Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. No. INF053876 Harold W. Hopp, Judge.
Lauren E. Eskenazi, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Rhonda Cartwright-Ladendorf, Supervising Deputy Attorney General, and Collette C. Cavalier, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
Gaut J.
Defendant Anthony Frederick Favano appeals from judgment entered following jury convictions for forgery by uttering or passing a fictitious or altered check (Pen. Code, § 476 ; count 1); forgery by possession or receipt of forged, altered or counterfeit items (§ 475, subd. (a); count 2); receiving stolen property (§ 496, subd. (a); count 3); and possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a); count 4). The trial court sentenced defendant to five years four months in state prison.
Unless otherwise noted, all statutory references are to the Penal Code.
Defendant contends his conviction for count 2, forgery by possession of a forged check (forgery by possession), must be vacated because it is a necessary lesser included offense of defendant’s conviction for forgery by uttering or passing a fictitious check (forgery by uttering). Defendant also asserts that imposition of consecutive sentencing on counts 3 and 4 violated Cunningham v. California (2007) __ U.S. __, 127 S.Ct. 856, 860 (Cunningham).
We reject defendant’s contentions and affirm the judgment.
1. Facts
In October 2004, Catherine Sempepos’s wallet was stolen from her recreational vehicle in Palm Springs. When the wallet was returned, her credit cards, checks and cash were missing.
In January 2005, John Sabovich’s second home in Palm Springs was burglarized. His financial documents were ransacked.
In February and March 2005, defendant lived with a friend, James Frank. Frank lived three houses down the street from Barbara Canham and her adult daughter, Sandra Canham. Sandra had become friends with defendant.
In March 2005, Barbara noticed a stack of bills, which she had placed on the kitchen counter, had disappeared. On another occasion, on March 18, 2005, Barbara noticed her purse was missing and reported it stolen to the police. Later in the afternoon, Barbara found her purse in her car but her driver’s license and a few checks from her checkbook were missing. That same day, defendant used Barbara’s car to drive Sandra home from the hospital. Sandra gave defendant permission to borrow Barbara’s car for a few hours. He did not return the car until the next day.
In April 2005, Sempepos’s recreational vehicle was stolen and later recovered. Sempepos noticed her financial records, bills, personal letters, and various other items had been stolen.
On March 22, 2006, defendant went to a Money Mart and attempted to cash a $1,000 check made out to defendant from Barbara. The Money Mart assistant manager called the phone number on the check and someone claiming to be Barbara said she had made out the check to defendant for doing maintenance work and painting. The assistant manager then called Barbara’s phone number listed in the phone book and Barbara told him she had not written the check. The Money Mart employee refused to cash the check and called the police.
The police detained defendant at Money Mart. Defendant consented to a search of his wallet and the car he had driven to Money Mart. The police found in defendant’s wallet credit cards in other people’s names, including three cards issued to Barbara and a driver’s license issued to Dustin Lee Olson.
Upon searching defendant’s rental car, the police found a laptop computer belonging to defendant and a duffel bag. The duffel bag contained mail addressed to 11 or 12 different people, including Barbara. The police also found Barbara’s driver’s license and social security card and a notebook containing a list of names corresponding to people whose mail was found in the car. When asked during the search if defendant kept a record of his victims’ information, he said, “yes.” The police found in the car trunk an envelope with defendant’s name on it, containing methamphetamine. Also found in the rental car were several checks belonging to Catherine Sempepos and items addressed to John Sabovich.
At trial Sempepos and Sabovich identified checks and documents of theirs found in defendant’s rental car. They both testified they did not know defendant.
At trial Barbara examined the check defendant had tried to cash at Money Mart and testified she had never seen the check before and did not wire anyone a thousand dollars. She also stated the phone number on the check was incorrect and defendant had not done any painting or home maintenance for her. She never gave him permission to set up accounts in her name or possess her credit cards, driver’s license or social security card. She had no knowledge of several of the checks and credit cards issued in her name. Barbara testified she did not know defendant.
Sheriff’s Corporal Walton testified he arrested defendant in November 2001 for attempting to cash a fraudulent check using false identification. Upon searching defendant’s car, Walton found a lot of mail addressed to people other than defendant. Defendant told Walton that he and another man had been stealing mail from mail boxes, targeting financial information for the purpose of producing fake identification cards, opening new bank accounts, and obtaining new credit cards and cash advances. Walton testified the notebook found in the 2001 case was similar to the notebook found in the instant case. The jury was told defendant was convicted in the 2001 case of forgery.
