Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC802576
Premo, J.
Defendant Lee Albert Samprath was convicted by a jury of one count of second degree burglary (Pen. Code, §§ 459, 460, subd. (b)) and one count of attempted petty theft after having served a term in a penal institution for a previous conviction of petty theft (id., §§ 664, 666). In a bifurcated proceeding, the trial court found true the allegations that Samprath had suffered three prior prison convictions within the meaning of Penal Code section 667.5, subdivision (b), specifically: (1) forgery (id., § 470, subd. (d)); (2) petty theft with a prior theft conviction (id., § 666); and (3) grand theft of property (id., § 484, former § 487.1 [now § 487]). Samprath was sentenced to three years in prison for the second degree burglary and two consecutive terms of one year in prison for the two most recent prior prison convictions, for a total term of five years. The trial court stayed Samprath’s sentence on the attempted petty theft conviction and stayed execution or struck the punishment for his oldest prison prior conviction. Samprath timely appealed.
On appeal, Samprath contends that the trial court abused its discretion in admitting evidence of three uncharged offenses, on the grounds that those offenses were not sufficiently similar to the charged offenses and that the probative value of those uncharged offenses did not substantially outweigh their prejudicial effect. He further argues that, to the extent his trial counsel failed to adequately object to the introduction of that evidence, his counsel provided ineffective assistance. Samprath also argues that the trial court erred in allowing a witness to offer testimony relating to a computer inventory system because the People failed to lay a proper foundation for the introduction of that testimony and the testimony itself was inadmissible hearsay.
We disagree with each of Samprath’s contentions and shall affirm.
I. Factual and Procedural Background
On April 15, 2008, at approximately 5:30 p.m., Michael Nagy, the store manager at an Orchard Supply Hardware store in downtown San Jose, was called to the store’s return desk to check on the return of a faucet. According to Nagy, faucets are not generally returned and are considered a high theft item. At the return desk, Nagy helped a customer, whom he believes had a receipt, return a faucet, when he noticed Samprath at the return desk, also trying to return a faucet. Nagy became suspicious and left the return desk to view the store’s surveillance videotape to see if Samprath had entered the store with the faucet he was returning. On the videotape, he observed Samprath enter the store with an empty shopping cart. However, Nagy was not advised by any store employees that Samprath had been observed taking an item from a store shelf and taking it to the return desk.
At trial, the store videotape was played for the jury and admitted into evidence. It showed an individual, who Nagy identified as Samprath, entering the Orchard Supply Hardware store pushing an empty shopping cart. Samprath argued that the video did not have sufficient clarity to determine definitively whether he was the individual on the recording. While the videotape also showed Samprath at the return desk, there was no footage of Samprath removing a faucet from the store shelf and taking it to the return desk.
Nagy called the return desk to stall Samprath, then called the police. He also checked the store’s computer inventory system to check the inventory level for the type of faucet, a Bridge Water kitchen faucet valued between $130 and $140, Samprath was returning. According to Nagy, the store’s electronic inventory management system shows the quantity of an item the store has in stock at any given time. He explained that when “an item is sold, it’s subtracted off the on-hand; as it’s received, it’s added back on the on-hand, then [the system] calculates orders for us and places orders for us from our distribution.” Periodic manual inventory checks are conducted in order to verify the accuracy of the computer inventory count, and Nagy, who had worked with that system for over 15 years, testified that it is an “essentially... accurate recording of what’s coming in and out of the store.” Due to the volume of inventory at the store, the computer inventory system was essential to managing the business, in Nagy’s opinion.
Nagy input the SKU (stock keeping unit) number for the faucet Samprath was trying to return and the inventory system indicated that there were three Bridge Water kitchen faucets on the store’s shelves. When he went to the appropriate shelf, Nagy found only two such faucets.
The court overruled defense counsel’s hearsay objection to this testimony.
In the meantime, Samprath left the store through a nearby exit and went to the parking lot. Nagy saw him in the parking lot and approached him, telling him that he needed to come back into the store if he wished to complete his return. Samprath came back to the store and gave Nagy his identification. Nagy began the return process and entered information into the store’s computer system, creating a return voucher. He advised Samprath that he had to get a printout and left the area to again call the police. Samprath then left the store and drove off. At no time did Nagy see Samprath with anyone else while he was in the store.
