Opinion
B225979
10-17-2011
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL BRITO, Defendant and Appellant.
Gloria C. Cohen, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Michael R. Johnsen and Allison H. Chung, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. KA088978)
APPEAL from a judgment of the Superior Court of Los Angeles County, Carol W. Elswick, Judge. Affirmed as modified.
Gloria C. Cohen, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Michael R. Johnsen and Allison H. Chung, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Michael Brito appeals from the judgment entered following his conviction by jury of second degree commercial burglary, grand theft by embezzlement, and forgery. He contends his sentences for forgery and burglary should not have been imposed consecutively because the two crimes occurred on "the same occasion" and arose from "the same set of operative facts" within the meaning of Penal Code section 667, subdivision (c)(6); his conviction of grand theft should be reduced to a misdemeanor; and the section 1202.5 fine with penalties and surcharge should be reduced to $36. We reduce the conviction for theft to a misdemeanor, modify the sentence, reduce the section 1202.5 fine, and otherwise affirm the judgment.
All further statutory references are to the Penal Code.
STATEMENT OF FACTS
Defendant is the former director of operations of Pacific Coast Playgrounds (Pacific Coast). On April 10, 2009, he entered Liquor Jr. Market (the liquor store), located at 14274 Nelson Avenue, City of Industry, and presented for cashing a Pacific Coast check for $720 (the check). The check, dated April 8, 2009, was made payable to Mark Mendoza, and it was endorsed either before defendant entered the liquor store or by defendant in store clerk Juan Rodriguez's presence. Rodriguez recognized defendant as the friend of a man named "Kenny," a several-year customer of the store. He wrote "Kenny's friend" on the back of the check, deducted an $8 check-cashing fee, and handed defendant $712. Defendant purchased a bottle of vodka and a pack of cigarettes and left the store.
At time of trial the name "Mark Mendoza" and a telephone number were handwritten on the back of the check, but Rodriguez did not recall whether defendant endorsed the check in his presence.
In April 2009, liquor store owner Seung Hwang learned that the bank had stopped payment on the check. Subsequently, someone from Pacific Coast came to the store to ask who had cashed the check. Hwang gave the Pacific Coast representative a video from the store's surveillance system showing defendant cashing the check.
On May 9, 2009, a police officer interviewed Hwang. Hwang gave the officer the surveillance video and a copy of defendant's driver's license, which he had on file. In about June, the bank released to Hwang the funds previously held in connection with the check.
Charles Frenes, Pacific Coast's vice president of operations, testified that as director of operations, defendant had the authority to write checks, but not to sign them. Defendant was sometimes given signed checks to make out to companies or individuals in connection with Pacific Coast's day-to-day operations. However, defendant did not have authority to write checks to others and cash the checks himself. As part of his investigation of the check cashing, Frenes went to the liquor store and obtained a surveillance video in which he saw defendant cashing a check, although he did not know if it was the check in question. He confronted defendant. Defendant first said he did not recall the check; later, he said he had written the check to a day laborer. Pacific Coast did not have a "Mark Mendoza" on payroll.
Linda Barr, a Los Angeles County deputy sheriff, testified that she spoke with Frenes twice on May 9, 2009. Frenes told her that he confronted defendant about the check on April 20, 2009; defendant became defensive and did not return to work.
Thomas Lodolo, a detective with the Sheriff's Department, testified that he spoke to defendant by telephone in December 2009. Defendant said he was in Florida, and if Lodolo was calling about the check, it had been taken care of and he had already repaid his employer. Lodolo said that he still needed to interview defendant when he returned to California. Lodolo and defendant agreed to meet on December 16, but defendant did not show up. Lodolo and defendant met in person on December 23. Lodolo showed defendant a copy of the check; defendant said he did not know a Mark Mendoza and did not cash the check. Defendant also said that Frenes had told him that Mendoza was a day laborer who Frenes had hired and paid with the check.
Defendant did not present any evidence.
STATEMENT OF THE CASE
The Los Angeles County District Attorney filed an amended information charging defendant with second degree commercial burglary (§ 459, count 1), grand theft by embezzlement (§ 487, subd. (a), count 2), forgery (§ 475, subd. (a), count 3), and grand theft of personal property (§ 487, subd. (a), count 4). As to all counts, it was alleged that defendant had a prior conviction for first degree burglary pursuant to the "Three Strikes" law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and had served a prison term for that offense (§ 667.5, subd. (b)).
The trial court granted the People's motion to dismiss count 4 pursuant to section 1385.
