Filed 2/24/15 P. v. Lee CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.


               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT

THE PEOPLE,                                                          H039678
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. C1231283)

         v.

TARA NALANI LEE,

         Defendant and Appellant.


         Defendant Tara Nalani Lee was convicted by jury trial of two counts of forgery
(Pen. Code, § 470, subd. (d)).1 On appeal, she argues the trial court erred when it failed
to give the jury an instruction on the sufficiency of the circumstantial evidence presented
at trial. She also argues the court erred in excluding the testimony of three defense
witnesses. Lastly, she claims the court should have stayed one of her convictions under
section 654.
         We conclude that although we agree with defendant that the trial court should
have instructed the jury on how to weigh the circumstantial evidence introduced at trial,
the error was harmless. Furthermore, we find the court did not abuse its discretion when
it excluded the defense witnesses’ testimonies. Lastly, defendant’s section 654 claim is
unripe, because the trial court suspended imposition of sentence. Therefore, there is no
punishment that can be stayed. We affirm the judgment.


         1
             Further unspecified statutory references are to the Penal Code.
                       FACTUAL AND PROCEDURAL BACKGROUND
       Procedural History
       On May 2, 2012, an information was filed charging defendant with two counts of
felony forgery (§ 470, subd. (d)).
       The People filed a motion in limine to exclude the testimony of three defense
witnesses, Larry Noon, Shari Flick, and Eric Nagel, arguing their testimonies would be
irrelevant. Defense counsel requested he be allowed to reserve Noon’s testimony for
potential impeachment purposes. The trial court stated it would consider this request on a
“case-by-case basis” if necessary, and granted the People’s motion to exclude the
testimony of all three witnesses.
       Jury trial on the charges began on March 18, 2013.
       The Evidence
       In 2011, defendant was employed as a server at Tapestry, a restaurant located in
Los Gatos, California. Tapestry was owned by Gary Messick. On October 28, 2011,
Messick wrote a tip check to defendant for $319. On November 5, 2011, he wrote a
second tip check to defendant for $125.28. Defendant had worked at Tapestry for several
months. She left her position sometime in the fall of 2011. She intermittently returned to
the restaurant to fill in for other servers until she quit for a final time in October 2011
following a disagreement with Messick about her schedule.
       Messick distributed cash tips after the end of each shift, but credit card tips were
distributed by weekly tip checks handwritten by Messick. Messick would either hand the
checks to employees in person or leave the checks in the cash drawer. The cash drawer
was accessible to all Tapestry servers and employees. Messick did not need to be present
for the cash drawer to be opened, and many employees had keys to the restaurant.
Messick could not recall if he handed defendant the tip checks or if he mailed the checks
to her address.

                                               2
       At some point in January 2012, Bank of the West notified Messick that the
restaurant’s checking account had insufficient funds. Messick compared a spreadsheet he
had compiled of the tip amounts to the bank’s check copies and discovered the two
checks he had given to defendant had been altered. The check for $319 had been altered
and cashed for $3,019, and the check for $125.28 had been altered and cashed for
$1,025.28. Messick asserted he did not alter these checks himself. Messick did not have
any carbon copies of the checks in his possession, and only the bank’s scanned copies of
the checks were available at trial.
       A financial crimes investigator for the bank determined the two checks had been
deposited through an ATM on the same day, November 11, 2011, to a checking account
with defendant’s name.
       John Barnes, a server who used to work at Tapestry, explained that Messick did
not employ precise bookkeeping practices and disputes over tip amounts were not
uncommon. Barnes noted the checks deposited in defendant’s account did not bear any
indicia of what time period they were meant to cover. Barnes said he typically received
tip checks ranging anywhere from $200 to $600 and would sometimes receive over $700
if there were several large events at the restaurant. Barnes said he would have been
surprised if he had received a check for $3,000 in tips, but a tip check for $1,000 could be
feasible if the restaurant had a few large parties. Barnes described defendant as a “good
acquaintance” and a “good co-worker” but not a close friend. Barnes said he thought
defendant was truthful.
       An investigating officer testified that he attempted to compare defendant’s
signature with the signature on the altered checks. However, the officer found the
signature on the check copy to be illegible and recommended obtaining the original
check. A fraud investigator at the bank confirmed to the officer that the original checks
were not available, because they had been shredded by the bank.

