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P. v. Moss

P. v. Moss

P. v. Moss

Filed 7/24/06 P. v. Moss CA4/1


California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.





Plaintiff and Respondent,



Defendant and Appellant.


(Super. Ct. No. SCD181664)

APPEAL from a judgment of the Superior Court of San Diego County, Albert T. Harutunian, III, Judge. Affirmed.

A jury convicted Charity Moss of burglary (Pen. Code,[1] § 459), forgery of a check (§ 470, subd. (d)), and grand theft of personal property (§ 487, subd. (a)). The trial court granted Moss formal probation for five years on certain terms and conditions, including making restitution and performing 30 days of public service work.

Moss appeals, contending the trial court violated her federal and state constitutional rights to present a defense when it admitted oral testimony of the terms of a government contract without requiring the actual contract be admitted into evidence; committed prejudicial error in instructing the jury with CALJIC No. 2.11.5 and in failing to instruct sua sponte with CALJIC No. 2.71.1; and abused its discretion in imposing a Fourth Amendment waiver as a condition of probation. Moss also asserts the prosecutor committed prejudicial misconduct by arguing she had filed a fraudulent tax return. We affirm.


On August 27, 2003, Moss was hired as an administrative assistant and receptionist at Energy/Matter Conservation Corporation (EMC2), a small company which develops ideas for controlled nuclear fusion to generate energy without radiation with the goal of producing clean nuclear energy. EMC2 had a contract for this research with the federal government.

On November 17, 2003, Moss quit. She then telephoned one of the two owners, Dr. Robert Bussard (Bussard), and told him she did not like working at EMC2 because she thought the company was doing illegal things with its government contract. She demanded full pay upon quitting and threatened to sue him for sexual harassment if he did not do so.

On November 21, 2003, the EMC2 bookkeeper, Melanie McCarthy (McCarthy), discovered a blank, presigned emergency company check was missing from a locked file cabinet in the owners' office. After ascertaining that neither of the owners had taken the check, Bussard called the bank and learned that the missing check had been cashed on November 14, 2003 by Moss. EMC2 notified the San Diego Police Department Financial Crimes Unit about the missing check. When the police talked to Moss, she conceded she had cashed the check but claimed it was part of a severance package she had been given by EMC2. Moss gave the police a termination letter which indicated she had been an outstanding employee who had been given a severance package and also a form 1099 that EMC2 had sent her showing the $10,000 as "nonemployee compensation."

After further investigation, Moss was charged with and stood trial for the current crimes stemming from the cashing of the EMC2 check. Bussard and his wife, Dolly Gray-Bussard (Gray), co-owners of EMC2, testified about their company and the hiring and quitting of Moss. Moss was essentially hired because she had experience previously working for the Navy under a government contract. She was to be paid $31,000 annually. Within a short time of being hired, Moss made comments to coworkers indicating her concern about money, that she was living paycheck to paycheck, and was unhappy with her pay. She also asked Gray and the bookkeeper about reviews and Christmas bonuses. EMC2 advanced Moss $1,000 to help pay veterinarian bills for her injured dog, agreeing that the company would deduct money monthly from her paycheck to pay back the loan. Moss still owed the company $200 at the time she quit.

Because EMC2 also had offices out of state, the bookkeeper had keys to the owners' San Diego office in case something was needed when they were out of town. In particular, three presigned blank company checks were kept in a locked file cabinet in their office for emergency situations. The key to the cabinet containing the presigned checks was in the drawer of one of the owner's desks in that office. When the bookkeeper went on vacation from October 2 to October 21, 2003, Moss had the keys to the owners' office in addition to her own keys for the company. Moss had been told about the emergency checks in a briefing before the bookkeeper left for her vacation.

Both of the owners testified that the letter produced by Moss as a termination letter dated November 14, 2003 documenting the $10,000 as severance pay was "forged" by using Gray's signature and portions of her original hiring letter to Moss together with other words which were written in a "different type face." A demonstration with transparencies showed how the letter's typeset was misaligned from Moss's hiring letter. EMC2's policies and procedures were admitted into evidence to show that the company did not pay severance to an employee like Moss, who worked for less than a year. Gray additionally submitted a letter written November 18, 2003, which recognized Moss had quit her employment and reminded her she still owed the company money on the loan it had advanced her. Moss was paid $348.70 as her final paycheck.

