Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, No. SCD195250 Howard H. Shore, Judge.
HALLER, J.
Mark Groce appeals from a judgment convicting him of forgery and other offenses arising from his forging and cashing two checks from his employer. He asserts error based on (1) the trial court's exclusion of evidence; (2) his multiple convictions under the general forgery statute (Pen. Code, § 470); and (3) the insufficiency of the evidence to support his conviction of attempting to dissuade a witness from "[m]aking any report" of a crime (§ 136.1, subd. (b)(1)).
Subsequent unspecified statutory references are to the Penal Code.
We agree with Groce that he could be convicted of only one section 470 forgery offense for each check that he forged and cashed. We reject his other contentions of reversible error.
We reverse and vacate two of Groce's four section 470 forgery convictions and the two stayed or concurrent sentences imposed thereon (for counts 6 and 10). As so modified, we affirm the judgment in all other respects. We direct the superior court to modify the abstract of judgment to remove the references to counts 6 and 10. We also order the correction of an error in the abstract of judgment concerning the sentence.
FACTUAL AND PROCEDURAL BACKGROUND
Groce worked as a press operator for Quality Instant Printing from November 2004 through July 2005. Groce's employer (Theodore Claudat) testified that Groce was his sole employee and that Groce had a key to the business premises. Claudat paid Groce by check on a weekly basis, and sometimes (at Groce's request) gave him an extra check as an advance for the following week's wages. Claudat kept the checkbook in an unlocked desk drawer at the office; there had been occasions when Groce had seen him retrieve the checkbook from this location.
On Thursday or Friday of the last week of July 2005, Claudat gave Groce two checks: one for $442 for his weekly wages (check no. 5480, dated July 28, 2005), and the other for a requested $500 advance (check no. 5482, dated July 29, 2005). On Monday, August 1, 2005, Claudat arrived at the print shop some time after 9:00 a.m. Groce was not there, which was unusual. Claudat called Groce on his cell phone; there was no answer and Claudat left a message asking if he was coming in that day. Groce never returned his call, and never again reported to work.
That same morning Claudat went online to check his business banking account. He noticed two additional checks had been cashed that he had not written, signed, or otherwise authorized. The two unauthorized checks were numbered 5483 and 5488, and were for $500 and $540, respectively. Groce's checkbook was in the desk drawer, but it was missing two pages of checks (containing three checks per page, i.e., check nos. 5483-5488). Claudat filed a fraud claim with his bank and contacted the police.
Both unauthorized checks were made payable to Groce and were signed with Claudat's name. Check number 5483 was dated July 3 or 30, 2005, and check number 5488 was dated July 28, 2005. Employees at Claudat's bank testified that Groce cashed check number 5483 on July 30 and check number 5488 on August 1. Pursuant to bank policy, Groce showed one or two forms of identification and placed his thumbprint on each check.
Groce was arrested on August 15, 2005, for an unrelated vehicle theft offense after he was stopped while driving a stolen vehicle. On August 20, while the police were still investigating the check forgery case, Groce wrote a letter to Claudat. In the letter Groce stated he "lost control" on Friday due to a "positive test result." He apologized and stated he intended to reimburse Claudat "for the advances." Groce also wrote that Claudat would "probably be asked to provide information concerning [their] work relationship, " and that if a "conventional employment" rather than broker relationship was "established or stated, " Claudat would expose himself to penalties and fines for taxes and workers' compensation. The letter noted that Claudat could "elect to provide no information at all." Claudat testified that he construed this letter as a threat that he should not testify against Groce.
Prior to the incident with the missing checks, Groce had told Claudat he had been tested for HIV.
The August 20 letter stated: "Ted: don't know where to start, only to say I received a positive test result Friday and just lost control or the ability to maintain control. For this, I sincerely apologize. My intent is to reimburse you for the advances. [¶] There is one other matter, that being, you will probably be asked to provide information concerning our work relationship. I can only say that if you classify our working relationship as a conventional employment and not as that of a broker relationship, you will expose yourself and Quality to back tax, penalties, fines from the IRS, FTB and additional fines for worker's comp, unemployment tax for both '04 and '05, or you may elect to provide no information at all. I can only inform you of the end result if a conventional relationship is established or stated. If you question this information, talk with your bookkeeper or tax accountant. Mark."
On December 12, 2005, the police concluded their investigation on the check forgery case and transmitted the matter to the district attorney's office for a decision about the filing of charges. On December 24, 2005 (shortly before Groce's January 3, 2006 preliminary hearing), Groce wrote a second letter to Claudat. In the letter, Groce stated that as he had previously indicated, he had "no problem with reimbursing [Claudat] for the advances of $1500." Groce urged Claudat to "withdraw the complaint, " and stated that if Claudat elected to continue Groce could not prevent the outcome, which included liability for Claudat's "failure to withhold taxes, for both state and federal in addition to worker's comp...." Claudat testified that he interpreted the second letter as a threat that he should not testify and he should "drop the whole thing."
