Opinion
D071948
09-19-2018
THE PEOPLE, Plaintiff and Respondent, v. PEDRO RODRIGUEZ, Defendant and Appellant.
Jill Kent, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, and Brendon W. Marshall, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCN340334-2) APPEAL from a judgment of the Superior Court of San Diego County, Blaine K. Bowman, Judge. Affirmed in part; reversed in part and remanded for resentencing. Jill Kent, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, and Brendon W. Marshall, Deputy Attorneys General, for Plaintiff and Respondent.
In a prior criminal proceeding, a jury convicted Pedro Rodriguez of committing sexual acts with a minor, Rebecca. The trial court in that case issued a protective order prohibiting Rodriguez from contacting Rebecca, yet Rodriguez nevertheless arranged for phones to be sent to Rebecca, called those phones hundreds of times, and asked Rebecca to retract statements that she had made to law enforcement regarding her relationship with Rodriguez. Rodriguez also convinced his brother to file an unemployment benefits application containing false information on his behalf. Based on this conduct, all of which Rodriguez undertook while he was incarcerated, the jury in this case convicted Rodriguez of conspiracy to obstruct justice, conspiracy to disobey a court order, making false statements to obtain unemployment benefits, conspiracy to make false statements to obtain unemployment benefits, aiding and abetting forgery, and disobeying a court order.
Rodriguez appeals the judgment of conviction and raises the following claims of error: (1) the trial court violated his rights to due process, equal protection, and a fair trial by denying his request to dress out in civilian clothes during voir dire; (2) the trial court misstated to the jury panel that Rodriguez had not made a dress-out request and erred by declining to grant a mistrial based on that misstatement; (3) Rodriguez authorized his brother to sign up for unemployment benefits on his behalf, thereby precluding the forgery conviction; (4) insufficient evidence supports the separate convictions for conspiracy to obstruct justice and conspiracy to disobey a court order because both charges arose from the same agreement; (5) the trial court made an arithmetical error while calculating the total sentence for the misdemeanor convictions; (6) the trial court improperly "resentenced" Rodriguez outside his presence by amending the felony minutes nunc pro tunc to state that Rodriguez would serve two years in state prison followed by 16 years in county jail, rather than serving 18 years in state prison; and (7) the cumulative errors warrant reversal of the entire judgment of conviction.
The People concede that the separate conspiracy convictions arising out of the same agreement cannot both stand. We agree and, therefore, reverse the multiple convictions for conspiracy to obstruct justice and conspiracy to disobey a court order, with instructions that the trial court determine which one of those convictions to dismiss. The People also concede that the trial court miscalculated or misspoke when sentencing Rodriguez for the misdemeanor convictions. We agree and, as a result, vacate the sentence and remand for resentencing. Finally, we reverse the forgery conviction because the prosecution failed to prove an essential element of the offense—namely, that Rodriguez's brother lacked authority to apply for unemployment benefits on Rodriguez's behalf. In all other respects, we conclude that the trial court did not err or, alternatively, that any error was harmless. Accordingly, we affirm the remainder of the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
A. Offenses Involving Rebecca (Counts 1-2, 6-37)
In February 2014, Rodriguez began a sexual relationship with Rebecca when he was 41 years old and she was 16 years old. Rebecca's parents learned about the relationship, which resulted in Rodriguez being arrested and prosecuted for committing sexual acts with a minor.
In Case No. SCN333477, a jury found Rodriguez guilty of 11 counts of unlawful sexual conduct with a minor, one count of burglary, and one count of attempting to dissuade a witness from reporting a crime. In a prior decision, we affirmed these convictions, which are not at issue here. (People v. Rodriguez (2018) 25 Cal.App.5th 1100.)
At Rodriguez's arraignment, the trial court orally ordered Rodriguez not to have any contact with Rebecca or her parents, either personally or through any third party, "with the exception of the attorney of record." The court further ordered Rodriguez not to attempt or actually prevent or dissuade any victim or witness from attending a hearing, testifying, or making a report to a law enforcement agent or other person. The minute order from the arraignment states that Rodriguez was served at the arraignment with a written order memorializing the court's oral ruling. However, Rodriguez testified that he did not receive the written order itself until two weeks later.
On multiple occasions in the week following his arraignment, Rodriguez called his brother, Juan Rodriguez (Juan), from jail and asked Juan to convey messages to Rebecca. Rodriguez asked Juan to tell Rebecca, inter alia, that Rodriguez "need[ed] [her] help," she should recant statements that she had made to the police regarding her relationship with Rodriguez, and she should "plead the 5th." Rodriguez also convinced Juan to mail a phone to Rebecca, which she received. Several months later, Rodriguez arranged for a second phone to be mailed to Rebecca.