McCarthy, EMC2's bookkeeper, testified consistently with the above facts. She added that Moss had made $6,960 total during the time she worked for EMC2 and that she had told her she was quitting because she had found another job that was starting the next day for 40 percent more salary. McCarthy also related that one day after she had returned from vacation, Moss came into her office and said her husband had suggested they take one of the emergency checks and bribe the owners of EMC2 for "what they're doing--that's illegal." When the bookkeeper replied that that would also be illegal, Moss said she thought her husband was just kidding. McCarthy found a copy of the termination letter Moss had given the police which showed the missing check as severance pay in Moss's personnel file.

On cross-examination, McCarthy was extensively questioned on, among other things, EMC2 bookkeeping/accounting practices. McCarthy had been interviewed about the company's bookkeeping practices by Naval Criminal Investigation Services (NCIS) sometime after her vacation, but before the missing check had been cashed.

Patricia Mensch, EMC2's accountant, whose expertise was in accounting and audits of government contracts, testified EMC2 had been her client since 1999 and had consistently passed the annual audits by the Defense Contract Audit Agency (DCAA). Mensch explained that the $10,000 loss of the check plus the $200 Moss still owed EMC2 were placed on an IRS form 1099 sent to Moss as the individual enriched by those amounts and to the IRS to reflect the company's bad debt for tax purposes. Mensch identified EMC2 as an unusual company because it only had one government contract and explained how such situation affected its accounting practices.

Defense Case

In her defense, Moss testified she had become uncomfortable working for EMC2 several weeks after being hired because she was asked by the owners to do things she did not think were legitimate under their government contract. She claimed the owners asked her to clean their condo, take cars to get washed, call jewelers and Neiman Marcus for them and change time sheets, all things she thought were illegal to charge the government for under the contract. She also thought it was illegal to charge the government for tracking Gray's medical expenses and was bothered by Gray billing the government for hours she was not in the office. She billed such items and her time working on them to "G&A," which is overhead billed to the government.

Moss said she discussed her concerns about being asked to do such illegal things by EMC2 with her husband in late October or early November 2003, who told her to call his mother who worked at the Pentagon. Two days later an agent from NCIS called Moss, took a statement and opened an investigation into the company. Several days later, NCIS contacted EMC2's bookkeeper. According to Moss, two weeks later, Gray told her there were going to be cutbacks and she could either work until the end of January or mid-February 2004, or leave immediately and take a severance check. After talking with her husband, Moss took the severance check, which she first took to Union Bank to see if it was good before going across the street and depositing a cashier's check received in exchange for the severance check in her Navy Federal Credit Union account. Moss used the $10,000 to pay bills and buy Christmas gifts. Moss testified she paid taxes on that amount and the $200 she still owed EMC2 for a loan as evidenced by the 1099 form and her 2003 tax return, which she entered into evidence.

Moss learned about the claim she had stolen the check in February or March 2004 when a detective in the case contacted her. She denied she had knowledge of where the emergency checks were kept at EMC2, or that she ever had a key to the owners' office or locked file cabinet. Moss believed she had been fired in retaliation for reporting the illegal activities of the EMC2 owners to NCIS and that the severance check was a "set up" to claim she had stolen from the company.

On cross-examination, Moss said she figured out things were illegal when asked to do them while the bookkeeper was on vacation. That was the only time she worked on the government contract. When Bussard asked her at that time to change several time sheets to reflect the proper charges to the government, she refused to do so and left them for the bookkeeper to do. Moss believed it was illegal to change another person's time sheet regardless of the circumstances. She did not tell the owners she had contacted NCIS.

The woman who trained Moss and had worked in her position before Moss testified she also kept track of the owner's medical expenses and bills, billed her time to "G&A," and thought the bookkeeper was a very truthful person.

Moss's husband testified he was in the Navy, making about $3,000 per month with additional benefits of full health coverage and Navy housing for their family with three children. He denied ever suggesting Moss steal a check from EMC2 and then try to blackmail the company into letting her keep the money. He further testified Moss had been looking for another job while she worked at EMC2 because she found out they were doing illegal things. Moss handled all the banking for their family and did their taxes. Based on his discussions with Moss, he believed the severance check was to cover her contract plus a Christmas bonus before the contract ended in either December or January 2003. Moss did not obtain another job until after the holidays.


