Filed 7/24/13 P. v. Souza CA1/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION ONE



THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A134270
v.
ANDREA KELLY SOUZA,                                                  (San Mateo County
                                                                     Super. Ct. No. SC-068770)
         Defendant and Appellant.


         Defendant Andrea Kelly Souza appeals from her conviction of grand theft by
embezzlement. She contends her Sixth Amendment right to confront witnesses against
her was violated by the admission of hearsay statements made by her codefendant, who is
also her former husband. We find no error and affirm.
               FACTUAL BACKGROUND AND PROCEDURAL HISTORY
I. Pretrial Proceedings
         On June 7, 2010, an amended information was filed against defendant charging
her with one count of felony grand theft by embezzlement. (Pen. Code, §§ 487, subd. (a)
& 508), with a special allegation that the value of the embezzled property exceeded
$65,000. (Pen. Code, § 12022.6, subd. (a)(1).) She was charged jointly with her now
former husband, Michael Souza (Souza).
A. Motion in Limine
         Also on June 7, 2010, defendant filed a motion in limine to prevent the
introduction of statements Souza made to a police officer who was conducting a
residential search. Defendant argued, in part, that absent the ability to cross-examine
Souza, the admission of statements made by him during a police interview would
contravene her Sixth Amendment right of confrontation under Crawford v. Washington
(2004) 541 U.S. 36, 52 (Crawford).
       At the hearing on this motion, officer Rio DelMoral testified that he interviewed
Souza at his house in Modesto on May 3, 2007. DelMoral had gone to the residence with
other officers to execute a search warrant. The officers initially placed Souza in
handcuffs and conducted a protective sweep of the house. When they searched the home,
they found over 930 lithographs. After the handcuffs were removed, DelMoral told
Souza that lithographs had been found in the back bedroom of the residence. When
asked how he came into possession of the items, Souza stated that he had obtained the
alarm security codes for a business called Prints Old and Rare. He had taken these codes
from his wife, without her knowledge, and had entered the warehouse in the early
morning hours to steal the items. He said he had done this on three different occasions.
He did not specify the dates on which he entered the warehouse. He admitted to selling
the stolen lithographs on the Internet using the eBay identity “Souzastuff.” He said he
and defendant were separated and that she was not involved in the crime.
       DelMoral subsequently contacted defendant. She came to the police station for an
interview and denied having played any role in the theft. She said her boss at Prints Old
and Rare had given her some lithographs to take home to photograph and upload to the
computer. She denied stealing any of the items that were seized from the Modesto
residence. She said she had not been living in the Modesto house for several weeks or
months. Defendant’s motion in limine was denied.
B. Evidence Code Section 402 Hearing
       On June 8, 2010, Souza pled no contest to the charges against him. During a
hearing on an Evidence Code section 402 motion, Souza asserted his privilege against
self-incrimination. The prosecution declined to grant him immunity. The trial court
found that he had a valid Fifth Amendment claim because he had entered a conditional
plea and was still potentially liable to the prosecution.

                                              2
       The prosecutor then requested authorization under Evidence Code section 1230
(section 1230)1 to introduce hearsay evidence of the statements Souza made to DelMoral.
In response, defense counsel argued that these statements were barred under Crawford.
He further argued that because Souza had entered a plea of no contest, any declarations
made against his own penal interests were no longer relevant. Their only relevance at
trial would be to implicate defendant. Alternatively, counsel noted that if the matter were
continued until after his sentencing, Souza would no longer be able to assert the privilege
against self-incrimination and could be cross-examined at trial.2 Counsel also noted that
had Souza remained in the case, the admission of his statements would have raised issues
under Aranda/Bruton (People v. Aranda (1965) 63 Cal.2d 518, 530–531 [when the
prosecution intends to offer the extrajudicial statement of one defendant which
incriminates a codefendant, the trial court must either grant separate trials, exclude the
statement, or excise all references to the nondeclarant defendant]; Bruton v. United States
(1968) 391 U.S. 123, 127–128.)
       The prosecutor asserted that if Souza’s statements satisfied section 1230 as having
been made against his penal interests, then Crawford would not be implicated. Defense
counsel countered that Crawford grants the right to confront hearsay statements made in
a testimonial setting. Ultimately, the trial court disagreed with defense counsel’s
assertion that section 1230 is trumped by Crawford. Yet the court noted the last part of
this statue provides that the statement must be such that a reasonable person would not
have made it unless he or she believed it to be true. Here, it appeared the prosecutor
wanted to impeach some of Souza’s statements, suggesting she believed them to be
unreliable rather than truthful. The prosecutor then clarified that she would only

