Filed 8/24/15 P. v. Dahkle CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

 Plaintiff and Respondent,

v.

DANA ANN DAHLKE,

 Defendant and Appellant.

 G049372

 (Super. Ct. No. 12WF3497)

 O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Ronald 

E. Klar, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.

John Derrick, under appointment by the Court of Appeal, for Defendant 

and Appellant.

Kamala D. Harris, Attorney General, Julie L. Garland, Senior Assistant 

Attorney General, Charles C. Ragland and Laura Baggett, Deputy Attorneys General, for 

Plaintiff and Respondent.

* * *
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In October 2013, a jury found defendant guilty of one count of second 

degree commercial burglary (Pen. Code, §§ 459-460, subd. (b); count 1) and one count of 

petty theft (Pen. Code, §§ 484, subd. (a), 488; count 2). The court sentenced defendant to 

the low term of 16 months in county jail on count 1, and stayed the sentence on count 2

pursuant to Penal Code section 654. The court found defendant had one prison prior 

(Pen. Code, § 667, subd. (b)) and thus imposed one additional year of jail, for a total 

sentence of two years four months.

This is a shoplifting case in which defendant indisputably paid for certain 

items. The People contend defendant did not pay for a vest she had put on and was 

wearing when she paid for other items at the register. On appeal, defendant contends the 

court prejudicially erred by admitting two pieces of evidence. First, the court permitted a 

loss prevention officer to testify that she reviewed the receipt for the items defendant paid 

for, and the receipt did not list the allegedly stolen vest. The receipt itself was not 

produced at trial. Second, defendant contends the court erred by permitting a loss 

prevention officer from a different store to testify to an earlier theft under Evidence Code 

section 1101, subdivision (b), to demonstrate defendant intended to steal in this case. 

As to the receipt, we agree it was error to admit the testimony, but we 

conclude the error was harmless as there was ample evidence demonstrating defendant 

stole the vest in question. As to the evidence of the prior theft, we conclude the evidence 

was admissible under Evidence Code section 1101, subdivision (b), and there was no 

abuse of discretion in admitting the evidence under Evidence Code section 352.

FACTS

Nancy Daza is a loss prevention detective for T.J. Maxx, who, on 

November 30, 2012, was covering a store in Fountain Valley. The store had closedcircuit television monitoring. At approximately 1:30 p.m. Daza began observing the 
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defendant through the cameras. She observed defendant for approximately 40 minutes. 

At some point during that period, defendant removed a black vest from a rack and put it 

on. The price of the vest was approximately $60. Daza also saw defendant place the 

attached security sensor in the armpit of the vest and tuck the tags inside the vest.

After collecting several pieces of merchandise, defendant entered the fitting 

room. Approximately 15 minutes later, defendant left the fitting room, returned some 

items to the fitting room attendant, and kept two pairs of jeans with her. She was still 

wearing the vest she had put on earlier. Defendant then picked up merchandise from the 

beauty department and put one pair of jeans back on the rack. She subsequently made 

her way to the cash register, still wearing the vest. Daza testified that, through video 

surveillance, she observed defendant pay for a pair of jeans and two beauty items. The 

police officer, who viewed the same video, noted that defendant handed the cashier “a 

number of small items.” Defendant did not take the vest off and hand it to the cashier.

Once defendant’s transaction was complete and she started toward the exit 

doors, Daza stopped observing defendant through the video surveillance and walked to

the front of the store. Daza saw defendant remove the vest she had been wearing and 

place it in her T.J. Maxx bag. Defendant then left the shopping cart with the bags of 

merchandise in the store and walked out. She returned two minutes later, grabbed the 

bags from her shopping cart, and left the store. At trial Daza initially testified she 

confronted defendant and defendant “pushed through [her] and started running towards a 

parked car she had outside the store.” On cross-examination, however, she back peddled 

and agreed defendant exited first, followed by Daza, and there was never any physical 

contact between the two. Daza followed defendant out of the store where defendant had 

a vehicle parked by the front of the store. Daza approached defendant as she was 

walking out and identified herself as “TJMaxx loss prevention,” at which point defendant 

ran towards the vehicle. The engine of the vehicle was already running. As defendant 

was running, she dropped a box containing a single piece of jewelry, which Daza 
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recovered. As defendant got into the vehicle, she did not say anything to Daza, though 

she did look at Daza, at which point Daza asked her to return the vest. Defendant closed 

the door and drove away. At that time it was raining mildly. After Daza went back into 

the store, she phoned the Fountain Valley Police Department to report what happened.

On cross-examination Daza acknowledged that she did not know what 

items the cashier was ringing up when defendant was in line paying for her merchandise. 

