you are. If the district attorney steps into that, then clearly you will have an opportunity to rebut it.”
On January 18th, defense counsel again sought “some clarification” of the ruling as applied to his “I did it” statement. He referred to a new offer of proof, while asserting that the extant ruling would “essentially” preclude defendant’s right to testify. The court rebuffed him, saying: “Counsel, you have had two occasions to give this Court by way of offer of proof an explanation of what factual basis would make the pornography issue, if you will, relevant. I have found that your offer of proof on both occasions is insufficient. [¶] You have made no additional offer of proof. I’m not going to allow you to keep reopening this issue throughout the course of this trial.” Nevertheless, the court did allow counsel to make “a new offer of proof with any new evidence.” Counsel offered evidence that defendant decided to say nothing beyond “I did it” at the termination meeting, because he did not want to bring up the pornography issue in front of sales manager Havercroft, and because he had decided that it was “better at this time to leave his employment rather than to get into a verbal war over … why he was being fired.” Additionally, concerning “his decision not to confront Mr. Sardell when he observed the pornography initially,” defendant would say “that he made a mistake, he should have confronted Mr. Sardell….” In response, the prosecutor confirmed that he wanted to introduce the “I did it” statement only “as an admission that he stole. That’s all. Not to justify his firing or to get into the issue.” The court found “nothing new in this offer of proof” and reaffirmed its ruling. It added: “And the defendant is more than welcome to explain that he didn’t mean I stole, that he meant I did the transaction. That’s certainly appropriate. [¶] But with respect to anything relating to the alleged pornography or alleged motive or reasons for his termination, that will not be admitted.”
On January 24th, the issue again resurfaced. Defense counsel addressed the court, saying: “My client is going to testify. I know the Court has ruled on this previously. … I am again, just for the record, going to ask the Court to reconsider its previous ruling that my client be allowed to answer truthfully as to all the circumstances that surrounded his particular statement as to why he said ‘I did it.’ [¶] I’m concerned that my client has been limited to a very constrained word or phrase.” Counsel continued: “To preclude him from getting into his full reasons why he said those words, I respectfully believe is a deprivation of my client’s federal and state constitutional rights to testify, to present evidence and his right to a fair trial.” After further discussion, the court stated: “Insofar as that makes reference to the alleged pornography, my ruling remains as previously stated.”
That day, during his direct examination, defendant described the January 2002 conference in which his employment at Garden City was terminated: Sardell brought defendant into a conference room and asked Havercroft to join them. Sardell had defendant’s “personnel file with him and a couple pieces of paper.” In defendant’s words: “He showed me one piece of paper and pushed it towards me and asked me if I had done this transaction. And it happened to be the El Abuelo Taqueria transaction with my code on it and the word deleted on it. And I had told him at that point that I did, I had done that transaction.” The next thing that defendant recalled was “walking out the door.”
The next day (January 25th), during a break in cross-examination, defense counsel again raised the issue of constraints on his client’s testimony about the termination meeting in January 2002. After some discussions, the prosecutor suggested that it might “clarify things” if defense counsel “would state what he is seeking.” The court then commented that the defense offer of proof had been “at the best amorphous, at worst, quite changeable, throughout this process.” The court again explained the permissible limits of defendant’s testimony about the issue. For example, he would be allowed to say – if truthful – “I didn’t explain what I meant when I said I did it because I was not given an opportunity because I was terminated.” After conferring with defendant, defense counsel made an offer of proof that he would explain his failure to say more based on “Mr. Sardell’s demeanor” which led defendant to believe “it was not going to make any difference if he said anything more, that he was … going to be terminated. Therefore he decided essentially to take the high road and leave rather than get into a big argument with Mr. Sardell.” After further discussions, the court stated: “He is not precluded from testifying that he felt it was futile to explain any further. He is not precluded from testifying that he knew or felt or believed that Mr. Sardell was going to fire him. And he is not precluded from testifying that it was his decision not to explain specifically or in greater detail what he meant when he said ‘I did it.’ [¶] He is absolutely not precluded from saying those things, if in fact those are the truth. What he is precluded from doing is … talking about the porn incident. That’s the ruling.”
