Filed 7/31/26 P. v. Begay CA1/2
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
A171869
v.
DYLIN PAUL BEGAY, (Sonoma County
Super. Ct. No. 23CR02548)
Defendant and Appellant.
Dylin Paul Begay was convicted of theft from an elder after a jury trial.
He contends the trial court erred in admitting statements he maintains were
rendered involuntary by improper police questioning and obtained in
violation of Miranda.1 He further contends the trial court abused its
discretion with respect to several evidentiary rulings. We affirm.
BACKGROUND
I.
Factual Background
In late June and early July 2023, Begay made four withdrawals at an
ATM in Guerneville from the bank account of Gregory Hallett. Begay, who
had been a caregiver for Hallett, maintained he made the withdrawals at the
request of Trudy Millerstrom, Hallett’s longtime friend and caregiver.
1 Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
1
Millerstrom denied asking Begay to withdraw the money, and Hallett did not
authorize the withdrawals.
A. Prosecution Case
At the trial in September 2024, Hallett testified that he was 78 years
old and had been living in a care facility for 16 months. He testified that
Begay was his closest friend; Hallett “thought he was my brother.” Trudy
Millerstrom was Hallett’s “partner in life”; they had been together on and off
for 45 years. Begay helped take care of Hallett, taking over duties like
helping Hallett shower and dress that were normally done by Millerstrom.
Hallett testified that Millerstrom helped him manage his bank account
at Bank of America. He had put her on the account and they both had access
to it. Hallett testified, “her money was my money and my money was her
money.”
Begay also had access to Hallett’s bank account because Hallett had
often given him the PIN so he could get money for Hallett when Hallett was
too sick to go to the ATM. Hallett never gave Begay permission to take
$1,000 or $800 out of his account; Begay never gave Hallett sums of $1,000
and $800 withdrawn from the account; and Hallett never gave Begay
permission to keep money from the account for himself.
After Hallett was informed by the bank that sums of $1,000 and $800
had been withdrawn from his account in June and July 2023, he spoke with
Sheriff’s Deputy Bryan Jensen. A recording of their October 26, 2023 phone
call was played at trial. Hallett told Jensen he knew he was owed “a ton” of
money, but he was not sure whether he had been told about “at least four
transactions between June and July” because he had Alzheimer’s and his
memory was “just shot.” Hallett did not recall giving Begay his PIN but said,
“I might have. I might have because I was pretty sick then [¶] . . . [¶] . . . And
2
I might not have been able to get to the automatic teller.” He did not give
Begay permission to take sums of $1,000, $83, $800 and $403 from the
account.
Trudy Millerstrom testified that she was 78 years old and had known
Hallett for 50 years; they had lived together 30 or 40 years ago; and they
were “really good friends.” She started taking care of Hallett when he got
sick, some 15 or 20 years ago, and about 12 years ago she became his paid,
full-time IHSS (In Home Supportive Services) caregiver.
Millerstrom met Begay about five years before trial. He and his
boyfriend, David Gibson, needed a place to live and Millerstrom invited them
to stay with her in exchange for gardening assistance. Begay became an
additional caregiver for Hallett because Millerstrom was overworked and
exhausted, and the two men became good friends.
Millerstrom helped Hallett with finances: He gave her access to his
bank account to set up automatic payment for his bills and she kept track of
his passwords. He was almost always present when she accessed his account.
Millerstrom became a joint owner of the account in April 2024; prior to that,
she was an “ITF” on the account, which she said meant the bank could give
her information but she “couldn’t do much.” Millerstrom explained that she
wanted the additional control over the account so she would be able to handle
Hallett’s affairs if he died.
Millerstrom and Begay stopped caring for Hallett in April 2023, when
he was hospitalized and then went to the care facility. At some point after
Hallett was hospitalized, Bank of America notified Millerstrom there had
been potentially suspicious transactions on Hallett’s account. Millerstrom
saw withdrawals of $1,000 and then $800 on the bank statement. Hallett
could not have made the withdrawals because he was in the hospital in Santa
3
Rosa. Millerstrom had Hallett’s ATM card but did not withdraw the money
or give anyone else permission to do so.2 Hallett had never lost his ATM
card. To the best of Millerstrom’s recollection, “this kind of money” had never
been taken out of Hallett’s account. She said, “[t]here was no need for big
amounts of cash” because Hallett “didn’t have anything to spend it on.”
Millerstrom called the bank and was told Hallett had to file a police
report before the money could be reimbursed. The bank told her they had
photographs of the person who withdrew the money and sent her copies.
Millerstrom recognized the person in the photographs as Begay. She never
gave Begay permission to take $1,000 and $800 from Hallett’s account or told
him to do so.
Millerstrom went to file a police report and spoke with Deputy Sheriff
Jensen. She told him that she recognized Begay in the photographs and that
Hallett had not withdrawn the money. On cross examination, Millerstrom
testified that she did not recall telling Jensen she was in charge of Hallett’s
finances and did not recall whether she told him she had full access to and
use of the bank account. She testified that reviewing Jensen’s report would
not refresh her memory about what she told him but that “whatever is on
that report, I’m sure I told him.”
On direct examination, Millerstrom was asked whether her
relationship with Begay started to deteriorate at some point and responded,
“We had our ups and downs, but I wouldn’t say it was deteriorating.” On
cross examination, defense counsel asked if Millerstrom recalled having an
2Millerstrom testified that she put a stop on the card because of the
unauthorized withdrawals and ordered a new one for Hallett, but she never
saw the new card and to her knowledge Hallett did not see it.
4
argument with Begay around September 2023. She testified, “Probably. He
has a pretty foul mouth, and I was tired of being called a bitch and a whore
and a slut and a few other names. So I looked at him, and I said, no more, no
more, you’re done.” Defense counsel asked, “So you didn’t appreciate that?”
and Millerstrom testified, “I did not appreciate a lot of what the man did.”
Begay was still living on Millerstrom’s property at the time of trial.
Deputy Jensen testified that he spoke with Millerstrom when she
initially came to the station on October 26, 2023, then subsequently on
November 17 and November 29. He did not record any of these conversations
on his body worn camera.
Jensen testified that when he received the bank photographs from
Millerstrom, he located a photograph of Begay in the sheriff’s system and
matched it with the ones from the bank. He got Hallett’s bank statements
from Millerstrom and saw the four transactions that were noted as
fraudulent, which were executed on June 27 and July 3, 2023. These dates
matched the date stamps on photographs of Begay at the Guerneville Bank of
America ATM. Jensen spoke with Hallett, who said he had not given Begay
permission to withdraw money from the account.
On November 17, 2023, Jensen went to Begay’s residence to interview
him. Jensen was wearing a body camera and the recording of his interaction
with Begay was played at trial. As will be detailed further, Begay insisted he
was not the person in the ATM photographs and denied making the June and
July withdrawals at issue. As Jensen continued to tell Begay it was him in
the photographs, Begay, crying, said “I’m sorry” several times and said, “My
li[f]e is fucked.” Jensen testified that when he saw Begay, he was “100
percent” sure Begay was the person in the ATM photos, and Begay’s denial
did not change Jensen’s opinion.