While he was in jail, Rodriguez called the phones he had sent to Rebecca as frequently as three times per day and more than 400 times in total. In the proceedings below, the prosecution played audio recordings of 32 phone calls between Rodriguez and Rebecca, which were recorded on the jail telephone monitoring system. Rebecca testified that she recognized all 32 of the recordings as calls between herself and Rodriguez. These calls form the basis for Counts 6 through 37 of the amended information in this case.
Rebecca testified that over the course of multiple phone and text conversations, Rodriguez asked her to recant her statements to law enforcement regarding her relationship with Rodriguez. Rebecca testified that Rodriguez also e-mailed her and asked her to sign a document that purported to recant her statements to law enforcement. Further, Rebecca testified that Rodriguez asked her to lie throughout Case No. SCN333477, including at the preliminary hearing and at trial. B. Offenses Involving Unemployment Insurance Benefits (Counts 3-5)
While Rodriguez was incarcerated, he also asked Juan to file an unemployment benefits application on his behalf. Rodriguez told Juan to indicate that Rodriguez was unemployed due to a "lack of work." Juan testified that he completed and submitted the application, as requested. After the application was approved, Juan testified that he signed continuing claim forms for Rodriguez, in which he indicated that Rodriguez was looking for work.
Approximately five months after Juan filed for unemployment benefits on Rodriguez's behalf, the Employment Development Department (EDD), which administers California's unemployment insurance program, received a report indicating that Rodriguez was incarcerated and therefore ineligible to receive unemployment benefits. Thereafter, EDD determined that Rodriguez was not entitled to unemployment benefits because his application contained false statements and he was not able and available to work. EDD sent Rodriguez a notice of overpayment and a fraud referral followed. C. The Charges
By amended information, the prosecution charged Rodriguez with one count of conspiracy to obstruct justice in violation of Penal Code section 182, subdivision (a)(5) (count 1), one count of conspiracy to disobey a court order in violation of section 182, subdivision (a)(1) (count 2), one count of making false statements to obtain unemployment benefits in violation of Unemployment Insurance Code section 2101, subdivision (a) (count 3), one count of conspiracy to make false statements to obtain unemployment benefits in violation of section 182, subdivision (a)(1) (count 4), one count of forgery of seal or handwriting in violation of section 470, subdivision (b) under an aiding and abetting theory (count 5), and 32 misdemeanor counts of disobeying a court order in violation of section 166, subdivision (a)(4) (counts 6-37). D. Voir Dire
All further statutory references are to the Penal Code, unless otherwise noted.
On the morning of the first day of voir dire, Rodriguez, representing himself in propria persona, orally requested permission from the trial court to dress out, i.e., to wear civilian clothing. The court asked whether Rodriguez had already filed a request to dress out and he responded that he had filed a dress-out motion in the court's "ancillary services" department. The court stated that Rodriguez's motion "ha[d] to be filed in this department," not "ancillary services." Then, although the jury panel had not yet entered the courtroom, the court stated that "a jury [was] waiting" and denied Rodriguez's request as "not timely."
Approximately four to five hours later, the jury panel entered the courtroom for the first time. During Rodriguez's voir dire, Rodriguez asked prospective jurors whether his "blue jumpsuit" would affect their opinions about him. One prospective juror responded that he likely would be "somewhat biased" by Rodriguez's attire. Immediately after, the court stated as follows:
[T]he clothes he happens to be wearing [do] not reflect—can't be considered by you in determining whether or not he's guilty . . . . I mean, it's not something that can be considered. I know that's not what you were saying. I just want to be clear. It doesn't matter what clothes he's wearing. What matters most is . . . the evidence and whether the People have proved their case beyond a reasonable doubt.During further questioning, a second prospective juror stated that he felt "very similarly" to the first prospective juror and asked: "I don't understand—are you not allowed to go out and get a cheap suit and put it on?"
During the prosecution's voir dire, the prosecutor asked the jury panel whether it would be biased in Rodriguez's favor because he was proceeding in propria persona. In response, a third prospective juror stated that "it does sort of paint a picture of lopsidedness" and it was "weird to look at somebody in a jail suit and try to not consider them one way or the other." Shortly after, a fourth prospective juror stated that he believed that one should "get dressed up" and expressed doubt that Rodriguez "knows the seriousness of the charges" against him.
