Filed 8/10/15 P. v. Griffith CA2/7
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION SEVEN


THE PEOPLE,                                                          B256853

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. PA075765)
         v.

KIM GRIFFITH,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County, David B.
Gelfound, Judge. Affirmed.
         Gideon Margolis, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Timothy M. Weiner and
John Yang, Deputy Attorneys General, for Plaintiff and Respondent.


                                      ___________________________
       Kim Griffith appeals her conviction of one count of grand theft by embezzlement
(Pen. Code, § 487, subd. (a)), asserting that the trial court erroneously denied her
continuance request. We affirm.

                  FACTUAL AND PROCEDURAL BACKGROUND

       1. The Transactions
       Kim Griffith was the primary cashier from 2009 through 2011 for Kramar Iron &
Metal, a metal recycling business. Griffith worked in the front office with Melanie
Becerra, the office manager, and Maria Mendoza, the office assistant. At Kramar Iron &
Metal, non-industrial customers drive their vehicle onto an automated scale before and
after depositing material. A cashier manages this process through “ROM,” a software
program that stores transaction information and calculates the value of the deposited
material. The cashier pays the calculated amount to the customer in cash and receives the
customer’s signature on a receipt. At the end of the day, the cashier places the register’s
remaining money alongside the receipts in a safe for reconciliation the following business
day.
       In November 2011, after noticing a suspicious transaction in ROM, Becerra
conducted a comprehensive audit of transactions. Because ROM records the time and
nature of each action, the review permitted a detailed look into the history of all
transactions. The audit exposed 195 fraudulent transactions, resulting in a loss of
$74,512. Although all three front office employees had access to ROM through their
own distinct usernames and passwords, Griffith’s user account authored each fraudulent
transaction. Griffith was working alone when 83 percent of these transactions ended, and
most of the remaining 17 percent occurred when either Becerra or Mendoza were on
vacation.
       Through the audit, Becerra discovered three types of fraudulent transactions. One
method, encompassing 48 transactions, involved manual adjustment of the final weight of
customer Marco Guerrero’s vehicle. By grossly understating the vehicle’s actual weight,
the manual adjustment resulted in overpayment. Another method, recorded under several


                                              2
customer names, calculated the weight of Guerrero’s vehicle when it was only partially
on the scale. The third method, consisting of 84 transactions on Saturdays when Griffith
was working alone, generated fictitious customers by manually adjusting the weight of an
empty scale.

       2. The Preliminary Hearing
       Griffith was charged with grand theft by embezzlement. (Pen. Code, § 487, subd.
(a).) At the preliminary hearing, the prosecution called Becerra as a witness. Becerra
detailed the cashier process for customer transactions, and testified that upon payment,
the customer signs a receipt that the company retains for accounting and customer contact
purposes. Despite Becerra describing the retention of receipts in both direct and cross-
examination, counsel did not inquire about their continued existence after the hearing.

       3. The Trial
       At trial, Griffith’s counsel questioned Becerra about the lack of evidence showing
a verifiable company loss from the fraudulent transactions. In response, Becerra
described receipts that were not in evidence at that time. Becerra brought 195 receipts to
court the following day. Over Griffith’s objection, the court admitted the receipts into
evidence. The court reasoned that admission was proper because the evidence was not
previously in the prosecution’s possession and declined the drastic remedy of exclusion.
The court, however, permitted Becerra to be recalled in five days so that Griffith’s
counsel could review the receipts. Griffith’s counsel requested more time to assess the
evidence and moved for a 30-day continuance. The court denied the motion.
       On the morning that Becerra was recalled, Griffith’s counsel requested a two-week
continuance. Counsel explained he wished to obtain a handwriting expert who could
analyze the receipts’ signatures. The trial court denied the motion, noting the burden of
mid-trial delay and the prosecution’s decision not to offer evidence that the signatures
belonged to Griffith. A jury convicted Griffith as charged. Griffith appeals.