In rebuttal, the prosecution recalled the owners, who testified they did not learn Moss had contacted NCIS until months after the presigned check had been stolen and cashed. Bussard also explained that as supervisor of EMC2 employees he was required to correct time cards to ensure the government was properly charged for different items before sending the cards to the accountant for review. He also discussed EMC2's policy since 1989 of providing tracking of medical expenses that were covered by the company's insurance for all employees who wanted such done.

The accountant and Gray provided further testimony about what items were properly billed to the government under the company's contract, explaining that many of the items Moss claimed had been done illegally were authorized. Another employee of the company testified he had never seen any improper conduct at EMC2 or had been asked to do anything improper. His impression was that Moss did not think the owners of EMC2 were honest.




During the prosecution case, after EMC2 co-owner Bussard had answered questions on cross-examination about what expenses were generally allowed under the company's government contract, and several other witnesses had testified, Moss's counsel wanted it on the record that "the testimony about a contract should be subject to the best evidence rule, which means that the document itself . . . must be produced." Counsel explained he was asking that testimony about EMC2's government contract be excluded unless the contract itself was offered into evidence.

The court overruled the objection made under the best evidence rule, stating it did not think it was "well taken" because the type of testimony it had heard so far concerning the contract would not be barred by such rule. The court noted that if there were a specific objection to future testimony, the court would address it at that time.

EMC2 co-owner Gray subsequently testified on cross-examination about certain expenses billed to the government contract without objection. EMC2's bookkeeper also gave testimony, answering questions about what items she billed to the government contract without any objections.

The company's accountant was qualified as an expert on government contracts and testified about EMC2's accounting systems regarding billable and allowable costs under the government contract without objection, noting EMC2 had passed all yearly audits by the DCAA. Only when the accountant was asked, "[W]hat is special about the company and that contract in relation to. . . other types of clients that you had that may have more than one government contract?" did Moss's counsel interject a "best evidence" objection "in regards to the terms of the contract." The court overruled the objection. The accountant then explained that EMC2 does specialized research and technology no one else has and because it only has one contract with the government it is considered a one-contract company for which "[t]he government agrees in that contract that they will reimburse you for all of your costs so its all business costs. So it's direct costs and indirect costs, allowable indirect cost[s]."

During the defense case, after Moss's predecessor testified about how she billed hers and other people's time for the company contract, and Moss had testified she was being asked to do things she did not think legitimate under the government contract and about how she billed various costs, Moss's counsel asked for a recess to be heard on the record. Counsel explained that his earlier objection under the best evidence rule is now called the secondary evidence rule located in Evidence Code sections 1521 et. seq., and that based on such rule "[t]he court shall exclude secondary evidence to the contents of writing under certain conditions. And we met those conditions here when we talked about the contract. If we are going to have witnesses get up there and testify this is what the contract says, that's improper. That should be excluded. What we should have is actually . . . that contract here and showing the jury what the contract says. If there's a dispute as to what's in the contract, then we need the contract here."

The court inquired as to whether counsel was "asking for some ruling about past testimony or future testimony, or what?" Counsel clarified it was for "future testimony" and that he was making the objection under Evidence Code section 1522 outside the jury's presence to basically exclude testimony yet to come which referred to the government contract without having the contract present.

The prosecutor stated she was fine with the court excluding all future evidence relating to the contract, "but that also excludes [Moss's] entire defense. She's made judgment calls and legal conclusions about a contract she has not even seen. So not only [is she] precluded from arguing [about] the terms of the contract, [because] the original contract isn't here, but [her] entire case is premised on the fact that [she] made certain assumptions about the contract for which she knew actually nothing about. So I would ask the court to again deny the motion. I think that we are not talking here about a breach of contract[, b]ut . . . about . . . her allegation. The only reason why this case is going to trial is because of her allegation that with her experience in government contracting what the victims were doing was not right."

