Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 04F04763
RAYE, P. J.Following a jury trial, defendant John Rojas Arvizu was convicted of grand theft (Pen. Code, § 487, subd. (b)(3)) and embezzlement of property in excess of $50,000 (§§ 503, 12022.6, subd. (a)(1)). The court denied defendant’s motions to dismiss and for a new trial, and sentenced him to three years in state prison. The trial court awarded 99 days’ presentence custody credits, consisting of 67 days of actual custody and 32 days of conduct credits, and later amended the award, increasing the conduct credits to 67 days, for a total of 134 days’ presentence credit.
Subsequent undesignated statutory references are to the Penal Code.
On appeal, defendant contends delays in arresting and charging him violated his state and federal rights to a speedy trial, and he was entitled to a new trial based on new evidence and ineffective assistance of counsel. We shall affirm.
FACTS
Clinton Harless owns Sacramento Auto Glass. In October 2000 his business was in disarray. Harless hired Barbara Mitchell as a consultant to clean up the computerized bookkeeping process and soon made her the firm’s controller. Mitchell’s primary responsibility as controller was to maintain the accounts payable and handle the company payroll. Her salary was $3,500 every pay period; like all salaried employees, Mitchell was paid every two weeks.
Payroll was done internally before Mitchell joined the firm. In October or November 2000 she convinced Harless to allow a third party, Paychex, to handle payroll. Paychex loaded a program onto the company’s computer system; salaries and hours worked would be entered into the system, which in turn would transmit the information to Paychex, who would issue the payroll checks.
Mitchell introduced defendant to Harless in January 2001. She told him that defendant could build computers for Sacramento Auto Glass at about half the price of major computer makers. Defendant was initially retained by Sacramento Auto Glass as an outside contractor to build computers; he eventually built seven or eight computers for the firm in February or March 2001. Defendant also performed an analysis of job responsibilities and a flow chart of purchase orders.
Sacramento Auto Glass had expanded into commercial glass work, a field in which Harless had little experience. In 2001 the company had three major commercial projects, a medical building in Fairfield, Lakeside Church in Folsom, and the Empire Ranch School in Folsom. The company was having trouble with the Lakeside Church project, and in July 2001 Mitchell recommended that Harless hire defendant to oversee the project.
Defendant was hired to oversee the Lakeside project, which Harless believed would be completed in less than two months. Harless never saw any pay records, but he told Mitchell that defendant would earn a salary, paid biweekly, equal to $100,000 a year for the few months needed to finish the work. According to Harless, defendant was not authorized to work on any of the other projects except for some minor work on the Empire Ranch School job.
Starting in May 2001 Harless repeatedly asked Mitchell if he could review payroll records, but she made excuses and kept putting it off. Harless hired Jeannie Neumayr as a part-time bookkeeper in June 2001. In August 2001 Neumayr told Harless that there were insufficient funds in the company’s payroll account.
Harless went online to look at his bank account and determined more money was being disbursed for payroll than expected. Neumayr called Paychex and learned that a second payroll account had been created, which was being used to transfer money out in the off weeks when there was no payroll. Harless confronted Mitchell and fired her on September 17, 2001.
Harless admitted having sex with Mitchell once, in November 2000. Before he hired Mitchell, Harless learned that she had been fired by her last employer, a local law firm, for embezzling money. Harless had contacted Mitchell about the allegations; he believed her explanation and hired her.
Harless examined his firm’s bank records and determined that defendant had received numerous unauthorized payments, by being paid on off weeks when he, as a salaried employee paid biweekly, was not supposed to be paid. Between June 22 and August 31, 2001, defendant was entitled to be paid with six biweekly checks of $3,875 each, but instead he received weekly checks for that amount.
Defendant also received over $14,400 in unauthorized reimbursement for expenses that were never substantiated with receipts. Expenses were supposed to be paid from general funds, but defendant’s expenses were paid from the unauthorized second payroll account. Testifying, Harless went through the checks one by one, explaining whether a salary payment or expense reimbursement was or was not authorized.
According to Harless, defendant received $54,000 in unauthorized payments from Sacramento Auto Glass. Harless also detailed numerous unauthorized payments to Mitchell. Harless did not fire defendant because he was no longer an employee of Sacramento Auto Glass when the embezzlement was discovered.
Harless first met with law enforcement on November 27, 2001, two months after he filed a complaint against Mitchell and defendant, and gave a statement to Sacramento County Sheriff’s Deputy R. Wilson. Harless met law enforcement officials again in January 2004, when he provided his business records and other information concerning the embezzlement.
Deputy Wilson died in 2006.