5
B. Defense Case
Begay testified that he and his partner, David Gibson, lived in a shed
on Millerstrom’s property that did not have water or power. Begay was
officially hired by IHSS as Hallett’s caregiver in 2022. He cooked and cleaned
for Hallett and assisted him with medications, doctors appointments and
shopping. Begay sometimes took Hallett to the bank and helped him
withdraw money from his account when Hallett asked him to do so. He
always gave the money to Hallett. Begay once borrowed $100 from Hallett
and repaid it the next day.
Begay testified that he made the withdrawals in late June and early
July 2023 at Millerstrom’s request. She told him she was going to visit
Hallett soon and he needed the cash, and she gave Begay the ATM card.
After making the withdrawals, Begay gave the money, ATM card and receipt
to Millerstrom.
Regarding his statements to Jensen, Begay acknowledged that he said
he was not the person in the photographs, did not make the withdrawals and
did not say Millerstrom had asked him to take out the money. Begay
testified he was overwhelmed with the situation and scared of what would
happen to him. He suggested Jensen did not give him a chance to explain
himself, then said, “at that time he wouldn’t have believed me anyways.”
II.
Procedural Background
A first amended information filed on August 16, 2024, charged Begay
with theft from an elder or dependent adult by a caretaker. (Pen. Code,
§ 368, subd. (e).) A jury found him guilty on September 9, 2024.
On November 6, 2024, the court suspended imposition of sentence and
placed Begay on probation for two years, with conditions including a 180-day
6
jail term, 30 days to be served in custody and 150 days on work release. He
was ordered to pay restitution of $2,305 to Hallett and a restitution fine of
$300. Begay filed his notice of appeal the same day.
DISCUSSION
I.
Admissibility of Begay’s Statement
Begay contends his statements to Jensen should have been excluded
because they were rendered involuntary by the officer’s implied promises and
threats and obtained in violation of Miranda.3 “ ‘In reviewing the trial court’s
denial of a suppression motion on Miranda and involuntariness grounds,
“ ‘ “we accept the trial court’s resolution of disputed facts and inferences, and
its evaluations of credibility, if supported by substantial evidence. We
independently determine from the undisputed facts and the facts properly
found by the trial court whether the challenged statement was illegally
obtained.” ’ ” [Citations.] Where, as was the case here, an interview is
recorded, the facts surrounding the admission or confession are undisputed
and we may apply independent review.’ (People v. Duff (2014) 58 Cal.4th
527, 551.) We review issues concerning the suppression of such statements
under federal constitutional standards. (People v. Nelson (2012) 53 Cal.4th
367, 374.)” (People v. Jackson (2016) 1 Cal.5th 269, 339.)
A. Additional Background
The People moved in limine to admit the recording of Begay’s
November 17, 2023 statements to Jensen. Jensen testified that he first spoke
3 Anticipating the People arguing he forfeited his voluntariness
challenge, Begay argues the challenge was preserved and, if we disagree, he
received ineffective assistance of counsel. The People do not argue forfeiture
and we need not address these issues.
7
with Begay at the door of his residence and asked Begay to come to the street
and talk with him. Begay put his shoes on and they walked toward the
patrol vehicle. Begay was not handcuffed as they walked or while they
talked, until he was arrested.
As seen in the recording and transcript, Jensen told Begay he was
there about Hallett and Begay confirmed that he used to take care of Hallett,
knew he was presently in a care facility and thought Hallett was “in his
eighties.” Jensen said the issue was “some cash withdrawals in July.” He
told Begay to “[c]ome to the front of my car so I can show you some stuff” and
said, “obviously I’m kind of aware of some misgivings of some money. So, if
you wanna be like . . . upfront with me about what’s goin’ on, mistakes that
were made, that’s cool.” Jensen said he was specifically looking at
transactions in late June and July. Begay responded, “I didn’t do anything
about those transactions. . . . Millerstrom] didn’t even come to me and talk to
me about anything about it. She just, she just went, she didn’t even show me
any of the tapes. She didn’t show me any of the pictures that she got. . . . I
took care of him so I had access to his bank account. But that was early,
earlier in the year . . . .”
At this point, Jensen said, “So Dyl I’m gonna . . . stop you right there. I
have transactions of you removing a thousand dollars, eight hundred dollars.
Can I show you somethin’?” After Begay said yes, Jensen continued, “You
good? . . . Obviously I’m writing a report. ’Kay? And whatever you tell me,
you know, I’ll put onto there. If you want to admit to your misgivings, I will
totally put that you’re, you, you’re sorry for what you’ve done.” Begay asked
if Jensen was there to arrest him and Jensen replied, “I don’t know yet” and,
showing him a picture, “Who’s that? That’s you.” Begay said he did not
withdraw money from Hallett’s account and Jensen asked again, “Who’s
8
that? [¶] . . . [¶] . . . Dylin, Dylin, Dylin. Are you saying it’s not you?” Begay
said it was not him.
Jensen told Begay to turn around and started to handcuff him. After a
brief exchange in which Jensen told Begay not to resist and Begay said he
was not resisting, Begay said, “Oh God” and Jensen said, “Dylin, I was tryin’
to be cool with you to try to give you—Dude, that is you. Trust me, it’s you.
Okay?” Begay said, “Now I’m fucked” and Jensen said, “I get it, you’re in a
panic mode.” Begay said he was not and Jensen told him he was, then said,
“I want you to hear me out. ‘Kay? I got . . . you on video making heavy
withdrawals while he’s in the hospital.” Begay said, “I didn’t do it.
[¶] . . . [¶] . . . I don’t know who you saw, but it was not me.”
Jensen repeated, “That is you. Dylin, that’s you. I know you don’t
want it to be you. Y– but it’s you.” Begay looked as though he was trying not
to cry. Jensen said, “Um, so here’s what’s gonna happen. You have a
warrant for your arrest as well, you have a, a drug warrant. So you’re gonna
go to jail for that. You're goin’ to jail for elder abuse and theft. So, here’s
what I need you to understand. [¶] . . . [¶] . . . If you want to reach out to me
and make amends, I’m totally willing to it. You know where I work, I work at
the Guerneville substation, okay.” Begay was starting to cry. Jensen
continued, “I’m not gonna ask you anything right now. Okay? [¶] . . . [¶] . . .
The big thing about this is people make mistakes. ’Specially if they have
drug habits, I get it. I was tryin’ to get you a chance to like make amends for
what had happened and see if we find a way to resolve this. ’Cause
[Hallett’s] out money.” Crying, Begay said, “I’m sorry” and Jensen repeated
that Hallett was out money. As Jensen asked if there was anything in his
pockets, Begay continued to say, ”Oh my God. . . . Oh God. I’m sorry. I’m
sorry.” Jensen told him, “[i]t’s alright” and Begay repeated, “It’s not okay.
9
My [life] is fucked.” He continued to cry. Jensen told him, “It’s California,
dude, they’re not gonna screw you.”
At the hearing, the People stipulated to redacting two references to
drugs in the recording but otherwise argued the recording was admissible
because the situation was noncustodial and Begay’s “I’m sorry” comments
were spontaneous, not responses to direct interrogation.
