Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIF149513. Rafael A. Arreola, Judge. (Retired judge of the San Diego Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.
Craig C. Kling, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Peter Quon, Jr. and Stephanie H. Chow, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RAMIREZ P.J.
A jury convicted defendant, Michael Tameny, of unlawfully acquiring/retaining an access card with intent to use it fraudulently (Pen. Code, § 484e, subd. (d)). He was granted probation and appeals, claiming evidence was erroneously admitted, the prosecutor committed misconduct during argument to the jury and the cumulative effect of these errors requires reversal of his conviction. We disagree and affirm.
Facts
Defendant worked as a foreperson operator for a Corona pipe laying company (hereinafter “the company”) from June 2, 2008 to July 9, 2008. Each of the company’s trucks would go to a commercial fuel station and use a company fuel card that was normally kept in the truck to purchase fuel, much like ordinary drivers use credit or debit cards to fill up at gas stations. The personal identification number (PIN) for each company fuel card was written on the envelope that contained the card inside the truck.
Defendant’s supervisor testified that sometimes company employees would use their own personal vehicles for company purposes and in such cases they would be authorized to use a company fuel card to fill up their vehicles at a commercial fuel station. The driver of the truck where the fuel card was normally kept would be responsible for getting that fuel card back into the truck. The supervisor did not know defendant before he and the male co-owner of the company hired him. A couple of times during defendant’s approximately month long employment, he was allowed by the supervisor to use a company fuel card to fill up his own personal vehicle when he used that vehicle for company purposes. The supervisor handed defendant the card and gave him the PIN, which was not within the company’s policy. However, the supervisor notified the male co-owner of this and the latter did not tell the supervisor not to do this, nor did he direct the supervisor to get the card back from defendant. Defendant was responsible for getting the company fuel card back into the truck from which it came, but the supervisor did not ask defendant for the card at the end of each day defendant used the card to fill-up his personal vehicle. When defendant was laid off, the supervisor told him that the company would not be using him anymore. Defendant asked the supervisor if he could be brought back to work and the supervisor said that if the company got busy again, they would try to rehire him. The supervisor asked defendant to turn in his company cell phone but said nothing about the company fuel card, which the supervisor assumed was in the company truck where it belonged. The supervisor later arrived at the conclusion that defendant had had the fuel card in his possession when he had been laid off. There was no further contact between the two until November 26. The supervisor denied telling defendant that the latter could continue to use the company fuel card after being laid off, or that defendant had not been properly compensated for his work or that he was owed money by the company. He also denied telling defendant that the latter could use the company fuel card and the supervisor would “work out any difference” between the fuel charges defendant amassed and what defendant would be owed later for compensation when he returned to work for the company. The supervisor said he never discussed with defendant what the latter should be paid as an operator versus what he should be paid as a foreperson.
Between July 11 and November 26, 2008, $3,566.16 worth of fuel, both gas and diesel, during numerous transactions, was charged to the company fuel card that was supposed to be in a company truck that took only gas. Some of the fill-ups were made on days the company truck was in the shop or parked in a warehouse. As time went on, more and more of the charges were made at a commercial fuel station in Anaheim, which was miles away from where most of the company’s fuel was normally purchased (and where the company was located), but three and one-half miles from defendant’s home. On some days, multiple fill-ups were done, some within minutes of each other.
On November 26, 2008, defendant was videotaped filling up his own personal vehicle at a commercial fuel station in Anaheim, using the company fuel card. The same day, the company truck in which that card should have been kept was searched and the card was not found there. Defendant’s supervisor called defendant and asked him why he was using the company fuel card. Defendant replied that he did not know about what the supervisor was talking. The supervisor told defendant that he saw him on the videotape and defendant should stop using it because the company was going to call the police. Defendant did not return the card to the supervisor, nor did he offer to pay back the money that had been charged to the company for the fuel he had obtained after he had been laid off.
Defendant admitted it was him on the video.
A Corona Police Department Detective testified that he called defendant on January 7, 2009 and told him that the company had reported that one of their fuel cards had been used and he was the one that allegedly used it. Defendant admitted that he had been using it to fill up his own personal vehicle—that his supervisor had given it to him to use while he worked for the company and although he had not worked for the company since July, he was still “on the books” or “on the payroll.” Defendant admitted that he had the card. The detective told defendant the former needed the card back. Defendant asked the detective why he would want to return it, adding that he might have thrown it away. He then became evasive. The detective called defendant on a second occasion and left a message, but defendant did not call him back.
At trial, he admitted that he was not an employee of the company in September, October and November, 2008.
