Opinion
E066807
04-11-2018
THE PEOPLE, Plaintiff and Respondent, v. KERRY EDWARD GULLA, Defendant and Appellant.
Kendall Dawson Wasley, 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, Eric A. Swenson and Allison V. Acosta, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. BAF1500352) OPINION APPEAL from the Superior Court of Riverside County. Thomas D. Glasser, Judge. (Retired Judge of the San Bernardino Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed. Kendall Dawson Wasley, 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, Eric A. Swenson and Allison V. Acosta, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Kerry Edward Gulla entered the Bank of America in Hemet with a forged check written in the amount of $3,000 and attempted to open a bank account in his name. Defendant was found guilty of one count of second degree burglary (Pen. Code, § 459). In a bifurcated proceeding, after he waived his right to a jury trial, the trial court found defendant had suffered one prior serious or violent felony conviction (§§ 667, subds. (e) & (c)(1), 1170.12, subd. (c)(1)) and served one prior prison term (§ 667.5, subd. (b)). The trial court sentenced defendant to four years to be served in state prison.
All further statutory references are to the Penal Code unless otherwise indicated.
The trial court struck the section 667.5, subdivision (b) prior prison term enhancement.
Defendant claims on appeal that the trial court breached its sua sponte instructional duty and violated his federal Constitutional due process rights by failing to instruct the jury with a definition of "value" as it pertained to whether the check's value exceeded $950. In the alternative, defendant claims that if this court determines the trial court had no sua sponte duty to instruct the jury, he received ineffective assistance of counsel due to his counsel's failure to request such an instruction.
FACTUAL AND PROCEDURAL HISTORY
A. PEOPLE'S CASE-IN-CHIEF
On May 21, 2015, Rosie Silva worked as a personal banker at the Bank of America located on East Florida Avenue in Hemet. On that day, defendant entered the bank and asked to open a new account. He handed Silva a check written in the amount of $3,000. He also gave her his identification card. He requested $200 cash and the remainder to be deposited. Silva noted that the check given to her seemed suspicious. It was not a personal check but a check written on a credit card account. In her experience, these types of checks were normally written to a business and not to another person. She could also see that defendant was nervous. Silva called Luke Selway, the owner of the credit card account. Selway advised her that he did not write the check. She called the police.
When Silva returned to her desk, defendant was already walking out of the bank with a woman. Silva followed him and told him that she could open an account for him with the check. She lied in order to keep him at the bank until the police could arrive. He came back in the bank and she pretended to open the account. Silva indicated the check appeared to be a real check and was connected to Selway's credit card account.
At about 5:12 p.m. on May 21, Hemet Police Officer Matthew Chavez was dispatched to the Bank of America. When he arrived at the location, he contacted Silva. Silva showed her defendant's identification card and the check. The identification card appeared to be real. Defendant was still at the bank and Silva pointed him out to Officer Chavez as the one who gave her the check. Defendant admitted that he tried to cash the check at the bank. He did not know Selway.
Selway was notified by a teller at Bank of America that someone was trying to cash a check on his account. Selway reviewed the check at trial and indicated he did not sign the check. He did not have any construction work performed by defendant that required him to pay defendant. He did not give anyone permission to write the check for him. He could not identify defendant. The check did not come from his regular checkbook. Selway did not know a person named Liz Medina.
B. DEFENSE
Defendant testified that he resided in Lucerne Valley and worked in construction. He worked for a family-owned company and also did jobs on his own. He mostly performed concrete work. He met a person named Liz through mutual friends. Liz asked him to do some concrete work at her house. She took him to her house on North Johnson Street in Hemet and asked him to provide an estimate of the cost of the work. Defendant estimated it would cost $3,000.
Liz agreed to have defendant do the work. She advised him to meet her at the Bank of America on East Florida Avenue in Hemet. Liz gave him the check for $3,000 and he went inside the bank. Defendant approached the teller and advised her he wanted to open a new account. He gave the teller his driver's license, credit card and the check. He asked for $200 in cash so he could pay for the materials to start the job. After waiting some time, he walked out of the bank to check on his girlfriend, who was sitting in their car.
Defendant insisted he gave Liz's address to Officer Chavez. Defendant had no idea the check was fraudulent. He was given the check just as he was entering the bank and only looked at the amount. Defendant had a prior felony conviction for spousal abuse and a prior misdemeanor commercial burglary conviction. He did not normally require advance payment for his services. He had no other bank account. He had provided Liz's address to his attorney that morning.
Defendant called Officer Chavez to testify. Officer Chavez recalled that Silva told him defendant had the $3,000 check and wanted to deposit part of it and receive $200 in cash. Silva never told Officer Chavez that defendant appeared nervous.