At that time, the trial court made a second statement to the jury panel regarding Rodriguez's attire, as follows:
A defendant . . . has an option of requesting a dress-out order for the Court to sign so he can wear different clothes, all right. I just want you to know that was not done in this case. It's not the fault of anyone's but Mr. Rodriguez. That's his decision, and I have to respect that decision. He did not file a request to be dressed out, okay. So that's his decision. It's not [the prosecution's] decision. I was never asked. But that's his choice.Ultimately, all four prospective jurors who had commented on Rodriguez's attire were excused from the jury panel.
But I do want to point out that I want your verdicts to be the result of consideration of facts that you hear from the witness stand and the law that I give you rather than what he's wearing, because I think that's—in fairness that's what is deserved, okay. So I don't want you to decide the case based on the fact that he's wearing the clothes that he's wearing. It is his choice. Okay. Just want to make that clear.
Outside the presence of the jury, Rodriguez moved for a mistrial, asserting that he had requested a dress-out order and the trial court's statement to the contrary was incorrect. The court denied the motion, reiterating its earlier ruling that Rodriguez had not filed a timely dress-out request in the correct courtroom.
At the end of the first day of voir dire, Rodriguez renewed his oral request to dress out and, this time, the trial court granted the request. The next morning, Rodriguez appeared in court dressed out in civilian clothes. E. Trial and Sentencing
At trial, Rodriguez admitted that the trial court in Case No. SCN333477 had ordered him not to contact Rebecca, he had arranged for phones to be sent to Rebecca, and many of the jailhouse audio recordings played at trial accurately reflected conversations between himself and Rebecca. Rodriguez further admitted that he had asked Juan to apply for unemployment benefits on his behalf, was not looking for work, and would not have been available to work had he been presented with such an opportunity.
After the close of evidence, the jury found Rodriguez guilty on all charges and the court concluded that the sentences for all 37 counts should run consecutively. The court initially sentenced Rodriguez to state prison for a term of 18 years, calculated as follows: eight months on count 1 (one-third the middle term), eight months on count 3 (one-third the middle term), eight months on count 5 (one-third the middle term), and 16 years total for counts 6 through 37, which the trial court purported to reach by sentencing Rodriguez to 180 days per count. The day after sentencing, however, the court issued amended felony minutes, which changed Rodriguez's sentence to two years in state prison for the felony convictions, followed by 16 years in county jail for the misdemeanor convictions.
The trial court imposed a sentence of three years each for counts 2 and 4, but stayed the sentences pursuant to section 654.
Rodriguez appeals.
DISCUSSION
A. The Dress-Out Request
On appeal, Rodriguez contends that the trial court erred by refusing his timely request to dress out on the first day of voir dire, in violation of his constitutional rights to due process, equal protection, and a fair trial. Specifically, Rodriguez contends that his dress-out request was timely because he filed a motion and made an oral request to dress out before the jury panel entered the courtroom. Relying on People v. Taylor (1982) 31 Cal.3d 488 (Taylor), Rodriguez claims that we must reverse the judgment of conviction in its entirety due to the trial court's error. The People concede that the trial court erred by denying the dress-out request, but claim that the error was harmless.
In Taylor, our Supreme Court held "that [a court's] refusal to allow [a] defendant to wear civilian clothing at trial constitute[s] a violation of due process and equal protection" under the federal Constitution. (Taylor, supra, 31 Cal.3d at p. 493.) A defendant may waive his right to be tried in civilian clothing "by a failure to timely object or otherwise bring the matter to the court's attention." (Id. at p. 495.) However, an objection is timely so long as it is raised "before the jury enter[s] the courtroom for voir dire." (People v. Pena (1992) 7 Cal.App.4th 1294, 1305; id. at p. 1304 [dress-out request made "just before prospective jurors were brought into the courtroom" was timely]; People v. Hetrick (1981) 125 Cal.App.3d 849, 854 (Hetrick) [dress-out request made one hour before voir dire was timely].) Considering the foregoing authorities, we accept the People's concession that the court erred by denying Rodriguez's dress-out request.
However, a constitutional violation resulting from an erroneous denial of a dress-out request does not require automatic reversal of a judgment of conviction. Rather, we apply the harmless error standard set forth in Chapman v. California (1967) 386 U.S. 18 (Chapman). (Taylor, supra, 31 Cal.3d at p. 499.) Under that standard, "before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt." (Chapman, at p. 24.)
