Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Imperial County No. JCF18031, Christopher W. Yeager, Judge.
HUFFMAN, Acting P. J.
A jury convicted Norma Alicia Tapia of embezzlement (Pen. Code, § 504), second degree burglary (§ 459) and grand theft by embezzlement (§ 487, subd. (a)). The court imposed a two-year prison term and suspended the execution of the sentence and granted Tapia probation on certain terms and conditions.
All further statutory references are to the Penal Code unless otherwise specified.
Tapia appeals contending that the trial court erred in denying her motion to dismiss for precharging delay and that there is insufficient evidence to support the conviction. We will reject both contentions and affirm.
STATEMENT OF FACTS
Tapia was employed as a clerk in the return center of Wal-Mart in El Centro, California from April 2004 to May 2005. During that time Isabel Walton was the store's cash office clerk. Walton counted the money that came in from each register. In spring 2005 Walton noticed that refund slips were missing from Tapia's register. Tapia should have turned in receipts for refunds turned in to the cash office. Walton found the missing receipts underneath the desk in the return center. The refund receipts were for the same items, were all for less than $50 and they all had similar identification numbers on them.
Walton contacted the store's loss prevention officer, Victor Benitez, who initiated an investigation into possible thefts by Tapia. Benitez was assisted by Richard Aguirre, an asset protection associate.
Wal-Mart's return policy was that if an item is returned without a sales receipt, the desk clerk was required to ask for a picture ID. A "no receipt" return for over $50 required an authorization from a manager. No managerial authorization was required for "no receipt" returns for less than $50. When the return was for $10 or less the customer would receive cash, otherwise the customer should receive a Wal-Mart gift card.
When Benitez reviewed Tapia's return receipts he noted six categories of "red flags" concerning Tapia's transactions:
1. Item numbers were hand-keyed into the register instead of having their UPC number scanned;
2. No receipt cash refunds for amounts over $10;
3. Illegible or missing customer signatures;
4. The identification numbers for customers were not consistent with government issued ID and the same numbers were used repeatedly;
5. The receipts were missing a pink sticker, which should have been placed on the item by the store greeter when the customer first entered the store; and
6. There were no supervisor initials.
Benitez noted that most of Tapia's suspect receipts had the red flag problems. Benitez testified to examples where cash had been given instead of gift cards and that several receipts had the same identification numbers for the alleged customer, but the signatures were different. In some instances there were no receipts for returned items over $10. Benitez and Aguirre identified a number of receipts dating from 2004 into May 2005.
The investigators conducted video surveillance of Tapia's work for several days. They observed her conducting return transactions when no customer was present. She also initialed the receipts for the returns and placed them under the counter where Aguirre later found them. On at least three occasions Aguirre saw Tapia making motions at the cash register, which were consistent with her taking money from the register.
Benitez arranged for recorded money to be placed in Tapia's register. After observing more suspect transactions, Tapia was confronted and ultimately arrested. A search revealed she had $320 on her person, which included three recorded $100 bills. The amount of cash that was found on her person was within $2 of the amount of the fraudulent return receipts. She also had UPC tags on her person that matched the numbers on the suspect receipts. An employee would have no legitimate reason to have such tags on her person.
A subsequent search produced an additional $551 in cash in Tapia's wallet. She attempted to explain the recorded money by stating she had cashed her pay check. Tapia actually cashed her $551 pay check at another employee's register.
Benitez testified that based on his review of the receipts from Tapia's transactions from September 2004 to May 2005, he believed that Tapia has taken $53,332.
DISCUSSION
I
PRECHARGING DELAY
Tapia was arrested on May 5, 2005. She was released without charging and was not formally charged with the current offenses until May 2006. She contends that the delay between arrest and charging resulted in a denial of due process under both the state and federal constitutions. We find the delay was not unreasonable under the circumstances of this case, and, in any event, Tapia was not prejudiced by the delay.
The due process clauses of both the U.S. and California Constitutions protect a defendant from the "prejudicial effects of lengthy, unjustified delay between commission of a crime and the defendant's arrest and charging." (People v. Cowan (2010) 50 Cal.4th 401, 430 (Cowan); People v. Nelson (2008) 43 Cal.4th 1242, 1250; United States v. Lovasco (1977) 431 U.S. 783, 789-792.)
The court in Cowan stated:
" ' "[T]he right of due process protects a criminal defendant's interest in fair adjudication by preventing unjustified delays that weaken the defense through the dimming of memories, the death or disappearance of witnesses, and the loss or destruction of material physical evidence." [Citation.] Accordingly, "[d]elay in prosecution that occurs before the accused is arrested or the complaint is filed may constitute a denial of the right to a fair trial and to due process of law under the state and federal Constitutions. A defendant seeking to dismiss a charge on this ground must demonstrate prejudice arising from the delay. The prosecution may offer justification for the delay, and the court considering a motion to dismiss balances the harm to the defendant against the justification for the delay." [Citation.]' [Citation.]" (Cowan, supra, 50 Cal.4th 401, 430.)
