Opinion
C087847
05-22-2020
THE PEOPLE, Plaintiff and Respondent, v. LEON RAPHAEL BROWN, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 17FE007906)
Defendant Leon Raphael Brown appeals his felony conviction for making a false financial statement. He contends the trial court erred in failing to instruct the jury on the element elevating making a false financial statement to a felony. The People properly concede this point. In supplemental briefing, the parties agree the two one-year sentence enhancements imposed on him pursuant to section 667.5, subdivision (b) (667.5(b) enhancement), must be stricken because of recently adopted legislation. We agree.
Defendant also contends there is not sufficient evidence to support a felony conviction for false financial statements, so the matter cannot be retried under double jeopardy principles, and the trial court erred in imposing fines and fees without conducting an ability to pay hearing. On these points we disagree. We reverse the conviction for felony making false financial statements, strike the prior prison term enhancements, and remand the matter for further proceedings.
FACTS AND PROCEEDINGS
In May 2016, defendant tried to obtain a car from a local car dealership. To secure financing to purchase the car, the dealership required defendant to provide a variety of documents, including a photo identification, proof of insurance, and two pay stubs to prove his income. Defendant intended the dealership to rely on these pay stubs to sell him the car. The pay stubs purported to be issued by Safe Moving. The first pay stub reflected payment for a pay period of April 6 through April 12, 2016 and showed 40 hours of work at an hourly rate. The pay stub contained tax deductions, Medicare, and state disability deductions, 401(k) employer contributions, and deductions for life insurance and medical premiums. The second pay stub appeared to be a photograph reflecting payment for a pay period of May 4 through May 10, 2016. It showed the same hours of work and hourly rate and deductions as the first. However, the business address on the stub was different than the first. In addition, the social security numbers on the credit application and pay stubs were different.
Relying on the information and documentation provided by defendant, including that on the pay stubs, the bank gave a conditional approval for a loan. Also relying largely on the information in the pay stubs, the dealership permitted defendant to leave the dealership with the car.
The next day, the bank informed the dealership that it could not finance defendant's loan as his employment information was inaccurate; specifically, his income was not true and he was not employed by Safe Moving. In an effort to get the car back, the dealership sent an employee to the home address defendant provided and contacted the owner of Safe Moving, Brandon Wilkinson. Wilkinson informed the dealership defendant had not worked at Safe Moving since late 2015. Later, he testified defendant had been employed at Save Moving between August 2015 and January 2016. Wilkinson stated the information on the pay stubs was false. Wilkinson did not pay his workers by check, but rather in cash. Wilkinson also did not withhold taxes or make other deductions, as his workers were independent contractors. On one of the pay stubs, the company address was incorrect. The address shown on that pay stub was not a legitimate address at all. The car was ultimately repossessed in Arizona.
In an uncharged act nine months later, in March 2017, defendant attempted to purchase a car from a different car dealership in Yuba City. He provided that dealership with information on his address and employment to obtain financing for the car. The bank notified the dealership they could not fund the loan, as defendant's employment and residence could not be verified, and the account the payment checks had been drawn on returned the checks as drawn on a frozen account.
Defendant admitted that he had sustained a number of prior convictions. In 2010, he had two felony check fraud convictions and a third felony conviction for a crime of moral turpitude. Two years later, he sustained another felony check fraud conviction, and the following year a felony grand theft conviction. Defendant admitted he had created the pay stubs he provided to the car dealership. He claimed, however, the information correctly reflected his hourly wage and hours worked, but could not explain why he included deductions. As to the social security number discrepancy, he testified he provided a CPN, or "certified public number," on the credit application, so as to allow his social security number to remain private when applying for credit. Defendant used his social security number not a CPN on the credit application submitted to the Yuba City dealership. Defendant claimed the car was not repossessed in Arizona and Wilkinson's testimony that he did not work at Safe Moving was false.
Defendant was charged in an amended information with obtaining property by false pretenses (Pen. Code, § 532, subd. (a) - count One; statutory section references that follow are to the Penal Code, unless otherwise stated) and making a false financial statement (§ 532a, subd. (1) - count Two). The information also alleged he had five prior convictions. (§ 667.5, subd. (b).) A jury found defendant guilty of counts One and Two. In bifurcated proceedings, the trial court found defendant had two prior convictions. The trial court sentenced defendant to an aggregate term of four years in jail, consisting of two years on count One, a concurrent two years on count Two, stayed under section 654, and one year for each of the prior prison term enhancements. The trial court imposed a $300 restitution fine (§ 1202.4, subd. (b)), a $300 restitution fine, suspended unless parole revoked (§ 1202.45), an $80 court operations assessment (§ 1465.8), and a $60 conviction assessment (Gov. Code, § 70373).
DISCUSSION
I
Jury Instructions
Defendant contends the trial court erred in failing to instruct the jury with the element of providing false financial information that elevates the offense to a felony. The People properly concede.
Section 532a, subdivision (1) describes the offense of making a false financial statement as a defendant must "knowingly make or cause to be made . . . , [a ] false statement in writing, with intent that it shall be relied upon, respecting the financial condition, or means or ability to pay, of himself or herself, or any other person, firm or corporation, in whom he or she is interested, or for whom he or she is acting . . . ." (§ 532a, subd. (1).) As described in subdivision (1), the offense is a misdemeanor. The offense is elevated to a felony when a person violates subdivision (1) "by using a fictitious name, social security number, business name, or business address, or by falsely representing himself or herself to be another person or another business" in connection with the false financial statement. (§ 532a, subd. (4); People v. Whitmer (2014) 230 Cal.App.4th 906, 925.) "If the defendant is charged with a felony based on using false identifying information, the court has a sua sponte duty to instruct on this sentencing factor." (CALCRIM No. 2023 Bench Notes.) The trial court did not instruct the jury that to find defendant guilty of a felony offense as charged, "the People must prove that the defendant used a fictitious name, or social security number, or business name, or business address." (CALCRIM No. 2023.)