During subsequent cross-examination, defendant testified further about the termination meeting in January 2002, saying that he did not explain that the El Abuelo customer had returned both gas connectors, because Sardell “didn’t ask.” When asked why he had not volunteered the information, defendant said: “I didn’t volunteer because Mr. Sardell had my personnel file in his hand. He seemed to have his mind made up on what he was going to do and he was pretty agitated. And I decided not to say anything more. I decided to take the high road and leave it at that.”
That same day (January 25th), defense counsel filed a written “continuing objection” to the court’s decision to forbid defendant from referring to the pornography evidence in explaining his actions and statements when terminated in January 2002.
2. Appellate Contentions
Defendant argues that the court abused its discretion and violated his constitutional rights by excluding the pornography evidence, which would have provided context for his statement “I did it.”
On the question of relevance, defendant asserts that his “I did it” statement was not only an admission but also a prior inconsistent statement. In his view, the court “forgot appellant’s right to explain the context of his prior inconsistent statement and prevented appellant from fully explaining his thought process when he was confronted by Sardell.” As defendant acknowledges, the court did allow him “to testify that he did not answer more completely because he thought that Sardell had already made up his mind to terminate appellant. However, appellant was not permitted to explain why he thought that. Thus, the only reasonable implication the jury could draw was that appellant thought Sardell had decided to fire him because he was guilty of taking money from the El Abuelo Taqueria transaction. In fact, appellant thought that Mr. Sardell had already made up his mind to terminate appellant because appellant had discovered pornography on Sardell’s laptop.” Defendant urges that the pornography evidence “was also relevant for a second reason” – as support for an inference that Sardell “had been waiting for an opportunity to get rid of appellant.” Defendant contends that the probative value of the pornography evidence was “very high.”
On the question of prejudice, defendant contends: “There is nothing in the record to indicate that the subject[] of appellant’s proposed testimony was highly ‘prejudicial’ in the sense that the term is used with respect to an Evidence Code section 352 evaluation.” In his view: “While the proposed testimony would have been damaging to Sardell’s credibility, it is not so highly prejudicial that it suggests that it would have led the jury to prejudge him on the basis of extraneous factors.”
The People disagree. They first argue that the trial court’s decision did not violate defendant’s constitutional rights, because “the proffered evidence was simply not relevant to the issues in this case.” Moreover, they argue, even if Sardell’s motive for firing defendant were tied to the pornography evidence, “the exclusion of that evidence did not deprive appellant of the opportunity to present a defense.” As the People observe, defendant “did explain his statement to John Sardell at length” during his testimony. The People further defend the trial court’s ruling as a proper exercise of discretion under Evidence Code section 352.
3. Analysis
As before, we first address defendant’s statutory claims, reaching his constitutional arguments only as necessary to resolve the case. (People v. Brown, supra, 31 Cal.4th at p. 534.)
a. Statutory Claims
In the familiar two-step statutory balancing process, the trial court first considers the probative value of proffered evidence before assessing its potential for prejudice, confusion, and the undue consumption of time. (Evid. Code, § 352.) Here, the court explicitly undertook both steps.
Concerning the first step in the analysis under Evidence Code section 352, evidence may be legally relevant but still have little persuasive value because of its conjectural or inferential nature. (See, e.g., In re Romeo C. (1995) 33 Cal.App.4th 1838, 1844.) The weaker the logical link between the proffered evidence and the desired inference, the lower the probative value of the evidence. (People v. Minifie (1996) 13 Cal.4th at 1055, 1070.) “The trial court retains broad discretion in determining the relevance of evidence.” (People v. Garceau, supra, 6 Cal.4th at p. 177.)