                                             3
       The Verdict and Sentence2
       On March 21, 2013, the jury returned guilty verdicts on both counts of forgery.
The trial court suspended imposition of sentence and placed defendant on three years of
formal probation. Defendant was placed on electronic monitoring, sentenced to 30 days
of weekend work and was ordered to pay victim restitution of $3,159.31. Defendant
appealed.
                                        DISCUSSION
   1. Instructional Error
       Defendant claims the trial court erred when it instructed the jury with the less
inclusive instruction on circumstantial evidence, CALCRIM No. 225, instead of the more
inclusive instruction, CALCRIM No. 224.
       “Questions relating to the validity and impact of the instructions given to the jury
are entitled to de novo review. We review the instructions independently because the
underlying question is one of law and the application of legal principles.” (People v.
Burch (2007) 148 Cal.App.4th 862, 870.) “A trial court has the duty to sua sponte
instruct ‘on general principles of law that are closely and openly connected with the facts
presented at trial’ and that are necessary for a jury’s understanding of the case.” (Ibid.,
quoting People v. Ervin (2000) 22 Cal.4th 48, 90.) For example, “[a] trial court has a sua
sponte duty to give CALJIC No. 2.01[3] in criminal cases ‘where circumstantial evidence




       2
         After the prosecution rested its case, defense counsel moved to dismiss all
charges pursuant to section 1118.1. This motion was denied.
       3
         “CALCRIM No. 224 corresponds to [former] CALJIC No. 2.01 and CALCRIM
No. 225 corresponds to [former] CALJIC No. 2.02. Case law addressing CALJIC
instructions is still generally applicable to the corresponding CALCRIM instruction.”
(People v. Contreras (2010) 184 Cal.App.4th 587, 591, fn. 4, citing People v. Samaniego
(2009) 172 Cal.App.4th 1148, 1171, fn. 12.)


                                              4
is substantially relied upon for proof of guilt . . . .’ ” (People v. Johnwell (2004) 121
Cal.App.4th 1267, 1274.)
       Both CALCRIM Nos. 224 and 225 instruct the jury on how to consider
circumstantial evidence. However, CALCRIM No. 225 advises a jury only on how to
evaluate circumstantial evidence to prove a defendant’s intent or mental state (People v.
Cole (2004) 33 Cal.4th 1158, 1222), whereas CALCRIM No. 224 discusses more
generally how a jury should consider circumstantial evidence that is relied on for proof of
guilt (People v. Rogers (2006) 39 Cal.4th 826, 885 (Rogers)). In short, “ ‘CALCRIM
No. 224 is more inclusive. [Citation.]’ [Citation.] CALCRIM No. 224 ‘is the proper
instruction to give unless the only element of the offense that rests substantially or
entirely on circumstantial evidence is that of specific intent or mental state.’ ” (People v.
Contreras, supra, 184 Cal.App.4th at p. 592.)
       Here the jury was instructed on two alternate theories of forgery. First, the jury
was instructed on CALCRIM No. 1904, which provides that in order to convict a
defendant of forgery the People must prove: (1) the defendant altered a check and (2)
when defendant did that act she had the specific intent to defraud. Second, the jury was
instructed on CALCRIM No. 1905, which provides that a crime of forgery is committed
when: (1) the defendant passed or used an altered check, (2) the defendant knew the
check was altered, and (3) when defendant passed or used the check, she intended that the
check be accepted as genuine and she intended to defraud. Lastly, the jury was instructed
on CALCRIM No. 1906, which instructs the jury that in order to convict defendant of
committing forgery, all jurors must agree that defendant committed forgery under at least
one of the theories presented by the prosecution. However, the jury need not reach a
consensus on which theory of the crime was proved.
       We agree with defendant that the prosecution used circumstantial, not direct,
evidence to prove elements for both theories of forgery. The two checks at issue were

