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People v. Caldwell

Court of Appeals of California, Third District, (Yolo).
Oct 7, 2003
No. C040962 (Cal. Ct. App. Oct. 7, 2003)

Opinion

C040962.

10-7-2003

THE PEOPLE, Plaintiff and Respondent, v. HEATHER REBECCA CALDWELL, Defendant and Appellant.


Defendant Heather Rebecca Caldwell, a new part-time bartender at the Mecca Club in West Sacramento, worked the late shift on Christmas Eve 2000. The next morning, when Sandra Nelms (the bars owner) opened the safe, it appeared the Grinch had paid her a visit — all the cash that should have been in the safe was missing. Defendant never returned to the bar following her Christmas Eve shift, and Nelms never saw or heard from her again.

Dr. Seuss, How the Grinch Stole Christmas (1957).

Defendant was charged with one count of embezzlement, and the jury found her guilty. On appeal from an order granting her probation, defendant contends: (1) there was insufficient evidence to prove she took the money; (2) the trial court prejudicially erred by admitting hearsay evidence that she went to Oregon after the money disappeared; and (3) she received ineffective assistance of counsel. We will affirm.

I

Substantial Evidence Supports the Jurys Verdict

When a defendant challenges the sufficiency of the evidence to support a criminal conviction, "`[t]he test on appeal is whether substantial evidence supports the conclusion of the trier of fact, not whether the evidence proves guilt beyond a reasonable doubt. The court must view the entire record in the light most favorable to the judgment (order) to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the [defendant] guilty beyond a reasonable doubt. In making such a determination we must view the evidence in a light most favorable to respondent and presume in support of the judgment (order) the existence of every fact the trier could reasonably deduce from the evidence." (In re Paul C. (1990) 221 Cal.App.3d 43, 52, quoting In re Oscar R. (1984) 161 Cal.App.3d 770, 773.)

In her brief in this case, defendant sets out four pages of legal principles governing challenges to the sufficiency of the evidence. Unfortunately, she pays only lip service to those principles in her interminable discussion of the evidence, by which she purports to show there was no substantial evidence she took money from the Mecca Club. For example, in arguing the sufficiency of the evidence, defendant contends more than once that the testimony against her was not credible, while her own testimony was "detailed and credible." This argument is completely misplaced.

"With rhythmic regularity it is necessary for us to say that where the findings are attacked for insufficiency of the evidence, our power begins and ends with a determination as to whether there is any substantial evidence to support them; that we have no power to judge of the effect or value of the evidence, to weigh the evidence, to consider the credibility of the witnesses, or to resolve conflicts in the evidence or in the reasonable inferences that may be drawn therefrom. No one seems to listen." (Overton v. Vita-Food Corp. (1949) 94 Cal.App.2d 367, 370.)

Here, viewed in the light most favorable to the judgment, the evidence showed that Nelms, the owner of the Mecca Club, first met defendant in the middle of November 2000. Defendant came into the bar to ask if Nelms needed any help bartending, and she left her telephone number. When Nelms needed someone to fill in later in the month, she called defendant.

Defendant worked as an occasional bartender at the Mecca Club for less than a month. On Christmas Eve of that year, she was the sole employee at the bar during the evening shift. Defendant claimed this was her last night of work because Nelms had told defendant she had hired someone else in defendants place. According to Nelms, however, she told defendant no such thing.

At the end of the day shift on Christmas Eve, there was approximately $ 1,045 in cash at the bar. Defendant wrote in the day book that she took in an additional $88 during her shift.

It was defendants responsibility as the evening bartender to lock the money in the safe at the end of her shift. Defendant claimed she did that. When Nelms opened the bar on Christmas morning, however, she found the safe locked, but no money inside or anywhere else in the bar for that matter. There was no sign of a break-in. Only one person other than Nelms — another bartender named Sandra Rogers — had the combination to the safe.

After Christmas Eve, Nelms never saw or heard from defendant again, and defendant never returned her key to the bar.

Nelms claimed she told defendant to take her pay for the night out of the "take." Defendant claimed she did not do so because she "didnt want to get it mixed up on how much [she] was supposed to get paid." She then said she never went back to the Mecca Club after Christmas Eve. When asked why she never went back to pick up her pay for her Christmas Eve shift, defendant said, "I was never able to get a hold of her." In response to follow-up questions from the jury, defendant then claimed that in an effort to collect her pay, she called Nelmss house, called the bar, went to the bar the day after Christmas, and sent a friend to the bar to see if Nelms was there. She claimed she left a message with one or two of the other bartenders. She also said she thought the bartender she came in contact with the day after Christmas was "little Sandi."