Here, as the People point out, “there was no offer of proof that child pornography was found on John Sardell’s laptop computer.” To the contrary, the defense investigator’s report mentions only “a mainframe office computer” not a laptop. The People further observe: “There was no offer to prove that John Sardell was viewing pornography or that appellant caught Sardell doing so.” As the court commented when it first made the ruling, “it is not absolutely clear to this Court that the Defense can tie the presence of that pornography on the computer to Mr. Sardell or any other person specifically because … [other] employees had access to the computers.” According to the defense investigator’s report, the pornography in question was actually pulled up and viewed on defendant’s monitor. And after the pornography incident, the “computer network at this company was then changed so that the sales staff did not have the privilege to go in and look through the computer files.” Those facts support the court’s determination that Sardell was not the only employee with access to the site where the pornography was initially discovered.
Because of the tenuous inferential link tying Sardell to the pornography, the trial court was justified in characterizing the proffered evidence as “speculative” and in minimizing its probative value. (People v. Ramos (1997) 15 Cal.4th 1133, 1165 [“defendant offered only … supposition” concerning witness bias, “which the trial court properly excluded as too remote and speculative”].)
The trial court also addressed the second step in the statutory analysis, concluding “that the jury will be distracted from the issues truly presented in this case and may tend to focus on what is a highly inflammatory subject” – pornography. On this record, we find no basis for disagreement. Evidence Code section 352 permits the exclusion of inflammatory evidence of this type, “which uniquely tends to evoke an emotional bias against … an individual and which has very little effect on the issues.” (People v. Karis (1988) 46 Cal.3d 612, 638; People v. Cole (2004) 33 Cal.4th 1158, 1197; cf. People v. Nible (1988) 200 Cal.App.3d 838, 850 [trial court properly rejected defense argument that “other crimes evidence, although probative, was nevertheless too prejudicial because it involved sex offenses”].) Considering the nature of the proffered defense evidence, the court’s ruling “simply foreclosed evidence of such speculative and marginal … value it was likely to confuse or mislead the jury.” (People v. Ramos, supra, 15 Cal.4th at p. 1166 [impeachment evidence].) We find no abuse of discretion.
b. Constitutional Claims
As before, defendant’s constitutional arguments need not detain us long. Here, defendant was not denied “the right to present all relevant evidence of significant probative value to his or her defense.” (People v. Cunningham, supra, 25 Cal.4th at p. 999.) Rather, because the proffered defense evidence concerned “a minor or subsidiary point” its exclusion “does not interfere with that constitutional right.” (Ibid.) Nor did its exclusion violate his “constitutional rights to confrontation and cross-examination.” (People v. Brown, supra, 31 Cal.4th at p. 545.)
Thus, on both statutory and constitutional grounds, we reject defendant’s contention that the trial court erred in excluding the proffered pornography evidence. As before, having found no error, we need not address the claim of prejudice.
II. Amendment of the Information Following Defense Motion for Acquittal
Defendant asserts that the trial court acted in excess of its jurisdiction when it permitted the prosecution to amend the third count of the information, after it had granted his motion for judgment. As before, to establish the proper framework for assessing defendant’s contentions, we first describe the governing legal principles. We then apply those principles to the ruling challenged here.
A. Legal Principles
1. Motion for Acquittal
During trial, a criminal defendant may move for acquittal on the ground of insufficient evidence of the charged crime. (Pen. Code, §§ 1118 [bench trial]; 1118.1 [jury trial].) A statutory motion for acquittal “is an evidentiary motion going to the sufficiency of the evidence to sustain a conviction of the offense charged….” (People v. Witt (1975) 53 Cal.App.3d 154, 163, overruled on another point in People v. Posey (2004) 32 Cal.4th 193, 205 fn. 5, 215.) “A defendant need not articulate the grounds for his motion for acquittal, and there is no requirement that the motion be made in a particular form.” (People v. Cole, supra, 33 Cal.4th at p. 1213.) “ ‘The purpose of a motion under section 1118.1 is to weed out as soon as possible those few instances in which the prosecution fails to make even a prima facie case.’ ” (People v. Stevens (2007) 41 Cal.4th 182, 200.)