Daza also acknowledged that to scan an item the cashier only needs the ticket. Daza 

conceded that she prepared a report saying defendant paid for “a couple” pairs of jeans, in 

contrast to her testimony at trial that defendant paid for only one pair of jeans.

With regard to the receipt for defendant’s purchase, Daza testified that she 

did not have a copy because she gave it to the police. The police officer, however, 

testified he never received the receipt (and, indeed, never learned the name of or spoke to 

the cashier). Daza initially acknowledged that she could not say exactly how many items 

were on the receipt, though she later testified there were three items on it. Daza also 

acknowledged that the video surveillance system did not have audio so she did not know 

what instructions defendant may have given to the cashier, nor did Daza mention in her 

report that she had spoken to the cashier (though at trial she testified that she had).

On redirect, the prosecutor asked the following question: “And you said 

you reviewed the receipt of the transaction? [¶] A. Yes, ma’am. [¶] Q. Did you see 

anything on that receipt indicating that she had paid for the [vest]? [¶] [Defense 

attorney:] I’m going to object. Hearsay. [¶] The Court: It’s overruled. That’s not 

hearsay. [¶] The witness: no.”

Anthony Kuisley is an organized retail crime investigator for Marmaxx, the 

parent company of T.J. Maxx (and Marshalls). Kuisley was at the Fountain Valley T.J.

Maxx on the day of the alleged theft. Kuisley assisted Daza in investigating the potential 

theft by defendant. Kuisley was also observing defendant through video surveillance.
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Kuisley recovered the pair of jeans that defendant had discarded on a rack. 

Kuisley discovered the jeans had a security device consistent with the device that would 

have been on the vest, and that it was placed on a section of the jeans that was abnormal 

(he did not recall clearly at the time of trial, but he thought it was on the inseam, low on 

the hip). The jeans had their own sensor on as well. The abnormal security device was 

not fully closed onto the jeans, so it was easy to take off manually. Kuisley continued 

assisting Daza until defendant drove away, at which point Kuisley took a picture of the 

vehicle’s license plate with his cell phone. Kuisley testified that defendant drove away at 

an “above normal rate of speed,” though he heard no screeching tires. After defendant 

left, Kuisley was able to retrieve defendant’s address from a prior transaction, which he 

gave to the police. Kuisley does not recall if he ever pulled the receipt from defendant’s

transaction.

The investigating police officer was given the security sensor recovered 

from the discarded jeans. The sensor has a warning that if it is tampered with, it would 

explode with ink, which did not appear to have occurred with the sensor in question. 

Daza explained that the ink explosion occurs when manual force is used to remove the 

sensor. Though she noted that the ink explosion does not always occur even when using 

manual force. Finally, Daza acknowledged that the sensors do not have any identifying 

information indicating what item they came from, and that the pins on the security 

devices sometimes fall out because they were installed improperly.

The final witness in the case was Andrew Pearson, a loss prevention 

supervisor at a Kohl’s store, who was called to testify about a prior act under Evidence 

Code section 1101, subdivision (b). In January 2011 Pearson observed defendant enter 

Kohl’s through a closed circuit television system. She entered with two or three children 

and already had an empty (or at least nearly empty) Kohl’s bag with her. Pearson 

observed defendant pick out some clothing, approximately six or seven items. She then 

entered the fitting room area with her cart. She came out approximately 10 minutes later 
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and Pearson observed that defendant’s Kohl’s bag was noticeably fuller. After leaving

the fitting room, defendant discarded a pair of jeans on a nearby clothing display.

Pearson’s partner then left the observation room and retrieved the jeans defendant had 

left behind. Pearson went through the pockets of the jeans and found approximately three 

security sensors. The security sensors had frayed clothing around the pins that go 

through the clothing; the pins were also bent.

Defendant continued shopping and eventually made her way to the exit 

without paying for any merchandise. She took her children and left the store, leaving the 

cart with the Kohl’s bag in it near the front entrance. One of the children with defendant 

then reentered the store and retrieved the Kohl’s bag and left the store. Pearson then left

the store and saw defendant and the child entering a vehicle. Pearson identified himself 

as loss prevention, at which point defendant closed the door of her car and drove away.