Louis McCumber was a general manager for Quick’s Glass Service, a subsidiary of Sacramento Auto Glass, in 2000 and part of 2001. He testified that the expenses reimbursed to defendant were unprecedented for a project manager. Bradley Whitaker worked for and continues to work for Sacramento Auto Glass. Employees had to turn in receipts to get reimbursement for expenses; the expenses for which defendant was reimbursed were too high. He never saw an expense like the thousands of dollars of reimbursements paid to defendant.
In 2000 Eugene Shrader worked for Quick’s Glass Service. Mitchell introduced defendant to him as her boyfriend. Shrader was promoted to foreman of the Lakeside Church job when defendant was made project coordinator. Things got worse at the job once defendant started to manage. Parts would not get ordered, would be improperly ordered, or would not arrive on time. Defendant, who appeared to be unqualified, undermined Shrader’s authority on the job site. Defendant never told Shrader he spent thousands of dollars out of his own pocket, and Shrader saw no need for anyone to spend his own money for materials or supplies.
Mario Saenz, a general manager for Sacramento Auto Glass, testified that defendant’s computers had faulty power supplies and were so undependable they were not given to managers. He was unaware of defendant’s having any skill in the glass business.
In his defense, defendant presented testimony from two former coworkers in other jobs, who testified that defendant had a reputation for honesty and hard work. Tracy Asher worked for one of the contractors at the Empire Ranch School project. He had little interaction with defendant, but a document he received from defendant was unusually well-written for a subcontractor. John Walker, a superintendent for Asher’s firm, did more work with defendant, but Walker died in 2003.
DISCUSSION
I
Harless met with a sheriff’s deputy to report the embezzlement on November 27, 2001, but the case sat idle until January 2004. A complaint was filed against defendant on May 25, 2004, and he was not arraigned until April 17, 2006.
Defendant contends the 32-month delay between the commission of the offenses and the filing of the complaint, and the 23-month delay between the complaint and the arraignment, violate his state and federal speedy trial rights. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15; § 686, entitlement No. 1.) We disagree.
The Sixth Amendment to the United States Constitution and article I, section 15 of the California Constitution guarantee the accused the right to a speedy trial, in part to protect the defendant from the hazard of a trial after so great a lapse of time that the means of proving his innocence may not be within his reach, as, for instance, by the loss of witnesses or the dulling of memory. (People v. Martinez (2000) 22 Cal.4th 750, 760, 767-768 (Martinez).)
As summarized in Martinez, “the Sixth Amendment speedy trial guarantee begins to operate either on the filing of an indictment, information, ‘or other formal charge, ’ or when a suspect ‘has been arrested and held to answer.’ [Citation.].” (Martinez, supra, 22 Cal.4th at p. 761.) The filing of a California felony complaint is by itself insufficient to trigger the Sixth Amendment speedy trial right. (Martinez, at p. 763.) Under the state Constitution, by contrast, the filing of a felony complaint is sufficient to trigger speedy trial protection. (Martinez, at p. 765.)
Delay before arrest does not implicate the right to a speedy trial; however, prearrest delay implicates the due process right to a fair trial. “Delay in prosecution that occurs before the accused is arrested or the complaint is filed may constitute a denial of the right to a fair trial and to due process of law under the state and federal Constitutions.” (People v. Catlin (2001) 26 Cal.4th 81, 107; see United States v. Lovasco (1977) 431 U.S. 783, 789 [52 L.Ed.2d 752, 758].)
“‘[R]egardless of whether defendant’s claim is based on a due process analysis or a right to a speedy trial not defined by statute, the test is the same, i.e., any prejudice to the defendant resulting from the delay must be weighed against justification for the delay.’ [Citation.]” (Martinez, supra, 22 Cal.4th at p. 767.) As with the right to a speedy trial, the defendant has the initial burden of showing prejudice before the prosecution is required to offer any reason for the delay. (People v. Butler (1995) 36 Cal.App.4th 455, 466.)
Defendant moved to dismiss the prosecution on speedy trial grounds before trial, but the trial court continued the motion until after the trial. Defendant testified at the posttrial hearing. He had no idea he was being investigated until he was informed of the charges by Mitchell’s attorney in April 2006. He then searched his records for a few days looking for information; while he found some documents and data CD’s, he had gotten rid of most of the relevant materials over time. In addition, defendant no longer had the computer he used when he was working for Sacramento Auto Glass, discarding his server in 2002 or 2003 following a catastrophic disk drive failure. As a result, defendant obtained less than 20 percent of the documents he created when working for Sacramento Auto Glass, and less than 10 percent of his work-related e-mails.
Defendant did not have his credit card statements for 2001, having discarded them in 2003 or 2004. His memory regarding expenses for his time at Sacramento Auto Glass was vague, but he believed his expenses were “pretty limited to fuel.” Among the missing documents were summaries of hours worked, e-mails from a vendor on the Empire Ranch School Project, and Microsoft Project documents for the Lakeside Church, Empire Ranch School, and Fairfield medical building projects.