At 5:58 p.m., Robert Harris, an officer with the San Jose Police Department (SJPD), arrived at the store and spoke with Nagy. Nagy gave Officer Harris a brief summary of what had occurred and said that Samprath had just driven away. He handed an identification card to Officer Harris, who drove to the area where Nagy indicated Samprath had gone. When he could not locate Samprath, Officer Harris returned to the store’s parking lot to speak with Nagy. While speaking with Nagy in the parking lot, Nagy observed Samprath drive back in to the parking lot, look at Nagy and the officer and drive off. Nagy advised Officer Harris of what happened, and that Samprath had driven towards a nearby gas station. Officer Harris went to the gas station and stopped Samprath, who matched the photograph in the identification card provided by Nagy. When Officer Harris stopped Samprath, Nagy noticed there was a woman in Samprath’s car.
Jeff Nichols, also an officer with the SJPD, was involved in Samprath’s arrest and transported Samprath to jail. Officer Nichols did not believe he saw any cash on Samprath’s person or in his wallet, though he did not search Samprath and was not certain if he searched Samprath’s wallet for cash.
Prior to trial, the People brought an in limine motion seeking to introduce, under Evidence Code section 1101, subdivision (b), evidence of prior offenses for the purpose of establishing Samprath’s intent in the committing the charged offenses. Samprath’s counsel objected, arguing that the evidence was more prejudicial than probative and should be disallowed under section 352. In raising this objection, counsel argued that he believed “there is some degree of similarity required” before evidence of prior convictions could be admitted to prove intent. The trial court overruled the objection, allowing the People to introduce evidence of three prior offenses, described below.
All further unspecified statutory references are to the Evidence Code.
The trial court excluded evidence of an uncharged offense committed by Samprath in 2003, finding that it was not “as relevant, and... is more prejudicial than probative.”
A. 2007 theft related offense
On August 16, 2007, Carol Jean Jackson was working as a manager at the Santa Clara Inn. Jackson rented room No. 112 to an individual who paid with a credit card. At some point, she received a telephone call from Peggy Sylvester, which prompted her to call the police.
Steven Valentine, an officer with the SJPD, went to the Santa Clara Inn and spoke with Jackson regarding the unauthorized use of a credit card. He obtained a copy of the charge receipt for room No. 112 and went to the room, where he spoke to Samprath regarding the credit card used to rent the room. Samprath said the credit card was being used by a girlfriend whom he had just met, but he did not provide a name for this girlfriend or a description of her. When Officer Valentine told him the credit card had been determined to be lost or stolen, Samprath said that a lady who felt sorry for him had given him the card near an ATM. Samprath did not describe this person, and said that his girlfriend had the credit card. Officer Valentine later found the credit card used at the Santa Clara Inn, crumpled and with several bite marks on it, in the backseat of his patrol car, where Samprath had earlier been placed.
The parties stipulated that Samprath was convicted of appropriation of a lost ATM card, a misdemeanor. (Pen. Code, §§ 485-488.)
B. 2000 theft related offense
On March 2, 2000, Stephen Lagorio, an officer with the SJPD, responded to a dispatch call regarding the theft of a purse from a car at a gas station. Between 30 minutes to an hour after receiving the call, Officer Lagorio located an individual matching the description given by the victim, about one or two miles away from where the theft occurred. He also located a car matching the description of the vehicle involved in the incident. Inside the vehicle, Officer Lagorio saw papers that contained the name of the rightful owner of the purse.
As he waited for additional units to respond, Officer Lagorio saw Samprath get into the car. He contacted Samprath and searched him, finding a Motorola cell phone on him. The officer searched the vehicle and found a cell phone case, sunglasses and items with the victim’s name on them, including a video rental card. When the victim arrived at the scene, Officer Lagorio released all the property, including the cell phone, to her.
Following his arrest, Samprath said that he obtained the items from someone at a nearby bar approximately 10 minutes before the officer contacted him. According to the officer, he was at the scene where he located the vehicle for approximately 10 minutes before he saw Samprath and there were no businesses in the area. Samprath said he had purchased the cell phone but had no explanation for how he came into possession of the sunglasses and the cell phone case.