Prior to trial, the People moved in limine to admit Pearson’s testimony as 

relevant to defendant’s intent. The court granted the motion over defendant’s objection, 

noting the incidents shared similarities, including “going into a fitting room, security tag 

issues, and exiting in the way that it was done.” “As to [Evidence Code section] 352, I 

did a balancing test, and it’s not overly prejudicial. It’s another theft, but it has many 

similarities, and intent is a requirement. So I don’t think it’s more prejudicial than 

probative. It certainly isn’t that old.” The court confirmed its ruling on a renewed 

objection midtrial, after the evidence concerning this case but prior to the introduction of 

the prior act evidence, stating, “I think it’s even more probative, because that case, the 

prior, has sensor issues, issues about sensors being moved or disturbed in some way, and 

it’s a theft involving some similarities, like I talked about earlier, and I think it’s more 

probative than prejudicial.”
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DISCUSSION

Defendant’s first contention is that Daza’s testimony that she reviewed the 

receipt and it did not indicate a vest was purchased was inadmissible hearsay. We agree

the testimony was inadmissible.

Defendant’s contention implicates two distinct evidentiary issues. The first 

is whether the receipt itself would be admissible over a hearsay objection. Assuming it is 

admissible, the second issue is whether Daza’s testimony is admissible secondary 

evidence of the content of the receipt. (Evid. Code, § 1523.)

With regard to the first issue, the People contend the receipt is not hearsay 

because it was machine generated, and since a machine is not a person, information 

derived from the machine is not hearsay. In support, the People cite People v. Hawkins

(2002) 98 Cal.App.4th 1428, where the issue was whether information automatically 

generated by a computer about when certain files were accessed (metadata) constitutes 

hearsay. (Id. at pp. 1446-1447.) In concluding it is not, the court explained, “‘The 

printout of the results of the computer’s internal operations is not hearsay evidence. It 

does not represent the output of statements placed into the computer by out of court 

declarants. Nor can we say that this printout itself is a ‘statement’ constituting hearsay 

evidence. The underlying rationale of the hearsay rule is that such statements are made

without an oath and their truth cannot be tested by cross-examination. [Citations.] Of 

concern is the possibility that a witness may consciously or unconsciously misrepresent 

what the declarant told him or that the declarant may consciously or unconsciously 

misrepresent a fact or occurrence. [Citation.] With a machine, however, there is no 

possibility of a conscious misrepresentation, and the possibility of inaccurate or 

misleading data only materializes if the machine is not functioning properly.’ [Citations.] 

‘The role that the hearsay rule plays in limiting the fact finder’s consideration to reliable 

evidence received from witnesses who are under oath and subject to cross-examination 
8

has no application to the computer generated record in this case. Instead, the 

admissibility of the computer tracing system record should be measured by the reliability 

of the system, itself, relative to its proper functioning and accuracy.’” (Id. at p. 1449.)

Courts have generally held, however, that receipts are hearsay. (Gorman v. 

Tassajara Development Corp. (2009) 178 Cal.App.4th 44, 87 [“‘Since invoices, bills, and 

receipts for repairs are hearsay, they are inadmissible independently to prove that liability 

for the repairs was incurred, that payment was made, or that the charges were 

reasonable’”] citing Pacific Gas & E. Co. v. G. W. Thomas Drayage etc. Co. (1968) 69 

Cal.2d 33, 42-43; People v. Crabtree (2009) 169 Cal.App.4th 1293, 1312 [“The sales 

receipt memorialized certain out-of-court statements whose relevance, if any, was 

grounded in the truth of the matters asserted and, thus, they are hearsay”].) On the other 

hand, the court in People v. Nazary (2010) 191 Cal.App.4th 727 recognized that certain 

portions of a receipt may be automatically generated by a computer and, therefore, not 

hearsay. (Id. at p. 754 [“The printed portions of the [pay island cashiers’] receipts, 

including the date, time, and totals, were not statements inputted by a person, but were 

generated by the [pay island cashiers] machine”].) 

The question, therefore, is whether the information from the receipt 

introduced at trial was information automatically generated by a computer or reflective of 

human input. And the answer is clear: the computer did not automatically determine 

which items were to appear on the receipt. That was the result of the cashier’s input. 

Accordingly, that aspect of the receipt was hearsay. 

To the extent the People desired to introduce evidence of the receipt to 

show what items were not purchased, it was necessary to lay a business records 

foundation pursuant to Evidence Code section 1272, which states: “Evidence of the 

absence from the records of a business of a record of an asserted act, condition, or event 

is not made inadmissible by the hearsay rule when offered to prove the nonoccurrence of 

the act or event, or the nonexistence of the condition, if: [¶] (a) It was the regular course 
9

of that business to make records of all such acts, conditions, or events at or near the time 

of the act, condition, or event and to preserve them; and [¶] (b) The sources of 

information and method and time of preparation of the records of that business were such 

that the absence of a record of an act, condition, or event is a trustworthy indication that 

the act or event did not occur or the condition did not exist.” No such foundation was 

laid at trial.