The jury found defendant guilty as charged in counts 1, 2, and 3, and defendant admitted the prior conviction allegations. The trial court denied defendant's motion to strike the prior conviction and sentenced defendant to a total term of six years, four months, as follows: five years (the middle term of two years, doubled under the Three Strikes law, plus one year for the prior prison term enhancement) on count one; and a consecutive term of 16 months (one-third the middle term of 24 months, doubled under the Three Strikes law) on count three. The court imposed and stayed a sentence of 16 months (one-third the middle term of eight months, doubled under the Three Strikes law) on count 2.
In concluding that the terms for counts one and three would be served consecutively, the trial court stated as follows:
"Mr. Brito's case is somewhat of an interesting case when it comes to whether or not the forgery and/or the commercial burglary occurred on the same occasion or arises out of the same operative set of facts. And, here, the court is relying on People vs. Deloza [(1998) 18 Cal.4th 585], in terms of defining what those particular areas mean. . . .
"In this particular instance, when Mr. Brito, according to the video that was shown to the jurors, at the time that he entered the liquor store, it would appear that the check had already been forged. It was already made out, and he simply — to an unknown person, the name of a Mark Mendoza. And that Mr. Brito simply had to endorse the back of said check.
"The court doesn't know when the forgery occurred, if the forgery occurred moments before Mr. Brito entered the . . . liquor store or hours before entering the liquor store or days before entering the liquor store. So as far as the court is concerned, the record is silent as to when the forgery itself occurred.
"The court then turns to the next aspect of the same area, that is, the forgery vis-à-vis the burglary, the same operative set of facts.
"Certainly the forgery occurs once Mr. Brito makes out that check payable to someone, other than himself, when he intends himself to be the beneficiary of such check. That's when the forgery occurs. Had he never entered the liquor store, the burglary would have never occurred.
"At some point in time, Mr. Brito does enter the liquor store. He then endorses said check made payable to Mark Mendoza. He enters that liquor store with the intent obviously to commit some sort of larceny or felony therein, and he then receives the cash for that check in the amount of approximately $720.
"When the court compares the forgery to the burglary, it would appear to this court that the forgery is a separate crime, one, because you have separate victims. The victim of the forgery is the Pacific Coast Playgrounds, defendant's employer. And the second crime, that is, second-degree commercial burglary occurs when he enters the store, that is, the liquor store, with the intent to commit some sort of theft, that being to cash the forged check.
"So the court sees these as two different crimes for purposes of People vs. Deloza and for purposes of consecutive sentencing under Penal Code section [667, subdivision (c)(6)]. The court believes that, therefore, it requires a [section 667, subdivision (c)(6)] — requires a consecutive sentencing to be imposed in light of the court's analysis."
Defendant timely appealed from the judgment.
DISCUSSION
I. Consecutive Sentences
Under the Three Strikes law, if the defendant has been convicted previously of a felony, the court must impose consecutive sentences if "there is a current conviction for more than one felony count not committed on the same occasion, and not arising from the same set of operative facts." (§§ 667, subd. (c)(6), 1170.12, subd. (a)(1).) Defendant contends the trial court erred in concluding that consecutive sentences were mandated here because the forgery and burglary occurred "'on the same occasion'" and "ar[ose] from 'the same set of operative facts.'" For the following reasons, we disagree.
In People v. Lawrence (2000) 24 Cal.4th 219, 233 (Lawrence), the Supreme Court explained that, as used in the mandatory consecutive-sentencing provision of the Three Strikes law, "not committed on the same occasion" means "not committed within close temporal and spacial proximity of one another," and "not arising from the same set of operative facts" means "not sharing common acts or criminal conduct that serves to establish the elements of the current felony offenses of which defendant stands convicted." Applying that analysis to the case before it, the Lawrence court found that the defendant's initial crime of taking a bottle of brandy from a market did not occur on the same occasion or arise from the same set of operative facts as the defendant's subsequent trespass into a fenced backyard and ensuing assault of the homeowners who were present in the yard. The court explained: "Although still in flight from the [initial] crime scene, [defendant] thereafter chose to commit new and different offenses: the trespass into the Rojas/LaVastida backyard, and the ensuing assaults against Rojas and LaVastida. The first crime involved an act of theft directed at one group of victims, the second involved assaultive conduct directed at an unrelated pair of victims. The two criminal episodes were separated spacially by at least one to three city blocks, and temporally by two to three or more minutes (from the time defendant stole the brandy from the market until the point he committed the aggravated assault upon LaVastida after having fled from the first crime scene, trespassed into the Rojas/LaVastida backyard, and fled again, chased by Rojas out of the yard and down a long driveway to the street, where he hit LaVastida with the bottle before being subdued). [¶] On these facts we conclude that defendant's felony assault upon LaVastida did not arise out of the 'same set of operative facts' as the theft from the market. Because defendant's multiple current felony convictions neither were committed on the same occasion within the meaning of [People v. Deloza, supra, 18 Cal.4th 585,] nor arose from the same set of operative facts, the trial court correctly concluded it was mandated by subdivision (c)(6) to sentence consecutively." (Lawrence, supra, at pp. 233-234.)