Defendant testified that when he was hired by the company, his supervisor and the male co-owner told him that they only had a position open for an operator at $35 per hour, but as soon as a position as a foreperson at $45 an hour opened up, they would let him have it. However, he claimed he never worked as an operator—just as a foreperson. He said that on his first day, he asked his supervisor why he was performing the duties of a foreperson but was getting paid for the duties of an operator. The supervisor replied that they would take care of it. Defendant interpreted this to mean that he would get the extra $10 per hour. Defendant testified that it was common practice for forepersons to receive a company truck, which the foreperson is allowed to drive to and from home, (or, compensation for driving to and from work in one’s own personal vehicle) and a fuel card. However, the company did not give defendant a truck he could drive to and from home. He claimed that during his first week on the job, the supervisor had the driver of a company truck fill up defendant’s personal vehicle. He said that he and his supervisor discussed defendant being compensated with a truck allowance in exchange for not having been given a company truck. Defendant told his supervisor he needed to know if the company was going to give defendant a fuel card and a truck allowance or a company truck. The supervisor told him that he would take care of it—that it would be “worked out.” Defendant said that his supervisor gave him a company fuel card and told him to fill up his personal vehicle, never asked for the card back and never told him to put it back into a company truck. He said that there was no work for him to do after July 9, but for nine days thereafter, he called his supervisor every day and asked if there would be work the following day. The supervisor would tell him that there was no work for the next day but “[s]omething will be coming up.” Defendant variously testified that when he picked up his final check on July 18, he was told that he was laid off, he was not subject to rehire and there would be no future relationship between him and the company and, also, that as soon as the company got more work, he would be called. On that day, he told his supervisor that he was owed money by the company and the supervisor responded, “‘I know, I feel bad’” and then told defendant that he could use the company fuel card until defendant returned to work, when they would “work things out.” Defendant said he believed it was alright to use the card as it was a substitute for a truck allowance, which he estimated to be worth $1,500, and the higher pay of a foreperson, which he estimated was worth $1,735. However, he admitted that he did not pay income taxes on these two amounts, despite the fact that he considered them substitutes for salary. He said he continued to call his supervisor for two weeks after the 18th. He stopped using the card on November 26, because his supervisor called him and told him not to use it anymore. He claimed that no one had asked him to return the card and he did not then know where it was. He had the card from the time he was given it while working for the company until November 26 and he acknowledged making the charges that appeared on the bills for the card for that period. When asked why he filled up several times in one day, he replied that he had more than one vehicle and he was simply getting back the money that was owed him. He explained that transactions that were minutes apart were the result of him having a friend fill up another of defendant’s vehicles within minutes of defendant filling up one of his.
He also admitted that he filed for unemployment compensation, beginning July 9 and did not report to EDD that he was continuing to collect a salary, in the form of fuel purchases, during that period.
1. Admission of Evidence and Instruction on It
Before the supervisor and defendant testified, the female co-owner of the company took the stand. She did not know defendant and had had no dealings with him. When shown a Xerox copy of the fuel card defendant used and asked to identify it, she added, non-responsively, “[That’s t]he one that was stolen.” During cross-examination, when defense counsel began to imply that she had an agenda or was biased, she responded, “Agenda? I had a gas card stolen and over $3,500 stolen from me.” When asked on cross-examination if defendant’s supervisor ever told her that despite the company’s policy, he gave defendant a company fuel card, she responded that the supervisor would not have come to her with such information—he probably would have gone to the male co-owner. When defense counsel pressed her to answer the question, she added, non-responsively, “And [the supervisor] didn’t give [defendant] the card.” However, almost immediately, she admitted that after defendant stopped working for the company, the supervisor told her that he had, indeed, given defendant a company fuel card. When defense counsel asked her whether the truck for which the card defendant used had been assigned had a diesel tank in addition to its gas tank, she said she did not know and added that she did not know why it would matter at this point. She explained that it didn’t matter because defendant was being tried for charges to the card made after he stopped working for the company and thus no longer had access to that truck. She then added, non-responsively, “After he was laid off, he should not have been in possession of that card.... [¶]... [¶] He stole the card and used it.” For the first time, defense counsel objected to the witness’s statement that defendant had stolen the card, but he did not state the basis for his objection. The trial court instructed the jury, “... I’m not going to sustain his objection; however, it is up to you to make the ultimate decision. This witness can testify that in her opinion, and it’s her opinion, but... you’re not to consider her opinion as an expert opinion, only as to her opinion [that] the card was taken without permission, or[, ] in her opinion[, ] it was stolen. [¶] It’s up to you to ultimately make the decision, not to her. As an owner of the company she can make that opinion as her personal opinion.”