In this case, we have no trouble concluding that the trial court's error was harmless beyond a reasonable doubt because Rodriguez conceded virtually all of the charges against him. For example, Rodriguez conceded that the court overseeing Case No. SCN333477 ordered him not to contact Rebecca, yet he arranged for phones to be sent to her and spoke with her several times. Rodriguez conceded that many of the audio recordings played at trial reflected conversations between himself and Rebecca. Rodriguez also admitted that he asked Juan to apply for unemployment benefits on his behalf, but was not looking for work and was not able and available to work. Further, the other trial evidence, which included testimony from Rebecca and Juan, corroborated these admissions.
Rodriguez testified that he did not receive a written order memorializing the trial court's protective order ruling until two weeks after his arraignment in Case No. SCN333477, during which time he had arranged for one of the phones to be sent to Rebecca. However, there is no dispute that the court in that case read its protective order aloud to Rodriguez and that he was aware of the contents of the order at his arraignment.
Thus, this case is distinguishable from Taylor, on which Rodriguez relies. In Taylor, the defendant and other witnesses presented contradictory testimony regarding the circumstances surrounding a homicide, such that "the jury was squarely confronted with the problem of credibility of witnesses." (Taylor, supra, 31 Cal.3d at p. 500.) "In such a situation, where one of the witnesses, the defendant, was clad in jail clothing during his testimony and throughout the trial, [the Taylor Court could not] say that the subliminal impact on the jury was so insignificant that the error was harmless beyond a reasonable doubt." (Id. at p. 501; see Hetrick, supra, 125 Cal.App.3d at p. 855 [denial of dress-out request not harmless because "witness credibility was crucial in [the] matter."].) Because Rodriguez conceded virtually all of the charges against him, Rodriguez's credibility simply was not a crucial issue, as it was for the defendant in Taylor.
Rodriguez does not dispute that he made these concessions, yet claims that his credibility was still important because he did not admit all of the elements necessary to prove counts 3 (making false statements to obtain unemployment benefits), 4 (conspiracy to make false statements to obtain unemployment benefits), and 5 (forgery). We disagree. Although Rodriguez disputed the falsity of some statements on his unemployment benefits application (e.g., his last employer), he admitted the falsity of other statements (e.g., that he was looking for work and was able and available to work), which independently supported his convictions for counts 3 and 4. Further, Rodriguez's defense to count 5—specifically, his claim that he could not be convicted of forgery because he authorized Juan to act on his behalf (see post at § C)—was a legal defense that did not turn on witness credibility. (People v. Meredith (2009) 174 Cal.App.4th 1257, 1263 (Meredith) [order denying dress-out request was harmless because the case "turned on the legal meaning of the undisputed evidence"].) Therefore, Rodriguez's credibility was not an important issue for any of the offenses of which he was convicted.
Our conclusion that the error was harmless is further bolstered by the fact that the trial court repeatedly instructed the jury panel not to consider Rodriguez's jail attire. The court stated, for example, that Rodriguez's clothes could not "be considered . . . in determining whether or not he's guilty," "[i]t [did not] matter what clothes [he was] wearing," the court "want[ed] [the jury's] verdicts to be the result of consideration of facts that [it] hear[d] from the witness stand and the law that [it] [gave the jury] rather than what [Rodriguez was] wearing," and the court did not "want [the jury] to decide the case based on the fact that [Rodriguez was] wearing the clothes that [he was] wearing." This instruction dispels any prejudice that might have attached due to Rodriguez's attire on the first day of voir dire.
Finally, the prospective jurors who expressed partiality due to Rodriguez's attire were dismissed during voir dire and all of the empaneled jurors swore to render a verdict according only to the evidence and the jury instructions. (Meredith, supra, 174 Cal.App.4th at p. 1263 ["[T]he jurors' assurances that they would not be biased against defendant because he was in jail, helped ensure that . . . . the trial court's error in causing defendant to go through trial in jail clothing was harmless beyond a reasonable doubt."].)
For all these reasons, we conclude that the trial court's order denying Rodriguez's dress-out request, though erroneous, was harmless beyond a reasonable doubt. B. The Motion for a Mistrial
Rodriguez raises a related contention that we should reverse the judgment in its entirety because the trial court purportedly erred by denying his motion for a mistrial. Rodriguez requested a mistrial after the court stated to the jury panel that he had "not file[d] a request to be dressed out" and it was "not the fault of anyone's but Mr. Rodriguez." Rodriguez claims that the court's statements "mischaracterized the situation" because, as the People concede, Rodriguez did in fact present a timely dress-out request to the court. According to Rodriguez, the court's statements "painted [Rodriguez] in a bad light" and "created an inherent bias" that warranted a mistrial.