The parties stipulated that Samprath was convicted of petty theft, a felony. (Pen. Code, § 666.)
C. 1999 theft related offense
On December 23, 1999, Tomio Nakamura, an officer with the SJPD, went to a Wells Fargo bank in response to a dispatch call of a man trying to pass a fraudulent check. When Officer Nakamura arrived, he was provided a personal check that the person had attempted to pass at the bank. He made a copy of the check, which was introduced into evidence. The check was for an account under the names of Kyung Lee and Kimi Lee.
In the course of his investigation, Officer Nakamura searched Samprath and found a checkbook on him which contained checks similar to the check the officer had received from the bank. The officer also found a wallet containing credit cards issued to Kyung Lee.
The parties stipulated that Samprath was convicted of forgery of a check, a felony (Pen. Code, § 470, subd. (d)), and receiving stolen property, also a felony (id., § 496, subd. (a)).
Following the close of the People’s case, the defense rested without presenting evidence.
II. Discussion
A. Admission of three uncharged offenses
1. The trial court did not err in admitting these offenses under section 1101 , subdivision (b)
On appeal, Samprath contends that the three offenses in question were not sufficiently similar to the charged offenses, and thus the trial court abused its discretion in admitting them. None of the uncharged offenses involved the attempted return of an item that had not been purchased, nor did any of them involve a retail store. There was no use of a stolen credit card or an attempt to pass a fraudulent check. The uncharged offenses involved thefts from individuals, not businesses.
Though trial counsel did not specifically state that he was objecting to this evidence under section 1101, subdivision (b), his statement that he believed “there is some degree of similarity required” before evidence of prior convictions could be admitted to prove intent, was adequate to preserve this issue for appeal. We find no basis for discussing Samprath’s conditional claim that counsel was ineffective.
Section 1101, subdivision (b), allows evidence of uncharged misconduct when it is relevant to establish a material fact other than the person’s bad character or criminal disposition. (People v. Ewoldt (1994) 7 Cal.4th 380, 393.) In Ewoldt, the California Supreme Court held that the least degree of similarity between the uncharged act and the charged offense is required in order to prove intent. However, an uncharged act “must be sufficiently similar to [the charged offense] to support the inference that the defendant ‘ “probably harbor[ed] the same intent in each instance.” ’ ” (Id. at p. 402.) On appeal, the trial court’s determination of this issue, being essentially a determination of relevance, is reviewed for abuse of discretion. (People v. Carter (2005) 36 Cal.4th 1114, 1147-1149.)
Here, each of the uncharged acts permits an inference that Samprath intended to steal from Orchard Supply Hardware. The 2007 and 1999 cases are similar because in each of those, Samprath took property as the first step in obtaining money or other consideration. For example in 2007, he used a stolen or lost credit card to rent a hotel room, thus avoiding having to pay for the room himself. In 1999, he stole personal checks and attempted to obtain money from a bank by forging one of those checks. In the instant case, Samprath entered the Orchard Supply Hardware, took a faucet from a shelf, and then represented that he was returning the faucet, in an attempt to obtain either cash or possibly store credit.
The record does not reflect Orchard Supply Hardware’s return policy for items where the customer does not provide a receipt.
Though the 2000 case is arguably different, as Samprath had made no attempt to use the victim’s property, which included her cell phone and video rental card, to gain some sort of benefit for himself, he was apprehended within an hour of the theft, which obviously limited his opportunities to do so. Accordingly, we cannot say that the trial court abused its discretion in allowing evidence of this offense to be introduced.
2. The trial court did not err in overruling Samprath’s section 352 objection
Samprath contends that the trial court erred in finding that the probative value of the evidence of these three uncharged offenses was not substantially outweighed by its inherent substantial prejudice. Echoing his section 1101, subdivision (b) arguments, he claims that this evidence did not have substantial probative value because the offenses were not similar to the charged offenses. He also argues that the evidence of the uncharged offenses was more inflammatory because the victims were individuals, rather than a business entity.