The second (December 24) letter stated: "Ted: I trust your Christmas was well this year. As for mine, there is room for improvement. My correspondence is in regards to the pending matter or should I say 11 matters! In view of the conflict of interest you have, I would urge you to withdraw the complaint, in view of the outcome which would not be limited to you or myself, but would include Tom, your mom and the previous employees you have had. [¶] As indicated in the previous letter, I have no problem with reimbursing you for the advances of $1500. However, if you elect to continue, there's nothing I can do to prevent this. [¶] I ask you to keep in mind that whatever immunity the prosecutor's office has offered you, being (transactional or use), will not prevent other agencies from putting you in the same situation I am in, for your failure to withhold taxes, for both state and federal in addition to worker's comp and a host of assorted taxes, netting you a loss of 20K to 30K with interest and penalties. I suggest you contact an attorney about your pending testimony and about invoking your Fifth Amendment due to a conflict. As stated in the previous correspondence, it's your decision, and the outcome will be of your own making. Mark."
When asked by the prosecutor if he felt physically threatened by the second letter, Claudat answered "Somewhat." Claudat explained: "Well, I knew he was in jail, but I mean, I didn't know... if it was a physical threat or not. But it seemed it."
Testifying on his own behalf, Groce claimed that on or about July 15 or 17, 2005, he felt something "tear" in his abdomen area while he was lifting heavy machinery at the print shop. A few days later when the pain was increasing, Groce told Claudat what had happened and that he needed a medical examination. Claudat told Groce that he did not have workers' compensation insurance, but he agreed to provide Groce with assistance for his medical expenses. Claudat stated he would give Groce an advance for the medical examination, with the understanding that advances would be repaid. Groce testified that on Thursday (July 28) and Friday (July 29), Claudat gave him three separate checks that included advances for medical expenses (i.e., check number 5482 conceded by Claudat to be authorized, plus check numbers 5483 and 5488 claimed by Claudat to be unauthorized).
Groce testified that Claudat did not put the advance money in a single check because Groce had difficulty cashing checks at the bank over $500.
Groce testified he went for a medical examination on Saturday (July 30); he was diagnosed with a hernia; and he was told to discontinue any heavy lifting. Because of the hernia, Groce did not return to work. On cross-examination, Groce acknowledged that he did not inform Claudat that he would not be able to return to work because of the hernia. Regarding the letters he wrote to Claudat, Groce testified that they were not intended as threats but merely to provide information to Claudat.
Concerning the first letter, Groce testified that his reference to a positive test result concerned the hernia; his reference to losing control referred to his experience of being injured without medical coverage; and his apology was for not showing up for work.
Groce also presented testimony from a handwriting expert, who stated that the signatures and the other handwriting on the two checks (except perhaps the payee name "Mark Groce") appeared to match Claudat's handwriting. In rebuttal, a handwriting expert testified on behalf of the prosecution that the signatures and other handwriting did not appear to match Claudat's handwriting.
Jury's Verdict and Sentence
The jury found Groce guilty on numerous charges arising from his forgery of the two unauthorized checks, consisting of: possession of a blank check with intent to defraud (§ 475, subd. (b)); receiving stolen property (§ 496, subd. (a)); two counts of burglary at the bank (§ 459); two counts of forgery by false signature (§ 470, subd. (a)); two counts of forgery by passing a forged check (§ 470, subd. (d)); and two counts of grand theft (§ 487, subd. (a)). Regarding the August 20 that letter Groce wrote to Claudat, the jury convicted Groce of attempting to dissuade a witness from making a report of a crime. (§ 136.1, subd. (b)(1).) Regarding the December 24 letter, the jury convicted him of attempting to dissuade a witness from testifying (§ 136.1, subd. (a)(2)), as a lesser offense of the charged count of attempting to dissuade a witness from testifying by threat of force.
Groce was also convicted of unlawful taking or driving of a vehicle and receiving a stolen vehicle based on his driving of a stolen vehicle on August 15, 2005. For purposes of resolving the issues on appeal, we need not delineate the facts associated with these convictions.
The trial court found true allegations that Groce had suffered four strike prior convictions and one serious felony prior conviction, and that he had served three prior prison terms. Groce was sentenced to 25 years to life for burglary, plus a determinate sentence of eight years (consisting of five years for the serious felony prior and three one-year sentences for three prison priors).
DISCUSSION
I. Exclusion of Evidence Concerning Claudat's Lack of Workers' Compensation Coverage and Failure to Comply with Employment Tax Laws
Groce argues the trial court's exclusion of evidence concerning Claudat's alleged failure to comply with employment-related laws, including his failure to carry workers' compensation insurance, deprived him of his constitutional right to present a defense.
Background
Prior to trial, Groce sought to discover and introduce evidence that Claudat had failed to carry workers' compensation insurance coverage and had failed to comply with employment tax laws. Groce asserted that evidence showing lack of workers' compensation coverage was relevant to support the defense theory that Claudat provided the checks to him because he was injured on the job and Claudat did not have workers' compensation insurance. Further, he contended that evidence of Claudat's noncompliance with the employment-related laws was relevant to show Claudat had a motive to claim he did not sign the checks for Groce, and to explain the letters written by Groce to Claudat.