1
  Section 1230 provides: “Evidence of a statement by a declarant having sufficient knowledge of
the subject is not made inadmissible by the hearsay rule if the declarant is unavailable as a
witness and the statement, when made, was so far contrary to the declarant’s pecuniary or
proprietary interest, or so far subjected him to the risk of civil or criminal liability, or so far
tended to render invalid a claim by him against another, or created such a risk of making him an
object of hatred, ridicule, or social disgrace in the community, that a reasonable man in his
position would not have made the statement unless he believed it to be true.”
2
  The court noted Souza could be unavailable for a long time because restitution was unlikely to
be decided until after trial. It declined to continue the matter.

                                                 3
introduce the statements that she believed to be true, namely, his admission that he had
sold stolen lithographs on the Internet. The court sided with the prosecution, concluding:
“I think [section] 1230 anticipates evidence being used against the declarant and also
anticipates evidence being used against somebody else.”
       In further argument the following day, the prosecutor said she did not believe
Souza’s statement that he entered the warehouse in the early morning hours to steal the
lithographs. She conceded that portion of his statement “would not fit under [section]
1230.” She also stated “under [section] 1230 the parts that are reliable because it’s a
declaration against penal interest should be admitted, which again is the portion that I’m
seeking to admit.” The trial court allowed that defendant would have the right to
challenge the reliability of the entire statement: “If [defense counsel] wants to, for
instance, bring in the rest [of the statement] to show that the whole thing is unreliable I
think that’s his choice.”
II. Trial
A. Opening Statements
       The defense theory, introduced in defendant’s counsel’s opening statement, was
that Souza committed the crime without her knowledge or complicity: “[Defendant] is
going to tell you she took things home just as she told the police when they questioned
her about this. Said yes, I took items home with me. I had items I kept there that I
worked on, photographed, cataloged. These items were then available to [Souza] to
pilfer, to steal, to take from at his leisure when [defendant] was not there.” Defense
counsel also revealed to the jury that Souza had pleaded no contest to a charge of
possession of stolen property, and “he has admitted to the police that he stole the
lithographs that he was selling and that [defendant] didn’t have anything to do with it.”
B. The Prosecution’s Case
1. Kathleen Manning
       Kathleen Manning owns the business Old Prints and Rare along with William
Hall. They sell old maps, prints, and books to libraries, universities, art galleries, and
collectors. The business occupies two warehouses that are located next to each other in a

                                              4
business park in Pacifica. The business has a very large inventory.3 Manning testified
that she is not aware of any businesses in the United States that are comparable to hers, in
terms of the size of its inventory and its reputation for being able to fulfill customer
requests. On an average day, four to six employees are present at Prints Old and Rare.
The prints are kept on open shelves. They are not secured because customers do not
come in very often as it is not a retail business.
       Manning hired defendant in 1997. Defendant eventually became the company’s
office manager. She is very good with computers. After she was hired, she completed
the creation of the company’s website. Over the years defendant worked for Manning,
they built a relationship of trust. Manning and Hall knew her family and were happy to
loan her money when needed. During that time, defendant never said she had an Internet
business that sold lithographs and maps, however Manning did know that Souza sold
handicapped accessories online.
       Defendant had access to the company’s PayPal account, including access to its
password. The account was set up to receive payments from customers, and to transmit
payments when the company made online purchases. The PayPal account was funded
through Manning’s American Express card and a Wells Fargo checking account.
Defendant had exclusive control over the PayPal account. Manning herself did not know
the password to the account. She never made any direct payments from the PayPal
account into defendant’s PayPal account, and never authorized any such payments.
       Souza never officially worked for Prints Old and Rare, but the owners would give
him part-time work to help him make a little money from home. On maybe six
occasions, Hall gave defendant atlases to take home for Souza to take apart for the maps.
Manning also asked him to look on eBay and pick out items that she might be interested
in. He would e-mail these listings to her, and she would let him know which ones he
could bid on for her and how much to bid. He would place the bids for her under her