The court found the recording admissible, with the stipulated
redactions, subject to Evidence Code4 section 352. The court found Begay
was not in custody during the first portion of the conversation, noting he was
not in handcuffs and not patted down; the interview was in his driveway;
although two officers were present, one was “very much in the background”;
Jensen’s demeanor was “casual and nonconfrontational” until he showed
Begay the ATM photo; there were no overt restrictions on Begay’s movements
until he was formally arrested; and the officers “did not dominate or control
the questioning,” “were not aggressive or confrontational or accusatory” and
“did not pressure the defendant.”
With respect to the portion of the interview after Begay was
handcuffed, advised he was under arrest and clearly in custody, the court
found the situation did not amount to interrogation. The court found the
questioning was “actually not questioning, but mere advisements,”
explaining, “[t]he nature of the questions actually are not questions at all. In
fact, the officer is telling Mr. Begay to stop talking and advising Mr. Begay
that he is not asking questions at this time, meaning the officer was not
intending to question Mr. Begay.” Acknowledging that Jensen confronted
4Further statutory references will be to the Evidence Code unless
otherwise specified.
10
Begay by saying it was him in the photographs, the court found this
“advisement” similar to that in People v. Haley (2004) 34 Cal.4th 283 (Haley),
in which a murder suspect was advised that his prints were found at the
crime scene. Finally, the court found Begay’s expressions of apology while
being pat searched were not in response to questions or “anything directed by
the deputy.”
B. Begay’s Statement Was Not Rendered Involuntary by Threats
or Promises.
1. Governing Principles
“The state bears the burden of proving the voluntariness of a confession
by a preponderance of the evidence.” (People v. Dykes (2009) 46 Cal.4th 731,
753 (Dykes).) “To determine the voluntariness of a confession, courts examine
‘ “whether a defendant’s will was overborne” by the circumstances
surrounding the giving of a confession.’ (Dickerson v. United States (2000)
530 U.S. 428, 434.) In making this determination, courts apply a ‘totality of
the circumstances’ test, looking at the nature of the interrogation and the
circumstances relating to the particular defendant. (People v. Haley (2004)
34 Cal.4th 283, 298; People v. Massie (1999) 19 Cal.4th 550, 576.) With
respect to the interrogation, among the factors to be considered are ‘ “ ‘the
crucial element of police coercion [citation]; the length of the interrogation
[citation]; its location [citation]; its continuity . . . .’ ” ’ (People v. Massie,
supra, 19 Cal.4th at p. 576.) With respect to the defendant, the relevant
factors are ‘ “ ‘the defendant’s maturity [citation]; education [citation];
physical condition [citation]; and mental health.’ ” ’ (Ibid.)” (Id. at p. 752.)
“ ‘A statement is involuntary [citation] when, among other
circumstances, it “was ‘ “extracted by any sort of threats . . . , [or] obtained by
any direct or implied promises . . . .” ’ ” ’ (People v. Neal [(2003)] 31 Cal.4th
[63,] 79.)” (Dykes, supra, 46 Cal.4th at p. 752.) “ ‘ “[M]ere advice or
11
exhortation by the police that it would be better for the accused to tell the
truth when unaccompanied by either a threat or a promise does not render a
subsequent confession involuntary.” ’ (People v. Howard (1988) 44 Cal.3d
375, 398; People v. Higareda (1994) 24 Cal.App.4th 1399, 1409.)” (People v.
Carrington (2009) 47 Cal.4th 145, 174.) “ ‘ “In terms of assessing
inducements assertedly offered to a suspect, ‘ “[w]hen the benefit pointed out
by the police . . . is merely that which flows naturally from a truthful and
honest course of conduct,” the subsequent statement will not be considered
involuntarily made.’ ” ’ (People v. Tully (2012) 54 Cal.4th 952, 993 (Tully).)”
(People v. Stayner (2026) 19 Cal.5th 395, 438.)
2. Analysis
Begay contends Jensen threatened him by saying that he would go to
jail if he did not confess but, if he cooperated and made amends, Jensen
would “see if we can find a way to resolve this.” In Begay’s view, Jensen’s
statements implied he had the power to resolve the case without prosecution
or jail time but would send Begay to jail if he did not confess. He further
contends Jensen took advantage of his distraught state of mind by continuing
to urge him to confess despite recognizing that Begay was in “panic mode”
and crying.
Having reviewed the recording from Jensen’s body camera, we cannot
agree with his characterization. Jensen did not suggest Begay could avoid
going to jail if he confessed or made any other specific threat or promise of
lenience to Begay; he told Begay that if he admitted wrongdoing, Jensen
would put in his report that Begay was sorry for what he had done. In saying
he had been trying to see if they could find a way to “resolve this,” Jensen
stated, “ ’Cause Greg’s out money.” The implication was simply that it could
be to Begay’s advantage to express remorse and try to rectify Hallett’s loss.
12
We see no indication that Jensen was trying to take advantage of Begay’s
distress. Jensen’s tone and demeanor were not heavy-handed; his voice was
calm save for a second when he said “Dylin, Dylin, Dylin” in a slightly louder
voice to regain Begay’s attention as Begay continued to deny the photographs
were of him.
Begay relies on cases that are not comparable. In People v. Neal,
supra, 31 Cal.4th 63 (Neal), the detective admitted deliberately violating
Miranda by continuing to interrogate the defendant after he invoked his
right to remain silent and, nine times, his right to counsel. (Neal, at pp. 68,
73-74, 81.) The detective told the defendant he would “ ‘make it as best as I
can for you’ ” if the defendant cooperated but, if the defendant did not, “the
system is going to stick it to you as hard as they can.” (Id. at pp. 73, 81.) The
defendant did not confess during this interview but did so the next day, after
being kept in jail overnight without access to counsel, food, drink or toilet
facilities. (Id. at p. 82.) Neal noted, “Both the promise and the threat had
the effect plainly intended by” the detective. (Id. at p. 85.) Here, Jensen
neither offered to treat Begay leniently if he cooperated nor suggested Begay
would be treated harshly if he did not cooperate.
In People v. Vasila (1995) 38 Cal.App.4th 865, a sheriff’s detective
executing a search warrant for illegal guns at the defendant’s farm found a
quantity of marijuana and several legal firearms. (Id. at p. 868.)
Interviewing the defendant in hopes of locating the illegal weapons, a federal
officer told the defendant a state drug prosecution would likely result in
probation and, if he revealed the location of the weapons, the officer would
not pursue a federal prosecution; the sheriff said he would release the
defendant on his own recognizance. (Id. at pp. 871-872.) Vasila explained
that it was permissible for the officers to encourage the defendant to tell the
13
truth by communicating that it would be to his advantage to do so, but they
exceeded permissible bounds by expressly and impliedly promising additional
benefits—release and avoidance of federal prosecution—in exchange for the
defendant revealing where the weapons were hidden. (Id. at p. 874.) Jensen
made no such promise.