When it grants such a motion without qualification, the trial court is, “in effect, directing entry of a judgment of acquittal as to the offense charged” in the affected count. (People v. Garcia (1985) 166 Cal.App.3d 1056, 1067; see also, e.g., People v. Witt, supra, 53 Cal.App.3d at p. 163; People v. Moran (1973) 33 Cal.App.3d 724, 728.) On the other hand, the trial court may limit “the impact of the grant of a section 1118.1 motion.” (People v. McElroy (1989) 208 Cal.App.3d 1415, 1424, overruled on other grounds in People v. Cromer (2001) 24 Cal.4th 889, 901, fn. 3.) Neither the constitutional bar against double jeopardy, nor any provision in “Penal Code sections 1023 and 1118.2 … prevents the court from considering lesser included offenses in the same trial after a judgment of acquittal has been rendered as to the greater offense.” (People v. Garcia, at p. 1068.)
2. Judgment of Acquittal
As relevant here, two important consequences flow from a judgment of acquittal in a criminal case.
The first is this: “Once a judgment is rendered it cannot be altered or changed.” (People v. Garcia, supra, 166 Cal.App.3d at p. 1067; see also, People v. McElroy, supra, 208 Cal.App.3d at p. 1424.) “Once a judgment has been rendered in a criminal action the trial judge is without power or authority to change or modify or correct the judgment except for purely clerical errors. This is true even though a judge may have forgotten or overlooked some significant factor.” (People v. Garcia, at p. 1067; see also, e.g., In re Candelario (1970) 3 Cal.3d 702, 705 [subsequent “amendment that substantially modifies the original judgment or materially alters the rights of the parties, may not be made by the court under its authority to correct clerical error”].)
The other pertinent consequence flowing from acquittal relates to lesser included offenses. Where “the information charges only the greater offense and the question of the lesser included offense is not submitted to the jury … an acquittal of the greater offense not only bars subsequent prosecution but also constitutes an acquittal of the lesser included offense.” (People v. Garcia, supra, 166 Cal.App.3d at p. 1068.) In such cases, “the judgment of acquittal on the charged offense includes acquittal on all uncharged lesser included offenses.” (People v. McElroy, supra, 208 Cal.App.3d at p. 1424.)
3. Appellate Review
“In ruling on a motion for judgment of acquittal pursuant to section 1118.1, a trial court applies the same standard an appellate court applies in reviewing the sufficiency of the evidence to support a conviction….” (People v. Cole, supra, 33 Cal.4th at pp. 1212-1213.) On appeal, the reviewing court independently assesses whether “the evidence is sufficient to support a conviction.” (Id. at p. 1213; accord, People v. Stevens, supra, 41 Cal.4th at p. 200.) Where the disputed issue is the trial court’s “jurisdiction to modify or correct its judgment,” the question is “one of legal interpretation.” (People v. Garcia, supra, 166 Cal.App.3d at p. 1067.)
B. Application
With those legal principles in mind, we consider defendant’s challenge to the trial court’s decision to permit the prosecutor to amend the information to charge petty theft.
1. Background
On January 23, 2006, after the prosecution rested, defense counsel advised the trial court that he wanted “to bring a motion pursuant to [Penal Code section] 1118.1 … concerning Count Three.” That count alleged grand theft resulting from the walk-in sales transactions in October 2001 and December 2001 involving El Abuelo Taqueria and Satkar Indian Cuisine. The defense motion was taken up later that day, following testimony from the first defense witness.
Arguing his motion for acquittal, defense counsel stressed that the value of the items from the two transactions did not add up to more than $400, as required to sustain a grand theft conviction. As counsel put it, “based on the evidence that we have heard, Your Honor, what was taken from [the] Satkar Restaurant [transaction] is $109, that is not in dispute. However, what was actually taken from the El Abuelo Taqueria transaction was” the money from just one connector hose, not two, which was valued at “approximately $200, $266” – and “$266 plus $109 does not equal $400.” The prosecutor disagreed, arguing that the jury could draw an inference that defendant initially formed an intent to take more than $400 in the El Abuelo transaction by pocketing the money for both gas connectors, but that he had to settle for half that amount when one connector was returned. He took issue with the defense interpretation of the evidence “that the defendant formed the intent and took the money only when one of the items was returned.”