The trial judge overruled Moss's counsel's objection, stating:

"I don't think that the secondary evidence rule would bar future testimony, which is what you are talking about, relating to the government contracts. I think such testimony goes to what the belief or understanding of the individual is, and as to whether it's permitted or not permitted under the contracts. Nothing about such testimony that bars a party from, in discovery or pursuant to subpoenas, obtaining copies of documents for purposes of impeaching such testimony. But that does not require that the individual . . . be precluded from testifying about their contractual relationship [with the] government. And I don't think it's been established that the testimony is solely being offered to prove the content of the document, as opposed to testimony about the contractual relationship with the government, which I don't think is necessarily subsumed within this partnership. [¶] So for those reasons the objection is overruled."

However, the court granted Moss's counsel's request to have a pending, ongoing objection to future testimony "as it relates to . . . questions by the People of witnesses as to the terms of any government contracts."

Subsequently, Moss answered questions posed by her own counsel regarding charging items to the contract and why she thought certain items were "suspicious." In rebuttal, EMC2's accountant explained why and how certain expenses were reported to the DCAA for the government contract to counter Moss's allegations such expenses were illegal. She also explained how the account books for EMC2 were set up and what expenses and costs, direct and indirect, were billed to the government or separately to the company. She further explained the various costs and rates to the government on cross-examination. The co-owners each testified in rebuttal in response to Moss's allegations of illegality involving their condo, the medical expense tracking, and the point at which each learned about the NCIS investigation into the company's bookkeeping system. During cross-examination of Gray, she answered specific questions as to costs and expenses charged under the contract.

On appeal, Moss contends the trial court violated her federal and state constitutional right to present a defense when it admitted oral testimony of the government contract's terms without requiring the actual contract be admitted. Moss represents she had a continuing objection at trial to the introduction of such evidence by the prosecution witnesses and argues all testimony by them regarding the allowable costs and expenses under the government contract should have been excluded pursuant to the secondary evidence rule. Moss's contention and arguments in this regard have no merit.

Initially, we note Moss has misrepresented the record regarding her continuing secondary evidence rule objection. As the facts set out above clearly show, her continuing objection under Evidence Code section 1522, subdivision (b) was not made until midway through her own cross-examination at trial in her defense case. By that point, both owners, the bookkeeper, the accountant, her predecessor and Moss herself had already testified about what they each thought were proper costs and expenses billed under the government contract with EMC2. Although Moss's counsel had raised several "best evidence rule" objections earlier during the prosecution case, one generally to any future testimony about the terms of the government contract and one to a question asked the EMC2 accountant, he corrected those objections later during Moss's defense case because such rule had been repealed and replaced with the secondary evidence rule which generally permits proof of the contents of a writing "by otherwise admissible secondary evidence." (Evid. Code, § 1521, subd. (a); see former Evid. Code, § 1500.) Counsel clarified at that time that his continuing secondary evidence rule objection only pertained to future discussions of the terms of the government contract by the prosecution witnesses without admission of the contract. However, by that time, the only comments from prosecution witnesses about the contract were in rebuttal in response to Moss's allegations in her testimony about what she thought were illegal expenses and costs charged to the government under the contract with EMC2. Under these circumstances, we believe Moss's continuing objection to such evidence based on the secondary evidence rule was untimely.

Moreover, like the trial court, we do not believe the admission of such evidence in this case was barred by the secondary evidence rule. Such rule provides that:

"(a) The content of a writing may be proved by otherwise admissible secondary evidence. The court shall exclude secondary evidence of the content of writing if the court determines either of the following: [¶] (1) A genuine dispute exists concerning material terms of the writing and justice requires the exclusion. [¶] (2) Admission of the secondary evidence would be unfair. [¶] (b) Nothing in this section makes admissible oral testimony to prove the content of a writing if the testimony is inadmissible under Section 1523 (oral testimony of the content of a writing).[[3]] [¶] (c) Nothing in this section excuses compliance with [Evidence Code] Section 1401 (authentication). [¶](d) This section shall be known as the "Secondary Evidence Rule." (Evid. Code, § 1521.)

Evidence Code section 1522 provides additional grounds for exclusion of secondary evidence in criminal actions "if the court determines that the original is in the proponent's possession, custody, or control, and the proponent has not made the original reasonably available for inspection at or before trial." (Evid. Code, § 1522, subd. (a).) The request in a criminal action to exclude secondary evidence of the content of a writing must be made outside the presence of the jury. (Evid. Code, § 1522, subd. (b).)

