Opinion
A132183
02-06-2012
THE PEOPLE, Plaintiff and Respondent, v. JAMES RICHARD BRZUCHALSKI, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(San Mateo County Super. Ct. No. SC070176A)
A jury found appellant James Richard Brzuchalski guilty as charged of preparing a false instrument for a fraudulent purpose. The trial court suspended imposition of sentence and placed appellant on probation. On appeal, he maintains the court erred in not releasing for defense inspection a copy of an investigation report concerning alleged embezzlement by one or more employees of the San Mateo County Department of Child Support Services (CSS). We find no error and affirm.
I. FACTS
At the commencement of trial, the parties stipulated to the following facts: (1) on August 24, 1995, a court ordered appellant to make monthly child support payments in the amount of $705; (2) on December 16, 1999, the court modified monthly support to $603; (3) on August 16, 2007, the court found appellant in violation of its order, imposed a 66-day jail sentence, and suspended execution of sentence conditioned on appellant paying $750 per month for 18 consecutive months beginning September 1, 2007; (4) on January 30, 2008, the court imposed a 10-day jail term for failure to pay; and (5) the court again modified monthly payments to $450 commencing July 1, 2008, as a condition to avoid imposing the remaining sentence.
After appellant served the jail term, his case was set for a December 3, 2008 review hearing. At that time appellant was again several months in arrears and Commissioner McKenna indicated he would have to return with receipts showing proof of payment and that his account was current, or face further jail time. Appellant's attorney represented that appellant had receipts showing proof of payment.
On December 5, 2008, appellant presented copies of receipts to caseworker Nimish Singh at the Redwood City CSS office. Appellant said there was a discrepancy in the CSS records, and asked Singh to verify his payment history based on the receipts. Singh checked the receipts against computerized records and found one receipt for $450 dated October 27, 2008, which was not reflected in CSS records. Singh brought the item to Sonia Ortega, lead child support analyst. She found no match for the purported payment on the date referenced on the receipt. Ortega then asked Rebecca Gregg in the accounting department to analyze the receipt in the financial database. Accessing the database, Gregg looked for all receipts received on October 27, 2008, but did not find one matching the payment in question. She also searched the specific receipt number 7029 on the CSS system. That receipt number was for a different date, issued to a different client, and in a different amount. Additionally, Gregg searched the hard copy receipts maintained as part of general business practices, and again found no corresponding office copy for the date in question.
Gregg noted physical differences between the two receipts: "[T]he date format between the two did not match. One has a two digit year which is the $450 October 27th payment. Whereas our receipts have a four digit year. I noticed that the printing at the bottom of the October 27th payment was missing and seemed to be cut off." Gregg pointed out other discrepancies: The questioned receipt had an indented date, and different font. Based on these discrepancies, Gregg opined that the questioned receipt was not legitimate.
Singh told appellant he could not issue a credit because he could not verify the payment, explaining that CSS's payment history did not reflect one of the receipts. Appellant told Singh he had made cash payments at the office, and received receipts from the receptionist. Appellant indicated he could not have created the receipt because he would never know what receipt number to use.
Singh testified that the receipt number for the challenged October payment fell between the receipt numbers for the September and November payments.
Receptionist Judy Williams testified that clients who make cash payments must identify themselves and the case to which the payment applied. Williams would then access the person's name and case number and input the payment amount and method. The computer thereafter generated a receipt for the cash payment. Williams stated she was not capable of changing the date on a payment receipt.
Public Service Specialist Desiree Martinez worked at the front desk receiving clients. She explained that two receipts are printed for cash payments; one for the customer and one for the office records. She never altered a cash receipt.
Defense
Investigator Mark Scheffler of the district attorney's office executed a search warrant for appellant's residence on December 22, 2008. He found no typewriter or discarded documents, and did not seize any items from appellant's residence.
Sheila Neufeld, appellant's partner, stated that she delivered 90 percent of the cash payments on appellant's behalf. Cash receipts were printed from a printer next to the receptionist or from a printer "in the back somewhere."
Appellant denied falsifying or altering any receipt and testified that he collected the receipts and brought them to CSS to clarify his payment history. After checking into the receipts, Singh said one receipt appeared to have been assigned to another person. Singh left for about 20 minutes, returned, copied the receipts and mentioned that one of them was irregular. Singh's demeanor had changed. Appellant asked him to resolve the problem by getting "the people together and see if we could sort this out." Singh declined, saying further investigation was needed. Appellant recalled at least one occasion in which the receptionist "went in the back to get a receipt," but he was not sure if that occurred with respect to the receipt in question.
The parties stipulated to the following: "The D.A.'s Office conducted an investigation of suspected embezzlement by an employee of [CSS] on February 18th, 2010. No charges were filed and none of the witnesses in this case were a suspect in that investigation."