After hearing from both sides, the court opined: “Counsel, there is no question, no question of the sufficiency of the evidence to sustain a finding by this jury beyond any reasonable doubt that the defendant intended to and did take approximately $200 at the time the one gas connector was returned.” After further discussing the timing of the El Abuelo transaction in relation to defendant’s intent, the court said: “I’m going to grant the motion.” The prosecutor then advised the court: “I hadn’t quite finished my argument.”
The court allowed further argument by both sides, then declared itself “somewhat persuaded by [the prosecutor’s] subsequent argument with respect to intention.” Nevertheless, the court said, “there is absolutely no evidence” that the money for the second connector was taken, and thus no basis for a jury finding of a theft in excess of $400; the court therefore stated that it would “again grant the motion under Penal Code section 1118.”
After clarifying that count 3 was “now dismissed,” defense counsel asked: “Can I move to strike the testimony relevant to the charge?” The prosecutor then orally proposed an amendment to the information reflecting that count 3 had “been reduced to a misdemeanor.” The court responded: “It was an 1118 motion, counsel, and you made no further – and I have granted the 1118.” As the jury was then coming back in, the prosecutor proposed to “take this up on break.”
The issue was discussed again later that day, just before the evening recess. Adverting to “the substantial evidence in this case of two thefts” and defendant’s prior criminal history, the prosecutor requested leave to file an amended information “to add a new Count Three … to allege a violation of Penal Code Section 666.” Defense counsel opposed the request, stating that “the Court’s ruling of 1118.1 is essentially acquittal based on Count Three” and now the prosecutor wanted to “add another felony based upon the fact that this transaction … could be a misdemeanor.” Defense counsel stated two grounds for objection: that the court had already acquitted defendant of the charges in count 3, and that the statute of limitations had run. The prosecutor suggested the submission of “points and authorities first thing tomorrow morning on the issue of whether there has been acquittal and whether or not that bars the amendment that the People are seeking.” The court agreed, saying that it would “reserve any further decision until that time.”
The court took up the matter again the following morning. The prosecutor requested “that the People be allowed to proceed with a count of petty theft.” In the court’s view, “the only real issue presented to this Court is whether or not the Court’s ruling as stated on the 1118.1 motion constituted a complete verdict of acquittal on both the greater and the lesser or only as to the greater offense.” The judge stated: “My ruling is going to rest entirely on what transpired yesterday, what the motion was and what the intention of the Court was at the time of ruling on the motion.” The prosecutor reminded the court of its “finding that there was abundant evidence” of “a theft here of $200.” Defense counsel stated his view that the court had already “granted this motion twice,” and he submitted the matter “based upon the Court’s statement[s] as we heard them read to us.”
The court said this: “Counsel, I can only tell you, and I think the record clearly bears this out, that … I was granting the motion as to the grand theft” only. After defense counsel respectfully disagreed, the court reiterated that it had made a limited ruling, as permitted by Garcia and as borne out by the motion proceedings in this case. The court thus ruled that the question of petty theft “will and should proceed to the jury.”
The following day, January 25th, defense counsel filed additional points and authorities concerning the acquittal motion. In it, counsel argued that the court’s decision was in conflict with the Garcia and McElroy cases, and he urged the court to “re-evaluate the ruling and order that all testimony regarding the Satkar and El Albuelo Taqueria incident be stricken and the jury admonished not to consider it.” That afternoon, the court acknowledged the filing of the defense document, but said: “My ruling will remain as previously stated.”
2. Appellate Contentions
Defendant asserts that the court acted improperly in granting the prosecutor’s motion to amend, after it had already ruled in his favor on the motion for acquittal. In his view, the court’s decision cannot be supported under Garcia and McElroy, since both cases “are clear that the motion to amend must be made … before an unqualified motion for judgment of acquittal is granted.” Furthermore, defendant contends, the erroneous ruling requires reversal and remand, since the judgment of acquittal on count 3 rendered evidence of the Satkar and El Abuelo transactions irrelevant.