Defense counsel began cross-examination of this witness by asking, “... [Y]ou said that [defendant] stole the fuel card?” She responded that that was her opinion—that he had taken it out of the truck while the truck was parked in the warehouse. Then she admitted that the supervisor told her that he let defendant use the card while the latter was employed by the company and it appeared to her that the supervisor physically gave defendant the card. Defense counsel then asked, “So you have no information that [defendant] removed any card from your property... or removed any card from your truck. [¶] The only information that you have is that he was given the physical card by [his supervisor], correct?” She replied, “See, again, maybe I’m misunderstanding. [Defendant] wasn’t given the card to take, [the supervisor] let him use it and then it was supposed to go right back in[to the truck]. [¶]... [¶] If [defendant] took it and kept it, to me that’s stealing.” She said she did not know whether defendant got the card out of the truck himself or if his supervisor handed him the card. Defense counsel asked her, “You’re not testifying that [the supervisor] never presented a card to [defendant], are you?” She responded, “[Defendant] was never given a card.” But then she testified that she was unaware how the supervisor gave defendant the card—whether he let defendant use it or let him take it—and what was said between them about it.
During cross-examination of the supervisor by defense counsel, he was asked, “[I]s it your knowledge, did [defendant] ever steal a card from a truck or did you give him a card and apparently you just don’t recall getting it back?” He responded, “I let him use the card from the truck and no, I didn’t get it back.” When asked if defendant removed the card from the truck, the supervisor responded that he handed defendant the card from the truck and gave him the PIN for the card.
The detective testified that he was investigating a “theft at [the company]” to which the defense did not object.
Finally, during his direct testimony, defendant was asked if he stole a card from the company and he responded, “No, I was handed a card.” He also denied that he stole fuel from the company. On re-direct, he was asked if he ever stole anything from the company. He replied, “I never stole anything in my life, no.”
The jury was not further instructed about lay opinion evidence and the female co-owner’s statement was not mentioned by the prosecutor during argument to the jury.
Defendant here contends that he was denied a fair trial by the admission of the female co-owner’s opinion that he had stolen the company fuel card and by the trial court’s instruction to the jury concerning it. We disagree.
Even on the cold record before us, it was abundantly clear that the female co-owner was very upset about what had happened with the card and she blamed defendant and no one else for what happened. Several times she had to be directed to answer the questions she was being asked. It is also clear that defense counsel, as a tactical matter, decided not to object to her repeated assertions that defendant had stolen the card, and he, very effectively, got her to admit on cross-examination that she did not actually know how defendant came to be in possession of the card and did not know what communication occurred between defendant and his supervisor over it. The latter was the crux of the case. By the time the supervisor finished testifying, it was clear that there was no dispute between the parties that the former had given the card to defendant while the latter was working for the company, thus the female co-owners assertion that defendant had stolen the card was completely undermined. The only difference of opinion was what was said or not said by the supervisor when defendant was laid off. The supervisor asserted that nothing was said. This being the case, defendant’s retention and use of the card after leaving the company was, in her opinion, theft, and it would have been to any reasonable person. Defendant, on the other hand, asserted that the supervisor told him to continue to use the card to make up for what he had not been paid in salary and a truck allowance. If the jury believed him, it would have concluded that his retention and use of the card was not a crime.
Clearly, the female co-owner had chosen to believe the supervisor’s story that he did not give defendant permission to use the card after defendant was laid off, as the supervisor was still employed by the company at the time of trial. When she testified about the conversation she had had with the supervisor concerning the card, she appeared to accept whatever he had told her about it. She had to blame someone for the fact that her company was out almost $3,600 and she clearly was not blaming the supervisor, so she had to blame defendant. This was entirely understandable by the jury. Therefore, we cannot agree with defendant that her statement of opinion was significantly damaging to defendant’s case. Not only was her bias clear, but she was proved wrong by the testimony of another prosecution witness, i.e., the supervisor, except to the extent her opinion was based on defendant’s retention and use of the card after his employment ended. As stated before, if the jury believed the supervisor’s version of what transpired between him and defendant at that point, any reasonable person would conclude that defendant’s retention and use of the card constituted theft, at least in the lay sense. If the jury believed defendant’s version, it would necessarily disagree with her arm-chair quarterbacking. The crucial evidence was that coming from the supervisor and defendant, and not the opinion of the female co-owner.
Defendant here asserts that the female co-owner’s opinion was not based on personal knowledge or personal perceptions that would be helpful to the jury, therefore, it was inadmissible as lay opinion under Evidence Code section 702, subdivision (a). However, defense counsel did not state the basis for his objection, therefore, we are powerless to conclude that the trial court wrongly overruled his objection on this basis. (Evid. Code, § 353, subd. (a).) We also cannot agree with defendant that if counsel below had objected on this basis, the trial court would have overruled him, therefore he was excused from having to so object. Moreover, by the time this opinion was stated, the witness had already asserted several times her belief that the card had been stolen. It is clear that it was a matter of tactics by defense counsel to let this testimony in, then combat it by showing that this witness did not know what she was talking about and by having defendant explain his continued retention and use of the card. Such tactical matters are not for us to second guess. (People v. Lamphear (1980) 26 Cal.3d 814, 828, disapproved on other grounds in People v. Balderas (1985) 41 Cal.3d 144, 188.)