Begay became emotional when Jensen initiated the arrest, increasingly
so as Jensen told him he was going to jail. Begay’s repeated statements of
apology were clearly spontaneous expressions of his building emotion. They
reflect how upset he was, but they were not rendered involuntary by any
threat or promise by Jensen.
C. Begay Was Not Prejudiced by a Miranda Violation.
“ ‘ “[B]efore being subjected to ‘custodial interrogation,’ a suspect ‘must
be warned he has a right to remain silent, that any statement he does make
may be used as evidence against him, and that he has a right to the presence
of an attorney, either retained or appointed.’ ” ’ (People v. Leonard (2007)
40 Cal.4th 1370, 1399-1400.)” (People v. Kopatz (2015) 61 Cal.4th 62, 80
(Kopatz).) “An interrogation is custodial when ‘a person has been taken into
custody or otherwise deprived of his freedom of action in any significant way.’
(Miranda v. Arizona, supra, 384 U.S. at p. 444.) The test for Miranda
custody is, ‘ “would a reasonable person have felt he or she was not at liberty
to terminate the interrogation and leave.” ’ (Yarborough v. Alvarado (2004)
541 U.S. 652, 663.) The objective circumstances of the interrogation are
examined, not the ‘ “subjective views harbored by either the interrogating
officers or the person being questioned.” ’ (Ibid.)” (Kopatz, at p. 80.)
Begay maintains that he was in custody for Miranda purposes from the
moment Jensen began to show him the ATM photographs and accused him of
the thefts. He argues he did not feel free to leave because when he asked if
14
Jensen was there to arrest him, Jensen said, “I don’t know yet” and asked
Begay to implicate himself.5 The People concede Begay was in custody for
Miranda purposes once Jensen initiated a formal arrest, but contend he was
not in custody before that point. The People further contend that even after
the arrest, Jensen’s statements were not the functional equivalent of
interrogation.
“When there has been no formal arrest, the question is how a
reasonable person in the defendant’s position would have understood his
situation. [Citation.] All the circumstances of the interrogation are relevant
to this inquiry, including the location, length and form of the interrogation,
the degree to which the investigation was focused on the defendant, and
whether any indicia of arrest were present.” (People v. Moore (2011)
51 Cal.4th 386, 395.) “ ‘No one factor is dispositive. Rather, we look at the
interplay and combined effect of all the circumstances to determine whether
on balance they created a coercive atmosphere such that a reasonable person
would have experienced a restraint tantamount to an arrest.’ ” (People v.
Saldana (2018) 19 Cal.App.5th 432, 455.)
5 Begay does not appear to have made this argument in the trial court;
defense counsel’s requests for exclusion were directed to the portion of the
encounter following the formal arrest. This may be because counsel was not
asked for her arguments until after the court reviewed the recording and
stated its conclusion that the exchange prior to the formal arrest was
noncustodial. In any event, even if we might view Begay as having forfeited
the point if our review of the trial court’s decision turned on its resolution of
disputed facts (see People v. Linton (2013) 56 Cal.4th 1146, 1166), the
purposes of the forfeiture doctrine would not be served here since we apply
independent review to the recorded interview. (People v. Duff, supra,
58 Cal.4th at p. 551.)
15
Begay maintains that most of the relevant factors support a conclusion
that he was in custody from the point Jensen told him to come to the front of
the patrol vehicle so he could show Begay some “stuff.” Specifically, he
identifies “[t]he critical moment determining [his] custody” as “when Deputy
Jensen instructed him to stand in front of his patrol car, immediately accused
him of a crime, and then equivocated when Begay asked if Deputy Jensen
had come to arrest him.” Begay argues that by asking whether Jensen was
there to arrest him, Begay showed he suspected he was not free to leave, and
no reasonable person would have felt free to terminate the interview because
Jensen’s response—saying he did not know yet and immediately confronting
Begay with the ATM photographs—implied that Begay’s answer would
determine whether Jensen would arrest him.
We do not agree that Begay was in custody as soon as Jensen told him
to come to the front of the police vehicle. Jensen’s direction flowed naturally
as Jensen and Begay reached the vehicles, Begay having walked with Jensen
without compulsion as Jensen explained in a casual tone of voice that he was
there about Hallett. Jensen immediately made it clear he was contacting
Begay as a suspect, as he suggested Begay might want to be “upfront” with
him about “mistakes that were made” and, as Begay denied involvement, told
him he had “transactions of you removing a thousand dollars, eight hundred
dollars.” But the overall circumstances were not coercive: They were talking
outside Begay’s home, Jensen’s tone and demeanor were not overbearing,
Begay was not restrained in any way and, while another officer was on the
scene, he was well in the background until Jensen initiated the arrest. On
balance, the circumstances were not such that a reasonable person would
have “ ‘experienced a restraint tantamount to an arrest’ ” (People v. Saldana,
supra, 19 Cal.App.5th at p. 455) and “ ‘ “felt he or she was not at liberty to
16
terminate the interrogation and leave.” ’ ” (Kopatz, supra, 61 Cal.4th at
p. 80.)
The situation changed when Jensen got the documents from his vehicle
and said he was going to write a report and would include what Begay told
him if Begay wanted to “admit [his] misgivings.” Begay responded by asking
if Jensen was there to arrest him; Jensen said, “I don’t know yet,” and
immediately held out a photograph and said, “Who’s that. That’s you.” As
Begay insisted it was not and repeated that he had not taken the money,
Jensen directed him back to the photographs and continued to ask, “Who’s
that? [¶] . . . [¶] . . . Dylin, Dylin, Dylin. Are you saying it’s not you? When
Begay said it was not him, Jensen arrested him.
The People concede the interview became custodial with the formal
arrest. In our view, it became custodial slightly earlier, when Jensen
confronted Begay with the photographs and rejected Begay’s denials after
saying he did not know yet whether he was going to arrest Begay. A
reasonable person confronted as Begay was by an officer who was actively
deciding whether to make an arrest would not have felt free to walk away.
Although this additional period of time was short—only about 20 seconds—it
was important because Begay’s denial that he was the person in the ATM
photographs provided strong incriminating evidence in light of his defense at
trial. Jensen did not provide Miranda warnings, and Begay contends the
officer violated his rights by continuing to badger him to admit the crime.
“A defendant who is in custody . . . must be given Miranda warnings
before police officers may interrogate him. (Rhode Island v. Innis (1980)
446 U.S. 291, 297 (Innis).) In Innis, the high court defined the term
‘interrogation,’ stating that ‘the Miranda safeguards come into play whenever
a person in custody is subjected to either express questioning or its functional
17
equivalent. That is to say, the term “interrogation” under Miranda refers not
only to express questioning, but also to any words or actions on the part of
the police (other than those normally attendant to arrest and custody) that
the police should know are reasonably likely to elicit an incriminating
response from the suspect. The latter portion of this definition focuses
primarily upon the perceptions of the suspect, rather than the intent of the
police. This focus reflects the fact that the Miranda safeguards were
designed to vest a suspect in custody with an added measure of protection
against coercive police practices, without regard to objective proof of the
underlying intent of the police. A practice that the police should know is
reasonably likely to evoke an incriminating response from a suspect thus
amounts to interrogation. But, since the police surely cannot be held
accountable for the unforeseeable results of their words or actions, the
definition of interrogation can extend only to words or actions on the part of
police officers that they should have known were reasonably likely to elicit an
incriminating response.’ (Innis, 446 U.S. at pp. 300-302.)” (Haley, supra,
34 Cal.4th at p. 300.)
Although Jensen did not directly question Begay, we cannot agree with
the trial court’s view that Jensen’s statements were “mere advisements.” In
Haley, the case the trial court saw as similar to this one, just after the
defendant was arrested at his home, the detectives told him they knew he
had committed a murder because his fingerprints had been found at the
murder scene. (Haley, supra, 34 Cal.4th at p. 300.) After pausing for “a
moment,” the defendant said, “ ‘You’re right, I did it.’ ” (Id. at p. 296 and
fn. 4.) Rejecting the claim that the detective’s statement constituted an
interrogation, Haley explained, “The detective did not phrase this statement
as a question, and this statement did not call for an incriminating response.