The trial court ruled that it would not put Claudat "on trial" for any alleged violations of labor or tax laws, and that the question of whether Claudat violated these laws (including whether he had workers' compensation coverage) was irrelevant to the issues at trial. However, the court stated its ruling did not preclude Groce from cross-examining Claudat about whether the checks were written to compensate Groce for his injuries.
At trial, defense counsel asked Claudat on cross-examination if Groce had told him he had injured himself while he was working; if Groce had asked him for assistance with getting medical treatment for his injury; if Claudat discussed with Groce that he did not have workers' compensation insurance; and if Claudat provided the two checks as advances to help pay for the medical conditions. Claudat answered "no" to all these questions. Defense counsel also asked Claudat whether he had workers' compensation insurance for Groce. The court sustained the prosecutor's relevancy objection to this question. Defense counsel additionally asked Claudat whether he had paid "income tax, " and the court again sustained a relevancy objection.
After the jury reached its guilty verdicts, Groce filed a new trial motion based in part on the court's exclusionary rulings. To support the motion, Groce proffered letters from state and federal authorities showing that Claudat did not have workers' compensation coverage for his business and that Claudat had failed to classify Groce as an employee for federal employment tax purposes. The trial court denied the new trial motion, reaffirming its view that its exclusionary rulings had been correct. Alternatively, the court concluded there was no reasonable probability the outcome would have been more favorable to Groce absent the errors he asserted. The court found the trial evidence strongly undermined the credibility of Groce's claim that Claudat gave him the checks. The court cited various facts, including the evidence indicating that after Claudat discovered the missing checks, Groce entirely stopped coming to work and did not call, which was contrary to the normal expectation that an injured employee would call the employer to report that he or she could not come to work.
Analysis
On appeal, Groce reiterates his challenge to the trial court's exclusion of evidence of Claudat's lack of compliance with workers' compensation and employment tax laws. He asserts the evidence was critical to support the defense theory that Claudat provided the checks to Groce for his job-related medical expenses given that there was no workers' compensation coverage. Further, he argues that evidence of Claudat's noncompliance was relevant to impeach Claudat's credibility by providing a motive to fabricate the charges against Groce, and to show that Claudat was untruthful when he testified at trial that he interpreted Groce's second letter as possibly implying a threat of physical violence.
A defendant's constitutional right to a fair trial includes the right to present all relevant evidence that is of significant value to the defense case. (People v. Cunningham (2001) 25 Cal.4th 926, 999.) Relevant evidence means evidence, including evidence relevant to credibility, that has any tendency to prove or disprove any disputed material fact. (People v. Boyette (2002) 29 Cal.4th 381, 428.) We review a trial court's evidentiary rulings for abuse of discretion. (People v. Vieira (2005) 35 Cal.4th 264, 292.) If the court's ruling erroneously excluded some evidence relevant to the defense but did not completely deprive the defendant of an opportunity to present a defense, we apply the state law standard for error, inquiring whether there is a reasonable probability the outcome would have been more favorable to the defendant absent the error. (People v. Boyette, supra, 29 Cal.4th at p. 428; People v. Espinoza (2002) 95 Cal.App.4th 1287, 1317.)
We agree with Groce that evidence of Claudat's failure to provide workers' compensation coverage was relevant to support the defense that Groce did not forge the checks, but rather acquired them from Claudat to pay for his medical expenses. If the jury thought that Claudat had workers' compensation coverage, this would undermine the veracity of Groce's explanation for his possession of the checks. To support the plausibility of his defense, Groce was entitled to affirmatively show the jury that there was, in fact, no workers' compensation coverage.
However, the exclusion of the evidence was not prejudicial. Because Groce testified before the jury to explain his claim that Claudat gave him the checks because there was no workers' compensation coverage, the court's exclusionary ruling did not deprive him of an opportunity to present a defense; accordingly, we apply the state law standard for error. We conclude there is no reasonable probability the outcome would have been more favorable to Groce had the jury been presented with the excluded evidence.
As found by the trial court when denying the new trial motion, the fact that after the checks were missing Groce suddenly stopped coming to work and failed to communicate with his employer created a compelling inference that he stole and forged the checks. Although Groce claimed there were medical reasons for his failure to return to work, the fact that he made no effort to contact his employer to explain his absence strongly undercuts the veracity of this assertion. The implausibility of Groce's medical expense explanation for the checks is also reflected in his failure to refer to this in his letters to Claudat after he was arrested and informed of Claudat's check forgery claims. Groce's silence on this point in the letters created a strong inference that he fabricated the medical expense explanation at a later date.