Here, as the trial court noted in overruling Moss's counsel's belated secondary evidence rule objection, there had been no testimony offered at that point to prove the content of the actual government contract with EMC2. Nor did Moss's counsel identify any dispute about the terms or the language of the contract at that time. Rather the parties only disagreed as to their understanding and beliefs regarding what was permitted as expenses under those terms. At no time did Moss, who as part of her defense alleged that the owners of EMC2 were illegally charging the government for certain expenses she thought were not allowed under their contract based on her previous experience working on government contracts, state any specific terms of the contract that the owner's violated. Nor did she show via her attorney that she could not obtain a copy of the contract during discovery or by way of subpoena for trial to use in impeaching the testimony of the prosecution witnesses about their understanding of what expenditures were allowed under the contract. As the court properly found, the disputed issue for Moss's defense was EMC2's contractual relationship with the government and not the actual contract itself, and thus the secondary evidence rule would not preclude testimony on the various witnesses' beliefs or understanding on such related issue.

Contrary to Moss's assertion the trial court's ruling kept her from presenting a defense, such ruling in no way prevented her from subpoenaing and presenting a copy of the contract as part of her defense or from presenting an expert witness on how the federal government administers its contracts. Nor did the ruling preclude Moss's counsel from asking any of the witnesses in either the prosecution or defense cases about the billing practices of EMC2 and what each witness believed was allowed under the contract. Counsel was fully permitted to argue Moss's defense that she was "set up" by the owners of EMC2 with the check which they gave her as severance but then claimed she had stolen in retaliation for her reporting them to NCIS for fraudulent billings to the government under their contract.

Additionally, because Moss raised the issue of illegal charges under the contract during her counsel's cross-examination of the various witnesses in the prosecutor's case-in-chief, as well as in rebuttal, she was essentially the "proponent" of such contract relationship evidence. As such, she cannot complain that the trial court violated her federal and state constitutional rights to present a defense by overruling her belated continuing secondary evidence rule objection without having offered a copy of the contract in evidence herself, or showing that she was somehow precluded from doing so by the prosecution. Moss, rather than the prosecution, had the burden of proving her own affirmative defense to the charges in this case.

No abuse of discretion in the court's ruling on Moss's secondary evidence rule objection has been shown.



The general rule is that in a criminal case the trial court must instruct on the "principles of law relevant to the issues raised by the evidence [citations] and has the correlative duty 'to refrain from instructing on principles of law which not only are irrelevant to the issues raised by the evidence but also have the effect of confusing the jury or relieving it from making findings on relevant issues.' [Citation.]" (People v. Saddler (1979) 24 Cal.3d 671, 681.) With this preliminary rule in mind, we address Moss's instructional error contentions in turn.

A. CALJIC No. 2.11.5

During jury instruction discussions, the court asked the prosecutor why she was requesting CALJIC No. 2.11.5 (unjoined perpetrators of same crime). The prosecutor explained the request was based on the bookkeeper's testimony that Moss commented to her that the idea to take one of the company checks came from her husband which "shows evidence of a conspiracy to commit the crime." The prosecutor represented that the instruction would safeguard the instant case by telling the jury not to wonder why Moss's husband was also not on trial, why he was not charged with the same crimes or whether he would be going to trial soon.

The trial judge overruled Moss's objection to the instruction, stating: "I believe there is at least an arguable basis for the People to claim that the defendant's husband had involvement in . . . suggesting the idea of taking a check, and that the jurors might properly speculate as to charging decisions relating to him. Therefore, I believe there is a proper basis for giving this instruction." The court subsequently instructed the jury with CALJIC No. 2.11.5.[4]

Moss contends the giving of CALJIC No. 2.11.5 was error because it undermined her defense and improperly bolstered the bookkeeper's testimony and prosecution case by suggesting a crime had already been committed and that Moss's husband was involved but had not been charged. We find any error harmless.