" 'A trial court should grant a mistrial only when a party's chances of receiving a fair trial have been irreparably damaged, and we use the deferential abuse of discretion standard to review a trial court ruling denying a mistrial.' " (People v. Clark (2011) 52 Cal.4th 856, 990.) In determining whether irreparable damage has occurred, the court must ask whether the prejudice of which it has been apprised is " 'incurable by admonition or instruction.' " (People v. Avila (2006) 38 Cal.4th 491, 573.)
Applying these standards, we conclude that the trial court did not err in denying Rodriguez's motion for a mistrial. The trial court's statement that Rodriguez had not filed a dress-out request, albeit inaccurate, did nothing to undermine Rodriguez's credibility. In fact, because Rodriguez requested permission to dress out before the jury panel entered the courtroom for voir dire, the jury panel never even learned that Rodriguez—unlike the trial court—believed that he had filed a timely dress-out request.
Nor do we find that the trial court's misstatement "created an inherent bias" against Rodriguez. The court made a regrettable word choice in referencing Rodriguez's alleged "fault." However, read in context, it is apparent that the court did not use that word to suggest that Rodriguez was guilty of the charged crimes or that he was untrustworthy, but rather to convey that the prosecution had not forced him to wear jail attire. Further, after making that statement, the court clarified that the jury must reach a verdict based on the evidence, not "the clothes that he's wearing." On these facts, we conclude that the trial court did not abuse its discretion by denying a mistrial. C. The Forgery Conviction
Rodriguez's next argument is that the prosecution failed to produce evidence sufficient to support his conviction for forgery (count 5). At trial, the prosecution proceeded under a theory that Rodriguez aided and abetted Juan to commit forgery when Juan completed Rodriguez's unemployment benefits documentation. Rodriguez contends that we must reverse his conviction because the prosecution failed to prove that the direct perpetrator of the alleged forgery (Juan) lacked authority from the third-party on whose behalf he was purporting to act (Rodriguez). Quite the opposite—Rodriguez implored Juan to complete the unemployment benefits documentation for him.
"[A] person who aids and abets a crime is guilty of that crime even if someone else committed some or all of the criminal acts." (People v. McCoy (2001) 25 Cal.4th 1111, 1117.)
Section 470, California's forgery statute, includes multiple subdivisions that proscribe "different ways of committing a single offense, i.e., forgery." (People v. Ryan (2006) 138 Cal.App.4th 360, 364 (Ryan).) The two provisions pertinent to this appeal are subdivisions (a) and (b), which read as follows:
"As originally enacted, section 470 contained no subdivisions." (Ryan, supra, 138 Cal.App.4th at p. 364.) However, the Legislature amended section 470 in 1998, such that "the various acts constituting forgery [are] set out, to a certain degree, in different subdivisions." (Id. at p. 365; Stats.1998, ch. 468, §§ 1-2, pp. 2704-2705.)
(a) 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) [of section 470] is guilty of forgery.(§ 470, subds. (a) & (b).) "Section 470 is derived from the common law and its reach is thereby limited." (People v. Gaul-Alexander (1995) 32 Cal.App.4th 735, 742.)
(b) Every person who, with the intent to defraud, counterfeits or forges the seal or handwriting of another is guilty of forgery.
On appeal, the People concede that lack of authority is an element that the prosecution must prove under section 470, subdivision (a), which applies when a defendant signs another person's name on certain types of documents, such as checks. However, the People contend that lack of authority is not an element of forgery under section 470, subdivision (b), which applies when a defendant counterfeits or forges the seal or handwriting of another person. Because the jury convicted Rodriguez under subdivision (b), not subdivision (a), the People contend that the prosecution was not required to prove lack of authority. For the following reasons, we disagree.
In a series of early decisions, our Supreme Court—drawing on common law precedents—recognized that a person does not commit forgery by signing or preparing a document on behalf of a third party, if he or she has the third party's authorization to do so. (People v. Lundin (1897) 117 Cal. 124, 124 ["It was incumbent on the prosecution to prove want of authority to sign the check."]; People v. Whiteman (1896) 114 Cal. 338, 344 ["It must . . . be shown that it was a false instrument, and this is not proven until it is shown that the person who signed another's name did so without authority."]; People v. Mitchell (1891) 92 Cal. 590, 593 (Mitchell) [reversing order denying new trial in forgery case because the evidence was insufficient to prove that "the purported drawer of [a] check[] had authorized the defendant to attach his signature thereto."].) In none of these decisions did the Court purport to carve out exceptions to this rule, such as when a person replicates a thirdparty's seal or handwriting, as opposed to a signature.