Further, Groce's claim that Claudat did not have workers' compensation coverage was never affirmatively refuted by the prosecution, and the jury likely concluded that Claudat did not have this coverage. If Claudat had workers' compensation coverage, this would have been an evidentiary item that would have been easy to present to the jury and highly probative to refute Groce's defense; because the prosecutor did not present any such evidence the jury likely inferred that it did not exist. Further, on cross-examination of Claudat, the absence of workers' compensation coverage was suggested to the jury when defense counsel asked Claudat: "You never discussed with Mr. Groce that you did not have workers' compensation insurance?" and Claudat answered, "No." Additionally, the letters from Groce suggesting that Claudat had not complied with employment-related laws (including workers' compensation laws) were consistent with Groce's testimony that there was no workers' compensation coverage.
Given the strength of the evidence against Groce, as well as the absence of any evidence refuting Groce's testimony that Claudat did not have workers' compensation coverage, there is no reasonable probability the outcome would have been more favorable to Groce had the jury been presented with evidence directly showing the absence of workers' compensation coverage.
Apart from the erroneous exclusion of evidence concerning workers' compensation coverage, the trial court did not otherwise abuse its discretion in declining to permit impeachment based on Claudat's failure to comply with employment-related laws. Under Evidence Code section 352, a trial court has broad discretion to balance probative value against the potential for undue prejudice, confusion, and time consumption. (People v. Feaster (2002) 102 Cal.App.4th 1084, 1093-1094; People v. De Larco (1983) 142 Cal.App.3d 294, 305.) The court's discretionary power must yield to the defendant's constitutional right to present all relevant evidence that is of significant probative value to the defense. (People v. Cunningham, supra, 25 Cal.4th at p. 999; People v. De Larco, supra, 142 Cal.App.3d at p. 305.)
It is apparent from the trial court's statement that it would not put Claudat "on trial" for his alleged violations of employment-related laws that the court found the potential for undue prejudice or time consumption outweighed probative value. The trial court could reasonably conclude that Claudat's failure to comply with employment-related laws in his business affairs had minimal probative value on the question of whether he was telling the truth about not giving the checks to Groce. We are not persuaded by Groce's theory that the noncompliance evidence was relevant to show Claudat had a motive to fabricate the charges against him. Although Groce's argument in this regard is not entirely clear, we assume he is suggesting that the evidence was relevant to show Claudat denied writing the checks to cover up his failure to have workers' compensation coverage. However, Claudat contacted the authorities to report the missing checks and funds before Groce raised the assertion that Claudat had no workers' compensation coverage. Because Claudat had already made his report to the police at the time Groce raised the noncompliance issue, Groce's theory that Claudat had a motive to fabricate the charges based on his noncompliance is unavailing.
We also reject Groce's assertion that the trial court erred because the noncompliance evidence was relevant to impeach Claudat given that Claudat testified that Groce's second letter to him could suggest a physical threat. (See fn. 5, ante.) Groce did not proffer this theory of relevance to the trial court; hence the claim has not been preserved for appellate review. (People v. Fauber (1992) 2 Cal.4th 792, 854; People v. Coleman (1970) 8 Cal.App.3d 722, 729-731.)
In any event, there was no prejudice because the jury had sufficient information to evaluate Claudat's credibility in this regard. As stated, there was no evidence refuting Groce's claim about Claudat's noncompliance with the employment-related laws, and the jury likely surmised Claudat was not in compliance. As recognized by Groce, in closing arguments to the jury the prosecutor conceded that in light of the trial testimony it was apparent Groce's letters merely threatened financial consequences, not physical force. Apparently agreeing with the prosecutor, the jury rejected the charged offense (for the second letter) of attempt to dissuade a witness from testifying by threat of force, and instead found Groce guilty of the lesser offense of attempting to dissuade a witness from testifying. Thus, the record shows the jury concluded that Claudat's view that the letters could have represented a physical threat was not established by the evidence. Evidence showing Claudat's actual noncompliance with employment-related laws would not have significantly added to the information the jury already possessed to evaluate Claudat's credibility based on his interpretation of the letters.
There was no reversible error arising from the trial court's exclusionary rulings.
II. Number of Section 470 Forgery Convictions
Groce was convicted of two counts of violating section 470, subdivision (a) for fraudulently signing check numbers 5483 and 5488 (counts 6 and 10), and two counts of violating section 470, subdivision (d) for fraudulently cashing these same checks (counts 7 and 11). He asserts he could properly be convicted of only one section 470 forgery offense for each check that he fraudulently signed and cashed, and hence two of the convictions must be vacated.
As we shall set forth below, section 470, subdivision (d) can be violated when a defendant either "makes" or "passes" (i.e., cashes) a fraudulent document. Here, the information alleged that Groce violated section 470, subdivision (d) by making and passing the checks. However, the jury instructions and verdict referred solely to the passing theory for the section 470, subdivision (d) counts.
To support his position, Groce cites People v. Ryan (2006) 138 Cal.App.4th 360, 366-367, which holds there can be only one section 470 forgery conviction per forged document, regardless of the number of acts committed to accomplish the forgery. (Accord, People v. Martinez (2008) 161 Cal.App.4th 754, 762-763; People v. Kenefick (2009) 170 Cal.App.4th 114, 122-123.) The Attorney General asserts that Ryan was wrongly decided; that the question of multiple convictions under section 470 must turn on a necessarily included offense evaluation; and that section 470, subdivision (a) and section 470, subdivision (d) are not necessarily included offenses. We agree with the rule of one section 470 forgery conviction per forged document set forth in Ryan, and reject the Attorney General's assertion that this issue is governed by a necessarily included offense evaluation.
