Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. LA061701. Joseph A. Brandolino, Judge.
James Uyeda, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lawrence M. Daniels and Chung L. Mar, Deputy Attorneys General, for Plaintiff and Respondent.
ASHMANN-GERST, J.
By amended information filed June 29, 2009, appellant Gregory Walter Barnes was charged with three felonies. Count 1 alleged first degree burglary and that a person was present in the residence during the commission of the offense, in violation of Penal Code sections 459 and 667.5, subdivision (c). Count 2 alleged that on the same date, appellant possessed a blank and unfinished check with the intent to defraud by completing the check or facilitating the completion of it, in violation of section 475, subdivision (b). Count 3 alleged that appellant unlawfully received, concealed, or withheld stolen property, a GPS device, knowing that it had been stolen, in violation of section 496, subdivision (a).
All further statutory references are to the Penal Code unless otherwise indicated.
A jury convicted appellant of all three counts, including the allegation in count 1, and on July 17, 2009, he was sentenced to four years in prison. He filed a timely notice of appeal, arguing: (1) The forgery conviction is not supported by substantial evidence of intent to defraud any person while in possession of the stolen checks. (2) The trial court erred in sentencing him without ordering a postconviction probation report.
We find no error and affirm the judgment.
FACTUAL BACKGROUND
Olivia Reichardt (Reichardt) testified that on April 4, 2009, at approximately 6:00 p.m., she drove her white car into the parking structure of her apartment building, accompanied by her friend Brian Carter (Carter), and pulled into her tandem parking space behind her red car. As they parked, they saw appellant standing in a neighbor’s empty parking space next to Reichardt’s red car, talking on his cell phone. Next to him on the ground was a black laptop computer case, and nearby was a bicycle.
Reichardt and Carter went to her apartment to fetch her wallet, and returned immediately to the garage, where they saw appellant inside Reichardt’s red car. As the door slammed behind them, appellant jumped out of the car and slammed the door. Reichardt confronted appellant, who stood holding the laptop case that had been on the ground. He denied he had been in the car, but after Reichardt contradicted him and continued to question him, he claimed that his girlfriend, Amy, lived there, and that he was waiting for her. Because Reichardt knew all her neighbors’ names, and as no one named Amy lived in the building, she took the laptop case from appellant’s arm, and asked him to name its contents. When he could not do so, she called the building manager, Jose Aleman (Aleman). Aleman called the police and then ran down to the garage.
When appellant ran out the door of the garage into the street, Aleman gave chase, but lost him at the first intersection. The police arrived within moments. Aleman waived them down, described appellant, and pointed in the direction that appellant had fled. Appellant was taken into custody approximately one mile from Reichardt’s apartment building. Los Angeles Police Officer Daryl Blackhall and his partner Officer Zelaya detained him and searched his person and his backpack. They found a Bank of America checkbook with the name “Timothy Limer” printed on the checks, a car repair bill under the same name, and a receipt from a check cashing company, also in Timothy Limer’s (Limer) name. They also found a garage door remote control and a group of Discover Card checks inscribed with the name, “Mary J. Stanford.” In addition, they found a screwdriver. Officer Blackhall testified that a screwdriver was commonly used as a pry tool in burglaries.
Limer testified that on April 4, 2009, he lived in an apartment complex in North Hollywood. He last drove his car April 2, 2009, when he parked it in his building’s underground garage. He did not give appellant or anyone else permission to enter it. He testified that he believed he locked it, because he normally did when he parked it. The police went to his home at approximately 10:00 p.m. on April 4, 2009, said they had acquired some of his property, and asked to look at his car. When he checked for missing items, he could not find his checkbook or paycheck stubs that he usually kept in the center console, or a GPS system that had been mounted on the dash. He later identified items found on appellant as his property. Limer identified his GPS device as his, because his address had been programmed into it.
The investigating officer, Detective Bryan Fox, testified that numerous other items were found on appellant or in his backpack and booked into evidence. They included a flashlight, a tool kit, appellant’s identification cards, a gift card, miscellaneous papers, and myriad other items.
DISCUSSION
1. Count 2 –– Substantial Evidence of Fraudulent Intent
a. Standard of review
Appellant contends that his conviction of count 2, forgery, was not supported by substantial evidence. Specifically, he argues that the evidence does not support a finding that he possessed the blank checks with intent to defraud.