3
  At the time of trial, over a thousand items were posted on the company website. Hundreds of
thousands of lithographs and maps were stored at the company warehouses. Manning does not
have a central catalog of all those items.

                                               5
personal eBay name, which is not tied to the company’s PayPal account. He never
worked at the business site in Pacifica, nor did he have an opportunity to be alone there.
       After defendant’s family moved from Pacifica to Modesto, she started working
from 5:00 a.m. to 2:00 p.m. in order to avoid rush-hour traffic. Manning did not arrive at
work until around 9:00 a.m., so defendant would be there alone in the early morning
hours. Defendant was allowed to work from home on Mondays, when the business was
closed. Sometimes she would take home a memory card containing photographic images
of store merchandise. She could edit the photographs and upload them to the website
from home. She was not allowed to take actual lithographs, prints, or maps home.
Employees are not allowed to remove such property from the business.
       In April 2007, Manning received calls from two people who said they had seen
Audubon lithographs being sold on eBay that probably belonged to Manning’s business.
In the 1840’s, John James Audubon created lithographs of birds that are very well-known
and very valuable. Some of his prints were bound in books and each book contains a set
of images of 550 American birds. Between 1,000 to 1,200 such sets were made of the
first edition. Manning estimated she had purchased about 800 Audubon images for her
business over the years. When she went onto the eBay site, she saw several Audubon
birds were being sold by a vendor in Pacifica identified as “Souzastuff.” This was
upsetting because “Souza” is also defendant’s last name. Subsequently, Manning became
aware of a vendor called “Eprintseller.” Manning never authorized any purchases from
that vendor.
       Manning went to the police station to look at the prints that were recovered from
the Modesto house. Most of the prints were in plastic sleeves with a backing. Manning
and Hall had put price stickers on the upper right hand corner of the sleeves. The total
value of what was recovered from the home was estimated at $95,990.50. Over time,
Manning had noticed that some items appeared to be missing from the warehouses.
About 25 percent of the items recovered by the police were items that she had previously
wondered about. In reviewing the eBay sales records for Eprintseller, Manning saw


                                             6
descriptions of several items that would have been sold by her business. The seller log
for Souzastuff also described items that she would sell, including Audubon lithographs.
       Prints Old and Rare is equipped with an alarm system. Employees are given
individual pass codes, and the alarm company keeps records that show whose pass code
was used to enter the building at a given time. If there had been a break-in during the
middle of the night, the alarm company would have contacted Manning. The alarm
company’s records covering the time period relevant to this matter do not show any
unusual activities. Souza was never given an alarm pass code. Defendant did have such
a code. She would deactivate the alarm when she arrived for work early in the morning.
The alarm records would have shown whether defendant had disarmed the alarm, and the
time she arrived.
       After the search warrant was executed, defendant came to Manning’s house. They
were both very upset. Defendant said that it wasn’t her fault. Manning knew defendant
and Souza had been having marital problems and that defendant had moved out of the
house in Modesto. Defendant had asked her for a loan so that she could move, and
Manning had loaned her $3,000.
2. Melinda Lindner
       Melinda Lindner works at Prints Old and Rare. She has worked there since May
2000, and was the office and sales manager at the time of trial. One of her ongoing job
duties is to keep track of purchases that are shipped to the business. Between 2000 to
2007, she never saw a record of, or received a package from, an eBay seller called
Eprintseller. She affirmed that employees are not allowed to take lithographs or prints
from the office.
3. Julie Jones
       Julie Jones worked for Prints Old and Rare as a writer and photographer about five
years prior to trial. Her employment lasted about seven months. During that time,
defendant mentioned that she had an eBay business with her husband selling prints and
other items that they found at estate sales. She said the business was profitable. Jones
left the company after she was fired by defendant.