As Moss recognizes, the purpose of CALJIC No. 2.11.5 " 'is to discourage the jury from irrelevant speculation about the prosecution's reasons for not jointly prosecuting all those shown by the evidence to have participated in the perpetration of the charged offenses, and also to discourage speculation about the eventual fates of unjoined perpetrators. [Citation.]' " (People v. Lawley (2002) 27 Cal.4th 102, 162.) She also acknowledges that "where the jury receives all otherwise appropriate general instructions regarding witness credibility, there can be no prejudice from jury instruction pursuant to CALJIC No. 2.11.5." (People v. Fonseca (2003) 105 Cal.App.4th 543, 549 (Fonseca).) Nonetheless, she argues the instruction should not have been given because the bookkeeper's testimony regarding her statements, which her husband denied were said, was highly suspect and treated as fact.

Because, as the trial court properly found, there was sufficient evidence in the record to support the giving of the instruction and the jury was fully instructed with the general instructions regarding witness credibility, there can be no prejudice from the giving of CALJIC No. 2.11.5 in this case. (See Fonseca, supra, 105 Cal.App.4th at pp. 549-550.) Contrary to Moss's argument CALJIC No. 2.11.5 required the jury to accept the bookkeeper's testimony a crime had been committed, the instruction only told the jury that another person "was or may have been involved" in the current crimes and "not to speculate as to the fate of a party not being prosecuted because any number of explanations not pertinent to the case at hand is possible." (Fonseca, supra, 105 Cal.App.4th at p. 550.) We, therefore, do not believe "that a reasonable juror would misunderstand his or her duty to consider all relevant factors bearing on witness credibility" by the reading here of CALJIC No. 2.11.5. (Ibid.)

Moreover, even assuming there was error in giving CALJIC No. 2.11.5, the error in this case would be harmless beyond a reasonable doubt. Moss's husband testified he had not discussed with Moss the possibility of blackmailing EMC2 by taking one of the company's emergency checks. The jury had ample instruction to consider his credibility as well as that of the bookkeeper. There is simply no possibility Moss's husband's credibility would have been increased had the jury not received CALJIC No. 2.11.5. Therefore, there is no possibility giving it prejudiced Moss.

B. CALJIC No. 2.71.1

In light of the bookkeeper's testimony about the purported conversation with Moss concerning her husband's suggestion of stealing a check from EMC2, Moss also contends the trial court committed prejudicial error for failing to instruct sua sponte with CALJIC No. 2.71.1. The People concede the court erred in failing to so instruct, but claim the error was harmless. We agree.

CALJIC No. 2.21.1 states that "Evidence has been received from which you may find that an oral statement of [intent][plan][motive][design] was made by the defendant before the offense with which [he][she] is charged was committed. [¶] It is for you to decide whether the statement was made by the defendant. [¶] Evidence of an oral statement ought to be viewed with caution." Although this instruction, if applicable, must be given sua sponte (People v. Beagle (1972) 6 Cal.3d 441, 455 (Beagle), superseded by statute on other grounds as stated in People v. Castro (1984) 38 Cal.3d 301, 307), reversal is justified only if upon a review of the evidence it appears reasonably probable that a result more favorable to the defendant would have been reached in the absence of the error. (Beagle, supra, 6 Cal.3d at p. 455.)

Here, when the bookkeeper made her revelation at trial for the first time concerning Moss's statements to her about Moss's husband's suggestion they steal one of EMC2's emergency checks, she was relentlessly cross-examined about why she had never told the police, the detectives, the prosecutor, an investigator or the owners of EMC2 (she had written two memorandums to the company about Moss's leaving EMC2) about those statements until the day before her trial testimony. The bookkeeper was at first hesitant in her responses, claiming she was not asked any questions about the subject statements, before answering that she did not say anything earlier because she was afraid her bosses would think she was untrustworthy by not saying anything to them when the statements were made so this situation would not have happened. She was essentially afraid she would be fired for having heard Moss's plan and not doing anything about it. She decided to speak up when she learned that her employers would not be in the courtroom.