Defendant’s objection to the opinion covers any request he should have made that the jury be instructed to disregard the evidence. Therefore, we will not separately address the latter.
Defendant also faults the trial court for the manner in which it instructed the jury about this witness’s opinion. However, the court was clear that her opinion was just that—her opinion, and the jurors were to make the ultimate determination whether defendant intended to use the card fraudulently. This was not improper.
Defendant admits that he did not object to the trial court’s instruction, but seeks to excuse this either on the ground that objecting would have been futile or that trial counsel was incompetent for failing to object. As with defendant’s failure to object to the evidence, we cannot say that an objection to the instruction on the basis of Evidence Code section 702, subdivision (a) would have been unsuccessful. Moreover, the failure to object appears to be based on tactics, as already explained. In either event, defendant cannot persuade us that there is a reasonable probability that the absence of this opinion and instruction would have resulted in acquittal (Strickland v. Washington (1984) 466 U.S. 668)—both because of the presence of other unobjected-to statements by this witness that the card had been stolen and because of the weight of evidence against defendant, which we next address.
Even if we were to conclude that the admission of the opinion and the instruction on it were improper, we would not reverse defendant’s conviction due to the weight of evidence against him. Although the supervisor might have lied at trial about what he told defendant when the latter was laid off in order to save his own hide in the company, the fact that defendant told the supervisor in November that he knew nothing about the card, all the while having it in his possession and using it, then told the detective an entirely different story about why he continued to use the card after not working for the company, sealed defendant’s fate. Additionally, defendant’s story sorely lacked common sense believability, whether it be his assertion that after working for a company for a little over a month, he was handed an invaluable object (the card) and given carte blanche to use it until “later, ” when matters could “be settled, ” by someone who did not know him before his slightly more than a month stint with the company, or that he filled up several of his own vehicles on the same day and within minutes of each other. One only has to ponder how an unemployed person whose sole source of income is state benefits can afford to have that many cars or would need that much fuel to know that defendant’s story just didn’t fly.
2. Argument by the Prosecutor
According to the instructions given the jury, defendant was charged with acquiring or retaining account information without the consent of the cardholder with the intent to use that information fraudulently.
During argument to the jury, defense counsel asserted that defendant was being honest by admitting on the stand that it was him and his vehicles being filled up on the November 26th video that was shown to the jury. Counsel added, “He could have lied about [filling up other cars], too, but he’s not a liar and he’s not a thief.” During closing argument, the prosecutor said, “[T]he People are asking you to find [defendant] guilty of bad judgment, 48 times over, ... which does equate to a crime.... [¶]... We only charged one. I could have charged 48 counts. One count of using that card....”
Defendant did not object to this comment below but now claims his conviction should be reversed due to it. We disagree.
Defendant correctly states that he did not commit 48 counts of the offense with which he was charged. However, to the extent the prosecutor implied that he did, the jury would necessarily conclude otherwise following the instructions it had been given about the charged offense, which was not based on the number of times defendant used the card but on the fact that he either acquired or retained it with the requisite intent, which occurred during a singular event. Thus, defendant cannot show a reasonable likelihood that the jury understood or applied the statement in an improper or erroneous manner. (People v. Frye (1998) 18 Cal.4th 894, 970, overruled on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) To do so, the jury would have had to have ignored the instructions it was given and we cannot assume that this occurred. (People v. Bonin (1988) 46 Cal.3d 659, 699, overruled on other grounds in People v. Hill (1998) 17 Cal.4th 800, 823, fn.1 (Hill).)
It appears, rather, that the prosecutor meant to say that he could have charged defendant with theft 48 times, which was fair game after defendant asserted that he was neither a liar nor a thief. Since defense counsel failed to object to this comment, defendant can obtain reversal of his conviction only under the theory that his attorney was incompetent for failing to object, as defendant does not persuade us that such an objection would have been futile, that the case was closely balanced or that the harm could not have been cured by an admonition. (People v. Stewart (2004) 33 Cal.4th 425, 505; Hill, supra, 17 Cal.4th at p. 820; People v. Page (1980) 104 Cal.App.3d 569, 573.) He must show a reasonable probability that had those words not been uttered by the prosecutor, he would have been acquitted. As we have already concluded, the weight of evidence against defendant persuades us that there was no such probability.
We further conclude that the weight of the evidence against defendant overrides whatever cumulative effect the already discussed events had at trial. Therefore, there is no basis for reversal based on cumulative error.
Disposition
The judgment is affirmed.
We concur: McKINSTER J., KING J.