As originally enacted, section 470 defined the offense of forgery in a single subdivision that delineated-in an "undifferentiated, confusing recitation"-a long list of acts that could constitute the offense. (People v. Ryan, supra, 138 Cal.App.4th at p. 364.) Historically, the courts interpreted the section 470 forgery statute as creating one crime per forged instrument, regardless of the number of acts committed by the defendant to accomplish that forgery. As stated in Ryan, " '[E]ach of those acts [defined in section 470] singly, or all together, if committed with reference to the same instrument, constitute but one offense. Whoever is guilty of either one of these acts is guilty of forgery; but if he is guilty of all of them, in reference to the same instrument, he is not therefore guilty of as many forgeries as there are acts, but of one forgery only. Hence an indictment which charges all of the acts enumerated in the statute, with reference to the same instrument, charges but one offense, and the pleader may therefore at his option charge them all in the same count, or each in separate counts....' " (People v. Ryan, supra, 138 Cal.App.4th at p. 367, quoting People v. Frank (1865) 28 Cal. 507, 513.)
In 1998, section 470 was amended to set forth a series of subdivisions that describe the various acts constituting forgery in a more easily understood fashion. (People v. Ryan, supra, 138 Cal.App.4th at pp. 365-366.) Relevant here, section 470, subdivision (a) (§ 470(a)) states: "Every person who, with the intent to defraud, knowing that he or she has no authority to do so, signs the name of another person or of a fictitious person to any of the items listed in subdivision (d) is guilty of forgery." (Italics added.) Section 470, subdivision (d) (§ 470(d)) states: "Every person who, with the intent to defraud, falsely makes, alters, forges, or counterfeits, utters, publishes, passes or attempts or offers to pass, as true and genuine, any of the following items, knowing the same to be false, altered, forged, or counterfeited, is guilty of forgery...." (Italics added.) The punishment for all the section 470 forgery subdivisions is the same and is defined in a single statute, section 473.
Section 473 states: "Forgery is punishable by imprisonment in the state prison, or by imprisonment in the county jail for not more than one year."
The Ryan court reviewed the legislative history concerning the 1998 amendment, observing that the amendment was described as streamlining and clarifying, but not changing, the law. (People v. Ryan, supra, 138 Cal.App.4th at p. 366.) Ryan concluded the revision was merely designed to make the statute more "user friendly, " and that it did not alter the well-established principle that section 470 defined a single offense of forgery. (Id. at pp. 366-367.) Ryan stated: "In our view, the various subdivisions of section 470 do not set out greater and lesser included offenses, but different ways of committing a single offense, i.e., forgery.... [¶]... [¶] [T]he doing of one or more of the proscribed acts [in section 470], with respect to the same instrument, constitutes but one offense. Thus, subdivisions (a) and (d) of the statute do not describe separate offenses, but merely separate means of committing the same offense.... [¶]... [¶] [T]he commission of any one or more of the acts enumerated in section 470, in reference to the same instrument, constitutes but one offense of forgery...." (People v. Ryan, supra, 138 Cal.App.4th at pp. 364, 367, 371.)
Comparable to the facts here, the defendant in Ryan was convicted of violating section 470(a) for signing the victim's name on a check, and also convicted of violating section 470(d) for using the forged check to make a purchase at a store. (People v. Ryan, supra, 138 Cal.App.4th at pp. 363-364.) The Ryan court reversed the section 470(a) conviction, holding that even though the defendant violates both section 470(a) by fraudulently signing the instrument and section 470(d) by fraudulently passing the same instrument, there could be only one section 470 conviction per forged document. (People v. Ryan, supra, 134 Cal.App.4th at pp. 364-371.)
On somewhat different facts, the courts in People v. Martinez, supra, 161 Cal.App.4th 754 and People v. Kenefick, supra, 170 Cal.App.4th 114, agreed with Ryan that section 470 could support only one forgery conviction per forged document. In Martinez and Kenefick the courts held that a defendant who falsified two signatures on a single document could sustain only one conviction under section 470. (People v. Martinez, supra, 161 Cal.App.4th at pp. 756, 761-763 [only one § 470(d) conviction permissible for fraudulently securing two signatures on a trust deed]; People v. Kenefick, supra, 170 Cal.App.4th at pp. 116, 122-124 [only one § 470(a) conviction permissible for forging two signatures on a promissory note].) The Kenefick court explained: "The rule of one count of forgery per instrument is in accord with the essence of forgery, which is the making or passing a false document. 'The crime of forgery as denounced by statute (Pen. Code, § 470) consists of either of two distinct acts-the fraudulent making of an instrument, such as a false writing thereof, or the uttering of a spurious instrument by passing the same as genuine with knowledge of its falsity [citation]; and although both acts may be alleged in the conjunctive in the same count in the language of the statute, the offense does not require the commission of both-it is complete when one either falsely makes a document without authority or passes such a document with intent to defraud [citations], and the performance of one or both of these acts with reference to the same instrument constitutes but a single offense of forgery. [Citation.]'... [¶]... [¶] [T]here cannot be multiple convictions based on any subdivision of Penal Code section 470 where only one document is involved." (People v. Kenefick, supra, 170 Cal.App.4th at pp. 123-124, brackets in original; accord People v. Martinez, supra, 161 Cal.App.4th at p. 763.)
