Opinion
A129597
01-23-2012
THE PEOPLE, Plaintiff and Respondent, v. MARK DICKOVER, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Solano County Super. Ct. No. VCR196878)
Mark Dickover was convicted by a jury of one count of second degree burglary and one count of forgery for attempting to pass an invalid check. The court found enhancements alleged on each count to be true because Dickover served prior terms in state prison within five years of these most recent crimes. Dickover appeals, claiming that the prosecution failed to prove the check was forged or that he was aware that the check was forged when he presented it for payment. He also argues the prosecutor committed misconduct during closing argument by arguing facts not in evidence. We conclude that the evidence was sufficient to prove both that the check was forged and that Dickover was aware of it when he presented the check. We also conclude that the alleged prosecutorial misconduct does not warrant reversal. Thus, we affirm.
PROCEDURAL HISTORY
Dickover was charged in an information with one count of second degree burglary pursuant to Penal Code section 459, and one count of forgery pursuant to Penal Code section 470, subdivision (d) for passing a fraudulent check. Each count was enhanced pursuant to Penal Code section 667.5, subdivision (b) due to his service of terms in prison for four different offenses within five years of the charged crimes. A jury convicted him on both counts. The enhancements were found true by the court after Dickover waived his right to have their validity determined by the jury.
Imposition of sentence was suspended, and Dickover was placed on three years formal probation. He was ordered to serve 163 days in county jail with 73 days credit. He timely appealed.
FACTUAL BACKGROUND
The afternoon of February 29, 2008, Ignacio Magallanes, the owner of La Tapatia Market in Vallejo, was working at the counter when Dickover approached him to cash a check. Magallanes obtained the check from Dickover, and made a copy of Dickover's driver's license. The check was payable to Dickover in the amount of $986.21. Magallanes had never seen Dickover before, and when he first looked at the check he thought there were some things wrong with it.
The check was issued on December 25, 2007, and yet Dickover was presenting it for payment in February. There was a spelling error in the preprinted portion of the check where the check described the issuer's business location as "Berkaley," California. The check number in the upper right hand corner did not match the check number along the bottom as it should have. Magallanes told Dickover that the check did not look good, and that he was going to call the police. Dickover responded by telling Magallanes that he was not aware of any problem, and he should go ahead and make the call. But before doing so, Magallanes called Mid-Peninsula Bank, the issuing bank on the front of the check.
Magallanes told the person who answered the phone at Mid-Peninsula Bank that he had a check purportedly written by account holder Pacific Castings. He provided the account number and was told that the account number he gave did not belong to Pacific Castings. Magallanes again told Dickover the check was no good and called the police. Dickover was courteous and respectful, and agreed to wait for the police. He waited out in front of the store for about a half hour then left without the check. The police arrived about an hour after Dickover left.
Police corroborated the address on Dickover's driver's license with his address as written on the check and a vehicle license number provided by Magallanes that was on a car parked out in front of the store during the incident.
DISCUSSION
Dickover argues that there is insufficient evidence to support his conviction for forgery. He says the prosecution never proved that the check he attempted to cash was fraudulent because the witness who testified to its invalidity was from Wells Fargo Bank and there was no proof that Wells Fargo had any responsibility for a check drawn on Mid-Peninsula Bank. Dickover also argues there was no evidence that he attempted to pass the check with the requisite knowledge that it was invalid. He further says that improper opinion testimony was used to establish the check was fraudulent, and, finally, that the prosecutor committed misconduct in closing argument by mischaracterizing the evidence. None of the alleged errors warrant reversal.
A. Evidence the Check Was Invalid
The People sought to prove the check was invalid, in part, through the testimony of Christina Everhart, a service manager with Wells Fargo Bank. At the beginning of trial, the court conducted a hearing pursuant to Evidence Code section 402 in order to determine the preliminary facts relevant to her testimony. The court concluded that Everhart could testify to the contents of certain Wells Fargo business records. She was permitted to testify that the checking account listed on the check was received by Wells Fargo from another bank, the period of time the checking account was open, and that it belonged to a business other than the one listed on the check. We review the trial court's decision to admit evidence under a business records exception to hearsay for an abuse of discretion. (Jazayeri v. Mao (2009) 174 Cal.App.4th 301, 319.)
When Everhart testified before the jury, she said that she researched bank records for an account belonging to a company called Online Bindery Inc. located in Richmond, California. The account was originally opened with Greater Bay Bank, which was ultimately acquired by Wells Fargo, and the account thereby became a Wells Fargo account. The account was open from May 2005 until January 2009. The check Dickover attempted to cash was drawn on the Online Bindery account number and dated December 25, 2007, when the account was open. The check could not have been issued by Pacific Castings because Wells Fargo would not issue duplicate account numbers to different entities.
This evidence was sufficient to establish that the check Dickover presented to Magallanes was not valid. Although Everhart did not prepare each of the records containing the account information, she was sufficiently knowledgeable of the bank's systems and records to identify them and testify regarding their contents. She identified the relevant document to be a bank ledger from Wells Fargo that was prepared contemporaneously to summarize and depict activity in the Online Bindery account. She was familiar with the procedures followed to record the various transactions, the format of the records, and the length of time they were routinely retained by the bank. She was thus qualified to authenticate the records and testify to their contents. (Jazayeri v. Mao, supra, 174 Cal.App.4th at p. 322.) The trial court did not abuse its discretion when it allowed Everhart to testify that bank records showed the check Dickover attempted to pass was not genuine because it was drawn on an account that was owned by Online Bindery, Inc., not Pacific Castings.
