Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CC596378
Premo, J.
Defendant Bobby Chung was charged by information with uttering a nonsufficient fund check with the intent to defraud (Pen. Code, § 476a) after suffering a prior conviction under section 476. The information further alleged that defendant had a prior “strike” conviction and eight prison prior convictions under section 667.5, subdivision (b). After a court trial, defendant was found guilty. The court also found true the allegations that defendant had a “strike” prior and eight prison priors. Defendant was sentenced to a term of 16 months consecutive to his sentence in a separate criminal case (Santa Clara County Superior Court case No. EE403788).
All further statutory references are to the Penal Code unless otherwise specified.
On appeal from the judgment, defendant contends that there was insufficient evidence to support his conviction. We conclude that the evidence was sufficient and affirm the judgment.
I. Factual Background
The insufficient funds check charge arose from a visit defendant made to a computer repair store called Bay Area Computer Man, during which he purchased a used laptop computer and a laptop bag using a check written on a bank account that had been closed.
A. Defendant’s Bank of the West sole business proprietorship account
On March 18, 2004, defendant opened a sole business proprietorship bank account at Bank of the West, and deposited $100 into the account. Nori Fuller, an assistant vice-president and senior investigator with Bank of the West, testified that from March 18, 2004 to May 19, 2004, a total of 15 checks and one point-of-sale debit drawn against the account were returned due to nonsufficient funds. Fuller testified that when a customer writes a check that is dishonored, the customer is notified by mail. Fuller also testified that defendant deposited two $1,000 checks drawn on a personal account he shared with another individual, but then stopped payment on both of those checks.
The name on the account was “Robert Chung dba Janitorial Bureau of Investigation.”
Because the account was overdrawn, Bank of the West closed it on May 19, 2004. After the account was closed, an additional 18 checks, including the check at issue here, and five ACH debits drawn on the account were returned unpaid. Fuller testified that once the account was closed, defendant would have been sent a bank statement showing a zero balance.
At the time the account was closed, it had an overdraft of $726.70, which Bank of the West later credited to the account, thereby sustaining a loss.
Fuller testified that ACH debits are “Automated Clearing House debits,” and consist of automatic withdrawals made from an account to pay, for example, a utility bill.
B. The August 24, 2004 check
On August 24, 2004, defendant purchased a used laptop computer and laptop bag from Bay Area Computer Man. Anthony Vega, the employee who assisted defendant, wrote out a receipt for the two items listing a total price of $637.59, including tax. Defendant wrote a check on his Bank of the West account for the amount of purchase.
Kevin McGuire, the owner of Bay Area Computer Man, testified that he trained Vega in all aspects of running the store, including accepting various types of payment, including checks. When a customer tendered a check in payment, Vega was trained to require identification, such as a driver’s license, and to obtain a thumb print on the rear of the check. When McGuire first saw the check, he saw that it had what appeared to be a driver’s license number and a fingerprint on the back, leading him to believe that “everything was done correctly.” However, after McGuire deposited the check at his bank, it was returned to him unpaid, along with a notice stating that the account on which the check was drawn was closed. McGuire called the phone number listed on the check, but that number was disconnected. McGuire was never able to contact defendant, never received the merchandise back and was never contacted by defendant to make any arrangements to cover the dishonored check. When asked if Vega ever told him that defendant would “take care” of the check if it bounced, McGuire replied, “No.”
McGuire was not present when defendant purchased the laptop and bag. Vega, who had moved to Florida, was not subpoenaed to testify at trial by the People.
During his direct examination, defendant offered the following testimony regarding the August 24, 2004 transaction:
Defendant had previously waived his right to a jury trial and, pursuant to his successful Faretta motion (Faretta v. California (1975) 422 U.S. 806), represented himself at trial. Following his direct examination, but before the People began to cross-examine him, defendant stated that he would not answer any questions and said, “I plead the Fifth.” Defendant’s testimony on direct was stricken, with his consent. At the end of trial, the People asked that defendant’s testimony on direct be admitted, since the People had not sought and would not seek to cross-examine him. The trial court agreed and admitted defendant’s testimony.
“In fact I did not have the funds or what I would presume to the funds to be in the account at the time of the check being wrote, but I had good faith of them coming and expecting these funds. Now, the fact of the matter is that when I presented [Vega] my business card, I showed him, I said, you know me, I have the account right there. It was actually, this came up when he had asked me, do you think he mentioned they received some bogus checks before. Look, I showed him everything I had. I said here is my business card. Give me a call.”