A trial court must adequately instruct the jury on all elements of the law relevant to the case. (People v. Miller (1999) 69 Cal.App.4th 190, 207.) Here, it is undisputed that the trial court did not instruct the jury on all the elements of the felony offense of making a false financial statement. As such, we must determine if this error was harmless.
A trial court's failure to instruct on all elements of an offense is a constitutional error "subject to harmless error analysis under both the California and United States Constitutions." (People v. Flood (1998) 18 Cal.4th 470, 475.) Under the federal Constitution, the standard is whether the instructional error was harmless beyond a reasonable doubt under Chapman v. State of California (1967) 386 U.S. 18, 24 . (Flood, at p. 504.) In resolving this issue, we consider the entirety of the instructions as a whole and counsel's closing arguments to determine whether "the factual question posed by the omitted instruction necessarily was resolved adversely to the defendant under other, properly given instructions." (Id. at p. 485; People v. Cain (1995) 10 Cal.4th 1, 35-37.)
The court's failure to instruct the jury on whether defendant used a fictitious name, business address, or social security number precluded the jurors from considering the issue altogether. No other instructions or argument put this issue before the jury in such a way that we can conclude they necessarily resolved it against defendant. Accordingly, we cannot say the error was harmless beyond a reasonable doubt.
II
Substantial Evidence
Defendant contends there is not substantial evidence to support a felony conviction on count Two. Specifically, defendant contends the People failed to show that his using a nonexistent address on one of the two pay stubs he created constituted using a fictitious business address.
When considering a challenge to the sufficiency of the evidence " 'we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] We presume in support of the judgment the existence of every fact the trier of fact reasonably could infer from the evidence. [Citation.] If the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citation.] A reviewing court neither reweighs evidence nor reevaluates a witness's credibility.' (People v. Lindberg (2008) 45 Cal.4th 1, 27.)" (People v. Covarrubias (2016) 1 Cal.5th 838, 890.)
The evidence shows defendant created two false pay stubs, each with a different address for the business, Safe Moving. One of the addresses was not Safe Moving's address. In fact, it was not an actual address at all. Defendant created the false pay stubs for purpose of securing financing to purchase a car. In addition, given defendant's many convictions for crimes of moral turpitude, it is reasonable to view his explanations with skepticism. It would be reasonable to infer from this evidence that defendant used a fictitious business address in connection with a false financial statement. This evidence could support a felony conviction under section 532a.
Although not mentioned by the parties, we note there was evidence defendant had also used a false social security number on his credit application. This evidence could also support a felony conviction under section 532a, subdivision (4).
III
Inability to Pay Fines and Fees
Relying on People v. Dueñas (2019) 30 Cal.App.5th 1157, defendant argues the fines and fees imposed must be vacated, as he does not have the ability to pay. We are not persuaded that the analysis used in Dueñas is correct, and our Supreme Court is now poised to resolve this question, having granted review in People v. Kopp (2019) 38 Cal.App.5th 47 (Kopp), review granted Nov. 13, 2019, S257844, which agreed with the court's conclusion in Dueñas that due process requires the trial court to conduct an ability to pay hearing and ascertain a defendant's ability to pay before it imposes court facilities and court operations assessments under section 1465.8 and Government Code section 70373, but not restitution fines under section 1202.4. (Kopp, at pp. 95-96.)
In the meantime, we join those authorities that have concluded the principles of due process do not require determination of a defendant's present ability to pay before imposing the fines and assessments at issue in Dueñas and in this proceeding. (People v. Kingston (2019) 41 Cal.App.5th 272, 279; People v. Hicks (2019) 40 Cal.App.5th 320, 329, review granted Nov. 26, 2019, S258946; People v. Aviles (2019) 39 Cal.App.5th 1055, 1069; People v. Caceres (2019) 39 Cal.App.5th 917, 928.) Having done so, we reject defendant's Dueñas challenge to the above-referenced fines, fees, and assessments.
IV
SB 136
In supplemental briefing, defendant contends the two one-year prior prison term enhancements imposed pursuant to section 667.5, subdivision (b), must be stricken pursuant to the amendment to section 667.5, subdivision (b) by Senate Bill No. 136 effective January 1, 2020 (S.B. 136). The people concede the issue.
Signed by the Governor on October 8, 2019, and effective January 1, 2020, S.B. 136 amends section 667.5, subdivision (b), to eliminate the one-year prior prison term enhancement for most prior convictions. (Sen. Bill No. 136, 2019-2020 Reg. Sess. § 1.) An exception, not applicable here, is made for a qualifying prior conviction on a sexually violent offense, as defined in Welfare and Institutions Code section 6600, subdivision (b).
Because S.B. 136 will become effective before defendant's judgment becomes final, we agree with the parties that the amended law will apply to him retroactively. (See In re Estrada (1965) 63 Cal.2d 740, 744-745 [absent evidence of contrary legislative intent, ameliorative criminal statutes apply to all cases not final when statute takes effect].) Accordingly, both of defendant's 667.5(b) enhancements must be stricken.
DISPOSITION
The judgment of conviction as to Count Two is reversed and the prior prison term enhancements are stricken. The matter is remanded to the trial court for further proceedings.
/s/_________
HULL, Acting P. J. We concur: /s/_________
HOCH, J. /s/_________
KRAUSE, J.