In response to this testimony, Sandra Rogers ("little Sandi") testified that she never saw defendant after Christmas Eve. Nelms also testified that she never received a message from defendant after Christmas Eve, either on her answering machine at home or through any third party. She repeated that she did not see or hear from defendant again.

From this evidence, the jury reasonably could have found beyond a reasonable doubt that defendant was the person who took the money from the Mecca Club.

Defendant contends there was no "credible evidence that any cash was stolen." Not so. Defendant herself testified she put cash in the safe at the end of her shift. Nelms testified there was no cash there the next morning. This evidence supports a reasonable inference someone stole the cash.

Defendant also contends there is "a complete lack of evidence of stolen cash in [her] possession" and a "lack of proof that [she] took any cash." While there may be a lack of direct evidence that defendant stole the cash from the Mecca Club, there is sufficient circumstantial evidence to support that conclusion. From the evidence, the jury could have found defendant was the last person with access to the cash. Furthermore, the jury could have found that defendants failure to ever return to the Mecca Club after the cash disappeared showed a guilty conscience. The jury was under no obligation to believe defendants testimony that she did not take the money. (People v. Adams (1993) 19 Cal.App.4th 412, 438 ["the fact finder is the exclusive judge of credibility"].) Defendants challenge to the sufficiency of the evidence is without merit.

II

The Error In Admitting Hearsay Evidence that Defendant

went to Oregon after the Money Disappeared was Harmless

Before trial, defendant sought to preclude Nelms from testifying that when she tried to find out where defendant was after the money disappeared, she was told defendant had gone to Oregon. The court precluded the anticipated testimony as hearsay, but said that "[i]f that issue comes up in terms of police investigation, that may be a different matter."

Subsequently, the prosecutor elicited testimony from West Sacramento Police Officer Thomas Maggiano about his investigation of the crime. During that testimony, the following exchange occurred:

"Q So what did you do after not finding any success when contacting [defendant]?

"A Ms. Nelms had indicated to me that she had called someone on that phone and spoke to someone and that person had told her

"[Defense counsel]: Objection, calls for hearsay.

"THE COURT: All right, I will not permit this for the truth of the matter, but so that the jury can understand why the officer pursued the leads he did. And for that reason alone.

"[Defense counsel]: Im not — Your Honor, Im not questioning why the police officer pursued his leads.

"THE COURT: I understand, and overruled. Go ahead.

"Q Go ahead.

"A Ms. Nelms indicated to me that [defendant] called the person that [sic] she spoke with, spoke that `[defendant] had went [sic] to Oregon and she was no longer in the city of West Sacramento. Therefore, it was no place for me to find her. I believed her to be gone."

Defendant contends "[t]he police officers `state of mind or reasons for investigating the way they did was not an issue in the case" and therefore the hearsay testimony that defendant went to Oregon was "irrelevant as a matter of law." We agree.

Evidence is relevant if it has "any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Evid. Code, § 210.) The People contend the evidence at issue here "was introduced for the [nonhearsay] purpose of explaining the actions Officer Maggiano took as a result of the information he received." The People fail to explain, however, why Officer Maggianos actions in attempting to locate defendant were of any consequence to the determination of the criminal action against defendant. Absent such an explanation, we are left to conclude the evidence was irrelevant. (See People v. Scalzi (1981) 126 Cal.App.3d 901, 906 [error to admit hearsay statement to prove why police officer arrested defendant because officers "state of mind accounting for appellants arrest, booking and charges was not an issue in the case"].)

Nevertheless, the trial courts error in admitting the evidence was harmless. Defendant contends "[t]he irrelevant hearsay evidence that [she] had left town after the alleged theft was used by the prosecutor to excuse the lack of police investigation and to suggest a consciousness of guilt on the part of [defendant]." The pages of the transcript defendant cites, however, show no reference to the hearsay evidence that defendant went to Oregon. Instead, the cited passages from the prosecutors closing argument refer only to the evidence, admitted without objection, that defendant never came back to the Mecca Club after her shift on Christmas Eve.