We agree with the single instrument/single forgery rule set forth in Ryan. This principle has long been recognized in California jurisprudence, and there is nothing to suggest the Legislature intended to alter this rule when it divided section 470 into several subdivisions.
Challenging the holding in Ryan, the Attorney General argues that the issue of multiple convictions must be resolved by evaluating whether section 470(a) and section 470(d) are necessarily included offenses. The Attorney General's position is premised on the principle that under section 954 a defendant may properly sustain multiple convictions based on multiple counts charging "different statements of the same offense, " unless the counts allege necessarily included offenses. (§ 954 ; People v. Reed (2006) 38 Cal.4th 1224, 1226-1227; see People v. Sloan (2007) 42 Cal.4th 110, 120.)
Section 954 states in relevant part: "An accusatory pleading may charge two or more different offenses connected together in their commission, or different statements of the same offense or two or more different offenses of the same class of crimes or offenses, under separate counts.... The prosecution is not required to elect between the different offenses or counts set forth in the accusatory pleading, but the defendant may be convicted of any number of the offenses charged...."
The Ryan court concluded a necessarily included offense analysis was not warranted for multiple section 470 convictions, reasoning that section 954 permitted the prosecution to allege multiple counts of the same offense on alternate legal theories, but it did not permit multiple convictions unless the counts alleged separate crimes. (People v. Ryan, supra, 138 Cal.App.4th at pp. 368-369.) We agree with Ryan that a necessarily included offense evaluation is not appropriate when the multiple counts allege different theories for the same crime, as opposed to different crimes defined by the Legislature for the same act or course of criminal conduct.
As stated in People v. Sloan, supra, 42 Cal.4th at page 121, the Legislature has "made clear [in section 954] that a person may be convicted of more than one crime arising out of the same act or course of [criminal] conduct...." (Italics added.) When the Legislature has defined more than one criminal offense that applies to the same act or course of conduct, this constitutes "different statements of the same offense" that may support multiple convictions under section 954 (unless the offenses are necessarily included). (See, e.g., People v. Sloan, supra, 42 Cal.4th at p. 119 [three convictions supported by fact that Legislature has separately defined three offenses applicable to defendant's conduct: i.e., willful infliction of corporal injury on a spouse causing a traumatic condition, assault by means of force likely to produce great bodily injury, and battery with serious bodily injury].) In contrast, when the Legislature has defined a single criminal offense that may be committed in a variety of ways, the defendant may sustain only one conviction of that offense even if the different theories are alleged in multiple counts. (See, e.g., People v. Coyle (2009) 178 Cal.App.4th 209, 211, 217 [three counts of murder based on statutes defining murder during burglary, murder during robbery, and second degree murder could support only one conviction for single offense of murder; see also People v. Muhammad (2007) 157 Cal.App.4th 484, 493-494 [four counts of stalking based on single statute defining stalking, and then delineating punishment premised on defendant's criminal history could support only one conviction for single offense of stalking]; People v. Ramon (2009) 175 Cal.App.4th 843, 853-858 [three counts of illegal firearm possession based on single statute defining illegal firearm possession, and then delineating punishment premised on circumstances of offense or offender, could support only one conviction for single offense of illegal firearm possession].)
We agree with Ryan that subdivisions (a) and (d) of section 470 do not define separate crimes, but rather alternate theories by which the same crime of forgery can be committed. (People v. Ryan, supra, 138 Cal.App.4th at pp. 368-369.) Groce can sustain only one section 470 forgery conviction for each check irrespective of whether subdivision (a) and (d) would otherwise be necessarily included offenses.
The Attorney General also suggests that two section 470 convictions are warranted for each forged check because Groce did not engage in a single act, but rather committed two distinct acts with respect to each check. That is, he falsely signed the check (thereby completely the § 470(a) offense), and then he engaged in the separate act of cashing the check (in violation of § 470(d)). As described, notwithstanding the commission of two acts, the courts have rejected the notion that two section 470 forgeries are committed when the defendant falsely signs the document, as well as falsely passes the same document. (People v. Ryan, supra, 138 Cal.App.4th at pp. 366-367; see People v. Kenefick, supra, 170 Cal.App.4th at p. 123; People v. Martinez, supra, 161 Cal.App.4th at pp. 762-763; People v. Frank, supra, 28 Cal. at pp. 513-514; In re Horowitz (1949) 33 Cal.2d 534, 542; People v. Neder (1971) 16 Cal.App.3d 846, 853, fn. 2; cf. People v. Sutherland (1993) 17 Cal.App.4th 602, 618 ["forging and uttering are different legal theories" for the "generic statutory offense of forgery"].) Absent a contrary directive from the Legislature, we follow the single instrument/single forgery conviction principle with respect to section 470 violations. (See People v. Martinez, supra, 161 Cal.App.4th at p. 762 [Legislative intent is relevant factor when determining propriety of multiple convictions].)