The People contend defendant forfeited any argument regarding the lack of 

a business record foundation. However, the People cite no authority for the proposition 

that, having objected on hearsay grounds, a defendant must make an additional objection 

to the lack of a business record foundation, even though the People made no attempt to 

lay such a foundation. Ultimately, “The proponent of hearsay evidence bears the burden 

of showing it falls within a hearsay exception.” (Gatton v. A.P. Green Services, Inc.

(1998) 64 Cal.App.4th 688, 693.) Defendant did not forfeit the issue.

The People also contend that because this was a receipt from a retail store, 

no additional foundation was needed. However, in People v. Crabtree, supra, 169 

Cal.App.4th at page 1313, the court rejected a “‘common knowledge’ presumption for 

store sales receipts” for purposes of laying a business record foundation. Given the 

relative ease with which the People could have laid a foundation, we see no reason to 

adopt such a presumption.

Finally, the People argue that testimony of the absence of a record is not 

hearsay at all. The People cite two cases. 

The first is People v. Torres (1962) 201 Cal.App.2d 290. Torres, however, 

did not decide whether the absence of a record is hearsay. It simply decided what 

inferences can properly be drawn from the absence of a record. (Id. at p. 295.) Indeed, in 

that case, the defendant had forfeited any hearsay objection by stipulating to the 

admissibility of the records at trial. (Ibid.) 
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Second, the People cite People v. Trombino (1967) 253 Cal.App.2d 643

(Trombino). There, the defendant was accused of depositing a check drawn from a fake 

account. A bank manager testified that he searched the bank records and found no 

account under the name of the alleged signer of the check. (Id. at p. 645.) The court 

concluded this was not hearsay, stating, “Testimony that a witness did not find a 

particular business entry is not hearsay; the witness speaks of his own knowledge when 

he testifies that he looked for a record and did not find it. The issue is one of materiality. 

The testimony that a witness did not find a record is meaningless unless (a) there is 

evidence that such a record would have existed if the transaction involved had taken 

place; (b) that the witness had looked for the record in the place it would have been had it 

existed; and (c) that the witness was competent to identify the record had it been where 

he looked.” (Id. at p. 646, fn. omitted.)

Trombino is distinguishable on the ground that, here, Daza did not search 

through T.J. Maxx’s records and find that there simply was no applicable record. Instead, 

she looked at a particular record and testified to its content (or lack thereof). If Evidence 

Code section 1272 does not apply to the situation before us, then it is hard to imagine 

where it would ever apply. We conclude it does apply and that the People were required 

to lay a business record foundation. Because we conclude the testimony regarding the 

receipt was inadmissible under the hearsay rule, we need not reach the issue of whether 

Daza’s testimony was admissible secondary evidence of the receipt.

1

 

 

1

However, we make two observations. First, as applied to the facts here, 

Evidence Code section 1523 would permit oral testimony of the content of the receipt 

only if the original had been lost or destroyed without fraudulent intent (id., subd. (b)) or 

if the receipt is not in the People’s possession and is not reasonably procurable by the 

People (id., subd. (c)(1)). There was no evidence in the record concerning why T.J.

Maxx could not simply print another copy of the receipt from its computer database. 

Because this foundation was not laid on the record before us, Daza’s testimony about the 

content of the receipt was subject to being excluded. On the other hand, the second 

observation is that defendant did not object under the secondary evidence rule at trial. 

Perhaps the People could have laid a foundation had an objection been raised. 
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Although we conclude that testimony about the receipt was inadmissible, 

the error was harmless. The applicable standard is whether “‘after an examination of the 

entire cause, including the evidence,’ [the court] is of the ‘opinion’ that it is reasonably 

probable that a result more favorable to the appealing party would have been reached in 

the absence of the error.” (People v. Watson (1956) 46 Cal.2d 818, 836.) 

Given the substantial evidence demonstrating defendant’s guilt, we find no 

reasonable probability of a different result in the absence of the error. Defendant took the 

vest into the changing room along with a pair of jeans, emerged and put the jeans on a 

rack. In the jeans was a second, tampered security sensor consistent with the sensor that 

would have been on the vest. Defendant had no satisfactory explanation for the tampered 

security sensor in the jeans. While defendant paid for certain items, there was no visual 

indication that she paid for the vest, and immediately after paying for her items, she took 

the vest off, placed it in the bag, and then went to retrieve her vehicle. While this odd 

procedure, standing alone, could be explained by the fact that it was raining, her 

subsequent behavior after being confronted by the loss prevention officer cannot. Not 

only did defendant make eye contact with the officer and then flee at an above normal 

rate of speed, but she dropped jewelry in her haste to get away and made no effort to 

come back for it. These are not the actions of the innocently accused. Moreover, while 

the prosecutor did mention the testimony about the receipt in closing argument, it was 

mentioned only briefly, and the prosecutor did not rely heavily on it in the overall context 

of closing argument. Accordingly, there was no reasonable probability of a different 

result absent the error.