                                             7
4. Officer Rio DelMoral
       After the crime was reported by Manning, DelMoral set up a sting purchase on
eBay. He used his personal eBay account screen name to bid on a printed image of a fish
offered by Souzastuff. Subsequently, DelMoral asked if he could pay by cashier’s check,
and he was directed to send the payment to Souza’s house in Modesto. Officers had the
house under surveillance when Souza took delivery of the package containing the check
from a FedEx driver. The fish print was sent to an address in Petaluma.
       DelMoral went to the home in Modesto on May 3, 2007, to serve a search warrant.
Souza was in the house when he arrived, along with his two daughters. During the
search, the officers found approximately 934 lithographs and photos. The items were
unsecured, and were found in an attached garage as well as in a back bedroom. They also
found packing materials used to mail out lithographs to customers.
       Souza admitted he used Souzastuff as his seller name when selling lithographs on
eBay. He acknowledged the items in his home were stolen. He said he had taken them
from Prints Old and Rare in Pacifica. He said defendant did not have anything to do with
the theft. He also stated that he had set up an e-mail account in the name of Bertina
Souza, which he used to set up the Souzastuff account.
       Manning had also told DelMoral that she was concerned because she was not
receiving any packages from Eprintseller, though purchases were made using her PayPal
account. DelMoral learned that Eprintseller was an eBay account registered to defendant.
Two credit cards linked to the account are in defendant’s name. Fifty-one total payments
were made from Manning’s business accounts to Eprintseller between 2000 and 2007
The total dollar amount for the transactions was $8,950.59.
       On redirect, the prosecutor asked DelMoral if Souza had told him how he
managed to steal the items from Prints Old and Rare. Defense counsel objected and the
objection was overruled. DelMoral testified that Souza told him he had stolen the pass
codes to the alarm system for Prints Old and Rare from defendant. He also said he took
the keys from her without her knowledge, entered the building, and removed various
lithographs. He went there between 3:00 a.m. and 5:00 a.m. DelMoral reviewed the

                                             8
alarm records for the six month period of November 2006 to May 2007. There was no
record of someone using a pass code to enter the building during those hours. Based on
the alarm company’s records, DelMoral came to the conclusion that Souza had not been
telling the truth when he said he entered the building.
5. William Hall
       William Hall owns Prints Old and Rare with Manning. He does almost all the
pricing of items for the business. Starting around 2006, Hall would give defendant
atlases to take home for Souza so that he could earn some money while he stayed home
with the couple’s children. Souza would break down the atlases into individual pages of
maps. Hall would give defendant one atlas at a time to take home. He did not give her
lithographs and prints, only atlases. Hall also testified that many of the items that had
been listed for sale by Souza were priced much lower than what they were worth.
C. The Defendant’s Case
       Defendant testified that she was responsible for taking photographs and listing the
items for sale on the Prints Old and Rare website. She learned how to value these items
over time with experience, and also by researching the items with Manning’s help. She
lived in Pacifica until 2004, when she and Souza moved to Modesto. She testified she
was unaware of Souzastuff or Eprintseller until after charges had been filed in this case.
       Defendant’s job duties were to maintain the website, process customer orders, and
help Manning with various projects. In 2007, she earned $25 per hour and worked
between 32 and 40 hours per week. Sometimes she worked at home. She testified that
Manning and Hall allowed her to take prints home to work on, and that she did so
regularly. An employee named David Alonzo would help her load prints into her car.
       At home, she would write descriptions of the items and upload them to the
website. She would print the descriptions and put one description on the back of each
print and bring them back to the workplace when she was done. She could not explain
why the owners testified that no one was allowed to take prints home. When defendant
separated from her husband, she left packages of prints at the Modesto house that she had