Given this testimony and its challenges, we cannot say that a reasonable jury would not have given careful scrutiny to such statements. As already noted, the jury was fully instructed on the credibility of witnesses. In addition the jury was instructed with CALJIC Nos. 2.71 and 2.72, which told them they were the "exclusive judges as to whether the defendant [had] made an admission, and if so, whether that statement [was] true in whole or in part" (CALJIC No. 2.71), and that "[n]o person may be convicted of a criminal offense unless there is some proof of each element of the crime independent of any [admission] made by [the defendant] outside of this trial." (CALJIC No. 2.72.) Further, during closing arguments, Moss's attorney stressed the unreliability of the bookkeeper's statements, noting she had been interviewed at least six times over the course of two years and never once had said anything to anyone about Moss telling her about a scheme to blackmail EMC2 concocted by Moss's husband. Counsel also pointed out the absurdity of the statements because Moss had already gone to NCIS to report illegalities by EMC2 before the conversation with the bookkeeper purportedly occurred.

In light of the total instructions, Moss's closing arguments, the manner in which the bookkeeper's testimony was suddenly revealed and challenged, and the overwhelming other independent evidence which established the crimes, it does not appear reasonably probable that a result more favorable to Moss would have been reached had CALJIC No. 2.71.1 properly been given. (Beagle, supra, 6 Cal.3d at p. 455.)



During closing argument, Moss's counsel stressed the fact Moss had paid taxes on the $10,000, stating:

"[Moss] has brought you a copy of her 1040 form from 2003 where she paid taxes on the money. Now, if she stole this money she isn't just going to turn around and pay taxes on it. She got that 1099. Now, she's not an accountant. She does not know exactly how these things are supposed to be done, so she got the 1099. She thought [that] was the proper way to do it. She paid taxes on it. [¶] Thieves don't pay taxes on the money that they have stolen."

When the prosecutor gave her final closing argument in response to Moss's closing statements, she commented on the tax return, noting Moss had made $17,000 that year which included her actual pay of about $7,000 from EMC2 and the $10,000 check. The prosecutor commented that "in spite of paying $207 in taxes, [Moss] actually got a windfall from the U.S. government in the amount of [$]2,796." In explaining the windfall, the prosecutor reminded the jury Moss's husband had testified he made about $36,000 a year, he and Moss were married and had three children, and that other evidence showed he and Moss filed a joint tax return which she prepared with herself as head of household without declaring her husband's $36,000 salary in direct contradiction to his testimony. Because Moss had entered the tax return as evidence of her honesty, the prosecutor asked the jury to carefully review it and note that it was "willfully false" and could be used pursuant to the court's instructions to find that Moss's testimony was to be distrusted in its entirety.

On appeal, Moss contends the prosecutor committed prejudicial misconduct when she commented about the contents of the tax return, accusing Moss for the first time of tax fraud for filing a tax return that did not include her husband's income and listing herself as head of household. However, in order to preserve a claim of prosecutorial misconduct, a defendant "must make a timely objection, make known the basis of his [or her] objection, and ask the trial court to admonish the jury." (People v. Brown (2003) 31 Cal.4th 518, 553.) If a defendant fails to make a specific objection, he or she forfeits the issue on appeal, unless objecting would have been futile. (Ibid.)

Here, Moss failed to object to the prosecutor's arguments concerning her filing of a tax return which showed she had arguably lied regarding her family's income in 2003 and the fact she had paid taxes on the $10,000 check from EMC2. However, even assuming the objection made to the prosecutor's statement that Moss's husband had made $36,000 a year somehow had preserved the issued,[5] we can find no misconduct on this record.

Generally, improper conduct by a prosecutor can violate the constitutional rights of a defendant when the pattern of behavior is " 'so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.' [Citations.]" (People v. Gionis (1995) 9 Cal.4th 1196, 1214-1215.) On the other hand, a prosecutor has wide latitude during argument and may be vigorous as long as the argument is a fair comment on the evidence. (Id. at p. 1226, see also People v. Hill (1998) 17 Cal.4th 800, 819.) This right of fair comment on the evidence also includes the right of the prosecutor to give his or her views on what the evidence shows and the reasonable deductions or inferences to be drawn from such evidence. (People v. Sassounian (1986) 182 Cal.App.3d 361, 396.)