18
A brief statement informing an in-custody defendant about the evidence that
is against him is not the functional equivalent of interrogation because it is
not the type of statement likely to elicit an incriminating response.” (Id. at
pp. 300, 302.)
The present case is similar in that Jensen informed Begay he had
evidence against him and expressed his belief that Begay was guilty, here by
showing Begay the photographs, rejecting Begay’s denials and telling Begay
he would include it in his report if Begay wanted to admit his “misgivings,”
apologize and “make amends.” Here, however, when Jensen confronted
Begay with the photographs and Begay said he was not the person in them,
Jensen repeatedly insisted the photographs were of Begay and directly
sought a response from Begay: “Who’s that? That’s you. [¶] . . . [¶] . . . Dylin
that’s [¶] . . . [¶] . . . Dylin, Dylin. [¶] . . . [¶] . . . Who’s that? [¶] . . . [¶] . . .
Dylin, Dylin, Dylin. Are you saying it’s not you? [¶] . . . [¶] . . . That’s, that’s
you. [¶] . . . [¶] . . . That is you. Dylin, that’s you. I know you don’t want it to
be you. Y– but it’s you.” This was more than just informing Begay of the
existence of evidence: Jensen was clearly pressing Begay to respond to the
accusation that he was responsible for the theft from Hallett’s account.
Jensen should have known his approach was “ ‘reasonably likely to elicit an
incriminating response’ ” and the fact that Begay ultimately incriminated
himself cannot be seen as an “ ‘unforeseeable result[] of [Jensen’s] words or
actions.’ ” (Haley, supra, 34 Cal.4th at p. 300, quoting Innis, supra, 446 U.S.
at pp. 301-302.) This was a violation of Miranda and the portion of the
interview following Jensen showing Begay the photograph and saying, “Who’s
that. That’s you,” was inadmissible in the prosecution’s case in chief.
Still, while a statement obtained in violation of Miranda may not be
used by the prosecution in its case in chief, the statement may be admitted
19
for purposes of impeachment as long as it is voluntary under constitutional
standards. (Harris v. New York (1971) 401 U.S. 222, 224; People v. May
(1988) 44 Cal.3d 309, 315.) We have already determined that Begay’s
statement was voluntary. Accordingly, it would have been admissible for
impeachment even if the trial court had concluded Begay’s Miranda rights
were violated. Begay testified that he made the withdrawals at issue but did
so at Millerstrom’s direction, without intent to steal from Hallett. This
defense directly conflicted with Begay’s statements in the interview: His
testimony that he made the withdrawals indicated he lied when he told
Jensen he was not the person in the ATM photographs, and his emotional
apologies in the interview indicated he was lying when he testified he made
the withdrawals at Millerstrom’s direction and did not intend to steal the
money. As the prosecutor made clear in closing argument, the value of the
interview to the People’s case was its impeachment of Begay’s credibility.
Since the statements would have been admissible for this purpose, the error
in admitting them was harmless beyond a reasonable doubt. (See People v.
Wood (2002) 103 Cal.App.4th 803, 805 [error in admitting testimony in
violation of defendant’s Fourth and Fifth Amendment rights harmless
because testimony would have been admissible for impeachment].)
II.
Evidentiary Rulings
Begay challenges a number of evidentiary rulings that he claims
separately and cumulatively prejudiced his case by excluding evidence
impeaching Millerstrom and admitting evidence impeaching him. The only
real issue at trial was Begay’s intent: He admitted making the withdrawals
but claimed Millerstrom directed him to do so and denied any intent to steal
the money. Since Millerstrom denied telling Begay to withdraw the money,
20
Begay sees this case as largely a credibility contest between himself and
Millerstrom. Moreover, Begay argues there is reason to believe the jury
struggled over the question of intent because it asked a question about intent
during deliberations,6 and therefore any evidence bearing on his or
Millerstrom’s credibility was important. He contends the trial court erred in
excluding evidence that Millerstrom lied to the police and bank employees
and attempted to dissuade Begay from testifying at trial and compounded
these errors by erroneously admitting evidence suggesting Begay had
previously been in jail.
“We review the trial court’s decision to admit or exclude evidence for
abuse of discretion.” (People v. Dworak (2021) 11 Cal.5th 881, 895.) A court’s
exercise of discretion “ ‘must not be disturbed on appeal except on a showing
that the court exercised its discretion in an arbitrary, capricious or patently
absurd manner that resulted in a manifest miscarriage of justice.’ ” (People v.
Rodrigues (1994) 8 Cal.4th 1060, 1124.)
A. Millerstrom’s Statement to Jensen
Begay contends the trial court erred in excluding evidence that when
Millerstrom reported the thefts, she falsely told Jensen she had full control
over Hallett’s bank account. Begay argues this evidence would have
6 The jury’s note stated: “We are at a dead end. We are not all in
agreeance [sic]. Are we able to get more clarification about element number 3
under theft. Do we need to have only an opinion or belief if Dylan [sic]
intended to deprive owner of it or do we feel we need to have proof beyond a
reasonable doubt based on evidence submitted by council [sic]? We need so
[sic] assistance.” The court responded, “Each and every element of the
offense needs to be proven beyond a reasonable doubt based on the evidence
submitted.”
21
supported his defense because Millerstrom could blame Begay for the thefts,
and deflect blame from herself, by claiming she had authority over the
account. Further, evidence that Millerstrom lied to the police would
undermine her credibility.
Begay describes his argument as challenging the trial court’s exclusion
of “a recording” of Millerstrom telling Jensen she had full control over
Hallett’s account when she did not. Begay does not identify any recording of
Millerstrom’s statements to Jensen; his record citations are to the recording
of Millerstrom’s call to Bank of America.7 As we will discuss, since the
purpose of the call was to obtain authority over Hallett’s account, Begay sees
it as evidence that Millerstrom lied when she told Jensen, prior to the call,
that she already had full control over the account. But nothing said in this
call provides evidence of any statement Millerstrom made to Jensen.8 There
was no affirmative evidence at trial that Millerstrom told Jensen she had full
control over the account, on a call or otherwise; Millerstrom testified that she
did not have control over the account when she first spoke with Jensen and
did not remember telling him she did.