Kim Atkinson was a paralegal employed by the Riverside County Public Defender's Office. She was given a subpoena by defendant's counsel on July 18, 2016, for Elizabeth J. Medina. Atkinson was instructed to serve Medina, who happened to be in the courtroom at the same time as defendant's counsel. Medina accepted the subpoena. She was instructed to appear on July 20, 2016, for defendant's trial. Atkinson was given phone numbers for Medina. When Medina failed to appear in court on July 20, Atkinson tried calling Medina but got her voicemail. Medina never called her back. The jury was advised that a warrant for Medina's arrest was issued when she failed to appear in court on July 20. She had not yet been arrested.
C. REBUTTAL
Officer Chavez denied that defendant provided him with Liz's name or address when he spoke with defendant at the bank. Defendant never told Officer Chavez that defendant's girlfriend was waiting in defendant's car.
DISCUSSION
Defendant claims the trial court breached its sua sponte instructional duty and violated his federal Constitutional due process rights by failing to instruct the jury on the definition of value for the sole charge of burglary based on theft of property valued at more than $950. Further, if the trial court had no sua sponte duty to so instruct, he received ineffective assistance of counsel due to his counsel's failure to request the instruction.
A. ADDITIONAL FACTUAL BACKGROUND
After the presentation of evidence, the prosecutor decided to pursue the burglary based on only a theory of theft. The prosecutor clarified defendant was not being charged with forging the check. The discussion of the jury instructions was conducted off the record and there is no indication that defense counsel objected to any of the instructions or requested any modification of the instructions.
The jury was instructed on burglary. It was instructed that they must find that (1) the defendant entered a building; (2) when he entered the building, he intended to commit a theft; and (3) the value of the property taken or intended to be taken was more than $950. The jurors were given instructions on theft, which provided that in order to prove theft, defendant had to (1) take possession of property owned by someone else; (2) take possession of the property without the owner's consent; (3) take the property with the intent to deprive the owner of it permanently or to remove it from the owner's possession for so extended a period of time that the owner would be deprived of a major portion of the value or enjoyment of the property; and (4) move the property.
The prosecutor argued during closing, "Also I have to prove over $950. I just have to prove the amount, which indicates that it's felony conduct. How do we know it's over 950? The check was made out for $3,000. His intent when he went in there was to take $3,000 from Mr. Selway's account and put it in his account. He was taking possession of that."
Defense counsel acknowledged that the check appeared to be real and valid. Defense counsel argued that defendant believed the check was real and that he could deposit it into his account. Defense counsel argued it was not reasonable that defendant knew the check was a forgery since he only intended to take $200 and he gave his real identification.
B. ANALYSIS
The trial court must instruct the jury sua sponte on the general principles of law relevant to the issues raised by the evidence. (People v. Breverman (1998) 19 Cal.4th 142, 154; see also People v. Lopez (1998) 19 Cal.4th 282, 287.) "A court is required to instruct on the law applicable to the case, but no particular form is required; the instructions must be complete and a correct statement of the law." (People v. Fiu (2008) 165 Cal.App.4th 360, 370.) "A party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language." (Ibid.)
Defendant here was charged with burglary, which provides in pertinent part that "[e]very person who enters any . . . building . . . with intent to commit grand or petit larceny or any felony is guilty of burglary." (§ 459.) Proposition 47 added the crime of shoplifting, which provides, "Notwithstanding Section 459, shoplifting is defined as entering a commercial establishment with intent to commit larceny while that establishment is open during regular business hours, where the value of the property that is taken or intended to be taken does not exceed nine hundred fifty dollars ($950). Any other entry into a commercial establishment with intent to commit larceny is burglary." " 'Proposition 47 broadly reduced punishment for 'obtaining any property by theft' where the value of the stolen information is less than $950." (People v. Romanowski (2017) 2 Cal.5th 903, 905 (Romanowski).)
In People v. Lowery (2017) 8 Cal.App.5th 533 (Lowery), review granted April 19, 2017, S240615, the court addressed the meaning of the term "value" under section 473, subdivision (b) in regards to check forgery, which is a misdemeanor after Proposition 47 if the value of the check does not exceed $950. (Lowery, at pp. 536-537.) In Lowery, the defendant attempted to cash a check in the amount of $1,047.85 but it was rejected by the bank because it was determined to be a forged check. Defendant appealed the denial of his petition filed pursuant to section 1170.18 based on the trial court's determination that the check amount exceeded $950 based solely on the amount written on the check. (Lowery, at p. 537.)