II. DISCUSSION
Appellant urges that it was error not to release the investigation report to defense counsel for inspection, along with any protective orders to safeguard identity or employee confidentiality concerns. This error, he asserts, violated his right to provide a defense. Appellant also asks this court to independently review the sealed report in camera, to ascertain if the trial court properly denied his request for disclosure.
A. Procedural Background
Prior to trial, the prosecution requested that the court review an investigation report to determine the discoverability of the report to the defense. Specifically, an investigation was performed in February 2010 concerning an incident involving possible theft of client funds by a prior CSS employee. County counsel objected to release of the report and requested that the court perform an in camera review, with adequate consideration given to the privacy rights of the individuals named in the report. Upon conducting the hearing, Judge Runde concluded that the sealed report was irrelevant.
Toward the end of trial, during direct examination of Scheffler, defense counsel inquired if his office was presently investigating a CSS employee for taking money across the counter. Scheffler said that was not correct and an unreported bench conference transpired. After recess, defense counsel explained that Judge Runde previously reviewed an investigator's report, in camera, did not find any discoverable material and ordered the report sealed to protect the employees' identities and privacy. The report concerned a possible employee embezzlement from CSS. The investigation took place about 14 months after the instant case. Defense counsel never had an opportunity to see the report.
The court indicated it would abide by Judge Runde's ruling, finding the topic more prejudicial than probative, and sustained a relevancy objection. Following another recess, the court indicated it had reconsidered its ruling. The court summarized the situation this way: "There is a representation that the facts are wholly dissimilar and that . . . there are privacy rights that have to be protected. The court is not inclined to disclose the report based upon the privacy rights of the individuals concerned. [¶] The question now is whether or not it would be relevant to make a reference without the disclosure of the names and individuals involved during the course of [this] investigation to this jury." The court proceeded to undertake an in camera review and thereafter ruled: "The court believes that disclosure of the information concerning the parties investigated or interviewed would have a chilling effect on further investigations wholly unrelated to this. As such the court is not going to disclose this report. [¶] . . . [¶] The court will exclude the document and the identities of the people set forth in the document period. On the other hand, the court will not exclude the fact that there was an investigation. I will provide some latitude . . . establishing that there was an investigation." Thereafter the parties agreed to the above stipulation.
Defense counsel referenced the investigation in closing argument: "[T]here was an investigation that had taken place. Now, we know the investigation is not ongoing. . . . We know that they were investigating somebody inside that very office for taking money. We know that at least as we sit here right now nobody has been charged. It doesn't mean it didn't happen. [¶] It doesn't mean they didn't do it. It doesn't mean whether somebody may at some point be charged, whether the decisions were made. . . . All we know [is] that they were investigating something that looks awfully close to implicating what we're discussing here." B. Guiding Principles
Evidence of third party culpability is admissible if such evidence is "capable of raising a reasonable doubt of defendant's guilt. At the same time, we do not require that any evidence, however remote, must be admitted to show a third party's possible culpability. . . . [T]here must be direct or circumstantial evidence linking the third person to the actual perpetration of the crime." (People v. Hall (1986) 41 Cal.3d 826, 833; see People v. Robinson (2005) 37 Cal.4th 592, 625.) In evaluating an offer of proof relating to third party culpability, the trial court must not only decide whether the evidence could raise a reasonable doubt about a defendant's guilt, but also whether the evidence is substantially more prejudicial than probative under Evidence Code section 352. (People v. Bradford (1997) 15 Cal.4th 1229, 1325.) Of course, section 352 must yield to a defendant's due process rights and the right to present all relevant evidence of significant probative value to the defense. (People v. Cunningham (2001) 25 Cal.4th 926, 998-999.) C. Analysis
The trial court's ruling did not violate appellant's due process rights or deprive him of the opportunity to present a defense. Twice the trial court, under two different judges, reviewed the investigation report in camera and determined disclosure was not warranted. Judge Runde found the report irrelevant to appellant's opportunity to present a defense. Judge Swope essentially excluded it under Evidence Code section 352, but allowed a stipulation that an investigation of suspected embezzlement by a CSS employee occurred on February 18, 2010.
This court has as well reviewed the sealed investigation report. We are satisfied that the trial court appropriately found that the actual report should not be divulged. The report revealed no discoverable or exculpatory evidence. As the county counsel noted in its letter to the court, the investigation report was not relevant to the present case. The February 2010 incident involved the possible theft by a CSS employee of part of a cash child support payment, whereas the instant case involves a forged or altered receipt occurring during a different timeframe. Further, the CSS client and employees directly involved in handling funds during the February 2010 incident are not involved in the facts or circumstances of this case. Had the investigation report been revealed to appellant's counsel, appellant would have reaped no greater benefit than was allowed through the court-approved stipulation.
III. DISPOSITION
The judgment is affirmed.
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Reardon, J.
We concur: ____________
Ruvolo, P.J.
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Sepulveda, J.