Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 03F06138
ROBIE, J.
In this embezzlement case arising out of defendant Barbara Johnson’s theft of funds through the use of fraudulent checks while working as a bank teller, defendant’s trial attorney failed to make a timely objection to evidence relating to unemployment insurance checks defendant may have wrongfully received while working at the bank. On appeal, defendant contends this failure to make a timely objection amounted to ineffective assistance of counsel. Finding no prejudice from counsel’s actions, we will affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In June 2003, while balancing her checking account at Western Sierra National Bank for the previous month, Sandra Brittain discovered several counter checks that had been paid to “cash.” When she noticed more of those checks the following month and saw one with her name on it, she called the bank because she knew she had not written it.
A counter check is a blank check available at the bank counter to customers who do not have their own printed checks with them. The customer’s account number is printed on the counter check at the time the customer asks for the check. The counter checks at Western Sierra were kept in a locked file accessible to the bank’s employees, and some were located in the tellers’ drawers for their convenience.
Ultimately Brittain (and her husband James) identified 16 fraudulent counter checks that had been drawn on their account between May 21 and July 11, 2003, in the total sum of $31,000. All of the checks were in the amount of $2,000, except for one check in the amount of $1,000. Two checks for $2,000 each were cashed on each of the following days: May 21, May 22, June 4, June 12, June 24, July 3, and July 11. On May 28, one check for $2,000 and one check for $1,000 were cashed on the Brittains’ account.
The checks on May 28, both of which were made out to “cash,” were cashed only a minute apart. The same was true of the checks on June 12. The checks to “cash” on June 24 were cashed at the very same time. The checks on July 3, both of which were made out to “Darlene Cohen,” were also cashed at the very same time.
Information on the checks (including the teller’s stamp and user code), on related journal tapes, and in the bank’s data processing system indicated the checks had all been processed by defendant, who worked as a teller at the bank. At the time, defendant’s limit for cashing customer checks was $2,000. To cash a check for a greater amount, she would have had to obtain approval from her supervisor.
A later review of the bank’s video surveillance system showed that at the time the two checks were cashed on May 28, there was no one at defendant’s teller window. A review of the bank’s computer system showed that on several occasions in July, defendant inquired into the balance in the Brittains’ account immediately after or before inquiring into her own account at the bank.
In July 2003, shortly after the discovery of the fraudulent checks, defendant was charged with embezzlement and grand theft. The case came to trial three years later, in July 2006.
The problem giving rise to this appeal began during defense counsel’s cross-examination of Catherine Lachman, a senior vice-president and risk manager for Western Sierra who investigated the fraudulent checks drawn on the Brittains’ account. After soliciting Lachman’s testimony that she reviewed defendant’s bank account while investigating the fraudulent checks, defense counsel asked Lachman if “there was one deposit of a thousand dollars during the May 21st, 2003, to July 15th, 2003, time period.” Lachman responded, “I can’t honestly say, without my records in front of me, what went into her account. I know there were some unemployment checks that went into her account.” Defense counsel did not object to, or move to strike, Lachman’s mention of the unemployment checks. Instead, she asked Lachman if she recalled “whether there were deposits in the neighborhood of $31,000 during those three months that were other than unemployment checks?” Lachman responded, “No smoking gun, no,” and agreed there was “no unusual money going into [defendant’s] account.”
As will become apparent, the purpose of this inquiry was to solicit evidence that the proceeds from the fraudulent checks on the Brittains’ account were not deposited into defendant’s account.
On redirect examination, the prosecutor delved into Lachman’s mention of the unemployment checks, and Lachman explained that she “became quite concerned when [she] was investigating [defendant]’s account. And during at least a six-month period of time that she was working for Western Sierra bank, regular unemployment checks were being deposited into her account bearing her name as payee, her social security number, and a claim period. They amounted to a little of $5,267, I think. 5,267.” The prosecutor then got Lachman to repeat the amount of the checks and repeat that they were made out to defendant over a six-month period during the time she was working at Western Sierra. Lachman also volunteered that the prosecutor “ha[d] samples of the checks in the documentation.” The prosecutor then asked if he could have the clerk mark some documents, but before that happened the court called the evening recess.
Up to this point, defense counsel had not offered any objection to the prosecutor’s examination of Lachman about the unemployment checks. The following day, however, before the jury was called in, defense counsel asked for a ruling “on the relevance of th[e unemployment] checks as it relates to Ms. Lachman’s testimony.” Counsel asked the court to “exclude further testimony by Ms. Lachman on the subject of those checks” because “[t]hey are not relevant to the charges pending against [defendant]. They create a prejudice that they were somehow fraudulent without any basis of knowledge on the part of Ms. Lachman that that is, in fact, correct.”