                                             3
                                      DISCUSSION

       Griffith claims the trial court abused its discretion in denying her mid-trial motion
for a continuance and thereby deprived her of due process, effective assistance of
counsel, and a fair trial. A court grants a continuance only upon a showing of good
cause. (Pen. Code, § 1050, subd. (e).) The trial court has broad discretion to determine
whether good cause exists. (People v. Doolin (2009) 45 Cal.4th 390, 450.) A reviewing
court reverses the denial of a continuance only upon a showing of abuse of discretion and
prejudice. (People v. Zapien (1993) 4 Cal.4th 929, 972.)
       A moving party establishes good cause by demonstrating, among other things, due
diligence in preparing for trial and the materiality of the expected testimony. (People v.
Jenkins (2000) 22 Cal.4th 900, 1037.) Under this standard, Griffith failed to establish
good cause for a continuance. First, Griffith’s counsel failed to show an adequate level
of due diligence prior to trial. During the preliminary hearing, Becerra testified about the
retention practices for receipts. Referring to receipts on separate occasions, Becerra
described how “they’re all compiled . . . and they’re stored in an envelope” and “[w]e do
keep the receipt . . . .” However, counsel did not seek discovery of the receipts prior to
trial, contending now there was no reason to believe receipts remained in existence.
       Relying on People v. Fontana (1982) 139 Cal.App.3d 326, Griffith argues that the
additional evidence left her unprepared. In Fontana, counsel, burdened by recently
completed cases, was unable to read preliminary hearing testimony prior to trial. (Id. at
p. 331.) The court reversed the trial court’s denial of the continuance. (Id. at p. 334.)
Here, unlike the circumstances that left counsel in Fontana unprepared, Griffith’s counsel
was present during the preliminary hearing and had an opportunity to discover the
receipts prior to trial.
       Second, Griffith failed to demonstrate the material impact of the expected
testimony. Griffith argued that the testimony would be material because an expert could
find the receipt signatures matched another employee’s handwriting. Griffith pointed out
that other employees used her workstation and could discover her ROM password.


                                              4
Although access to Griffith’s workstation was not well protected, the process and
documentation underlying each transaction left little doubt as to her involvement. A
transaction involved three actions: finalizing a record within ROM, removing cash from
the register, and placing the printed receipt within the safe. Each action had to be
completed on the same day. Additionally, each action had to be completed within the
front office due to the physical location of the ROM computers and cash register.
Because the fraudulent activity persisted for two years, these limitations required an
actor’s presence within the front office throughout that time period. ROM’s transaction
history and employee time sheets demonstrate that Griffith was present for each
fraudulent transaction while her front office co-workers were routinely clocked-out. The
requisite process for completing a transaction and Griffith’s presence in the front office
during the fraudulent activity through her ROM user account, made it infeasible for
another employee to have generated fraudulent transactions without her support. As a
result, any testimony by a handwriting expert would not dispel the extensive evidence
linking her to the fraudulent activity. Because Griffith failed to demonstrate good cause
to delay the trial, the trial court did not abuse its discretion in denying the requested
continuance.
       Finally, Griffith fails to demonstrate she was prejudiced by the denial of her
motion. To establish prejudice, a defendant must show that in the absence of the claimed
error a more favorable result was reasonably probable. (People v. Watson (1956) 46
Cal.2d 818, 836.) As discussed above, expert testimony on the receipts’ handwriting
would not have tended to create doubt as to Griffith’s involvement because detailed
record keeping documented that the timing of fraudulent transactions uniquely
overlapped with Griffith’s schedule. In the absence of any evidence that handwriting
analysis could produce a material effect, Griffith has not established that the denial of a
continuance was prejudicial.




                                               5
                                    DISPOSITION
      The judgment is affirmed.




                                                ZELON, Acting P. J.




We concur:




      SEGAL, J.




      STROBEL, J.





        Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.

                                            6
