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People v. Johnson

California Court of Appeals, Fourth District, Second Division
Feb 24, 2011
No. E050357 (Cal. Ct. App. Feb. 24, 2011)

Opinion

NOT TO BE PUBLISHED

APPEAL from the Superior Court of Riverside County. No. RIF138859, Roger A. Luebs, Judge.

Lewis A. Wenzell, 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, Assistant Attorney General, and Kevin Vienna, Deputy Attorney General, for Plaintiff and Respondent.


OPINION

HOLLENHORST J.

A jury found defendant and appellant Danny Bernard Johnson guilty of identity theft (Pen. Code, § 530.5, subd. (a), count 1), second degree commercial burglary (§ 459, count 2), forgery (§ 470, subd. (b), count 3), and misdemeanor possession of a fraudulent California driver’s license (§ 529.5, subd. (c), count 4). The trial court sentenced defendant to eight months in state prison on count 1, two years in state prison on count 2, two years in state prison on count 3, and 180 days in county jail on count 4. The court stayed the sentence on count 2, pursuant to section 654, and ordered the sentences on counts 3 and 4 to run concurrent with the term imposed on count 1.

All further statutory references are to the Penal Code unless otherwise indicated.

On appeal, defendant contends the sentence on count 3 should be stayed under section 654. The People concede and we agree. With regard to count 3, the verdict form and the December 10, 2009 minute order reflect that defendant was found guilty of a violation of section 470, subdivision (a), rather than section 470, subdivision (b), as charged in the information. We direct the trial court to modify the verdict form and the December 10, 2009 minute order to correctly reflect that the jury found defendant guilty of a violation of section 470, subdivision (b). In all other respects, we affirm the judgment. We remand with directions on count 3.

FACTUAL BACKGROUND

On June 4, 2007, defendant entered a bank and presented a withdrawal slip for $2,000 to a bank teller. The withdrawal slip was in the name and account number of Dana Boyer. Defendant also handed his driver’s license to the teller for identification. The teller ran the license under a black light, checked with her manager, and determined that the license was counterfeit. The teller then looked up the transaction history on the account and noticed that there had been numerous large withdrawals at different bank branches. Defendant signed the withdrawal slip in front of the teller, and the teller compared it to the signature on the account’s signature card. She determined that the signatures did not match. The teller talked with the assistant bank manager, who called Dana Boyer’s employer. The employer said Boyer was deceased. The teller called the police. The peace officer verified that Boyer was deceased and arrested defendant.

ANALYSIS

I. The Sentence on Count 3 Should Be Stayed Under Section 654

Defendant argues that the concurrent sentence on count 3 violated section 654, since counts 1 through 4 arose from an indivisible course of conduct. He asserts that all of the offenses were committed with the single objective of obtaining money from Dana Boyer’s bank account. The People correctly concede.

Section 654 “precludes multiple punishment for a single act or omission, or an indivisible course of conduct. [Citations.]” (People v. Deloza (1998) 18 Cal.4th 585, 591.) “Whether a course of criminal conduct is a divisible transaction which could be punished under more than one statute within the meaning of section 654 depends on the intent and objective of the actor. [Citation.]” (People v. Saffle (1992) 4 Cal.App.4th 434, 438.) “‘If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.’ [Citation.]” (People v. Britt (2004) 32 Cal.4th 944, 952.)

Here, defendant entered the bank to commit a felony. He prepared a bank withdrawal slip in Dana Boyer’s name, presented a fraudulent California driver’s license as identification, and forged Dana Boyer’s name on the bank withdrawal slip. It is clear that the forgery, burglary, and identity theft constituted an indivisible course of conduct, and that all of these offenses were incident to one objective—to obtain the bank funds of Dana Boyer.

Defendant was sentenced to eight months in state prison on count 1 (identity theft), two years in state prison on count 2 (burglary), two years in state prison on count 3 (forgery), and 180 days in county jail on count 4 (possession of a fraudulent Cal. driver’s license). The court stayed the sentence on count 2, pursuant to section 654, and ordered the sentences on counts 3 and 4 to run concurrent with the term imposed on count 1. Since defendant was convicted of multiple offenses arising from an indivisible course of conduct, the concurrent sentence on count 3 should be stayed under section 654. (See People v. Curtin (1994) 22 Cal.App.4th 528, 532.)

II. The Verdict Form and Minute Order Should Be Modified As to Count 3

This court noted some discrepancies in the record with regard to count 3. We directed the parties to file supplemental briefs to address the discrepancies, which they have done. The information charged defendant with a violation of section 470, subdivision (b) (forgery of handwriting). However, the count 3 verdict form and minute order from December 10, 2009, reflect that the jury found defendant guilty of a violation of section 470, subdivision (a) (forgery of signature). The parties agree that the verdict form and minute order simply reflect clerical errors. Generally, a clerical error is one inadvertently made. (People v. Schultz (1965) 238 Cal.App.2d 804, 808.) A trial court has the authority to correct clerical errors in court documents. (People v. Trotter (1992) 7 Cal.App.4th 363, 369-370.) Here, the prosecution’s argument coincided with the jury instructions and clearly set forth the elements that had to be proven before defendant could be found guilty of forgery of handwriting. (§ 470, subd. (b); see Trotter, at p. 370.) There is nothing in the record to reflect that the jury did not find defendant guilty of violating section 470, subdivision (b), except for the erroneous preprinted verdict form. We note that the penalties for violating section 470, subdivisions (a) and (b) are the same. (See § 473.) Thus, correction of the verdict form and minute order will conform the jury finding on count 3 to the charges, arguments, instructions, and proof, and will not result in any prejudice to defendant. (Trotter, at p. 370.) Accordingly, we will direct the trial court to interlineate or otherwise amend the jury verdict form, as well as the December 10, 2009 minute order, to correctly reflect the jury’s finding that defendant was guilty of a violation of section 470, subdivision (b), as charged under count 3 of the information.

DISPOSITION

The sentence imposed on count 3 is stayed under Penal Code section 654. The trial court is directed to amend the abstract of judgment and to forward a copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. The trial court is also directed to amend the verdict form and the December 10, 2009 minute order, with regard to count 3, to reflect that defendant was found guilty of a violation of section 470, subdivision (b). In all other respects, the judgment is affirmed.

We concur: RAMIREZ P. J., CODRINGTON J.


Summaries of

People v. Johnson

California Court of Appeals, Fourth District, Second Division
Feb 24, 2011
No. E050357 (Cal. Ct. App. Feb. 24, 2011)
Case details for

People v. Johnson

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. DANNY BERNARD JOHNSON, Defendant…

Court:California Court of Appeals, Fourth District, Second Division

Date published: Feb 24, 2011

Citations

No. E050357 (Cal. Ct. App. Feb. 24, 2011)