In response, the prosecutor admitted the checks were “prejudicial,” but claimed “their probative value outweighs any prejudicial effect [they] might have” because the information on the checks tended to show “that she was not entitled to get those checks.” Ultimately, the prosecutor explained that he wanted to offer the checks into evidence, once they had been authenticated by Lachman, and wanted to solicit Lachman’s opinion that they were unemployment checks. The court precluded him from soliciting Lachman’s opinion “as to why these checks were paid,” but noted that “with respect to the checks themselves, there was already certain testimony about the checks” and “there was no objection to that testimony.”
When Lachman resumed testifying, the prosecutor showed her the checks and asked her to “go through the dates that these checks were issued.” The court overruled a relevance objection, and Lachman gave the date of the first check. When the prosecutor asked for the amount of the check, defense counsel again objected on the ground of relevance, and the court again overruled the objection. The court struck Lachman’s subsequent testimony that the check was signed by the director of the unemployment insurance account, but allowed her to testify that the check was issued by the Employment Development Department (EDD). For each check, the prosecutor then elicited Lachman’s testimony (over defendant’s continuing objection) as to the date it was issued, the amount of the check, and the fact that it was endorsed by defendant and deposited into her account at Western Sierra. When the prosecutor moved the checks into evidence, however, the court took the matter under submission.
Later, out of the jury’s presence, the court entertained further argument regarding admission of the checks. Defense counsel reasserted that the checks were not relevant because “[t]here is no actual evidence by virtue of the existence of those checks of fraud or misconduct.” She also asked the court to strike the evidence already received on the grounds of relevance and undue prejudice. Defense counsel further asked that if the checks were admitted that the court give an instruction limiting their use “to show [defendant]’s handwriting.”
The prosecutor asserted that the objection to the evidence already received was untimely and argued that the checks should be admitted because they tended to show defendant “deposited monies that she was not entitled to into her account.” When the court asked “specifically what [the checks were] being offered for,” the prosecutor asserted “motive and a need for monies by the defendant,” “credibility,” and “1101(b) evidence in the nature of moral turpitude.”
Ultimately, the trial court denied defense counsel’s request to strike the evidence of the checks that had come in already, stating that “based on the record and the questioning, and the fact that there was no objection at the time, . . . the evidence that is in at this point should be in.” More specifically, the court concluded “the evidence with respect to the checks being deposited and endorsed . . . is relevant, and to the extent that it is relevant in the sense that it is in now, its probative value outweighs any prejudice.”
With respect to any further evidence relating to the checks (including, presumably, the checks themselves), the court asserted that “before the Court were to allow the People to argue that this evidence has anything to do with intent or to use it to impeach the defendant, someone from EDD would have to testify and lay a sufficient foundation so the Court can be assured that there is probative value there.” Because the prosecutor had already contacted EDD and secured a representative to testify, an Evidence Code section 402 hearing was set for the following week.
The following Tuesday, Cathy Barratt, a representative of EDD, testified out of the presence of the jury that the checks were for unemployment insurance benefits for a claim that became effective on June 30, 2002. Essentially Barratt testified that defendant had received benefits on an unemployment claim from July through December 2002. She also testified that to receive unemployment insurance benefits, a claimant has to sign a document under penalty of perjury for each week that the person claims the benefits. In response to questions from the court, Barratt testified she could not produce any such forms relating to the benefits defendant received because they would have been purged from EDD’s records already.
Following Barratt’s testimony, the prosecutor asserted he was offering her testimony “[f]or purposes relating to show[ing] absence of mistake, intent, motive and credibility.” The court ruled that “given the timing” of “how and when this issue developed,” “and also Evidence Code section 352, weighing the probative value and considering the prejudice, the consumption of time and the potential of confusing the jury, . . . the People may not present this evidence in their case in chief.” Accordingly, Barratt did not testify in front of the jury.
Later, however, the prosecutor moved the checks into evidence. Defense counsel objected that they were “not relevant to any of the elements of any of the crimes charged.” The court noted that it had already allowed some evidence of the checks to be admitted over objection, but sustained the objection as to the checks themselves. When the prosecutor asked for clarification “regarding [his] parameters on arguing” to the jury based on Lachman’s testimony about the checks, the court said, “you can’t argue that it goes to [defendant]’s credibility or with respect to anything enumerated in 1101.”
The defense rested without presenting any evidence. The prosecutor did not mention the unemployment insurance checks in his closing arguments.
The jury found defendant guilty on both counts. The trial court placed her on probation on the condition (among others) she serve 300 days in jail.
DISCUSSION
On appeal, defendant contends her trial attorney was ineffective for failing to offer a timely objection based on Evidence Code sections 352 and 1101 to Lachman’s testimony about the unemployment checks. She acknowledges that “trial counsel ultimately objected to the bad acts evidence, but the objection was not timely since defense counsel did not object until the following day and even then objected primarily on the basis of relevance and failed to appropriately object on other crimes evidence grounds pursuant to Evidence Code section 1101 or on grounds that such evidence was more prejudicial than probative pursuant to Evidence Code section 352.”