                                              5
made out to defendant and copies of the checks were submitted into evidence to show
they were altered. However, there were no witnesses that saw defendant alter the checks.
Nor was there any direct evidence that defendant was the one who deposited the checks
into her account. Therefore, the trial court erred when it failed to instruct on CALCRIM
No. 224. (See Rogers, supra, 39 Cal.4th at p. 885.) The circumstantial evidence was not
relied on solely to prove defendant’s intent or mental state but also to prove she altered
and deposited the checks.
       However, even though the court erred when it failed to instruct the jury with
CALCRIM No. 224, reversal is only required if it is reasonably probable that defendant
would have obtained a more favorable result had the error not occurred. (People v.
Watson (1956) 46 Cal.2d 818, 836.)4 We find the error was not prejudicial.
       First, since CALCRIM No. 225 was given, the trial court’s failure to instruct with
CALCRIM No. 224 could have only affected the jury’s deliberation regarding the
identity of the perpetrator. (See Rogers, supra, 39 Cal.4th at p. 886 [“[b]ecause CALJIC
No. 202 was given, the failure to give CALJIC No. 2.01 could have affected only the
issue of identity”].) The evidence introduced by the People to establish defendant was
the one who forged or passed the checks was circumstantial but strong. The checks were
made out to defendant and were deposited into an account with defendant’s name using
an ATM, meaning that whoever deposited the checks must have known the PIN number
to the account.


       4
         Defendant argues that when there is a violation of a defendant’s federal
constitutional rights, a reviewing court must apply the more stringent standard set forth
under Chapman v. California (1967) 386 U.S. 18 to determine whether there is any
possibility that the alleged error may have contributed to the guilty verdict in the case.
However, the California Supreme Court has used the Watson standard when reviewing
whether failure to instruct the jury on CALJIC No. 2.01, the predecessor to CALCRIM
No. 224, should have been given. (Rogers, supra, 39 Cal.4th at p. 886.)


                                             6
       Additionally, the jury could not have found that defendant had the specific intent
to defraud or to pass the altered checks and, at the same time, found that she did not
commit the acts necessary for the offense. The jury was properly instructed with
CALCRIM No. 225, which informs the jury that it cannot rely on circumstantial evidence
to prove a defendant’s intent or mental state if it can be reasonably inferred from the
evidence that there was no criminal intent. Based on this instruction, the jury must have
determined defendant had the specific intent necessary to find her guilty of the forgery
convictions.
       However, defendant argues that because the jury was not properly instructed with
CALCRIM No. 224, it is possible that jurors may have had reasonable doubt she forged
or altered the checks. She also argues that “[i]f a reasonable doubt existed that
[defendant] altered the checks, it follows that she might not have knowingly deposited
altered checks.” We are not persuaded.
       The jury was instructed on both CALCRIM Nos. 223 and 225. CALCRIM No.
223 instructs the jury on both direct and circumstantial evidence, stating in pertinent part
that “[b]oth direct and circumstantial evidence are acceptable types of evidence to prove
or disprove the elements of a charge, including intent and mental state and acts necessary
to a conviction, and neither is necessarily more reliable than the other.” Although
CALCRIM No. 225 is less inclusive than CALCRIM No. 224 since it instructs the jury
specifically on the use of circumstantial evidence to prove a mental state, it also
contained the more general language that “[b]efore you may rely on circumstantial
evidence to conclude that a fact necessary to find defendant guilty has been proved, you
must be convinced that the People have proved each fact essential to that conclusion
beyond a reasonable doubt.” This is in addition to the instructions given on reasonable
doubt (CALCRIM No. 220), which reiterated to the jury that unless the People proved
defendant’s guilt beyond a reasonable doubt, she was entitled to an acquittal.