Furthermore, the court specifically instructed the jury that Officer Maggianos testimony about what Nelms told him was being allowed into evidence "not . . . for the truth of the matter, but so that the jury can understand why the officer pursued the leads he did. And for that reason alone." "[I]t must be assumed that a jury does its duty [and] abides by cautionary instructions." (NBC Subsidiary (KNBC-TV), Inc. v. Superior Court (1999) 20 Cal.4th 1178, 1223-1224.) If the jurors followed the courts admonition, they could not have considered Officer Maggianos testimony as suggesting a consciousness of guilt on defendants part. Further, defendant fails to suggest any other prejudicial effect the evidence could have had. Under these circumstances, it is not reasonably probable the result would have been different had this evidence been excluded. (People v. Watson (1956) 46 Cal.2d 818, 836.)

III

Defendant did not Receive Ineffective Assistance of Counsel

Defendant contends she was deprived of the effective assistance of counsel because her attorney: (1) failed to object to the testimony of the investigating police officers, especially their testimony of Nelmss demeanor in reporting the theft; (2) failed to object to Rogerss testimony of Nelmss opinion as to who took the money; and (3) failed to request a third-party culpability instruction. We disagree.

"Generally, a conviction will not be reversed based on a claim of ineffective assistance of counsel unless the defendant establishes both of the following: (1) that counsels representation fell below an objective standard of reasonableness; and (2) that there is a reasonable probability that, but for counsels unprofessional errors, a determination more favorable to defendant would have resulted. [Citations.] If the defendant makes an insufficient showing on either one of these components, the ineffective assistance claim fails. Moreover, `"a court need not determine whether counsels performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies."" (People v. Rodrigues (1994) 8 Cal.4th 1060, 1126.)

Here, we conclude defendant has failed to show that her counsels actions fell below an objective standard of reasonableness or that there is a reasonable probability that, but for counsels omissions, a determination more favorable to her would have resulted.

A

The Officers Testimony

1. Officer Hernandez

West Sacramento Police Officer Sam Hernandez testified for the prosecution that he received a call on Christmas Day 2000 about a theft of money from the Mecca Club. He took a statement over the telephone from Nelms, who "appeared to be upset over the incident" and who mentioned a couple of times that she was "disappointed." After taking the statement, Officer Hernandez did no follow-up investigation, but simply prepared a report that was forwarded to detectives.

Defendant contends the "irrelevant testimony . . . that Nelms was . . . `disappointed about the theft was prejudicial." According to defendant, the "evidence of the emotional distress the theft caused Nelms diverted the jurys attention from the only significant issue to be decided — whether [defendant] was the thief."

We disagree that evidence of Nelmss demeanor in reporting the crime was irrelevant. That Nelms sounded upset about the theft had some tendency in reason to prove that the money was actually stolen and that Nelms was not making a false report. (Cf. People v. Adams (1986) 186 Cal.App.3d 75, 77, 80 [rape victims testimony was corroborated by testimony of police officer and others regarding her demeanor and statements immediately after the rape], disapproved on other grounds in People v Gammage (1992) 2 Cal.4th 693, 697-702.) Because the testimony was relevant, defense counsels failure to object to the testimony was reasonable.

2. Officer Maggiano

Officer Thomas Maggiano testified that he received Officer Hernandezs report about the theft at the Mecca Club on Christmas Day. He looked up defendants name and was able to obtain a photograph of her from the DMV. He then went to the Mecca Club and talked with Nelms about the theft. Officer Maggiano testified Nelms was "mad that an employee had taken that money from her." Nelms identified defendant from the DMV photograph, and Officer Maggiano then attempted to contact defendant at the telephone number Nelms had for her. There was no answer. Because Nelms had told Officer Maggiano that she had heard defendant went to Oregon, Officer Maggiano made no further attempts to locate defendant.

As with Officer Hernandezs testimony, defendant contends Officer Maggianos testimony about Nelmss demeanor in reporting the crime was irrelevant and prejudicial. We have explained already that testimony about Nelmss demeanor was relevant, and therefore defense counsels failure to object to the testimony was reasonable.

Defendant further contends Officer Maggianos testimony prejudiced her because "[t]he jury no doubt speculated [from the testimony that defendant had gone to Oregon] whether [defendant] had been hiding from the police." According to defendant, "Cleary the jury was affected by the bogus evidence of `flight, to [defendants] prejudice."

Defense counsel attempted to keep out Officer Maggianos testimony that he was told defendant went to Oregon, but the trial court overruled his objection. Thus, defendant has failed to show any unreasonable conduct by defense counsel with regard to this testimony.