Defendant admitted he was Mitchell’s boyfriend when he worked at Sacramento Auto Glass, and that he married her in 2002. He asserted that he was paid $200 an hour at Sacramento Auto Glass. At trial, Harless testified that he never paid any consultant $200 an hour other than attorneys, and would not have paid defendant that rate.
In addition to defendant’s testimony, counsel also argued the defense was prejudiced by the unavailability of two potential witnesses, Deputy Wilson, and John Walker, the site supervisor for a contractor at the Empire Ranch School project, both of whom died before trial. Defense counsel admitted that defendant’s credit card companies kept his credit card statements for seven years and that his statements would have been available as late as 2008.
The trial court found there was no excuse for the delay, stating, “I think it’s very hard for the People with a straight face to say that law enforcement did everything they possibly could to locate Mr. Arvizu.” It nonetheless denied the motion because defendant failed to establish prejudice from the delay.
The trial court found that Harless was extensively cross-examined, and it could not see how the presence of Deputy Wilson, the officer who took Harless’s initial statement, would have made any difference. Regarding Walker, the trial court found that this witness, an employee of another company, would not have been able to explain how defendant was entitled to the monies he received from Sacramento Auto Glass.
In addition, the trial court noted defendant’s expense records could have been found as late as 2008. Defendant’s income tax returns were filed through an accountant, but there was no declaration that a subpoena duces tecum was served on the accountant. Although it was possible the alleged records exonerating defendant existed, the trial court found their existence to be highly unlikely given the massive expenses involved.
The trial court concluded it would have to believe defendant’s story that Mitchell took the money from him without his knowledge if it were to grant the motion. Based on its observation of defendant, the trial court found he was very bright, detailed, focused, and “continually in control.” It concluded defendant’s story was not credible in light of these observations.
On appeal, defendant’s arguments reiterate those he made below. He contends the delay deprived him of two crucial witnesses, Walker and Deputy Wilson. He also contends that neither Harless nor law enforcement “preserved evidence crucial to [defendant’s] defense, i.e., computers, e[-]mails, receipts, and employee records, which would have shown that [defendant] earned the sums paid to him in accordance with his terms of employment.” Defendant asserts Harless kept no records of the hours defendant worked, the terms of employment, his status as contractor or employee, or records of defendant’s expenses. He argues that these records would show defendant was entitled to the monies he received, but he did not preserve the bulk of his records because he had no reason to know that he would be prosecuted as late as April 2006. Arguing the passage of time prevented him from showing he was entitled to his payments from Sacramento Auto Glass, defendant contends the delay prejudiced his defense.
Defendant’s argument fails because he does not identify any evidence lost with time that would rebut the considerable evidence of his guilt. The trial court correctly observed that the People built an impressive case for defendant’s guilt: lengthy, detailed testimony from Harless, supported by bank records, showing defendant received numerous unauthorized payments from Sacramento Auto Glass, disbursed on the order of Mitchell, his girlfriend and the firm’s controller.
Deputy Wilson merely took the initial report from Harless. He had no first-hand knowledge of defendant’s responsibilities or the compensation practices of Sacramento Auto Glass. Harless’s statement to Deputy Wilson was written down, and it was used to impeach him during cross-examination.
There is no evidence that Walker would know how many expenses defendant incurred, nor whether he was entitled to the compensation he received. Defendant’s contention that Walker’s knowledge of defendant’s work would show he had a bigger role in the Empire Ranch School project than Harless suggested is speculative and, if true, of marginal relevance to defendant’s guilt. Even if defendant worked extensively on the Empire Ranch School project, it would not explain how he incurred over $14,000 in expenses or why he was being paid twice as often as other employees.
Defendant’s contentions regarding the alleged lack of records are speculative, contrary to the evidence, and disregard the trial court’s finding that he was not a credible witness. Evidence at trial showed employees had to submit a receipt before being compensated for an expense. Since defendant’s credit card records were available from the credit card companies until 2008, defendant could have found records for at least some of those expenses after he was arraigned in 2006.
The amount of defendant’s reimbursed expenses strongly suggests they were unauthorized. Defendant was compensated for over $14,000 in expenses. He claimed most of the expenses were for mileage, but the firm only paid $0.34 a mile for travel expenses, and only for travel between the office and work sites. Defendant’s office was in Marysville, and the work sites were in Folsom and Fairfield; it is inconceivable that defendant could rack up most of his $14,000 in alleged expenses for mileage during the several months he worked for Sacramento Auto Glass.