Sandra testified she became friends with defendant when he moved in with James Frank. Defendant and Sandra regularly visited each other and twice Sandra gave defendant a ride. She, defendant and another friend also on one occasion drove Barbara’s car to Los Angeles. Sandra acknowledged that she was in debt, with all of her credit cards in collections. She claimed some of her debt was due to fraud but defendant had nothing to do with it. Around the time of defendant’s arrest, she was taken off Barbara’s account due to Sandra’s financial debt and because Barbara caught her using Barbara’s account to get money. Sandra denied writing a check to defendant for $1,000.
Steven Williams, an investigator with the a district attorney’s office, testified Barbara had told him she had met defendant once and knew defendant and Sandra were friends.
2. Multiple Convictions
Defendant argues he could not be convicted of both count 1, forgery by uttering (§ 476), and count 2, forgery by possession of the same check (§ 475, subd. (a)), because count 2 was a necessarily included offense of count 1. Defendant bases this contention on the fact that count 1 (forgery by uttering) included all of the elements of count 2 (forgery by possession). We disagree. Under the statutory elements test, the forgery by possession offense is not a necessarily included offense of forgery by uttering.
A. Statutory Elements Test
As explained in People v. Reed (2006) 38 Cal.4th 1224, 1226 (Reed), “In general, a person may be convicted of, although not punished for, more than one crime arising out of the same act or course of conduct.” (See also Pen. Code, § 954.) However, “[a] judicially created exception to the general rule permitting multiple conviction ‘prohibits multiple convictions based on necessarily included offenses.’ [Citation.]” (Reed, supra, at p. 1227; see also People v. Pearson (1986) 42 Cal.3d 351, 355.)
In Reed, the California Supreme Court held that where the validity of multiple convictions is in issue, the statutory elements test is to be used in determining whether an offense is necessarily included in another. (Reed, supra, 38 Cal.4th at pp. 1229, 1231.) Under the statutory elements test, “if the statutory elements of the greater offense include all of the statutory elements of the lesser offense, the latter is necessarily included in the former.” (Reed, supra, 38 Cal.4th at p. 1227.)
B. Elements of the Two Crimes
The elements of a forgery by uttering offense are stated in section 476 as follows: “Every person who makes, passes, utters, or publishes, with intent to defraud any other person, or who, with the like intent, attempts to pass, utter, or publish, or who has in his or her possession, with like intent to utter, pass, or publish, any fictitious or altered bill, note, or check, purporting to be the bill, note, or check, or other instrument in writing for the payment of money or property of any real or fictitious financial institution as defined in Section 186.9 is guilty of forgery.”
After instructing the jury on the elements of section 476, the trial court added: “The People allege that the defendant possessed, made, passed, used, or attempted to pass or use the following document: the check received into evidence as Exhibit two.”
The elements of a forgery by possession offense are stated in section 475, subdivision (a) as follows: “Every person who possesses or receives, with the intent to pass or facilitate the passage or utterance of any forged, altered, or counterfeit items, or completed items contained in subdivision (d) of Section 470 with intent to defraud, knowing the same to be forged, altered, or counterfeit, . . .”
The trial court instructed the jury accordingly on the offense, and further informed the jury: “The People allege that the defendant possessed the following document: the check received into evidence as Exhibit two.”
C. Differing Elements
Defendant cites People v. Reisdorff (1971) 17 CalApp.3d 675 (Reisdorff), for the proposition that forgery by possession (count 2) is a lesser included offense of forgery by uttering (count 1). In Reisdorff, supra, a forgery case, the court considered whether forgery by possession, under former section 475a, was a lesser included offense of the offense of forgery by uttering under section 470. (Id. at p. 678.) The court in Reisdorff reversed the conviction for forgery by possession, holding that the crime was necessarily included within the crime of forgery by uttering. (Id. at pp. 679-680.)
Former section 475a, repealed in 1998, “related to possession of completed check, money order, traveler’s check, controller’s warrant or county warrant with intent to defraud. See Penal Code § 475.” (Historical and Statutory Notes, 48A West’s Ann. Pen. Code (1999 ed.) foll. § 475a, p. 422.)
Defendant argues that the court in Reisdorff determined that forgery by uttering or passing a forged check requires possession of the check and therefore forgery by possession is a lesser included offense. Defendant further asserts that forgery by uttering cannot be committed in the absence of possession by aiding and abetting because accomplice liability is derivative.