People v. Durant (1999) 68 Cal.App.4th 1393 (Durant), cited with approval in Lawrence, supra, 23 Cal.4th at pages 232-233, is also instructive. There, the defendant attempted unsuccessfully to burglarize two residences before entering and removing a VCR from a third residence in the same housing complex. (Durant, supra, at pp. 1397-1399.) At the sentencing hearing, defense counsel argued that the burglary and two attempted burglaries were committed on the same occasion and arose from the same set of operative facts within the meaning of section 667, subdivision (c)(6) because "'[t]here was one singular intent and purpose here, and that was to steal something from a residence in order that [defendant] could then take that merchandise to a pawnshop to sell.'" (Id. at p. 1399.) The trial court imposed concurrent sentences for the three convictions, but the Court of Appeal reversed. It noted that the phrase "same set of operative facts" "has been judicially interpreted in collateral estoppel and election of remedies cases to refer to those facts which prove a criminal or civil defendant's liability for a particular wrongful act." (Id. at p. 1405, italics added.) In applying this definition to a particular case, "the nature and elements of the current charged offense becomes highly relevant. For example, when a robbery is charged, its continuous nature, its elements and the facts used to support those elements are the 'operative facts' underlying the commission of that crime. If another offense is committed while the facts underlying that robbery are unfolding, it will necessarily arise from the same set of operative facts as the original robbery. However, where the elements of the original crime have been satisfied, any crime subsequently committed will not arise from the same set of operative facts underlying the completed crime; rather such crime is necessarily committed at a different time. For instance, with the crime of burglary, where the offense is complete when there is an entry into a structure with felonious intent, 'regardless of whether the felony or theft committed is different from that contemplated at the time of entry, or whether any felony or theft actually is committed' (People v. Montoya (1994) 7 Cal.4th 1027, 1041-1042), the commission after the first burglary of a crime or burglary of another structure necessarily will arise out of different operative facts than those underlying the original offense. We therefore believe the elements and nature of a charged crime as being continuous or complete as defined for purposes of prosecution are additional factors the court must consider in determining whether multiple current crimes were committed on the 'same occasion' and arose from the 'same set of operative facts' when the offenses are committed more than seconds apart." (Durant, supra, at pp. 1405-1406.)
Applying this analysis to the case before it, the Durant court concluded that the defendant "committed three separate offenses, two attempted burglaries which by their nature and elements were completed before he committed a burglary. The crimes did not occur on the 'same occasion' as that term is commonly understood. Nor did the duration of the crimes overlap, each being complete when Durant attempted to enter or successfully entered a residence and then left to go to another residence." (68 Cal.App.4th at pp. 1406-1407.)
Applying the analyses of Lawrence and Durant to the present case, we conclude that the trial court correctly found the forgery and burglary did not occur on "the same occasion." Although there is no evidence in the record as to when defendant signed the check, there can be no dispute that he filled in the name of the payee and possessed it at some time before he entered the liquor store on April 10. Thus, the forgery and burglary were not committed "in such a close time and space as to have occurred almost simultaneously." (Durant, supra, 68 Cal.App.4th at p. 1404.)
The trial court also correctly concluded that the forgery and burglary did not "aris[e] from the same set of operative facts." Count three of the amended information alleged a violation of section 475, subdivision (a), which provides that a person is guilty of forgery if he or she "possesses or receives, with the intent to pass or facilitate the passage or utterance of any forged, altered, or counterfeit items . . . with intent to defraud, knowing the same to be forged, altered, or counterfeit." It is well established that forgery under this section "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 [citation]." (People v. Luizzi (1960) 187 Cal.App.2d 639, 644.) The forgery thus was complete as soon as defendant filled out the check with the requisite fraudulent intent. Accordingly, when defendant entered the liquor store with the intent to cash the check in violation of section 459, the facts underlying the forgery were not still "unfolding." (Durant, supra, 68 Cal.App.4th at p. 1406.) Instead, the elements of forgery had already been satisfied, and thus the subsequently committed crime of burglary did not "arise from the same set of operative facts underlying the completed crime." (Ibid.)
Section 459 provides: "Every person who enters any . . . store . . . with intent to commit grand or petit larceny or any felony is guilty of burglary."
For all of the foregoing reasons, the trial court correctly concluded that it was required by section 667, subdivision (c)(6) to impose consecutive sentences for forgery and burglary.