B. Evidence of Dickover's Intent
When we review a judgment for sufficiency of the evidence supporting the verdict, we presume every fact that the jury could reasonably deduce from the evidence and view the whole record in the light most favorable to the judgment. (People v. Davis (1995) 10 Cal.4th 463, 509.) Although the evidence of Dickover's intent was scant, under the standard of review we must employ there is enough to affirm the forgery conviction.
In light of our affirmance of the forgery conviction, we need not address Dickover's argument that there was insufficient evidence to support his conviction for burglary. Forgery was the predicate theft alleged in the information to support the burglary charge, and Dickover makes no challenge to the burglary conviction apart from his challenge to the evidence supporting his intent to commit forgery. (Pen. Code, § 459.)
The attorney general argues that the appearance of the check Dickover tried to pass was so deficient that the jury could conclude just from its appearance that he must have known it was forged. We disagree. Without more, the evidence of his intent would be insufficient. Possession of a forged instrument is not enough to prove intent without some corroboration. (People v. Swope (1969) 269 Cal.App.2d 140, 143.) But there is slightly more evidence here, and it was enough to permit the jury to conclude Dickover knew the check was not valid when he presented it for payment. The jury could reasonably infer from Dickover's passive acceptance of Magallanes's refusal to cash the check, and his departure from the market without asking for it back, that he knew it was a forged check. The forgery conviction is supported by sufficient evidence.
C. Everhart's Opinion Testimony.
Dickover also claims the court erred when Everhart was allowed to offer her opinion that the check appeared to be fraudulent. He says that since Everhart was never qualified as an expert witness, her testimony was improper lay opinion that went to the ultimate issue before the jury. No matter, because even if Everhart was improperly allowed to express her opinion on this issue, any error was harmless.
Even without Everhart's opinion, there was ample evidence to prove that Dickover attempted to pass a fraudulent check. Magallanes testified about all the characteristics of the check that led him to suspect it was not genuine. He told the jury that he could not verify its authenticity with Mid-Peninsula Bank, and Everhart permissibly testified that the check was not written on an account belonging to the alleged maker, Pacific Castings. In context, even if Everhart should not have been allowed to state her opinion that the check was fraudulent, there is no reasonable probability that her response to this single question affected the verdict. (People v. Melton (1988) 44 Cal.3d 713, 745 [analyzing admission of lay opinion testimony under the harmless error analysis articulated in People v. Watson (1956) 46 Cal.2d 818].)
D. Prosecutorial Misconduct
Dickover argues that the district attorney committed two acts of misconduct in closing argument that compel reversal by commenting on facts not in evidence. The district attorney argued that Pacific Castings did not exist and that Dickover did not have a checking account. We conclude that the district attorney's statements about Pacific Castings were a fair comment on Dickover's failure to produce evidence, and that the challenge to statements about whether he had a checking account were not properly preserved for appeal.
Just before closing arguments, the district attorney advised the trial court that he intended to comment on the defense's failure to provide a witness from Pacific Castings to support his argument that no such company existed. The court ruled that it was fair comment for the district attorney to argue that Pacific Castings did not exist based upon the appearance of the check and that if Pacific Castings were a real business, the defense would have called a witness from the company. That is exactly what the district attorney did, and, when he first brought up the topic in argument, the court also admonished the jury that its recollection of the evidence prevailed over the argument of counsel. The district attorney later commented upon the lack of any witness from Pacific Casting, and asked the jury to draw the inference that the company did not exist.
It is permissible for the prosecution to comment upon the defense's failure to call a logically anticipated witness to controvert part of the prosecution's case. (People v. Ford (1988) 45 Cal.3d 431, 446; People v. Mitcham (1992) 1 Cal.4th 1027, 1051.) The district attorney's argument that Pacific Castings was not a real company asked the jury to draw the inference from the defense's failure to produce any witness to controvert the prosecution's evidence that the check presented for payment was false. This was permissible argument.
The challenge to the district attorney's claim that Dickover did not have a checking account was not properly preserved for appeal. In order to preserve a claim of prosecutorial misconduct, a defendant must make a timely objection, state the basis for objection and, unless an admonition would not cure the harm, ask the court to admonish the jury. (People v. Adanandus (2007) 157 Cal.App.4th 496, 512.) Here, counsel objected when the district attorney argued that Dickover "doesn't have enough money to have a checking account." While the court sustained the objection and the prosecutor dropped that line of argument, nothing in the record reflects a defense request that the court admonish the jury. We have no reason to conclude such an admonition would have been ineffective. The claim that the district attorney committed misconduct by arguing Dickover was too destitute to have a checking account was not preserved for appeal.
Moreover, even if it were, the remarks were not prejudicial. A prosecutor violates California law when arguing to a jury by resorting to deceptive or reprehensible methods of persuasion. (People v. Adanandus, supra, 157 Cal.App.4th at p. 512.) We review the prosecutor's remarks in context to determine whether there is a reasonable likelihood that the jury misconstrued or misapplied them. (Id. at p. 513.) In context, the district attorney's statement that Dickover did not have a checking account does not leave us with a concern over the fairness of his trial. Following defense counsel's objection, the district attorney immediately retreated from his factual claim, and instead argued that Dickover never attempted to deposit the check into a checking account because a bank would have placed a hold upon it and he would not have received the funds. The import of the argument is that Dickover sought to cash the check at a check cashing facility rather than a bank to increase the likelihood it would be honored. Whether or not he had a checking account was not a material component of the prosecution argument.
DISPOSITION
The judgment is affirmed.
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Siggins, J.
We concur: _____________
McGuiness, P.J.
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Jenkins, J.