Under section 352, “[t]he 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.” “[I]t is the exclusive province of the trial court to determine whether the probative value of evidence outweighs its possible prejudicial effect.” (People v. Sassounian (1986) 182 Cal.App.3d 361, 402.) It is true that evidence of uncharged offenses can be so prejudicial that its admission requires extremely careful analysis and, since substantial prejudicial effect is inherent in such evidence, uncharged offenses are admissible only if they have substantial probative value. (People v. Ewoldt, supra, 7 Cal.4th at p. 404.) Regardless, the trial court’s exercise of discretion on this issue will not be disturbed on appeal absent a clear showing of abuse. (People v. Sassounian, supra, at p. 402.) Our task is simply to determine whether the trial court could have rationally concluded that the probative value of the evidence outweighed the prejudicial effect.
For the reasons discussed above, we find that the uncharged offenses were sufficiently similar to the charged offenses, and thus had substantial probative value regarding the element of intent. The mere fact that the victims in those cases were individuals, rather than corporate entities, does not necessarily mean that the evidence is more inflammatory to a jury, and Samprath cites no relevant authority for that proposition. Whether the victim is an individual or a business is irrelevant, as both are equal in the eyes of the law. Accordingly, the trial court did not abuse its discretion in overruling Samprath’s section 352 objection.
Samprath does cite a civil jury instruction from California Civil Jury Instructions, CACI No. 104, which instructs the jury, in cases where a party is an entity to give that entity the “same fair and impartial treatment that you would give to an individual” in deciding the case. The fact that there is a civil jury instruction on this topic may reflect a perception that jurors possess an inherent bias against entities and in favor of individuals when it comes to civil litigation. In a criminal case, however, the trial is ostensibly not so much about the victim, per se, as it is about determining the defendant’s culpability for the charged offenses.
We recognize that jurors, and jurists for that matter, are human beings, whose prejudices against a criminal defendant would likely be inflamed if presented with evidence of an uncharged offense committed against an individual who was particularly vulnerable, due to age or infirmity. In such circumstances, however, the trial court could easily eliminate any such prejudice by simply precluding the People from providing any such inflammatory details about the victim when evidence of the uncharged offense is introduced.
B. Admission of testimony relating to the computer inventory system
1. Secondary evidence rule
Samprath argues that Nagy’s testimony regarding the inventory level of faucets as reflected in the store’s computer inventory management system was inadmissible under the secondary evidence rule (§§ 1520-1523) because the People failed to lay a proper foundation for that evidence, and because a genuine dispute existed regarding the inventory level shown in that system. The People respond that Samprath has waived this argument by failing to make that objection below. We agree.
The content of a writing may be proved by an “otherwise admissible original” (§ 1520) or “by otherwise admissible secondary evidence.” (§ 1521, subd. (a).) Oral testimony of the content of a writing is secondary evidence. Oral testimony of the content of a writing is made admissible under certain conditions by sections 1522 and 1523, subdivision (a).
A “writing” is a “means of recording upon any tangible thing, any form of communication or representation, including letters [and] words.” (§ 250.) A computer printout is an “original” of data stored in that computer, if shown to accurately reflect said data. (§ 255.)
Section 1522, subdivision (a), states in pertinent part: “in a criminal action the court shall exclude secondary evidence of the content of a writing if the court determines that the original is in the proponent’s possession, custody, or control, and the proponent has not made the original reasonably available for inspection at or before trial.” Section 1523 excludes oral evidence of the content of a writing except if “(b)... the proponent does not have possession or control of a copy of the writing and the original is lost or has been destroyed without fraudulent intent on the part of the proponent of the evidence. [¶] (c)... the proponent does not have possession or control of the original or a copy of the writing and either of the following conditions is satisfied: [¶] (1) Neither the writing nor a copy of the writing was reasonably procurable by the proponent by use of the court’s process or by other available means. [¶] (2) The writing is not closely related to the controlling issues and it would be inexpedient to require its production. [¶] (d) Oral testimony of the content of a writing is not made inadmissible by subdivision (a) if the writing consists of numerous accounts or other writings that cannot be examined in court without great loss of time, and the evidence sought from them is only the general result of the whole.” (§ 1523, subds. (b)-(d).)