                                             9
been planning to work on. She was distracted, and thought the prints would be safe and
that she could retrieve them at some point in the future.
       Defendant testified that she never had her own PayPal account, though Souza sold
items on the Internet through eBay. If she wanted to buy anything online, she would ask
him make the purchase using his PayPal account. She did not know his password. She
did know all the passwords for Manning’s accounts. Manning set up the accounts and
chose the passwords. Defendant would handle payments for Manning for items bought
on eBay. She never made payments for things that were not authorized by Manning or
Hall. She did not recall ever making a payment to Eprintseller.
       After the search warrant was executed in Modesto, Souza called her and said he
had done “something really bad.” When Souza told her that the police had been to the
house she contacted Hall and told him what had happened. Hall told her she would not
be able to continue working for the company. She denied having been aware that Souza
was selling items belonging to Prints Old and Rare.
       On cross-examination, defendant was questioned about a purchase of pink Capri
pants made on eBay in October 2003 using the Eprintseller account. The shipment was
made to the Modesto house under her name. The purchase was accompanied by a
message to the seller, stating: “I know that you work and all, but any chance you can ship
before Saturday maybe today or tomorrow? I wanted to wear them for my birthday. I
love pink. My birthday is Sunday. Thanks.” Despite the personalized message,
defendant testified that she never had used that PayPal account. On redirect, she said that
Souza had given her the pink Capri pants.
       On rebuttal, David Alonzo testified for the prosecution that he never helped
defendant load lithographs or prints into her car.
D. Objection to DelMoral’s Testimony
       Outside the presence of the jury, defendant objected to the prosecutor’s redirect
examination regarding the statements Souza made to DelMoral. Her counsel stated that
on cross, he had questioned the officer as to the statements made against Souza’s penal
interests only, namely, that he stole the lithographs and that defendant was not involved.

                                             10
Her counsel did not ask about how the lithographs were stolen because he did not believe
that part of Souza’s statement was credible in light of the evidence. He complained that
the prosecutor, on redirect, had questioned the officer as to the method by which Souza
claimed he stole the lithographs. He contended this was improper impeachment because
“by allowing that to come in . . . it was essentially cross-examining the [section] 1230
hearsay statement and I don’t believe that that was proper. I objected under grounds of
Crawford and my [client’s] Sixth Amendment right to confrontation.”
       The prosecutor responded that defense counsel had conceded Souza’s statement on
this point was unreliable, adding, “I just cannot see how the law would be where we
know there is something untruthful in front of the jury and the People’s hands are tied
and we can’t show that and the jury cannot assess for themselves as fact finders in a trial
what statement is true or not true.” Defense counsel replied, “that the prosecutor should
not have been allowed to cross-examine, essentially create a cross-examination of a
hearsay declarant by a statement that was factually untrue.” The court reiterated its
earlier ruling, noting that the prosecutor had restricted her initial presentation to the
portion of Souza’s statement that she believed to be accurate, that is, that he admitted to
selling stolen lithographs. Defense counsel had introduced the idea that Souza had stolen
the items and that defendant had nothing to do with the crime. By moving from the act of
selling to the act of stealing, this allowed the prosecutor to challenge the unreliable
portion of the statement on redirect: “So at that point I think the alleged false comments
by [Souza] became relevant. So that’s why I let them in.”
E. Closing Arguments
       During closing argument, the prosecutor told the jury that there was nothing to
support Souza’s statement that he stole the prints by going to Prints Old and Rare
between 3:00 a.m. and 5:00 a.m. and deactivating the alarm system. She also pointed out
that there was no reason for him to have done so, since defendant herself admitted she
frequently took prints home.