Although Begay does not make the point clear, his argument appears to
be directed at the trial court’s ruling sustaining the prosecutor’s hearsay
objection when defense counsel asked Jensen whether Millerstrom told him
she had full control over Hallett’s account. Jensen had testified at the
7 So far as we are aware, the only recordings discussed at trial were of
Begay’s interview and arrest; Jensen’s phone call with Hallett and
Millerstrom’s call to the bank.
8 The People argue the trial court properly found “the recording of
Millerstrom’s phone call to Deputy Jensen” inadmissible, referring to the
recording as the subject of supplemental motion in limine 18. Supplemental
motion in limine 18 addressed the recording of Jensen’s call to Hallett.
22
preliminary hearing that Millerstrom told him she had full control over the
account. But he did not testify at trial and, when defense counsel asked him
on cross examination whether Millerstrom told him her name was on
Hallett’s account, the court sustained a hearsay objection.
Begay argues Millerstrom’s statement was admissible pursuant to
section 1101, subdivision (b), which permits “the admission of evidence that a
person committed a crime, civil wrong, or other act when relevant to prove
some fact (such as motive, opportunity, intent, preparation, plan, knowledge,
identity, absence of mistake or accident . . . other than his or her disposition
to commit such an act.” He maintains that Millerstrom’s lie demonstrates
her intent to conceal the fact that she did not have control over the account
when the money was withdrawn, which would have given her a motive to
have someone else—Begay—withdraw the money for her. Begay also argues
Millerstrom’s false claim of authority over the account would have influenced
Jensen’s investigation by eliminating Millerstrom as a suspect and therefore
was admissible “for the nonhearsay purpose of showing that it imparted
certain information to the hearer, and that the hearer, believing such
information to be true, acted in conformity with such belief.” (People v.
Montes (2014) 58 Cal.4th 809, 863.)
Defense counsel did not offer these rationales when asked to respond to
the prosecutor’s hearsay objection. Rather, counsel responded, “[i]t goes to
impeachment” and, when the court said “[i]mpeachment is not a hearsay
exception,” counsel stated, “[i]t’s a prior inconsistent statement.” Counsel did
not argue the testimony was admissible under section 1101, subdivision (b) or
for a nonhearsay purpose. Generally, “ ‘questions relating to the
admissibility of evidence will not be reviewed on appeal in the absence of a
specific and timely objection in the trial court on the ground sought to be
23
urged on appeal.’ ” (People v. Seijas (2005) 36 Cal.4th 291, 301; People v.
Homick (2012) 55 Cal.4th 816, 858 [argument forfeited where “[t]his specific
objection was not made at trial”].) “ ‘[A] party cannot argue the court erred in
failing to conduct an analysis it was not asked to conduct.’ ” (Tully, supra,
54 Cal.4th at p. 980.) These principles apply here. We cannot review an
exercise of discretion the court was not called upon to make.
B. Bank of America Call
1. Additional Background
One of Begay’s in limine motions sought admission of the recorded
phone call from Millerstrom to Bank of America in which she and a person
who identified himself as Hallett requested information about how to add
Millerstrom to Hallett’s account.9 The date of the call was not specified but
Begay asserted it must have been after Millerstrom reported the theft
because in the call Millerstrom referred to having talked to the sheriff. As
earlier noted, Jensen testified at the preliminary hearing that when
Millerstrom reported the theft on October 26, 2023, she told him she had
access to the account and her name was on it. Millerstrom became a joint
owner of the account on April 2, 2024; prior account statements showed her
as “ITF.”
Begay’s motion in limine asserted that the person with Millerstrom on
the call was not Hallett. Begay argued the call was relevant and admissible
1) for the nonhearsay purpose of showing Millerstrom lied to Jensen when
9 The recording was obtained through a defense subpoena of bank
records. The subpoena requested all recorded phone calls regarding Hallett’s
account, all documents authorizing Millerstrom to exercise joint access and
control of the account and account statements between October 1, 2022, and
December 1, 2023.
24
she told him she had control over the account and to the bank when she
falsely represented that Hallett was with her on the call; 2) as impeachment
evidence if Millerstrom denied or was unable to recall the call; 3) as evidence
that the person on the call was not Hallett, through comparison with
Hallett’s voice and demeanor on the recording of Jensen’s call to Hallett; and
4) as a business record. At the hearing, Begay argued that evidence of
Millerstrom’s untruthfulness was relevant to his anticipated defense that she
asked him to make the withdrawals. Opposing the motion, the People argued
the evidence did not establish an affirmative defense because it did not tie
Millerstrom to the withdrawals and bank statements showed she was a joint
account holder. The People also argued there was insufficient foundation
establishing who was on the calls.
The court deferred ruling on whether the call could be played as
evidence of Millerstrom’s untruthfulness until after Millerstrom testified,
noting that she could be questioned about her control of the account, when
the call was made and who was with her. The court stated that if
Millerstrom testified she could not recall the phone call, the recording would
be inadmissible for impeachment unless the court found she was willfully
evasive. With respect to the other grounds for Begay’s motion, the court
ruled the recording inadmissible to prove the male voice on it was not
Hallett’s because the court could not determine from listening to the
recordings that the person on this call was not the person on Jensen’s call to
Hallett, and the court found insufficient foundation for admission of the
recording as a business record.
During Millerstrom’s cross examination, defense counsel asked her
when she “added yourself” to the account and Millerstrom testified she “did
that” three or four months before trial, then clarified that she did not add
25
herself, Hallett had to add her. She acknowledged that she called the bank to
ask about being added to Hallett’s account but testified that she was told she
and Hallett both had to sign documents and have them notarized, and they
went into the bank to do this. Asked whether she called the bank with
Gibson and had him impersonate Hallett in order to add her to the account,
Millerstrom responded that she did not recall doing so but, “I could have done
that. It sounds like something I would [¶] . . . [¶] . . . [I]t sounds like
something that it’s a possibility.” She testified that hearing a recording
would not refresh her recollection, “[b]ecause if I don’t remember it now, then
I don’t remember it then. If the audio recording says I did it, then I did it.
But I don’t recall.”
At this point, in a sidebar discussion, the court denied defense counsel’s
request to impeach Millerstrom with the recorded call. The court later stated
for the record that the defense sought to offer the call as an inconsistent
statement after Millerstrom repeatedly said she did not recall it. The court
explained that Millerstrom’s asserted lack of recall would not make the
recording admissible as an inconsistent statement unless the court found she
was “being willfully recalcitrant, obstructing justice, not answering questions
that [she] appear[ed] to be able to answer.” The court found that Millerstrom
was “very clear that she had difficulty recalling certain factors but not all
factors” and the court did not find her inability to recall “willful or
recalcitrant in any way.” Accordingly, the court concluded the call was not an
inconsistent statement that could be used for impeachment.