We agree with the trial court’s observation that while it is possible there are records justifying defendant’s expenses and compensation, it is highly unlikely they exist. The trial court correctly concluded that it would be necessary to believe defendant’s story in order to grant his speedy trial motion, but his testimony was not credible. We defer to the trial court’s finding on credibility. (See People v. Boyer (2006) 38 Cal.4th 412, 444.)
Since defendant has presented no evidence of prejudice from the delay, his contention fails.
II
Defendant made a motion for new trial based on 1) counsel’s admission that she was ineffective for not obtaining defendant’s credit card records; 2) newly discovered evidence that Christian Romero, an expert in computer forensics, could have testified that certain documents were created by defendant in 2001 or 2002, prior to any allegations against defendant; and 3) counsel’s admission that she failed to fully investigate whether Romero could authenticate documents sent on a jump drive rather than the original computer. The trial court denied the motion.
Defendant asserts the trial court should have granted the motion.
A
“On appeal, a trial court’s ruling on a motion for new trial is reviewed under a deferential abuse of discretion standard. [Citation.] Its ruling will not be disturbed unless defendant establishes ‘a “manifest and unmistakable abuse of discretion.”’ [Citations.]” (People v. Hoyos (2007) 41 Cal.4th 872, 917, fn. 27.) “A trial court abuses its discretion when its ruling ‘“fall[s] ‘outside the bounds of reason.’”’ [Citation.]” (People v. Benavides (2005) 35 Cal.4th 69, 88.)
Item 8 of section 1181 allows a trial court to grant a new trial “[w]hen new evidence is discovered material to the defendant, and which he could not, with reasonable diligence, have discovered and produced at the trial....”
Defendant has failed to show any new evidence material to the case. The alleged newly discovered evidence that Romero could help present is defense exhibit O, a document from defendant recommending to Harless that he personally deal with the payroll. According to defendant, Romero would authenticate that this document was prepared in 2001, before the allegations against him were made. Defendant argues this provided powerful evidence of his innocence by demonstrating he did not know of Mitchell’s felonious activity. In addition, defendant contends Romero could also validate the dates of documents showing the considerable work defendant did for Sacramento Auto Glass.
In rejecting defendant’s motion, the court dismissed the relevance of documents showing how much work defendant did for the firm, as such evidence could not explain the unauthorized expenses or why defendant was paid more often than the other employees. While defense exhibit O was more important, Romero could not explain whether the document was presented to Harless or Harless’s reaction to it. Since there is no evidence Harless ever saw the document, the trial court concluded it was not relevant.
We agree with the trial court. As we have already explained, evidence that defendant did a certain amount of work for Sacramento Auto Glass does not explain his large, unsubstantiated expenses, nor his being paid twice as often as other employees. There is no evidence Harless ever saw the document in defense exhibit O; since the unread document could not expose Mitchell’s scheme, it is not evidence of defendant’s innocence. Also, the record contains no indication of the actual date when exhibit O was produced. Romero’s declaration states he examined a jump drive containing files made in 2001, 2002, and 2009, and there was a high probability that he could identify the date when a Microsoft Word file was created. However, the declaration does not state on what date exhibit O was made. A document made in 2009 would have no value whatsoever, while a document made in 2002 or after defendant left Sacramento Auto Glass in 2001 would not exonerate defendant, as it would have been made after he left the firm and likely after Mitchell, his girlfriend, had been fired on suspicion of embezzlement. It is speculation for defendant to presume Romero could authenticate the document for a date favorable to him.
It was not an abuse of discretion for the trial court to deny the motion for a new trial based on this meager evidence.
B
Defendant argued at trial and on appeal that counsel was ineffective by failing to subpoena his credit card records from the relevant banks, which prevented him from finding justification for his reimbursed expenses. He also contends counsel’s failure to consult a computer consultant earlier led her to believe his documents on the jump drive could not be authenticated, and thus advised defendant against testifying at trial.
To establish ineffective assistance of counsel, defendant must demonstrate that counsel’s performance was deficient and that defendant suffered prejudice as a result. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 691-692 [80 L.Ed.2d 674, 693, 696.)
There is no evidence that records of his expenses exist; in fact, the evidence strongly suggests that no such records exist for the extraordinary expenses reimbursed to defendant. Likewise, there is no reason to believe his testimony would lead to a different result. The trial court found defendant’s testimony at the speedy trial hearing was not credible, and there is no reason to think that the jury would come to a different conclusion.
We cannot base a finding of ineffective assistance of counsel on speculation concerning the underlying facts. (See People v. Osband (1996) 13 Cal.4th 622, 676.) The ineffective assistance of counsel claim is without merit.
DISPOSITION
The judgment is affirmed.
We concur: BLEASE, J., BUTZ, J.