We conclude Groce can sustain only one section 470 forgery conviction for each check that he fraudulently signed and cashed. Accordingly, we reverse and vacate his convictions on counts 6 and 10 (§ 470(a) violations), and let stand his convictions on counts 7 and 11 (§ 470(d) violations). (People v. Ryan, supra, 138 Cal.App.4th at p. 371.) Because the sentences on counts 6 and 10 were ordered stayed or to run concurrently, there is no need to remand for resentencing.
III. Sufficiency of Evidence to Support Conviction of Attempt to Dissuade a Witness from Reporting a Crime
Groce argues that the evidence does not support his conviction of attempt to dissuade a witness from making a report of a crime. (§ 136.1, subd. (b)(1), count 15.) This count was based on the August 20 letter written by Groce to Claudat. Groce notes that when he wrote this letter, Claudat had already reported the crime to the police. Thus, he maintains that although he could have been convicted of attempting to dissuade Claudat from testifying had he been charged with this offense for the August 20 letter, it was impossible for him to properly sustain a conviction for attempting to dissuade Claudat from reporting the crime. As we shall explain, we reject this contention. The record supports that when Groce wrote the August 20 letter to Claudat, the authorities were still conducting an investigation of the matter and Groce was attempting to convince Claudat to refrain from making any further report against him during the ongoing investigation.
For the December 24 letter, Groce was charged and convicted of attempting to dissuade a witness from testifying. (§ 136.1, subd. (a)(2).) Groce does not challenge this conviction.
Section 136.1 prohibits attempts to dissuade a witness from testifying (subd. (a)(2)); making a report of any crime (subd. (b)(1)); causing a complaint or similar charge to be brought and assisting in the prosecution thereof (subd. (b)(2)); and causing the arrest of any person (subd. (b)(3)). (See People v. Hallock (1989) 208 Cal.App.3d 595, 606.) Relevant here, section 136.1, subdivision (b)(1), imposes criminal culpability on "every person who attempts to prevent or dissuade another person who has been the victim of a crime or who is witness to a crime from... [¶] [m]aking any report of that victimization" to the authorities. (Italics added.)
Section 136.1 states in relevant part: "(a)... [A]ny person who does any of the following is guilty of a public offense and shall be punished by imprisonment in a county jail for not more than one year or in the state prison[.] [¶].... (2) Knowingly and maliciously attempts to prevent or dissuade any witness or victim from attending or giving testimony at any trial, proceeding, or inquiry authorized by law.... [¶]... [¶] (b)... [E]very person who attempts to prevent or dissuade another person who has been the victim of a crime or who is a witness to a crime from doing any of the following is guilty of a public offense and shall be punished by imprisonment in a county jail for not more than one year or in the state prison: [¶] (1) Making any report of that victimization to any peace officer or state or local law enforcement officer or probation or parole or correctional officer or prosecuting agency or to any judge. [¶] (2) Causing a complaint, indictment, information, probation or parole violation to be sought and prosecuted, and assisting in the prosecution thereof. [¶] (3) Arresting or causing or seeking the arrest of any person in connection with that victimization."
A report means "notifying the authorities that the crime has occurred and providing information about the offense." (People v. Fernandez (2003)106 Cal.App.4th 943, 948.) During the course of a criminal investigation, a witness may make a report on more than one occasion to the authorities. A witness may provide an initial crime report, and then, as the investigation continues, the witness might provide (or decline to provide) more information to the authorities that can support or detract from the viability of the initial report. The Legislature's use of the broad phrase "[m]aking any report" reflects an intent to encompass efforts to dissuade a witness from making the initial report to the authorities, as well as efforts to dissuade a witness from making subsequent reports to the authorities during the investigation.
The record shows that when Groce wrote the August 20 letter, the authorities had not yet finished their investigation of the case. The officer who initially responded to Claudat's call to the police testified that he interviewed Claudat on August 1, 2005, and during the interview Claudat identified Groce as a possible suspect. The officer prepared a report and submitted it for a more in-depth investigation. The detective assigned to the case testified that he received the case on August 3, 2005, but his investigation had to wait until the unauthorized checks had cleared the bank's clearinghouse and been returned to Claudat. Groce testified that when he was arrested on August 15, 2005 (for his unrelated conduct of driving a stolen vehicle), a police officer told him there had been a complaint against him concerning check forgery, but formal charges had not been filed. Consistent with this, the detective assigned to the forgery case testified that he obtained the cleared checks from the victim on or about November 30, 2005, and on December 12, 2005, he submitted the case to the district attorney's office for a decision about the filing of charges.