The People dispute defendant’s claim of error, saying: “When the trial court granted appellant’s motion for acquittal of grand theft in count three because the evidence was insufficient to show that appellant stole more than $400, the court reserved jurisdiction to allow the charge in count three to be amended to petty theft by explicitly finding that there was sufficient evidence to sustain a conviction of petty theft.” In their view, Garcia and McElroy do not support defendant’s contention, since “here the trial court’s ruling of acquittal was of the greater offense only, and not an implicit acquittal of the lesser included offense.”
Moreover, the People assert, the trial court had the authority to modify its initial ruling until entry of a written dismissal order. In reply to this point, defendant states: “The clerk duly entered the unambiguous judgment of acquittal without any reservations on the same day, January 23, 2006.” Defendant further observes that the “order allowing an amendment of the information to add a charge for petty theft was not granted or entered into the minutes until the following day, January 24, 2006.”
3. Analysis
Based on the transcript of the motion proceedings in this case, we agree with the trial court’s assessment that it granted a qualified motion for acquittal.
a. Events of January 23d
In presenting the motion, defense counsel focused solely on the amounts taken in the Satkar and El Abuelo transactions, which totaled less than $400. The prosecutor responded in kind, arguing that the evidence supported an inference of defendant’s initial intent to take more than $400 in the El Abuelo transaction.
The court prefaced its initial grant of the motion by explicitly finding “no question of the sufficiency of the evidence to sustain a finding by this jury beyond any reasonable doubt that the defendant intended to and did take approximately $200 at the time the one gas connector was returned.” After an additional brief discussion, the court said: “I’m going to grant the motion.”
The court then entertained additional arguments from the parties, before again commenting on the lack of evidence supporting a theft in excess of $400. On that basis, it decided to “again grant the motion under Penal Code section 1118.”
b. Events of January 24th
The following day, the court reexamined “what transpired yesterday, what the motion was and what the intention of the Court was at the time of ruling on the motion.”
Concerning its intent at the time it ruled, the court confirmed that it meant to limit its ruling to the greater offense of grand theft only. As the court explained, “the Garcia case specifically stands for the proposition that the court has the power to limit its judgment solely to the greater offense in this case, grand theft. This is not a case such as … Garcia where the lesser offense was neither considered by the Court nor was there a request by the prosecution that it be considered. [¶] The record is absolutely clear in this regard that this Court did consider that request with respect to both the greater and the lesser. I made a specific finding on the record that there was sufficient evidence to let the question of petty theft go to the jury.”
c. Discussion
When “determining a motion pursuant to Penal Code section 1118.1, the trial judge is entitled to consider whether, although the evidence is insufficient to establish the commission of the crime specifically charged in the accusatory pleading, the evidence is sufficient to sustain a conviction of a necessarily included offense which the evidence tends to prove. A defendant may be convicted of a lesser offense if he was charged with a felony which included the lesser offense.” (People v. Wong (1973) 35 Cal.App.3d 812, 828.)
In the trial court’s view, that very situation – consideration of a lesser included offense – is exactly what occurred in this case. The record supports that view. This case is not like Garcia, where “the court acquitted the defendant of the charged crime … without mention of any lesser included offense….” (People v. Garcia, supra, 166 Cal.App.3d at p. 1069.) Here, although the court did not explicitly refer to the offense of petty theft charge while considering the acquittal motion, its discussion of the evidence makes abundantly clear that the sole disputed issue was whether the amount taken qualified as grand theft. Only where “a trial court grants a defendant’s motion under section 1118.1, and remains silent as to whether the acquittal is limited to the charged greater offense” does the rule articulated in Garcia and McElroy come into play. (People v. McElroy, supra, 208 Cal.App.3d at p. 1424.) Given the nature, scope, and focus of the trial court’s comments here, we cannot agree that the court remained silent about the lesser included offense.
Under the circumstances presented here, we find no basis for reversing the court’s decision to permit amendment of the information to allege petty theft, following its qualified grant of the defense motion to acquit on the charge of grand theft reflected in count 3. Given that conclusion, we need not and do not reach defendant’s assertion that the court should have stricken the petty theft evidence.
DISPOSITION
The judgment of conviction is affirmed.
WE CONCUR: Bamattre-Manoukian, Acting P.J., Duffy, J.