When a criminal conviction is challenged as lacking evidentiary support, “the court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence-that is, evidence which is reasonable, credible, and of solid value-such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Johnson (1980) 26 Cal.3d 557, 578; see also Jackson v. Virginia (1979) 443 U.S. 307, 319–320.) We must presume in support of the judgment the existence of every fact the jury could reasonably deduce from the evidence. (People v. Kraft (2000) 23 Cal.4th 978, 1053.) “Before a judgment of conviction can be set aside for insufficiency of the evidence to support the trier of fact’s verdict, it must clearly appear that upon no hypothesis whatever is there sufficient evidence to support it.” (People v. Rehmeyer (1993) 19 Cal.App.4th 1758, 1765; see also People v. Zamudio (2008) 43 Cal.4th 327, 357.)
b. Substantial evidence supports the conviction
Appellant was convicted of forgery under section 475, subdivision (b), which provides: “Every person who possesses any blank or unfinished check, note, bank bill, money order, or traveler’s check, whether real or fictitious, with the intention of completing the same or the intention of facilitating the completion of the same, in order to defraud any person, is guilty of forgery.”
Specific intent is rarely susceptible of direct proof, but may be inferred from all the circumstances disclosed by the evidence. (People v. Matson (1974) 13 Cal.3d 35, 41.) In fact, the possession of blank checks that belong to someone else and the circumstances under which they came into the defendant’s possession may be sufficient, without more, to establish the defendant’s intent to defraud. (People v. Ah Sam (1871) 41 Cal. 645, 656.) Moreover, when possession of an instrument with knowledge of its “spurious nature” is established, only slight corroborating evidence of other inculpatory circumstances is necessary to support the jury’s finding of fraudulent intent. (People v. Rosborough (1960) 178 Cal.App.2d 156, 163 [fraudulent intent sufficiently shown by the defendant’s knowing possession of forged instrument and extreme need for money].)
Ample evidence supports the jury’s finding of intent to defraud. Appellant possessed items stolen from Limer’s car, including a checkbook with blank checks, as well as blank checks in the name of another person, not appellant. Furthermore, he was interrupted while rummaging through papers in another person’s car. Reichardt’s observation of appellant in her car and the disturbance of papers found there, as well as appellant’s possession of property that had been stolen from Limer’s car, give rise to a reasonable inference not only that appellant knew the checks were stolen, but also that appellant stole them. Thus, appellant’s theft of Limer’s blank checks coupled with his possession of another person’s blank checks were sufficient to permit a reasonable inference of fraudulent intent. (See People v. Ah Sam, supra, 41 Cal. at p. 656; People v. Rosborough, supra, 178 Cal.App.2d at p. 163.)
On appeal, appellant cites several forgery cases in which the intent to defraud was inferred from circumstances in addition to the possession of forged instruments, and he suggests that because the evidence in this case, other than possession, was not as strong as in the cited cases, fraudulent intent remained unproven. (See People v. Castellanos (2003) 110 Cal.App.4th 1489, 1493–1494 [forged or counterfeit resident alien card with the defendant’s photograph on it]; People v. Smith (1998) 64 Cal.App.4th 1458, 1469 [attempt to use counterfeit credit card and suspicious behavior]; People v. Wilkins (1972) 27 Cal.App.3d 763, 773 [sheets of blank selective service cards, plus instructions on making drivers’ licenses]; People v. Norwood (1972) 26 Cal.App.3d 148, 159–160 [warrants payable to other persons, defendant’s thumbprint on one of the warrants, another person’s driver’s license, and two blank checks].) We disagree. The cases cited by appellant do not enunciate a rule requiring certain circumstances or a certain minimum number of circumstances necessary to prove fraudulent intent.
Appellant further contends that the circumstances in the instant case are insufficient to support a finding of forgery because there was no evidence that he attempted to negotiate any of the checks. Again we disagree. Evidence of attempted negotiation is not required. (People v. Ah Sam, supra, 41 Cal. at p. 656.)
Finally, appellant asserts that because no papers of value were taken, the evidence indicates a hasty “grab and run, ” not a deliberate theft of forgeable instruments. We are not convinced. The theft of Limer’s checkbook gave rise to a reasonable inference that appellant knew that he was stealing checks, and not simply grabbing papers.