The Courts of Appeal, in numerous decisions over the ensuing century, followed suit and likewise found that lack of authority is an essential element to a charge of forgery. (People v. Cullen (1950) 99 Cal.App.2d 468, 472 ["It must . . . be shown that it was a false instrument and this is not proven until it is shown that the person who signed the other's name did so without authority, and until this proof is met it is not shown to be a false instrument and the defendant is not put to his proof at all."]; People v. Maioli (1933) 135 Cal.App. 205, 207 ["The People's case is fatally defective in that it fails to show the defendant had no authority to issue the checks"]; People v. Hidalgo (1933) 128 Cal.App. 703, 707 [reversing order denying new trial because People failed to prove lack of authority]; see People v. Kenefick (2009) 170 Cal.App.4th 114, 123 [" 'The crime of forgery . . . is complete when one either falsely makes a document without authority or passes such a document with intent to defraud [citations] . . . . [Citation.]' [Citation.]"].)
We see no reason to depart from this well-established authority and, therefore, conclude that lack of authority is an element that the prosecution must prove beyond a reasonable doubt to establish that a person has forged another person's seal or handwriting under section 470, subdivision (b). We reach this conclusion because, as noted, none of the decisions referenced ante limits the lack of authority requirement only to cases involving forged signatures. Nor is there any apparent justification for doing so. On the contrary, a requirement that the prosecution prove lack of authority in a case involving forged seals or handwriting " ' "is in accord with the essence of forgery, which is making or passing a false document." ' " (People v. Aguirre (2018) 21 Cal.App.5th 429, 436; see People v. McKenna (1938) 11 Cal.2d 327, 332 ["The crime of forgery consists either in the false making or alteration of a document without authority or the uttering (making use) of such a document with the intent to defraud."].) Further, the People have pointed us to no judicial authority supporting their argument.
Instead, the People ask us to adopt their interpretation of section 470, subdivision (b) based on differences in the statutory language used in subdivisions (a) and (b). As the People note, subdivision (a) expressly states that a person commits forgery if he or she knowingly acts without authority: "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 various documents is guilty of forgery. (§ 470, subd. (a), italics added.) Subdivision (b) does not contain the same "knowing that he or she has no authority to do so" language. Based on this difference, the People claim that the Legislature affirmatively "chose to omit the lack-of-authorization element from subdivision (b)" of section 470.
However, the "knowing that he or she has no authority to do so" language on which the People rely is not the only difference between subdivisions (a) and (b). The verbs in these provisions also differ in a material way that undercuts the People's argument. Under subdivision (a), the underlying act constituting the forgery is the signing of another person's name. Because a person may sign another's name with or without authorization, it makes sense that the Legislature would need to add an explicit requirement that one must sign another person's name, "knowing that he or she has no authority to do so," in order to commit forgery. (§ 470, subd. (a).)
By contrast, the conduct prohibited in subdivision (b)—counterfeiting and forging—itself denotes that a person is acting without authorization. For example, Ballentine's Law Dictionary defines the verb "counterfeit" as, "mak[ing] a copy without authority or right and with the view to deceive or defraud by passing the copy as original or genuine." (Ballentine's Law Dict. (3d ed. 1969) p. 279, col. 1, italics added.) It similarly defines the verb "forge" as, to "fabricate an instrument by imitation with intent to defraud." (Id. at p. 490, col. 1, italics added; see Mitchell, supra, 92 Cal. at p. 592 ["The words 'forge, forger, and forgery,' when used in law, have no honest meaning, but imply fraudulent deceit . . . ."].) Thus, there is need for the Legislature to expressly state that a person must act without authority to be guilty of forgery under section 470, subdivision (b), given that it is already implicit in the verbs "counterfeit" and "forge."
Further, as the Court of Appeal explained in Ryan, the Legislature's "overhaul of section 470 and related provisions [in 1998] was intended to ' "make [the] laws governing financial crimes more 'user friendly' " ' and ' "to clarify and streamline existing law with regard to forgery and credit card fraud." ' It was not intended to 'change the meaning or legal significance of the law,' but ' "merely [to] organize[] the relevant code sections into a cohesive and succinct set of laws that can be readily referred to and understood." ' " (Ryan, supra, 138 Cal.App.4th at p. 366.) Accordingly, we decline the People's implicit argument that the Legislature intended to create a carve-out—applicable only to alleged forgery of seals or handwriting—through a legislative overhaul that was intended only to reorganize and clarify existing law, rather than changing the meaning of the law.