Claudat told the officer that Groce had a key to the business and access to the checks, and he had not shown up for work that morning which was very unusual.
Thus, when Groce wrote the first letter to Claudat on August 20, the case was pending with the police department and it had not yet been transmitted to the district attorney's office for a decision about the filing of charges. Although at the time of the first letter Claudat had already reported the missing checks and funds to the police, the police investigation remained active and Claudat could decide not to cooperate with further requests for information from the police. The August 20 letter includes a statement by Groce that Claudat could "elect to provide no information at all." In closing arguments to the jury concerning the letters, the prosecutor asserted that Groce was saying to Claudat: "Don't tell the cops anything, or if you do, tell the cops it's an unconventional relationship that we have. Don't testify." (Italics added.)
Drawing all inferences in favor of the judgment (People v. Moon (2005) 37 Cal.4th 1, 22), the jury could reasonably conclude that when Groce wrote the August 20 letter, he understood the police were still investigating the case and he was trying to convince Claudat to decline to provide any further information to the police that could support the filing of formal charges. This constitutes culpability under section 136.1, subdivision (b)(1) for attempting to dissuade a witness from making a report.
To support his claim that he cannot properly be convicted of violating the reporting provision set forth in section 136.1, subdivision (b)(1), Groce cites People v. Fernandez, supra, 106 Cal.App.4th at page 950, where the court posited: "[S]ection 136.1, subdivision (b) target[s] pre-arrest efforts to prevent a crime from being reported to the authorities, rather than courtroom testimony." In Fernandez, the court concluded that the defendant's efforts to dissuade a witness from giving truthful testimony at the preliminary hearing was not punishable under section 136.1, subdivision (b)(1), but rather was punishable under section 137, subdivision (c). (Fernandez, supra, at pp. 947-950.) The Fernandez court reasoned that section 136.1, subdivision (b)(1) did not address efforts to influence a witness's testimony after a criminal proceeding has been commenced; this conduct was instead covered by section 137 which addresses efforts to change the contents of a witness's testimony. (Fernandez, supra, at pp. 948-950.)
Section 137, subdivision (c) states: "Every person who knowingly induces another person to give false testimony or withhold true testimony not privileged by law or to give false material information pertaining to the crime to, or to withhold true material information pertaining to a crime from, a law enforcement official is guilty of a misdemeanor."
Here, although Groce had been arrested for unrelated conduct when he sent the August 20 letter, no criminal proceeding concerning the check forgeries had commenced. As stated, because the authorities were still investigating the check forgery report submitted by Claudat, the jury could reasonably find that Groce was trying to convince Claudat to refrain from any further reports that could lead to criminal prosecution. As recognized in Fernandez, section 136.1 encompasses conduct that attempts to "prevent a witness... from taking steps that are predicate to the prosecution's filing of an action." (People v. Fernandez, supra, 106 Cal.App.4th at p. 951.) The record supports culpability under section 136.1, subdivision (b)(1) for Groce's attempts to dissuade Claudat from making additional reports of the crime during the investigative stage of the case that could lead to the filing of charges.
Groce also notes that Claudat testified that he interpreted the August 20 letter as a threat that he should not testify against Groce. To establish the section 136.1 offense of attempting to dissuade a witness, it is not necessary that the threat "actually deter or reach the witness because the offense is committed when the defendant makes the attempt to dissuade the witness." (People v. Foster (2007) 155 Cal.App.4th 331, 335; § 136.1, subd. (d).) Notwithstanding Claudat's testimony, the record supports that Groce intended to dissuade Claudat from maintaining his claim of forgery during the continuing investigation by the authorities. Claudat's characterization of the August 20 letter as seeking to dissuade him from testifying does not defeat the evidentiary support for a finding that Groce was trying to dissuade him from making a report concerning the crime to the authorities.
The record supports the guilty verdict under section 136.1, subdivision (b)(1) for attempting to dissuade a witness from making a report of a crime.
IV. Error in the Abstract of Judgment
At sentencing the trial court imposed an indeterminate term of 25 years to life on the burglary count (count 5), plus a determinate term of eight years (five years for a serious felony prior conviction and three one-year terms for three prison priors). In briefing on appeal, the parties agree this was the sentence imposed by the court.
However, the abstract of judgment incorrectly refers to a total determinate term of 10 years rather than eight years (i.e., based on an incorrect addition of two years for count 9 burglary, which should have been marked as a concurrent sentence). The abstract of judgment should be corrected to specify a determinate term of eight years.
DISPOSITION
The two convictions and sentences for forgery by false signature (§ 470, subd. (a)) on counts 6 and 10 are reversed and vacated. As so modified, the judgment is affirmed in all other respects.
The superior court is directed to (1) modify the abstract of judgment to remove the references to the convictions and stayed/concurrent sentences on counts 6 and 10, and (2) correct the abstract of judgment to reflect a determinate term of eight years. The superior court shall transmit a copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.
WE CONCUR: McCONNELL, P. J.McINTYRE, J.