Samprath failed to object to Nagy’s testimony on the grounds that it violated the secondary evidence rule, and has thus waived the argument. “[B]efore an appellate court will give consideration to an objection to evidence, the specific ground for its exclusion must have been clearly stated to the trial court. (Evid. Code, § 353, subd. (a).) This is particularly true where, as in the instant case, the objection easily could have been cured by the party offering the testimony if the specific reason for the objection had been stated to the trial court. [Citation.] The only apparent defect in the foundation required by Evidence Code section 1271 [business records exception to the hearsay rule] was in the failure of Putnam to testify as to the mode and time of preparation of the bank statements. This oversight obviously could have been remedied if appellant’s counsel had objected on that specific ground; his failure to do so should prevent his asserting this ground on appeal.” (People v. Dorsey (1974) 43 Cal.App.3d 953, 960.) Had Samprath objected at trial on the grounds that the evidence failed to satisfy the secondary evidence rule, the oversight could have been remedied, either by the People providing the necessary computer printout or demonstrating that Nagy’s testimony was sufficient because the records had been erased between the time of the offense and the beginning of trial. The claim is waived.
2. Hearsay objection
Samprath alternatively argues that Nagy’s testimony that the computer inventory management system showed there were three Bridge Water faucets on the shelf was hearsay because it was introduced for the truth of the matter asserted. (§ 1200, subd. (a).) He contends that the People failed to lay a foundation for the business records exception (§ 1271) to the hearsay rule.
Section 1271 permits the admission of records that would otherwise be inadmissible by the hearsay rule, if four conditions are met: “(a) The writing was made in the regular course of a business; [¶] (b) The writing was made at or near the time of the act, condition, or event; [¶] (c) The custodian or other qualified witness testifies to its identity and the mode of preparation; and [¶] (d) The sources of information and method and time of preparation were such as to indicate its trustworthiness.” (§ 1271, subds. (a)-(d).)
Foundation for admitting records under section 1270 et seq. is properly laid if, in the opinion of the trial court, sources of information and method and time of preparation were such as to qualify for admission. (People v. Crosslin (1967) 251 Cal.App.2d 968.) The trial court has wide discretion in determining whether sufficient foundation is presented for evidence to qualify as a business record. On appeal, exercise of that discretion can be overturned only upon a clear showing of abuse of discretion. (People v. Martinez (2000) 22 Cal.4th 106, 119-120.)
In this case, Nagy’s testimony regarding the computer inventory management system was sufficient to establish a proper foundation for the admission of the evidence regarding the number of faucets reflected on that system. Nagy testified that the scanner used at Orchard Supply Hardware was tied to the inventory system and would adjust the inventory accordingly with each purchase and return of an item. The adjustments in inventory were thus made “at or near the time of the act, condition, or event.” (§ 1271, subd. (b).) There is no dispute that Nagy, who had been using the system for over 15 years, had the “knowledge and skill to properly use the system and explain the resultant data” and was thus a qualified witness. (People v. Lugashi (1988) 205 Cal.App.3d 632, 640.) Finally, there was sufficient evidence to support the trial court’s implied finding that the evidence was trustworthy, as the inventory system was tied into the store’s scanners, store employees routinely double-checked the system by taking manual inventories and due to Nagy’s testimony that the system was accurate and essential for the operation of the business. The trial court did not abuse its discretion in overruling Samprath’s hearsay objection to this testimony.
However, even if that evidence was inadmissible hearsay, its introduction was harmless error under People v. Watson (1956) 46 Cal.2d 818. Though there was no videotape showing Samprath removing a faucet from the store shelf, the videotape showed him entering the store without a faucet and then appearing at the return counter with a faucet. Accordingly, there was no reasonable probability the jury would have reached a more favorable result for Samprath in the absence of the computer inventory evidence. (Id. at p. 836.)
C. Cumulative error
Because we find the trial court did not err in admitting any of the evidence discussed above, there can be no cumulative error. There was no denial of Samprath’s constitutional rights to a fair trial and to due process.
III. Disposition
The judgment is affirmed.
WE CONCUR: Rushing, P.J., Elia, J.