2. Analysis
Sections 1235 and 770 “ ‘provide for the admission against a hearsay
challenge of a prior statement by a witness “if the statement is inconsistent
with his testimony at the hearing and is offered in compliance with
26
Section 770.” [Citation.] Under Evidence Code section 770, prior
inconsistent statements are admissible only if: “(a) The witness was so
examined while testifying as to give him an opportunity to explain or to deny
the statement; or [¶] (b) The witness has not been excused from giving
further testimony in the action.” ’ (People v. Sapp [(2003)] 31 Cal.4th [240,]
296.)” (Dykes, supra, 46 Cal.4th at p. 758.)
“ ‘Normally, the testimony of a witness that he or she does not
remember an event is not inconsistent with that witness’s prior statement
describing the event. (People v. Green (1971) 3 Cal.3d 981, 988.)
However, . . . [w]hen a witness’s claim of lack of memory amounts to
deliberate evasion, inconsistency is implied. (Id. at pp. 988-989.) As long as
there is a reasonable basis in the record for concluding that the witness’s “I
don’t remember” statements are evasive and untruthful, admission of his or
her prior statements is proper.’ ” (People v. Ledesma (2006) 39 Cal.4th 641,
711.)
Here, the trial court found Millerstrom’s lack of recall did not amount
to deliberate evasion and, therefore, her testimony was not inconsistent with
her prior statements. Begay does not argue the court’s finding was
erroneous. Rather, he argues the court’s premise for excluding the recording
was erroneous because, while Millerstrom did not deny having Gibson
impersonate Hallett on a call to the bank and testified only that she did not
remember doing so, she denied calling the bank “to have herself added to
[Hallett’s] account.” In the colloquy Begay points to, after Millerstrom
testified that she and Hallett went to the bank three or four months before
trial to add her to the account, defense counsel asked, “At some point before
that, did you call Bank of America and ask them to add you to the account?”
Millerstrom responded, “Before the three months, no.” In Begay’s view,
27
Millerstrom’s “direct denial of the call itself” was enough to allow
impeachment with the recording.
Begay did not make this argument in the trial court. Pretrial, the trial
court denied Begay’s motion to admit the recording as an inconsistent
statement in the event Millerstrom testified she could not recall any portion
of the call. When the issue arose during trial and the court explained that
the recording would not be admitted as an inconsistent statement because
Millerstrom’s failure to recollect was not willfully recalcitrant, defense
counsel stated her objection that the recording was “relevant information for
the jury to hear” and preventing the defense from confronting Millerstrom
with her statements deprived Begay of his right to a fair trial. Counsel did
not suggest the court’s ruling was incorrect on the basis that Millerstrom
directly denied the call itself. Begay cannot now claim the court failed to
consider an argument he did not make at trial. (Tully, supra, 54 Cal.4th at
p. 980.)
C. Evidence of Millerstrom’s Threats
1. Additional Background
At the end of Begay’s testimony on direct examination, defense counsel
asked him whether anything significant had happened the day before. The
prosecutor interposed a relevance objection and, after a sidebar discussion,
the court sustained the objection under section 352. The court later
explained for the record that in response to its request for an offer of proof,
defense counsel stated Begay would testify that when he arrived home, he
heard Millerstrom on the phone threatening to kill him and his cats, and that
Millerstrom pulled out the power cord, depriving Begay of power in the shed.
Defense counsel “indicated it goes to her bias, her animosity and clearly to
impeach Ms. Millerstrom.” The court found the evidence was not probative
28
as to the events for which Begay was on trial and would require an undue
consumption of time and confuse the jury. In the court’s view, the proffered
testimony “just now appears to be accusations we’re going to make back and
forth.”
2. Analysis
Begay argues the evidence was relevant to show Millerstrom’s
vindictiveness and motive to implicate him in the theft and would have
enabled the jury to conclude she was trying to intimidate him in order to
prevent him from testifying that she directed him to make the withdrawals.
In his view, this evidence was critical to his theory of defense, had
substantial probative value and, because it was “relatively simple testimony,”
would not have confused the jury or consumed undue time. The People argue
Begay’s speculation that the jury would infer Millerstrom was attempting to
dissuade him from testifying is unpersuasive because the evidence did not
link Millerstrom to the theft and therefore could not have raised a reasonable
doubt as to Begay’s guilt by suggesting Millerstrom committed the crime.
Once again, the argument Begay makes here does not appear to have
been presented in the trial court. As related by the trial court, defense
counsel sought to introduce Begay’s testimony about Millerstrom making
threats and denying him electricity for impeachment, to show Millerstrom’s
bias against and animosity toward Begay; the trial court did not mention any
issue of witness intimidation. Begay’s briefs on appeal focus almost entirely
on the theory that Millerstrom was trying to prevent Begay from testifying to
prevent him from implicating her in the theft. As we have said, Begay cannot
challenge the trial court’s rulings on grounds he did not urge below and give
the trial court an opportunity to consider. (Tully, supra, 54 Cal.4th at
p. 980.)
29
Nevertheless, because Begay’s offer of proof was summarized by the
trial court and not set forth on the record, we will take the path of caution
and address his contention. Assuming the trial court considered the proposed
testimony as evidence of Millerstrom’s culpability for the offense and attempt
to dissuade Begay from testifying, the court did not abuse its discretion in
excluding this evidence under section 352.
Begay sees the proffered testimony as probative evidence of a
“potentially culpable third party’s animus and acts of intimidation.” His
citation of Thomas v. Hubbard (9th Cir. 2001) 273 F.3d 1164, 1177, indicates
he sees the proposed evidence as tending to prove Millerstrom was
responsible for the theft.10 In Thomas, however, the tendency of the evidence
to prove the third party’s culpability was obvious: The defendant—who was
incriminated in the offense solely by a witness who was himself tied to the
crime by substantial physical and other evidence—was prevented from
presenting evidence that the witness attempted to evade the police in the
months after the offense. (Id. at pp. 1168-1169, 1177-1178.) Here, either
speculation or considerable further evidence would be necessary to establish
the probative value of the testimony Begay sought to present.
According to the offer of proof, Begay overheard Millerstrom on the
phone threatening to kill him and his cats and Millerstrom pulled the power
cord that provided power to the shed where Begay lived. While this evidence
could support the inferences Begay draws from it, Millerstrom’s threats and
conduct would not tend to prove her culpability or intent to dissuade Begay
from testifying if, for example, she was angry about what she believed Begay
10 Begay cites Thomas for the proposition that “ ‘[f]undamental
standards of relevancy . . . require the admission of testimony which tends to
prove that a person other than the defendant committed the crime.’ ”
(Thomas, supra, 273 F.3d at p. 1177.)
30
had done to Hallett; she was frustrated with the trial process; or some
incident had triggered anger due to any number of issues that might have
arisen during the years Begay had lived on her property. Had Begay testified
as he proposed, the court would have had to allow contextual evidence such
as who Millerstrom was speaking to, whether the circumstances suggested
she intended Begay to hear her, and whether any incident precipitated her
disconnecting the power cord. This would have required, at a minimum,
Millerstrom’s testimony as well as Begay’s, and it was not unreasonable for
the court to find the risk of consuming undue time or confusing the jury
outweighed the probative value of the evidence.