                                              11
F. The Verdict
       On June 11, 2010, the jury found defendant guilty of embezzlement and found the
special allegation to be true.
III. Posttrial Proceedings
       On January 5, 2012, the trial court placed defendant on probation, and ordered her
to serve six months in county jail and to pay $300,000 in victim restitution. This appeal
followed.
                                        DISCUSSION
I. Contentions and Standard of Review
       Under Crawford, out-of-court statements made by a witness that are testimonial in
nature are barred by the Sixth Amendment’s confrontation clause unless the witness is
unavailable at trial and the defendant had a prior opportunity to cross-examine him or
her, regardless of whether the statements might otherwise be deemed reliable.
(Crawford, supra, 541 U.S. 36, 68.) Defendant contends her right of confrontation was
violated by admission of the statement made by Souza, who did not testify, that he
personally stole the lithographs from the Prints Old and Rare warehouse. We
independently review whether evidence was admitted in violation of the confrontation
clause. (Lilly v. Virginia (1999) 527 U.S. 116, 137.)
II. The Contested Statement Was Not Hearsay As It Was Not Offered for the Truth
       It is undisputed that Souza’s statement regarding how he entered the victim’s
business by disabling the alarm system is false. Therefore, the statement is not hearsay,
as it was not offered by the prosecution to prove the truth of the matter stated. (See Evid.
Code, § 1200 [hearsay “is evidence of a statement that was made other than by a witness
while testifying at the hearing and that is offered to prove the truth of the matter
stated”].)4 “ ‘ “If a fact in controversy is whether certain words were spoken or written

4
 For purposes of the hearsay rule, a “[s]tatement” is defined as an “oral or written verbal
expression” or “nonverbal conduct of a person intended . . . as a substitute for oral or written
verbal expression.” (Evid. Code, § 225; see People v. Lewis (2008) 43 Cal.4th 415, 497–498.
Hearsay is not admissible unless it qualifies under an exception to the hearsay rule. (Evid. Code,
§ 1200, subd. (b).)

                                               12
and not whether the words were true, evidence that these words were spoken or written is
admissible as nonhearsay evidence.” ’ [Citations.]” (People v. Smith (2009) 179
Cal.App.4th 986, 1003.)
       Because the statement was manifestly untruthful, its admission does not implicate
Crawford. The United States Supreme Court in Crawford observed that the
Confrontation Clause “does not bar the use of testimonial statements for purposes other
than establishing the truth of the matter asserted.” (Crawford, supra, 541 U.S. 36, 59, fn.
9, citing to Tennessee v. Street (1985) 471 U.S. 409, 414 (italics added).) Instead, the
focus of that case was on statements deemed facially reliable: “Admitting statements
deemed reliable by a judge is fundamentally at odds with the right of confrontation.”
(Crawford, supra, at p. 61.)
       The California Supreme Court has held that nonhearsay evidence does not
implicate the concerns addressed in Crawford. In People v. Thomas (2012) 53 Cal.4th
771, 803 (Thomas), the defendant contended that the trial court erred in admitting
drawings of a crime scene, which were used to illustrate the testimony of three
eyewitnesses. The defendant argued that “because the drawings demonstrated the artist’s
interpretation of what the scene looked like, they constituted hearsay that was
inadmissible under state law.” (Ibid.) He also claimed the admission violated the
confrontation clause under Crawford. (Thomas, supra, at p. 803.) Our Supreme Court
stated: “To the contrary, because the drawings were admitted solely to illustrate the
witnesses’ testimony, and not for the truth of the matters portrayed, they did not
constitute inadmissible hearsay. [Citation.] Furthermore, the confrontation clause ‘does
not bar the use of testimonial statements for purposes other than establishing the truth of
the matter asserted.’ [Citations.]” (Ibid.)
       Parenthetically, the court in Thomas also noted the following cases: “People v.
McKinnon (2011) 52 Cal.4th 610, 656 & fn. 28 . . . [no confrontation clause violation
where gang expert’s testimony regarding rumors that a member of defendant’s gang had
been killed by a member of a rival gang was admitted for the nonhearsay purpose of
explaining defendant’s motive]; People v. Mendoza (2007) 42 Cal.4th 686, 698–699 . . .