Rodriguez's conduct very well may have violated other laws. Indeed, the jury convicted Rodriguez of making false statements to obtain unemployment benefits, which Rodriguez does not specifically challenge on appeal. However, the lack of authorization requirement implicit in section 407, subdivision (b) precludes him from being found guilty for aiding and abetting the forgery of his own handwriting. Accordingly, we reverse the conviction of forgery (count 5), with instructions to dismiss that charge. D. One Agreement, Multiple Conspiracy Convictions
Next, Rodriguez contends that insufficient evidence supports his separate convictions for conspiracy to obstruct justice (count 1) and conspiracy to disobey a court order (count 2). According to Rodriguez, a single agreement can give rise to only one conviction for conspiracy, regardless of the number of crimes that are contemplated by the agreement. The People concede that counts 1 and 2 "concerned the same criminal agreement with the same ultimate objective" and, thus, "only one conviction can stand."
The United States Supreme Court has explained that "[w]hether the object of a single agreement is to commit one or many crimes, it is in either case that agreement which constitutes the conspiracy which the statute punishes. The one agreement cannot be taken to be several agreements and hence several conspiracies because it envisages the violation of several statutes rather than one." (Braverman v. United States (1942) 317 U.S. 49, 53; see People v. Lopez (1994) 21 Cal.App.4th 1551, 1558-1559.) Accordingly, we accept the People's concession that the evidence does not support separate conspiracies to obstruct justice (count 1) and to disobey a court order (count 2).
In light of the People's concession and our acceptance of that concession, we need not address Rodriguez's argument that the trial court erred by failing to instruct the jury on the legal principles delineating between a single conspiracy and multiple conspiracies.
In their appellate briefs, the parties mutually urge us to remand the matter to the trial court to determine which conspiracy conviction to dismiss. We accept the parties' request and remand the matter so that the trial court may determine whether to dismiss count 1 or, in the alternative, count 2. (§ 182, subd. (a)(6) ["If the felony is conspiracy to commit two or more felonies which have different punishments and the commission of those felonies constitute but one offense of conspiracy, the penalty shall be that prescribed for the felony which has the greater maximum term."].) E. Sentencing Errors
Rodriguez also contends that the trial court erred by miscalculating the total sentence for his misdemeanor convictions for disobeying a court order (counts 6-37). At sentencing, the court stated as follows: "[B]etween Count 6 and 37, it will be 180 days each consecutive for a total term of 16 years on the misdemeanors." As Rodriguez notes, a sentence of 180 days per count multiplied by 32 counts totals 15 years and 285 days, not 16 years. Rodriguez further notes that a total sentence of 16 years could be reached only if the trial court had intended to sentence Rodriguez to six months consecutive per misdemeanor count. The People concede the discrepancy and we have independently confirmed that the trial court's calculations do not add up.
Rodriguez contends that we must "correct" the total sentence for his misdemeanor convictions by amending it from 16 years to 15 years and 285 days, which, according to Rodriguez, the trial court would have imposed but-for its miscalculation. In support of this argument, Rodriguez points out that the prosecution and probation officer urged the court to sentence Rodriguez to 180 days, not six months, per count.
It may well be the case that the trial court intended to impose a sentence of 180 days per misdemeanor count and simply miscalculated the total sentence for all 32 counts. But it is equally possible that the court intended to impose six months per misdemeanor count for a total of 16 years and misspoke when it sentenced Rodriguez to "180 days" per count. As Rodriguez concedes, the trial court had discretion to impose a sentence of six months per misdemeanor count. (§ 19 ["Except in cases where a different punishment is prescribed by any law of this state, every offense declared to be a misdemeanor is punishable by imprisonment in the county jail not exceeding six months, or by fine not exceeding one thousand dollars ($1,000), or by both."].) Further, the prosecution, despite recommending a sentence of 180 days per count, also recommended "a total [sentence] of 16 years" for the misdemeanor convictions. As such, we cannot say with certainty what sentence the trial court intended to impose.
The prosecution made the same miscalculation in its sentencing brief that the trial court made at sentencing.