Further action in Lowery was deferred pending consideration and disposition of a related issue in People v. Franco, review granted June 15, 2016, S233973. Franco remains undecided. --------
The appellate court determined, "We think a forged check may have a monetary value equal to its written value." (Lowery, supra, 8 Cal.App.5th at p. 541.) It also concluded, "A defendant may be able to introduce evidence showing the actual monetary value of the check is less than its written value. For example, a check may be so ineptly forged that even the most credulous clerk would refuse to honor it. . . . A defendant might also be able to present evidence through an expert witness that a forged check has a monetary value less than its written value based on a discounted price paid on the street." (Id. at p. 541.) It concluded, "For the above reasons, we hold the term 'value' in Penal Code section 473 refers to the actual monetary value of the check—that is, the amount the defendant could obtain for the check, not the amount for which it was written." (Ibid.) It rejected the trial court's determination that the written amount was the fair market value as a matter of law. (Ibid.)
In People v. Romanowski, supra, 2 Cal.5th 903, the court addressed whether Proposition 47 applied to a violation of section 484e, subdivision (d), the theft of access card account information. The court first determined that a violation of section 484e, subdivision (d) was a theft crime. (Romanowski, at pp. 908-910.) The court then addressed how the courts should assess the value of the stolen access card information. (Id. at p. 914.) It looked to the Penal Code's definition of theft under section 484, subdivision (a) which was the " 'reasonable and fair market value.' " (Romanowski, at pp. 914-915.) This included the black market value of the information. The court concluded, "The ultimate burden of proving section 1170.18 eligibility lies with the petitioner." (Id. at pp. 915-916.)
While these above-mentioned cases did not involve burglary, their discussion of value after Proposition 47 is relevant. Here, the trial court gave the standard instruction that the jury must determine the value of the check was over $950. At the time of defendant's trial, Lowery and Romanowski had not been decided. However, neither of these cases provide that the trial court has a sua sponte duty to instruct the jury on a special definition of value beyond that in the standard instructions, and defendant had provided no case holding as such. If defendant wanted further instruction, it was up to him to request an amplifying or clarifying instruction defining value.
Moreover, such sua sponte instruction would not appropriately be given in this case. The prosecution presented evidence that the check amount of $3,000 was the value of the check. Defendant presented no other evidence that the value of the check was anything but the $3,000 amount. The trial court had no sua sponte duty to instruct on value because there was no evidence that the value of the check was less than $950. The printed amount on the check was $3,000 and, as stated in Lowery, the written amount "may" be the fair market value. (Lowery, supra, 8 Cal.App.5th at p. 541.) Silva explained that the check appeared valid; she only was suspicious based on the check being a courtesy check drawn on a credit card. She explained that in her experience, this type of check was written to a business. There was no evidence presented by defendant that the fair market value was less than $950.
The People relied on the written amount of the check as the value because the check was legitimate and could be cashed based on the evidence. It was up to defendant to present evidence that the check could be valued at less than $950 and request a pinpoint instruction for the jury based on the evidence. By failing to present any evidence, the trial court was not obligated to instruct the jury any further on value as the evidence only supported that the check's value was $3,000.
Moreover, defendant's counsel's failure to request additional instruction on value was a reasonable tactical choice and did not constitute ineffective assistance of counsel.
To establish a claim of ineffective assistance of counsel, a defendant must show (1) trial counsel's performance fell below an objective standard of reasonableness under prevailing professional norms; and (2) the defendant suffered prejudice, i.e., there is "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 694; People v. Carter (2003) 30 Cal.4th 1166, 1211.) "A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Strickland, at p. 694; Carter, at p. 1211.) Finally, the defendant must show that " 'the [act or] omission was not attributable to a tactical decision which a reasonably competent, experienced criminal defense attorney would make.' " (People v. Gurule (2002) 28 Cal.4th 557, 610-611.)
We find a deliberate tactical choice by counsel as to the defense on this record. Defense counsel could reasonably conclude that the jury would not find the check's value was less than $3,000 and determined that it was more reasonable to argue to the jury that defendant did not have the intent to commit theft. During the discussion of the prior convictions being used to impeach defendant should he testify, counsel requested that defendant's prior burglary conviction be considered a misdemeanor because the record of conviction showed that after Proposition 47, the theft was for an amount less than $950. Counsel was clearly aware the value of the check was an issue after Proposition 47. Counsel's conclusion that the proper trial strategy was to argue lack of intent was a reasonable, tactical choice. Additionally, defendant's counsel could choose to seek an outright acquittal rather than a misdemeanor conviction.
Finally, defendant has failed to show prejudice as it is not reasonably probably the jury would have found defendant only guilty of a misdemeanor had the trial court instructed the jury with a further definition of value. As stated, the People presented the check, which was written for $3,000, as evidence that the value was over $950. Silva and defendant both testified that the check appeared to be legitimate and the only reason she was suspicious was based on her experience with those types of checks. If the jury had been instructed to determine the fair market value of the check, it would have concluded it was $3,000. Defendant has failed to show prejudice.
DISPOSITION
The judgment is affirmed in full.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J. We concur: McKINSTER
Acting P. J. SLOUGH
J.