B

Rogerss Testimony

On rebuttal, Rogers testified that Nelms called her the morning after the theft and told her all the money was gone. She also testified that Nelms said she thought defendant had taken the money.

Defendant contends "[t]he evidence of Nelms belief that [defendant] was the culprit . . . diverted the jurys attention from the only significant issue to be decide — whether [defendant] was the thief." That argument makes no sense and accordingly we reject it. In any event, given the totality of the evidence before the jury, we find it very unlikely that Rogerss testimony that Nelms thought defendant stole the money had any bearing on the jurys verdict.

First, it was quite apparent from Nelmss testimony that she believed defendant was the culprit. For example, she testified that after she discovered the money was gone she tried to call defendant. Although she was prevented from testifying to the substance of her conversation with the person who answered the phone, she said that after that conversation she called the police. A reasonable inference is that she believed defendant had taken the money. Thus, Rogerss testimony on that point was merely cumulative evidence that was already properly before the jury.

Second, the evidence as a whole was persuasive of defendants guilt. The evidence showed that defendant, who had only recently started working at the Mecca Club, was the last person with access to the cash before it disappeared. Only Nelms and Rogers had the combination to the safe, and there was no evidence either of them went to the bar after defendant removed the money from the safe and left. Moreover, defendants trial testimony was suspect in several critical aspects. Defendant first claimed she never returned to the Mecca Club after Christmas Eve because Nelms had fired her. Nelms, however, testified she never fired defendant. Later, defendant contradicted herself when she said she went back to the bar the day after Christmas to try to collect her pay for her Christmas Eve shift. The person she said she thought she had contact with, Rogers, denied ever seeing her, and Nelms testified she never saw or heard from defendant again and defendant never returned her key to the bar.

Under these circumstances, we find no reasonable possibility the jurys verdict would have been more favorable to defendant if Rogers had not testified that Nelms thought defendant stole the money.

C

Third-Party Culpability Instruction

Defendant asserts one of her defense theories was "that third parties had equal access to the bar and to the safe or the drawer in which the cash may have been at the time the cash allegedly disappeared, and had as much or more motive to take the cash than did [defendant]." She contends that under these circumstances, her attorney should have requested a third-party culpability instruction.

Defendant suggests "the following instruction could have been given: [¶] `The defendant in this case has introduced evidence for the purpose of showing that another person committed the crime for which [he][she] is here on trial. If, after a consideration of all the evidence, you have a reasonable doubt that the defendant committed the charged crime, you must find [him][her] not guilty."

We conclude there was insufficient evidence to warrant a third-party culpability instruction. In People v. Kegler (1987) 197 Cal.App.3d 72, 80, the court concluded a requested third-party culpability instruction was "inapposite because appellant did not present sufficient evidence . . . linking any particular third person to actual perpetration of the crime. . . . [¶] Evidence of mere motive or opportunity to commit the crime by another person, without more, will not suffice to raise a reasonable doubt about a defendants guilt: there must be direct or circumstantial evidence linking the third person to the actual perpetration of the crime."

Here, defendant points to no such evidence linking any particular third person to the theft at the Mecca Club. In closing argument, defense counsel suggested the money might have been taken by another bartender whom Nelms had recently fired. At most, however, the evidence showed only a possible motive for that person to have taken the money. There was no evidence he was anywhere near the bar on the night the money disappeared, and no evidence he had the combination to the safe. The evidence showed only Nelms and Rogers had the combination. In fact, defendants argument that this other bartender might have taken the money rested on testimony by Rogers that the money was placed in a drawer rather than in the safe. This testimony, however, was directly contrary to defendants own testimony that she "put [the money] in the safe and shut and locked the safe."

Under these circumstances, we conclude defense counsels failure to request a third-party culpability instruction was not objectively unreasonable.

DISPOSITION

The judgment is affirmed.

We concur: SCOTLAND, P.J. and MORRISON, J.


Summaries of

People v. Caldwell

Court of Appeals of California, Third District, (Yolo).
Oct 7, 2003
No. C040962 (Cal. Ct. App. Oct. 7, 2003)
Case details for

People v. Caldwell

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. HEATHER REBECCA CALDWELL…

Court:Court of Appeals of California, Third District, (Yolo).

Date published: Oct 7, 2003

Citations

No. C040962 (Cal. Ct. App. Oct. 7, 2003)