Defendant’s second contention is that Pearson’s testimony regarding the 

prior theft was inadmissible under Evidence Code section 352 because its prejudicial 

effect outweighed its probative value. Under Evidence Code section 1101, subdivision 

 

Defendant’s failure to object forfeited the issue for purposes of this appeal.
12

(a), “evidence of a person’s character or a trait of his or her character (whether in the 

form of an opinion, evidence of reputation, or evidence of specific instances of his or her 

conduct) is inadmissible when offered to prove his or her conduct on a specified 

occasion.” However, under subdivision (b), “Nothing in this section prohibits the 

admission of evidence that a person committed a crime, civil wrong, or other act when 

relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, 

knowledge, identity, absence of mistake or accident, or whether a defendant in a 

prosecution for an unlawful sexual act or attempted unlawful sexual act did not 

reasonably and in good faith believe that the victim consented) other than his or her 

disposition to commit such an act.” The People proffered Pearson’s testimony to prove 

defendant intended to steal the vest.

Defendant concedes Pearson’s testimony was, at minimum, admissible 

under Evidence Code section 1101, subdivision (b), on the issue of intent, but that its 

probative value was minimal relative to its prejudice. (Evid. Code, § 352.) Defendant 

contends it was prejudicial because it involved using a child to perpetrate the crime, 

which is likely to evoke an emotional response, and because its primary impact was to 

improperly prove defendant has a propensity to commit theft. 

“Our conclusion that [Evidence Code] section 1101 does not require 

exclusion of the evidence of defendant’s uncharged misconduct . . . does not end our 

inquiry. Evidence of uncharged offenses ‘is so prejudicial that its admission requires 

extremely careful analysis. [Citations.]’ [Citations.] ‘Since “substantial prejudicial effect 

[is] inherent in [such] evidence,” uncharged offenses are admissible only if they have 

substantial probative value.’” (People v. Ewoldt (1994) 7 Cal.4th 380, 404.) “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.” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.) 

“A trial court’s exercise of discretion under [Evidence Code] section 352 will be upheld 
13

on appeal unless the court abused its discretion, that is, unless it exercised its discretion in 

an arbitrary, capricious, or patently absurd manner.” (People v. Thomas (2012) 53 

Cal.4th 771, 806.)

We conclude the court did not abuse its discretion. Intent was undoubtedly 

a material fact in this case: specific intent to steal was an element of petty theft 

(CALCRIM No. 1800), and entrance into the store with the intent to commit petty theft 

was an element of the burglary charge (CALCRIM No. 1700). Further, the prior act 

evidence was highly probative on the issue of intent. The marked similarities between 

defendant’s prior actions and her actions in the current case leave little doubt that she 

intended to steal the vest in this case. In particular, both cases involved entering a

changing room, removing security sensors, depositing those sensors in a pair of jeans, 

leaving the jeans on the rack, taking the merchandise to the front of the store, leaving the 

store to pull her car to the front of the store, reentering the store to retrieve the 

merchandise, and speeding away when confronted by a loss prevention officer. These 

similarities leave little doubt about defendant’s intent.

We recognize that in cases such as these, the prejudicial effect of prior act 

evidence outweighs its probative value where “the evidence would be merely cumulative 

regarding an issue that was not reasonably subject to dispute.” (People v. Ewoldt, supra,

7 Cal.4th 380, 406.) In our view, however, the evidence was not cumulative, and intent 

was reasonably subject to dispute. The evidence of defendant’s intent was entirely 

circumstantial, and the inferences to be drawn from those circumstances were hotly 

disputed. Moreover, at the point in the trial when the prior act evidence was admitted, 

the prosecutor had no way of knowing whether defendant would argue that defendant’s 

failure to pay for the vest was an accident. The prior act evidence would strongly rebut 

such a defense, and, indeed, may have contributed to the fact that defendant did not 

ultimately advance an accident defense. Given these circumstances, we cannot conclude 
14

the trial court’s ruling was arbitrary, capricious, or patently absurd. Accordingly, the 

court did not err by admitting the prior act evidence.

DISPOSITION

The judgment is affirmed.

IKOLA, J.

WE CONCUR:

O’LEARY, P. J.

FYBEL, J.