Begay challenges the People’s argument that Begay failed to show a
link between the threats and Millerstrom’s culpability for the theft. Arguing
that no such link was necessary, Begay points to People v. Guerra (2006)
37 Cal.4th 1067, which explained that because a witness’s fear of testifying is
relevant to the witness’s credibility, witnesses’ testimony that they feared
retribution for testifying against the defendant was admissible despite the
absence of evidence that the defendant personally threatened the witnesses
or that their fear was “ ‘directly linked’ to the defendant.” (Id. at pp. 1141-
1142.) In cases such as Guerra, the evidence of a witness’s fear was offered
for purposes such as explaining discrepancies in the witness’s testimony and
hesitancy in answering questions. (Ibid.; People v. Burgener (2003)
29 Cal.4th 833, 869 [evidence of threats used to explain difference between
prior and current testimony]; People v. Gutierrez (1994) 23 Cal.App.4th 1576,
1588 [evidence of threats to explain why witnesses who identified defendant
in police statements were reluctant to testify at trial].)
Here, the People’s discussion of the need for a link to culpability for the
crime was in response to Begay’s argument that the evidence of Millerstrom’s
31
threats showed her intent to dissuade him from testifying against her and
implicating her as the perpetrator of the theft. The cases the People rely on
make the point that third-party culpability evidence may be excluded if it
shows only a propensity consistent with commission of the crime and not a
direct link to the charged crime. (People v. Hall (1986) 41 Cal.3d 826, 830-
831, 833, 835 [third party linked to crime by evidence of “waffle-stomper
prints” in victim’s bedroom,” injury indicating left-handed killer, and party’s
knowledge of “unique particulars” of murder; exclusion of evidence error but
harmless]; People v. Davis (1995) 10 Cal.4th 463, 501 [proper to exclude
evidence offered to show third party “more likely to have been the killer
because he had a history of violence”]; People v. Farmer (1989) 47 Cal.3d 888,
921 [same], overruled on other grounds in People v. Waidla (2000) 22 Cal.4th
690, 724, fn. 6].) As Begay rightly points out, he linked Millerstrom to the
present offense by his testimony that she directed him to withdraw the
money from Hallett’s account. But for the purpose of showing third-party
culpability, the threat evidence had to be linked to the offense in the sense of
having a tendency to prove Millerstrom’s culpability and thereby create a
reasonable doubt as to Begay’s guilt. (Hall, at p. 833 [to raise reasonable
doubt about defendant’s guilt, “there must be direct or circumstantial
evidence linking the third person to the actual perpetration of the crime”].)
To the extent Begay is arguing the excluded evidence should have been
admitted for its bearing on Millerstrom’s credibility apart from suggesting
her culpability and intent to prevent his testimony, he provides no
explanation. His general statement that the evidence was “directly relevant
to Millerstrom’s vindictiveness toward Begay, and her motive to implicate
him in stealing from Hallett” is followed only by discussion of Begay’s defense
and use of the evidence to support inferences of her culpability for the crime.
32
D. Reference to Jail
Begay moved in limine to exclude prior bad acts without a hearing
outside the presence of the jury, and specifically to exclude evidence of a 2019
drug arrest. The court granted the motion after the prosecutor stated the
People did not intend to introduce any bad acts evidence. At trial, after
Jensen testified that when he received the ATM photographs from
Millerstrom, he located a picture of Begay and matched it with the ATM
photos, the prosecutor asked, “So in terms of pulling up a picture of
Mr. Begay, how exactly did you do that?” Jensen replied, “Through our jail
system—.” The court sustained defense counsel’s objection. The prosecutor
then showed Jensen a photograph and asked who it was of, Jensen
responded, “Mr. Begay” and the prosecutor asked, “is that photograph
something that you pulled from your Sheriff’s system?” The court overruled
defense counsel’s objection. Jensen testified that the photograph looked like
the one he compared with the ATM photos.
Begay contends the trial court erred in overruling the defense objection
to the question whether the photograph Jensen was shown came from “your
Sheriff’s system.” With exceptions not relevant here, “evidence of a person’s
character or a trait of his or her character (whether in the form of an opinion,
evidence of reputation, or evidence of specific instances of his or her conduct)
is inadmissible when offered to prove his or her conduct on a specified
occasion.” (§ 1101, subd. (a).) The purpose of this evidentiary rule “ ‘is to
assure that a defendant is tried upon the crime charged and is not tried upon
an antisocial history.’ ” (People v. Nicolas (2017) 8 Cal.App.5th 1165, 1176.)
Begay argues that although he had no prior convictions, the jury was led to
believe he had a criminal past by “repeated testimony that he had a mug
shot.”
33
The People did not and do not offer any justification for the references
to the “jail system” and “Sheriff’s system,” but argue Begay was not
prejudiced by the brief references. These references were indeed brief, and
there were no other references to Begay having been arrested previously,
either in testimony or in closing arguments. We recognize that evidence of
prior offenses is inherently prejudicial. (People v. Tran (2011) 51 Cal.4th
1040, 1047.) While the jury was not told Begay had been convicted of any
prior offense, we also recognize that the existence of his photograph in the
sheriff’s “system” communicated that he had been arrested at some point in
the past, which created a risk of prejudice in the eyes of at least some jurors.
Nevertheless, we see no reasonable probability Begay would have
obtained a more favorable outcome if the source of the photograph had not
been identified. The jury instructions included a lengthy caution about
implicit or unconscious bias and admonishment to be aware of and not allow
bias to influence assessment of the evidence. The jurors were instructed to
base their decisions “solely on the evidence presented, your evaluation of that
evidence, your common sense and experience and these instructions,” and
specifically told, “[t]he fact that a criminal charge has been filed against the
defendant is not evidence that the charge is true. You must not be biased
against the defendant just because he has been arrested, charged with a
crime or brought to trial.” This instruction was impliedly directed at Begay’s
arrest and prosecution in the present case, but it was not expressly so limited
and, as worded, would apply as well to a prior arrest. We perceive little risk
that jurors not otherwise convinced of Begay’s guilt would have been swayed
to that conclusion by the brief, indirect reference to a prior arrest.
34
III.
Cumulative Error
Begay contends he was prejudiced by the cumulative impact of what he
sees as the court’s erroneous exclusion of three relevant pieces of evidence
impeaching Millerstrom while admitting improper evidence that Begay had
been arrested in the past. As just discussed, the admission of Jensen’s
testimony that he found Begay’s photograph in the sheriff’s system was at
most harmless error. We have rejected Begay’s other claims of error either
on the merits or as forfeited. Accordingly, there is no basis for his claim of
cumulative error. (People v. Bradford (1997) 15 Cal.4th 1229, 1382 [no
cumulative error where court “rejected nearly all of defendant’s assignments
of error” and found those that did occur were not prejudicial]; People v.
Sedillo (2015) 235 Cal.App.4th 1037, 1068 [“[t]here can be no cumulative
error if the challenged rulings were not erroneous”].) “In examining a claim
of cumulative error, the critical question is whether defendant received due
process and a fair trial.” (Ibid.) We are confident he did. (Ibid.)
DISPOSITION
The judgment is affirmed.
35
STEWART, P. J.
We concur.
RICHMAN, J.
DESAUTELS, J.
People v. Begay (A171869)
36