                                              7
       Considering these instructions as a whole, it appears the jury was cautioned on the
proper use and weight of circumstantial evidence and was also properly advised of the
People’s burden of proof. Accordingly, the trial court’s failure to instruct the jury with
CALCRIM No. 224 would have been harmless beyond a reasonable doubt. (See People
v. Chaffin (2009) 173 Cal.App.4th 1348, 1353.)
       Lastly, we reject defendant’s claim that the trial court’s instructional error
deprived her of her right to due process. As our Supreme Court articulated in Rogers,
“[w]e doubt the common law right to a circumstantial evidence instruction rises to the
level of a liberty interest protected by the due process clause. [Citation.] In any event,
any federal constitutional error would be harmless beyond a reasonable doubt for the
reasons expressed above.” (Rogers, supra, 39 Cal.4th at p. 887.)
   2. Exclusion of Witness Testimonies
       Next, defendant argues the trial court erred when it excluded the testimonies of
three defense witnesses, Noon, Flick, and Nagel.
       Evidence Code section 352 states: “The court in its discretion may exclude
evidence if its probative value is substantially outweighed by the probability that its
admission will (a) necessitate undue consumption of time or (b) create substantial danger
of undue prejudice, of confusing the issues, or of misleading the jury.”
       “ ‘Under Evidence Code section 352, the trial court enjoys broad discretion in
assessing whether the probative value of particular evidence is outweighed by concerns
of undue prejudice, confusion or consumption of time. [Citation.]’ [Citation.] A trial
court’s discretionary ruling under Evidence Code section 352 will not be disturbed on
appeal absent an abuse of discretion. [Citation.] ‘ “[T]he latitude section 352 allows for
exclusion of impeachment evidence in individual cases is broad. The statute empowers
courts to prevent criminal trials from degenerating into nitpicking wars of attrition over
collateral credibility issues.” ’ ” (People v. Lewis (2001) 26 Cal.4th 334, 374-375.)

                                              8
Furthermore, where evidence would impeach a witness on a collateral matter and is “only
slightly probative of [the witness’] veracity, application of Evidence Code section 352 to
exclude the evidence [does] not infringe [a defendant’s] constitutional right to confront
the witnesses against him.” (People v. Jennings (1991) 53 Cal.3d 334, 372.)
       In this particular case, the People filed a motion in limine seeking to exclude
Noon, Flick, and Nagel’s testimonies, arguing they were irrelevant.
       The People’s motion summarized the witnesses’ testimonies as follows:
       Noon was an investor in Messick’s restaurant and was familiar with other
investors in the business. Noon stated that he had not recouped his investment in the
restaurant and felt that Messick had “buried his head in the sand” regarding the
restaurant’s debt.
       Flick owned the building that housed the Tapestry restaurant and was going to
testify that Messick was behind on rent. Flick obtained a monetary judgment against
Messick and believed that when the restaurant was open it was “hard to know what was
going on there.”
       Nagel was another investor in Messick’s restaurant. Nagel said he discovered that
Messick was paying himself a salary of $150,000. Nagel had invested $50,000 in the
restaurant but was owed a total of $100,000 including interest. Nagel had been unable to
reach Messick to discuss his investment and had the opinion that defendant would not
alter the checks because “she seems to be an educated person and an educated person
would not do this.”
       Defendant argues the court should not have excluded these witnesses, because
their testimonies were directly relevant to Messick’s credibility and character. This issue
was addressed by the trial court during the hearing on the in limine motions. In fact,
based on the transcript of the proceedings it is unclear whether the exclusion of Noon’s
testimony was properly preserved for appeal. During the hearing, defense counsel