Reisdorff is distinguishable because the court did not rely solely on the statutory elements test in determining that the forgery by possession offense was a lesser included offense. In concluding “the crime of violating Penal Code section 475a is an offense necessarily included within the crime of forgery by uttering” (Reisdorff, supra, 17 Cal.App.3dat p. 679), it appears the court only considered the statutory language pertinent to the particular facts and pleadings in the case, without considering whether forgery by utterance could be committed under other circumstances, in the absence of possession of the forged document, such as during an attempt to commit the offense or when aiding or abetting the perpetrator.
We reject defendant’s assertion that forgery by uttering or passing a forged check cannot be committed without possession of the forged check. Section 476 provides that the offense occurs if the defendant “attempts to pass, utter, or publish, or who has in his or her possession” the forged check. (§ 476; italics added.) This language indicates that possession is not necessary. In the alternative to actual possession, the offense can be committed during an attempt, in which possession is not required. It is possible that during an attempt, the offense is thwarted after defendant has prepared or arranged for the passing or uttering of a forged check but has not yet taken possession of the check.
Without citing any authority, defendant also argues forgery by uttering or passing a forged check cannot be committed by aiding and abetting because section 476 requires the perpetrator personally participate in the defrauding. The offense cannot be committed derivatively. We disagree. Section 476 does not preclude liability based on an aiding and abetting theory. For instance, a defendant could be guilty of violating section 476 under the theory of aiding and abetting by supplying the perpetrator of the forgery with a driver’s license used to cash the forged checks, with the intent of aiding the perpetrator’s check forgery plans. (See In re Lynette G. (1976) 54 Cal.App.3d 1087, 1094-1095 [“Among the factors which may be considered in making the determination of aiding and abetting are: presence at the scene of the crime, companionship, and conduct before and after the offense.”].)
Possession is not a necessary component of a section 476 offense. The manner in which the statute is worded indicates that section 476 can be violated in a number of ways different from those enumerated in section 475, subdivision (a), and possession is not in every instance required.
We also note section 476 is limited to forgery of a “bill, note, or check, or other instrument in writing for the payment of money or property of any real or fictitious financial institution” (§ 476), whereas section 475, subdivision (a) encompasses many additional items, including “counterfeit items, or completed items contained in subdivision (d) of Section 470.” (§ 475, subd. (a).) Section 475, subdivision (a) thus includes offenses which would not constitute violations of section 476.
Under the statutory elements test, forgery by possession (§ 475, subd. (a)) is not a necessarily included offense of forgery by uttering or passing a forged check (§ 476).
3. Consecutive Sentencing
In appellant’s opening brief, defendant argues that under Cunningham, supra, 127 S.Ct. 856, the trial court erred in imposing eight-month sentences on counts 3 and 4 consecutively to counts 1 and 3, respectively. Defendant acknowledges in his appellant’s reply brief that this objection was recently rejected in People v. Black (2007) 41 Cal.4th 799 (Black II). Nevertheless, defendant continues to assert the objection for the purpose of preserving it for federal court review.
Under Black II his sentence is proper. Defendant contends the court’s imposition of consecutive sentences violated his right to a jury trial as guaranteed by the Sixth Amendment to the United States Constitution. (Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435]; Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403]; Cunningham, supra, 127 S.Ct. 856.) In Black II, supra, 41 Cal.4th 799, the California Supreme Court held for a second time that the determination whether two or more sentences should be served consecutively is a “‘sentencing decision[] made by the judge after the jury has made the factual findings necessary to subject the defendant to the statutory maximum sentence on each offense’ and does not ‘implicate[] the defendant’s right to a jury trial on facts that are the functional equivalent of elements of an offense.’” (Id. at p. 823, quoting from People v. Black (2005) 35 Cal.4th 1238, 1264.)
In Black II, the Supreme Court stated: “Accordingly, we again conclude that defendant’s constitutional right to jury trial was not violated by the trial court’s imposition of consecutive sentences on all three counts.” (Black II, supra, 41 Cal.4th at p. 823.) Thus, the California Supreme Court has rejected defendant’s notion that under Cunningham imposition of consecutive sentences in the absence of jury findings is unconstitutional. In light of Black II, defendant’s challenge is without merit.
4. Disposition
The judgment is affirmed.
We concur: Ramirez P. J., McKinster J.