Where the facts are not in dispute, we review the trial court's denial of the motion to dismiss under the abuse of discretion standard. (People v. Dunn-Gonzales (1996) 47 Cal.App.4th 899, 912.)
In the present case Tapia contends she was prejudiced because Wal-Mart failed to retain the "non-fraudulent" sales receipts from her register. She also argues that she was prejudiced by the destruction of the surveillance tape of the May 5, 2005 transactions and that memories may have faded in the time between arrest and charging. None of these claims has merit.
After Tapia was arrested the case was turned over to the El Centro Police Department for preparation for charging. Due to the complexity of the case and the necessity to understand Wal-Mart's policies, the police referred the matter back to Wal-Mart for assistance. Police asked Benitez to do further analysis of the records and to edit the surveillance tapes. During that same time Benitez was supervising the loss prevention in 12 stores. He also had some difficulty with the equipment he needed to use to edit the tapes.
The trial court carefully examined the facts surrounding the delay and found no significant prejudice to Tapia. While Wal-Mart did not retain the "non-fraudulent" receipts, the court found that the absence of such receipts did not hinder the defense. The court found there was adequate material available to permit retention of an expert to assist the defense. Tapia has not demonstrated on appeal that the absence of nonfraudulent receipts has in any way impacted her ability to defend against the charges.
Once the case was filed in May 2006, a series of delays occurred with Tapia's consent. The case did not go to trial until the fall of 2009. Thus, the greatest portion of the delay occurred postcharging and occurred with Tapia's concurrence. This is particularly significant with regard to the claim of faded memories. Tapia has not demonstrated either in the trial court, or in this court, that there was any significant memory loss by any witness arising from the precharging delay.
Turning then to the claim of the lost surveillance tape, the video was not destroyed until January 2009, two and one-half years after the charges were filed. The video was inadvertently destroyed by the police department because of confusion as to whether the charges were felonies or misdemeanors. Thinking the arrest had been for a misdemeanor, the video was incorrectly destroyed.
First, Tapia has not demonstrated any adverse impact from the loss of the video. There were over a dozen other videos, which demonstrated the same conduct by Tapia, including conducting return transactions when no customer was present. More importantly, the loss of the video was well after charges were filed and Tapia was before the court, with counsel. Considerable discovery had been conducted and counsel had adequate opportunity to view that video. Whatever the reason might have been for the loss of the video, it certainly had nothing to do with the precharging delay.
In short, the record in this case does not support Tapia's claim of a denial of due process under either the state or federal Constitutions.
II
SUFFICIENCY OF THE EVIDENCE OF LOSS
Finally, Tapia contends there is not sufficient evidence of a loss by Wal-Mart in excess of $400. Once again her claim is without merit.
When we review a claim that the evidence at trial is not sufficient to support the conviction, we apply the very familiar substantial evidence standard of review. Under that standard we review the entire record, drawing all reasonable inferences in favor of the trial court decision. We do not make credibility decisions nor do we weigh the relative strength of any competing evidence. We simply determine whether there is sufficient substantial evidence from which a reasonable jury could have found the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578; People v. Zamudio (2008) 43 Cal.4th 327, 357.)
Applying the appropriate standard of review, we are convinced there is adequate substantial evidence to support the convictions. Benitez and Aguirre both observed fraudulent conduct. The jury could conclude that Tapia prepared false return receipts. Transactions were observed where she processed return receipts where there was no customer and no returned item. Receipts had similar names and identifications, but different signatures. She purportedly gave cash refunds when she should have given gift cards. Benitez told the jury about a number of specific instances in which refunds had been purportedly given where one could reasonably infer there was neither a customer nor any merchandise involved in the alleged return.
In addition, Benitez and Aguirre observed several days of apparently fraudulent activity by Tapia. Aguirre testified he observed a number of actions by Tapia which were consistent with taking money from the register. On the day of her arrest, Tapia had three recorded $100 bills on her person. Her explanation that she obtained the money when she cashed her check from her own register was proved false by evidence that her paycheck was $551 and that she cashed it at a different register. Further, Benitez testified, based on his review of the transaction in which Tapia was involved, that she had taken over $53,000 from the store from September 2004 to May 2005. The jury was entitled to credit that testimony on this record.
As our final comment, we must consider Tapia's argument that her cash registers always balanced, thus there is no evidence she took money. Respectfully, that argument is specious. As pointed out by the loss prevention staff, if she made false return transactions in which she created receipts to show she had paid money to customers, the money supposedly paid would have to be removed from the cash drawer. Otherwise there would be excessive cash because there had been no return, and no customer. The fact the cash drawer balanced each night, even with fraudulent return receipts supports, rather than negates, the inference that Tapia removed cash from the register in the amounts as represented by the bogus receipts.
DISPOSITION
The judgment is affirmed.
WE CONCUR: HALLER, J., IRION, J.