II. Grand Theft Conviction
Defendant contends that his conviction of felony grand theft must be reduced to a misdemeanor. He notes that when he was convicted on April 19, 2010, section 487 defined as "grand theft" the theft of any sum in excess of $400. Subsequently, the Legislature amended section 487 to raise the felony grand theft threshold to $950. He contends that his conviction for theft of $720 therefore must be reduced to a misdemeanor.
The Attorney General concedes that the amendment to section 487 applies retroactively. We agree. In In re Estrada (1965) 63 Cal.2d 740, 745, our Supreme Court noted as follows: "When the Legislature amends a statute so as to lessen the punishment it has obviously expressly determined that its former penalty was too severe and that a lighter punishment is proper as punishment for the commission of the prohibited act. It is an inevitable inference that the Legislature must have intended that the new statute imposing the new lighter penalty now deemed to be sufficient should apply to every case to which it constitutionally could apply. The amendatory act imposing the lighter punishment can be applied constitutionally to acts committed before its passage provided the judgment convicting the defendant of the act is not final. This intent seems obvious, because to hold otherwise would be to conclude that the Legislature was motivated by a desire for vengeance, a conclusion not permitted in view of modern theories of penology."
The Attorney General urges that although the amendment to section 487 applies retroactively, the case should be remanded to give the district attorney the opportunity to charge defendant with petty theft with priors. (§§ 484, 666.) We do not agree. The present case is governed by In re Kirk (1965) 63 Cal.2d 761, in which the defendant was convicted of issuing checks totaling $75 without sufficient funds in violation of section 476a. (Id. at p. 762.) When the judgment was entered, the statute provided for a reduced sentence if defendant was convicted of issuing checks totaling less than $50; before the conviction was affirmed, however, the statute was amended to increase the sentencing threshold to $100. The court held as follows: "The statute imposing the penalty for issuing the checks was amended prior to final judgment by ameliorating the punishment. Under the rule announced in [In re Estrada, supra, 63 Cal.2d 740,] the petitioner is entitled to the benefits of the amendatory statute." (Id. at p. 763.) The court ordered the superior court to correct the judgment to reflect that the defendant had been convicted of a misdemeanor. (Ibid.)
People v. Figueroa (1993) 20 Cal.App.4th 65, cited by the Attorney General, is distinguishable. There, the court held that a defendant "is entitled to the benefit of an amendment to an enhancement statute, adding a new element to the enhancement, where the statutory change becomes effective while the case was on appeal," but "the People are entitled to an opportunity, on remand, to prove up the new element." (Id. at p. 68.) In Figueroa, however, the Attorney General did not seek to allege a new count against the defendant; he merely sought the opportunity to prove a new element of the count already alleged in the operative information. Here, in contrast, the Attorney General seeks to amend the information to allege an entirely new offense—petty theft with priors. (§ 666.) Figueroa thus does not support the proposition that this matter should be remanded to allow the district attorney to recharge the defendant.
We note, moreover, that the grand theft sentence was properly stayed under section 654; thus, the sentence for a conviction for petty theft with priors would have no practical effect on defendant's prison term.
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III. Section 1202.5 Fine
The trial court orally imposed "a $10 crime prevention fine, plus penalty assessments, for the theft count," and the minute order indicates that defendant "is to pay a crime prevention fine pursuant to Penal Code section 1202.5 in the amount of $10.00 plus penalty assessment in the amount of $24.00 and a surcharge in the amount [of] $2.00 for a total fine of $36.00." However, the abstract of judgment reflects a $108 fine under section 1202.5. Defendant contends the abstract should be modified to reduce the $108 fine to $36, and the Attorney General concedes that modification is appropriate. We therefore order the abstract of judgment modified to reduce the total section 1202.5 fine with penalties and surcharge to $36.
Noting that the probation report did not include a discussion of defendant's finances, defendant additionally contends that the case must be remanded so that the trial court can determine his ability to pay the fine. We do not agree. It was undisputed at trial that defendant was employed when the offense was committed; therefore, it was within the trial court's discretion to conclude that defendant had the ability to pay the $36 fine.
DISPOSITION
The conviction for grand theft (count 2, § 487) is reduced to a misdemeanor, the sentence is reduced from 16 months in state prison to one year in county jail, and the sentence is ordered stayed pursuant to section 654. The crime prevention fine assessed against defendant pursuant to section 1202.5 is reduced to $10, plus a penalty assessment of $24 and a surcharge of $2, for a total fine of $36. The clerk of the superior court is directed to prepare an amended abstract of judgment and to forward a copy to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
SUZUKAWA, J.
We concur:
WILLHITE, Acting P. J.
MANELLA, J.