In essence, appellant argues that his inferences are more reasonable, and urges us to reject the jury’s findings in favor of them. As we find appellant’s possession of stolen items and other blank checks in another person’s name sufficient to support a reasonable inference of fraudulent intent, we may not reject the inferences apparently drawn by the jury. (People v. Zamudio, supra, 43 Cal.4th at p. 358; People v. Rosborough, supra, 178 Cal.App.2d at p. 164.) We conclude that the evidence was sufficient to support appellant’s conviction of forgery.
2. Sentencing without a Postconviction Probation Report
Appellant contends that the trial court’s failure to order a postconviction probation report before sentencing requires reversal and remand for resentencing. He contends that the report was required by section 1203, subdivision (b)(1), which states in relevant part: “[I]f a person is convicted of a felony and is eligible for probation, before judgment is pronounced, the court shall immediately refer the matter to a probation officer to investigate and report to the court, at a specified time, upon the circumstances surrounding the crime and the prior history and record of the person, which may be considered either in aggravation or mitigation of the punishment.”
By its terms, section 1203, subdivision (b)(1), applies only to convicted felons who are eligible for probation. Because appellant was convicted of first degree burglary while a person was present, he was ineligible for probation absent a discretionary finding by the sentencing court that unusual circumstances and the interests of justice justified granting probation. (§ 462.) Thus, a presentence report was not mandatory in this case. (See People v. Dobbins (2005) 127 Cal.App.4th 176, 180; People v. Llamas (1998) 67 Cal.App.4th 35, 39–40.)
When eligibility is limited but not prohibited, as in this case, the court is required to determine whether appellant was eligible for discretionary probation. (See Cal. Rules of Court, rule 4.413(a).) Although the court did not expressly state its determination on the record, appellant has not suggested that it was required to do so, and we have found no authority imposing such a requirement. “[C]omplaints about the manner in which the trial court exercises its sentencing discretion and articulates its supporting reasons cannot be raised for the first time on appeal.” (People v. Scott (1994) 9 Cal.4th 331, 356.) This waiver doctrine applies equally to the trial court’s failure to state reasons for its sentencing choices. (Id. at p. 353.) Had appellant desired the court to state its determination of ineligibility on the record, appellant should have raised it below. As he did not do so, he has failed to preserve the issue for review.
Moreover, appellant has not shown prejudice. A failure to order a probation report in cases of limited eligibility is reviewed for prejudice under the test of People v. Watson (1956) 46 Cal.2d 818. (People v. Dobbins, supra, 127 Cal.App.4th at p. 182.) Under that test, the omission is harmless unless appellant shows a reasonable probability of a more favorable result had there been an updated probation report. (See People v. Watson, supra, at pp. 834–836.) Appellant has not done so. Although facts indicating an unusual case in which probation may be granted are set forth in California Rules of Court, rule 4.413(c), appellant does not contend that any of the enumerated facts is present in his case.
Further, the preconviction report was recent and detailed. It was prepared in May 2009, and appellant was sentenced July 2, 2009, just two months later. The report listed appellant’s long criminal record and concluded that it showed a history of alcohol or drug abuse. The report also noted that appellant would be ineligible for probation pursuant to section 462, subdivision (a).
Appellant points out that in asking for the low term, defense counsel argued to the court that appellant had an ongoing alcohol problem, and had witnessed a murder. He argues that prejudice has resulted because an updated report might have reflected those mitigating factors. Those facts were, however, before the trial court at sentencing in letters to the court submitted by appellant and his mother. In addition, appellant’s probable alcohol dependency was noted in the probation report.
The trial court heard counsel’s argument and rejected appellant’s request for the low term, not only because of appellant’s extensive criminal history, but also because, when he committed the current crimes, he was on misdemeanor probation for a state conviction and on supervised release in a federal case. Under such circumstances, it is unlikely that the trial court would have found appellant eligible for probation, even with an updated report. (See Cal. Rules of Court, rule 4.414(b)(2); People v. Simpson (1979) 90 Cal.App.3d 919, 922, fn. 1.)
We conclude that the trial court did not err, and that in any event, the absence of an updated report caused appellant no prejudice.
DISPOSITION
The judgment is affirmed.
We concur: BOREN P. J., DOI TODD J.