The case shall be remanded for resentencing, so that the trial court can clarify its intent and impose the sentence that it intended to impose for counts 6-37. F. The "Resentencing" Order
During Rodriguez's sentencing hearing, the trial court stated on the record and in Rodriguez's presence that he would serve the sentences for his felony and misdemeanor convictions, which totaled 18 years, in state prison. The following day, the court issued a "Felony Minutes-Supplemental Pronouncement of Judgment" order nunc pro tunc, which stated that Rodriguez would serve the sentences for his misdemeanor convictions in jail, not prison. The order did not change the duration of the total sentence, but rather modified only the penal authority in whose custody Rodriguez would be committed for his misdemeanor sentences.
On appeal, Rodriguez contends that the court's order constituted a resentencing at which he had a constitutional right to be present. (People v. Sanchez (2016) 245 Cal.App.4th 1409, 1414 ["A criminal defendant has a 'constitutional and statutory right to be present' for sentencing or a sentence modification hearing."].) Rodriguez argues that the resentencing prejudiced him because he claims that he might have been eligible for parole at some point in the future under Proposition 57, had he been permitted to serve his misdemeanor sentences in prison. Rodriguez also contends that "the court might have exercised leniency" by imposing the sentences for at least some of the convictions concurrently, had he been permitted to be present at a resentencing hearing.
In November 2016, California voters enacted Proposition 57, which reads in pertinent part as follows: "Any person convicted of a nonviolent felony offense and sentenced to state prison shall be eligible for parole consideration after completing the full term for his or her primary offense." (Cal. Const., art. I, § 32, subd. (a)(1).)
As an initial matter, we are doubtful that the trial court's amended felony minutes constituted a resentencing at which Rodriguez had a right to be present. (In re Ralph (1946) 27 Cal.2d 866, 871 [order did not deprive defendant of his right to be present at resentencing where it "constitute[d] only an order of commitment to a different custodian and has not the stature of a judgment"].) However, we need not resolve that question because, under Chapman, supra, 386 U.S. 18, we conclude that the court's purported denial of Rodriguez's right to be present was harmless beyond a reasonable doubt.
In short, Rodriguez's presence at the alleged resentencing could not have affected the outcome because, as Rodriguez concedes, the trial court had no authority to allow him to serve his consecutive misdemeanor sentences in prison. (§ 166, subd. (c)(1)(A) ["[A] willful and knowing violation of a protective order or stay-away court order [for violations of section 136.2] shall constitute contempt of court, a misdemeanor, punishable by imprisonment in a county jail for not more than one year . . . ."], italics added; In re Eric J. (1979) 25 Cal.3d 522, 537 ["[M]isdemeanor terms, unless imposed concurrently with a felony term, are served in local detention facilities and are not part of a continuous period of imprisonment under the supervision of the same correctional officials."].)
There also is no merit to Rodriguez's claim that the trial court might have "exercised leniency" at a resentencing hearing by running some or all of his sentences concurrently. Just one day before amending the felony minutes, the court acknowledged that it had "discretion to sentence concurrently," but ruled that "this [was] not an appropriate case" to exercise that discretion. The court reached this conclusion after finding that Rodriguez is "highly manipulative," "feel[s] the rules don't apply to [him]," "victimized Rebecca," "went through great means and great sophistication" to commit his crimes, "feel[s] [he is] above the law," has "numerous prior convictions," "appears to be without remorse," and is likely to "be a danger to others if not imprisoned," and that "there [were] no circumstances in mitigation . . . ." Rodriguez does not articulate the basis for his claim that the trial court might have reversed its determination just one day after making it, and we find that there is none. G. No Cumulative Error
Finally, Rodriguez argues that the entire judgment of conviction should be reversed because the cumulative impact of the trial court's errors violates due process of law. (People v. Hill (1998) 17 Cal.4th 800, 844-848.) We have concluded that the court erred in three respects and are reversing the convictions and sentences implicated by those errors. (See ante at §§ C-E.) However, in all other respects, we have determined that the trial court did not err or that any error was harmless beyond a reasonable doubt. "[A]ny errors were not serious enough, even considered together, to undermine our confidence in the outcome" and, accordingly, we reject the claim of cumulative error. (People v. Nguyen (2010) 184 Cal.App.4th 1096, 1122.)
DISPOSITION
The convictions for multiple conspiracies arising from the same agreement (counts 1 and 2) are reversed with instructions that the trial court determine which one of the two convictions to dismiss. The conviction for forgery (count 5) is reversed with instructions to dismiss that charge. Further, the sentences for disobeying a court order (counts 6-37) are vacated and remanded for resentencing. In all other respects, the judgment is affirmed.
BENKE, Acting P. J. WE CONCUR: HUFFMAN, J. O'ROURKE, J.