                                             9
requested that he be allowed to reserve Noon’s testimony for impeachment purposes
depending on the scope of Messick’s testimony. The court asserted that it would “deal
with that on a case-by-case basis if that occurs.” However, defense counsel never sought
to introduce Noon’s testimony to impeach Messick during the trial.
       Regardless, even if the exclusion of Noon’s testimony was properly preserved for
appeal, we would conclude, along with Flick and Nagel’s testimonies, that the trial court
did not abuse its discretion by excluding the evidence under Evidence Code section 352.
“[T]he trial court has wide latitude under state law to exclude evidence offered for
impeachment that is collateral and has no relevance to the action.” (People v. Contreras
(2013) 58 Cal.4th 123, 152.) “A collateral matter has been defined as ‘one that has no
relevancy to prove or disprove any issue in the action.’ ” (People v. Rodriguez (1999) 20
Cal.4th 1, 9.) “A matter collateral to an issue in the action may nevertheless be relevant
to the credibility of a witness who presents evidence on the issue . . . . As with all
relevant evidence, however, the trial court retains discretion to admit or exclude evidence
offered for impeachment.” (Ibid.)
       The testimonies proffered by Noon, Flick, and Nagel, have no direct bearing on
the issues presented at trial. The excluded witnesses were not going to testify about
whether defendant forged and deposited the check. Messick’s overall credibility and the
way he conducted business at the restaurant can be considered relevant; however, it is
merely a collateral matter. Even if collateral matters are relevant, the trial court retains
the discretion to admit or exclude evidence if it finds it would be highly prejudicial or
would be an undue consumption of time.
       Here, the trial court did not err in concluding that information about Messick’s
business dealings with his investors, the troubled financial state of the restaurant, and his
failure to pay rent to his landlord would have been largely irrelevant with little probative
value. The excluded testimonies provided no information about the day-to-day

                                              10
operations of the restaurant, which was vital to the defense’s case. The defense argued
that defendant may not have been the one who altered the check, presented evidence that
multiple restaurant employees had access to the cash drawer where tip checks were held,
and had Barnes, a former Tapestry employee, testify that receiving a $1,000 tip check
would not have been beyond the realm of possibility. Barnes also testified that Messick
was not accurate with his bookkeeping and disputes over tips were not uncommon.
Based on the foregoing, it was not unreasonable for the trial court to conclude that the
excluded witnesses would have unduly diverted the jury’s attention from the issues
actually being contested at trial or that additional testimony about Messick’s imprecise
accounting practices would have been largely cumulative.
       Therefore, the court did not abuse its discretion.
   3. Section 654
       Lastly, defendant argues the trial court erred when it imposed multiple
punishments for her two forgery convictions. She claims the court should have stayed
one of the convictions pursuant to section 654.
       Section 654, subdivision (a), provides in pertinent part: “[a]n act or omission that
is punishable in different ways by different provisions of law shall be punished under the
provision that provides for the longest potential term of imprisonment, but in no case
shall the act or omission be punished under more than one provision.” “Section 654
precludes multiple punishments for a single act or indivisible course of conduct.”
(People v. Hester (2000) 22 Cal.4th 290, 294.) “The purpose of this statute is to prevent
multiple punishment for a single act or omission, even though that act or omission
violates more than one statute and thus constitutes more than one crime.” (People v.
Hutchins (2001) 90 Cal.App.4th 1308, 1312.)
       The People argue that defendant’s section 654 claim is unripe, because the trial
court suspended imposition of sentence and placed her on probation. We agree. When a

                                             11
trial court suspends imposition of sentence and places a defendant on probation, there is
no punishment within the meaning of section 654. (See People v. Wittig (1984) 158
Cal.App.3d 124, 137 [holding that there is no § 654 issue when imposition of sentence is
suspended].)
       Defendant claims that pursuant to People v. Fry (1993) 19 Cal.App.4th 1334, a
trial court has the authority to make a section 654 determination even if it places a
defendant on probation. Defendant misreads Fry. In Fry, the trial court imposed but
suspended execution of a sentence, meaning the court imposed on the defendant two
punishments. (People v. Fry, supra, at p. 1340.) Here, the trial court suspended
imposition of sentence. There is no punishment to be stayed in this case, because no
punishment has been imposed.
       Accordingly, defendant may not raise a section 654 claim unless and until she
violates probation and is sentenced by the court to two punishments for her two forgery
convictions.5
                                       DISPOSITION
       The judgment is affirmed.




       5
          Defendant claims that because analysis of a section 654 issue is a factual exercise
entrusted to a trial court, it “makes far more sense for the judge who heard the trial to
make the fact-based section 654 determination at the time of the trial” since a “different
sentencing judge at a later violation of probation hearing would lack the familiarity with
the trial record necessary for a just result.” This argument lacks merit. Section 654 bars
multiple punishments. Since imposition of sentence was suspended, there is simply no
double punishment issue.


                                             12
                    Premo, J.




WE CONCUR:




    Rushing, P.J.




    Elia, J.