                                              13
[no confrontation clause violation where murder victim’s statements accusing defendant
of molestation were admitted for the nonhearsay purpose of explaining defendant’s state
of mind]; People v. Ledesma (2006) 39 Cal.4th 641, 706, fn. 17 . . . [no confrontation
clause violation where identification of defendant in a photo lineup by a witness to a
robbery was admitted for the nonhearsay purpose of establishing defendant’s motive for
killing the witness].” (Thomas, supra, 53 Cal.4th 771, 803–804.)
          While the trial court here focused on whether section 1230 is rendered moot by
Crawford, that Evidence Code section is not intended to apply to statements that are
unreliable or untrustworthy: “ ‘The focus of the declaration against interest exception to
the hearsay rule is the basic trustworthiness of the declaration. [Citations.] In
determining whether a statement is truly against interest within the meaning of [section
1230], and hence is sufficiently trustworthy to be admissible, the court may take into
account not just the words but the circumstances under which they were uttered, the
possible motivation of the declarant, and the declarant’s relationship to the defendant.’
[Citation.]” (People v. Geier (2007) 41 Cal.4th 555, 584, italics added.)
          Here, defendant concedes that Souza’s statements regarding how he acquired the
lithographs are untruthful. Thus, section 1230 does not apply. The statement that he
stole the alarm codes from defendant and used them to enter the victim’s building is not
hearsay at all, and was admissible for the nonhearsay purpose of allowing the jury to infer
that Souza was trying to protect defendant by claiming he had stolen the lithographs
himself, without her knowledge.5
          As to the reliable aspects of Souza’s statement, namely, the admission that he sold
stolen lithographs on eBay, defendant did not object to the introduction of that portion of
the statement. Indeed, her principle defense was that Souza had committed the crime
without her knowledge or participation. In sum, we find no Crawford violation.




5
    We also note defendant does not assert in her appeal that the evidence lacked relevance.

                                                 14
III. Harmless Error
         Even if we were to conclude that Souza’s statements constitute testimonial hearsay
admitted in violation of Crawford, we would find the trial court’s error to be harmless.
Under the Chapman6 test, a Crawford error is harmless where the properly admitted
evidence against defendant is overwhelming and the improperly admitted evidence is
merely cumulative. To find the error harmless we must find beyond a reasonable doubt
that it did not contribute to the verdict, that it was unimportant in relation to everything
else the jury considered on the issue in question. (People v. Song (2004) 124 Cal.App.4th
973, 984–985.)
         Not only did defendant have complete access to Manning’s PayPal account, she
also had complete access to the inventory of Prints Old and Rare. She was a trusted
employee who was allowed in the building at a time of day when no other employees
were present. She claimed she was authorized to take many prints home, despite
Manning’s and Lindner’s statements to the contrary. Alonzo also testified that he never
helped her load prints into her car. The sheer volume of stolen property found in the
Modesto home—valued at $95,990.50—belies any innocent purpose of its presence.
Further, the money deposited into the Eprintseller’s PayPal account was directly linked to
defendant’s address and credit cards. The evidence of the personalized notes sent to
other sellers from that account (e.g., declaring a love for the color pink) supported the
inference that she was aware of the activities associated with that account, including the
payments made to Eprintseller from Manning’s accounts. In sum, irrespective of Souza’s
statements to the police, any error was harmless beyond a reasonable doubt.




6
    Chapman v. California (1967) 386 U.S. 18.

                                                15
                                 DISPOSITION
     The judgment is affirmed.


                                       __________________________________
                                       Dondero, J.


We concur:


__________________________________
Margulies, Acting P. J.

__________________________________
Banke, J.




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