At first glance, the main heading in the argument section of defendant’s opening brief suggests she is raising trial court error as well as ineffective assistance of counsel, because she asserts that the trial judge committed “reversible error [in admitting] other crimes and bad acts evidence, and [her] trial attorney was ineffective for failing to timely object.” (Italics added.) A later subheading, however, contradicts this suggestion with its assertion that the evidence of the unemployment insurance checks “would have been inadmissible had there been a timely and specific objection.” (Italics added.)
“To show ineffective assistance of counsel, defendant has the burden of proving that counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms, and that there is a reasonable probability that, but for counsel’s unprofessional errors, the result would have been different.” (People v. Kelly (1992) 1 Cal.4th 495, 519-520.) “If a defendant has failed to show that the challenged actions of counsel were prejudicial, a reviewing court may reject the claim on that ground without determining whether counsel’s performance was deficient.” (People v. Kirkpatrick (1994) 7 Cal.4th 988, 1008.)
We take that path here. To demonstrate prejudice, defendant must persuade us there is a reasonable probability that but for her trial counsel’s failure to timely object to Lachman’s testimony about the unemployment checks, she would have received a more favorable result. She has not done so. Even if we assume a timely objection would have kept out any evidence of the unemployment checks, defendant fails to persuade us there is a reasonable probability that removal of that evidence from the jury’s consideration would have made a difference.
In her abbreviated prejudice argument, defendant contends that “[i]n light of the facts of this case, counsel’s failings undermined confidence in the outcome.” She then strings together six “facts” in an apparent effort to suggest the case was close, such that evidence of the unemployment checks could have tipped the balance against her. Those facts are these: (1) there was no evidence anyone saw her take money from her cash drawer; (2) there was no evidence she received the $31,000; (3) two other tellers worked at the bank at the same time she did; (4) her teller’s stamp was not locked up; (5) she missed “a couple hours of work during the day” “[s]ometimes” during May, June, and July 2003; and (6) the bank manager was aware of her “pass word.”
Although defendant does not elaborate on the significance of these “facts,” her apparent theory is that except for the testimony about her receipt of the unemployment checks from EDD, the jury might have had a reasonable doubt that someone else who worked at the bank, masquerading as her through the use of her teller stamp and “pass word,” was responsible for the fraudulent checks. We are unpersuaded for two reasons.
First, defendant’s argument rests on a misreading of the evidence. The evidence showed that when a teller cashed a check, she would put it in her “validator,” which would imprint various information on the check, including the teller’s user code. Each teller had a unique user (or identification) code assigned, which could be used only by entering a password into the computer system. Contrary to defendant’s argument, the bank manager, Billie Spencer, did not testify that she was aware of defendant’s password. Rather, she testified she was aware of defendant’s user code. As far as the password necessary to access the user code, Spencer testified that only the teller to whom the user code belongs knows the associated password, and the tellers are instructed not to give that password to anyone else. Thus, contrary to defendant’s suggestion, the evidence did not support the conclusion that someone else who worked at the bank might have used defendant’s password, and thereby her user code, to make it look like defendant cashed the fraudulent checks when she actually did not.
Second, at trial defense counsel recognized the evidence would not support any such theory. Implicitly conceding the strength of the evidence that defendant was the person who processed the checks, defense counsel argued that she did so unknowingly, herself a victim of whoever actually perpetrated the fraud. Thus, she contended, “What makes sense is that [defendant] cashed those checks . . . . [¶] And she did her job as best she could. And the bank is now forced to make someone responsible, and the easiest way to do that is to point the finger at the teller.” Later, she argued, “When [defendant] entered her not guilty plea, she said, ‘I didn’t do it.’ We know she processed the checks, but what we don’t know, what hasn’t been proven and what there is no evidence on is that she got any of the money, that she knew they were fraudulent, that when she processed those checks she had any intent to take money that didn’t belong to her.” (Italics added.)
In summary, defendant’s theory of prejudice to support her claim of ineffective assistance of counsel is not supported by the evidence and is contrary to the position defendant took in the trial court. Accordingly, we find no reasonable probability that if the evidence of the unemployment checks had been excluded, defendant would have received a more favorable result.
DISPOSITION
The judgment is affirmed.
We concur: MORRISON, Acting P.J., CANTIL-SAKAUYE, J.
In the end, despite the suggestion in her initial argument heading, defendant does not argue trial court error in the text of her brief; instead, her argument rests solely on ineffective assistance of counsel. Thus, while Lachman’s testimony about the unemployment checks may have been inadmissible, we need not decide that issue. Instead, we address only whether defendant has established ineffective assistance of counsel based on her trial attorney’s failure to timely object to that testimony.