As noted above, the prosecutor's comments on the contents of the tax form which Moss herself had brought before the jury were in response to Moss's counsel's comments that the tax return showed Moss was an honest person because she had declared and paid taxes on the $10,000. Based on the contents of the tax return exhibit, Moss's husband's testimony about his salary and the fact that Moss did the joint taxes for the family, the prosecutor's statements were reasonable inferences and fair comment on the evidence and how it related to Moss's and her husband's credibility and this case. We are satisfied that the prosecutor's statements were proper and did not deny Moss due process.



At sentencing, when the trial judge granted probation and listed the conditions it was imposing, Moss's counsel objected to the condition Moss "[s]ubmit person, property, residence, vehicle, personal effects, . . . to search at any time with or without a warrant, and with or without reasonable cause, when required by probation officer or other law enforcement officer." Counsel argued the condition was improper because there "is no relationship between the offense itself and that particular probation condition. It's not as if this is a drug case where [the officers] need to be doing searching of her to make sure she is not in possession of drugs or not in possession of some drug paraphernalia." Counsel also pointed out the condition could cause Moss substantial embarrassment and loss of time, asserting it was a condition having a big impact on a person's life which had no nexus to Moss's offenses.

The sentencing judge overruled the objection, stating "I believe it does have a nexus. [Moss] was convicted of theft. I think evidence was presented of theft of [a] blank check basically [and] of falsifying a severance letter. I think that the search term to inhibit [Moss] from being in possession of stolen merchandise of that type does have a nexus; therefore, the court imposes it."

Moss contends the trial court abused its discretion in imposing the search term on her as a condition of her probation. We disagree.

"In granting probation, courts have broad discretion to impose conditions to foster rehabilitation and to protect the public safety. . . ." (People v. Carbajal (1995) 10 Cal.4th 1114, 1120 (Carbajal); § 1203.1.) Generally, "[a] condition of probation will not be held invalid unless it '(1) has no relationship to the crime for which the defendant was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality. . . .' [Citation.]" (People v. Lent (1975) 15 Cal.3d 481, 486.) In applying this standard, the rehabilitative and deterrent effect of the condition should be considered. (People v. Correll (1991) 229 Cal.App.3d 656, 660.) A sentencing court will violate such standard only "when its determination is arbitrary or capricious or ' " 'exceeds the bounds of reason, all of the circumstances being considered.' " [Citations.]' " (Carbajal, supra, 10 Cal.4th at p. 1121.)

Here, we can find no abuse of discretion in the trial court's imposition of a search term as a condition of Moss's probation. As the court properly found, there is a nexus between a search condition and Moss's theft crimes. Such will ensure that Moss comply with the requirement she obey all laws and not be in possession of other stolen items, including checks and fraudulent documents. It will also essentially deter her from repeating her fraudulent behavior and assist in her rehabilitation. No abuse of discretion is shown.


The judgment is affirmed.

HUFFMAN, Acting P. J.




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[1] All statutory references are to the Penal Code unless otherwise specified.

[2] Because Moss does not challenge the sufficiency of the evidence to support her convictions, we merely summarize the evidence presented at trial and address the pertinent facts more fully in the discussion of her various contentions on appeal.

[3] Evidence Code section 1523 provides in pertinent part that "(a) Except as otherwise provided by statute, oral testimony is not admissible to prove the content of a writing. [¶] (b) . . . [¶] (c) Oral testimony of the content of a writing is not made inadmissible by subdivision (a) if the proponent does not have possession or control of the original or a copy of the writing and either of the following conditions is satisfied: [¶] (1) Neither the writing nor a copy of the writing was reasonably procurable by the proponent by use of the court's process or by other available means. [¶] (2) The writing is not closely related to the controlling issues and it would be inexpedient to require its production."

[4] As given by the court, CALJIC No. 2.11.5 stated: "There has been evidence in this case indicating that a person other than defendant was, or may have been involved in the crime for which the defendant is on trial. [¶] There may be many reasons why that person is not here on trial. Therefore, do not discuss, or give any consideration as to why the other person is not being prosecuted in this trial, or whether he or she has been or will be prosecuted. Your sole duty is to decide whether the people have proved the guilt of the defendant on trial."

[5] Moss's counsel had objected to such argument by the prosecutor as misstating the evidence. The court properly overruled the objection because Moss's husband had in fact testified he made about that amount each year

Description A decision regarding forgery of a check, and grand theft of personal property.
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