Defendant also testified that he did not know that his Bank of the West account had been closed because he had not been receiving his mail. He stated that, after opening the Bank of the West account, he wrote checks on that account expecting funds to be available by the time the check was presented for payment.
Defendant’s exact words were, as follows: “Bear in mind I have the money in the bank. I hope to God that [deposited] check clears before my check [drawn on the account] goes through the regular business banking procedure, which is supposed to take five or ten days, in my mind.”
After the defense rested, the People introduced five prior convictions for impeachment purposes, including convictions for forgery and passing insufficient funds checks.
II. Discussion
A. Standard of review
When considering a challenge to the sufficiency of the evidence to support a criminal conviction or enhancement, we determine whether there is substantial evidence--i.e., evidence which is reasonable, credible, and of solid value--such that a reasonable trier of fact could make the necessary findings beyond a reasonable doubt. In making this determination, we do not reweigh the evidence, resolve conflicts in the evidence, or reevaluate the credibility of witnesses. Rather, we review the whole record in the light most favorable to the judgment, we draw all reasonable inferences from the evidence that support it, and we presume the existence of every fact the trier of fact could reasonably deduce from the evidence. (Jackson v. Virginia (1979) 443 U.S. 307, 319-320; People v. Johnson (1980) 26 Cal.3d 557, 578; People v. Vy (2004) 122 Cal.App.4th 1209, 1224.)
B. There was substantial evidence that defendant did not advise the payee that there were insufficient funds in his account
“Conviction for a violation of Penal Code section 476a, subdivision (a), requires a person with the intent to defraud make, draw, utter or deliver, . . ., a check, knowing at that time there are insufficient funds for its payment.” (People v. Pugh (2002) 104 Cal.App.4th 66, 73.) When a payee has knowledge at the time he accepts a check that the drawer does not have funds at the bank to cover the check, there is insufficient evidence to support a conviction for a violation of section 476a. (People v. Poyet (1972) 6 Cal.3d 530.) The court in Poyet stated, “No matter how fraudulent the promise to make a deposit sufficient to cover the check, disclosure of the present insufficiency of funds precludes conviction . . . .” (Id. at p. 536.)
Defendant contends there was insufficient evidence of his intent to defraud Bay Area Computer Man, since the People presented no evidence to show that defendant did not, at the time he presented the check, tell Vega that there were insufficient funds to cover it. However, defendant’s testimony on the subject was not exactly clear and unequivocal. He did not testify that he made a direct statement to Vega regarding the lack of funds in his account. If credited, his testimony on the matter established two things. One, defendant knew he had no funds in the account, but expected that funds would soon be available. Two, defendant gave Vega a business card which was to provide Vega a separate means of contacting defendant, possibly implying that Vega should do so if there was any problem with defendant’s check. Defendant’s statements to Vega, again assuming they were made, are at best an oblique warning that there might not be sufficient funds in the account to cover the check, rather than an affirmative “disclosure of the present insufficiency of funds.” (People v. Poyet, supra, 6 Cal.3d at p. 536.)
Defendant suggests that the trial court failed to consider or “otherwise ignored” his defense that he informed Vega that there were insufficient funds in the account to cover the check. Where the trial court sits as the finder of fact, it need not explain its verdict, but need only “announce [its] findings upon the issues of fact, which shall be in substantially the form prescribed for the general verdict of a jury . . . .” (§ 1167; People v. Scott (1997) 15 Cal.4th 1188, 1221.) In addition, “ ‘[a]s a general rule, we presume that the trial court has properly followed established law.’ ” (People v. Scott, supra, 15 Cal.4th at p. 1221, quoting People v. Diaz (1992) 3 Cal.4th 495, 567.) Since there is no evidence to the contrary, defendant’s claim fails.
On the other hand, McGuire, the person who trained Vega in all aspects of running his store, denied that Vega ever told him that defendant would “take care” of the check if it bounced. It is a reasonable inference that Vega did not tell McGuire that defendant would “take care” of the check because, in fact, defendant did not say any such thing to Vega.
In the end, even though defendant offered the only direct testimony regarding the transaction, the trial court was not obligated to believe his version of events. The trier of fact is free to believe or disbelieve any witness, and the testimony of one witness can be sufficient to support a judgment. (In re Marriage of Mix (1975) 14 Cal.3d 604, 614.) It is clear from the verdict that the trial court did not believe defendant’s testimony on the matter, and there is substantial evidence to support the trial court’s finding that defendant was guilty.
III. Disposition
The judgment is affirmed.
WE CONCUR: Rushing, P.J., Elia, J.