From Casetext: Smarter Legal Research

People v. Kasie

Court of Appeal of California
Apr 22, 2009
No. G040232 (Cal. Ct. App. Apr. 22, 2009)

Opinion

G040232

4-22-2009

THE PEOPLE, Plaintiff and Respondent, v. SANDRA KASIE Defendant and Appellant.

Guillermo Cabrera, 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, Lilia E. Garcia and Elizabeth S. Voorhies, Deputy Attorneys General, for Plaintiff and Respondent.

Not to be Published in Official Reports


OPINION

THE COURT:

Before Sills, P.J., Rylaarsdam, J., and Moore, J.

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

Defendant was convicted by a jury of 16 counts of issuing a check with insufficient funds ("NSF"), counts 1-3, 6-15, and 18 and 19. (Pen. Code, § 476a, subd. (a)),1 and four counts of grand theft of personal property, counts 4, 5, 16, and 20. (§487 subd. (a).)

She was sentenced to an aggregate term of five years and four months, comprised of two eight-month terms (or one-third the midterm for counts 7 and 17), which the court ordered to run consecutive to a four-year term previously imposed on a related matter (Case No. 07CF0232). The two-year terms that were imposed for all the remaining counts, or counts 1-6, 16-18, and 20 were run concurrently.

On appeal defendant contends the trial court committed sentencing error. She argues the trial court erred by failing to stay the sentences imposed for her grand theft convictions related to the four victims, or counts 4, 5, 16, and 20. Defendant contends these counts should have been stayed pursuant to section 654 because each incident of theft was perpetuated by, and was indivisibly linked to the initial offense of issuing one or more checks based on insufficient funds.

Respondent concedes that counts 4, 16, and 20, should have been stayed pursuant to section 654.

However, respondent disagrees with defendants position regarding count 5. Respondent contends the court correctly imposed count 5 concurrently, because defendant committed the initial act of grand theft (count 5), and then a week later, passed another separate check to the victim based on insufficient funds (count 6.) Or, as respondent further contends, the latter crime was not necessary to effectuate the former.

We agree that counts 4, 16, and 20, should have been stayed pursuant to section 654. We are in accord with the Attorney General however, that count 5 was correctly imposed concurrently. We thus affirm the judgment as modified.

I

FACTS AND PROCEEDINGS

VICTIM VENADO — ISSUANCE OF NSF CHECKS (COUNTS 1-3) and GRAND THEFT (COUNT 4)

On August 1, 2006, defendant approached victim Patricia Venado ("Venado") and asked if Venado would cash a check for her. Defendant told Venado she had deposited a check in the sum of $10,000 the previous day, but her bank put a hold on it. Defendant told Venado she would pay her $100 for the favor. Venado agreed.

Defendant wrote her a check for $750. Venado cashed the check at her bank the same day, and pursuant to their agreement, gave defendant $650. Over the next several days, defendant contacted Venado and asked her to cash additional checks. Venado agreed to do so, albeit reluctantly. On two occasions Venado cashed a $1,000 check at her bank and then gave defendant the money. On the third or final occasion, a bank teller refused to cash the check because none of the previous checks had cleared.

VICTIM ALVAREZ — GRAND THEFT (COUNT 5) AND ISSUANCE OF NSF CHECK (Count 6)

On April 29, 2006, defendant approached victim Augustin Alvarez ("Alvarez") in a shopping center and asked if he would help her cash a check because her bank was closed. Alvarez agreed to assist her, and defendant gave him a $3,000 check made payable to "cash." The check was signed by a person named "Lundar Yuh." Alvarez cashed the check at his bank and gave defendant $2,900, keeping $100 at defendants direction.

On May 6, 2006, Alvarez learned that the check he cashed for defendant had not cleared. He was finally able to contact her, and he demanded his money back. Defendant told him she knew the earlier check "did not have sufficient funds" when it was written. She then wrote out a personal check to Alvarez in the sum of $3,000. When Alvarez immediately tried to cash the new check at his bank, he was told that the account it had been written on was closed.

VICTIM CHANDRY — ISSUANCE OF NSF CHECKS (COUNTS 7-15) AND GRAND THEFT (COUNT 16)

In May of 2006, defendant contacted her former landlord Iffat Chaudhry ("Chaudhry"), and asked for Chaudrys held in cashing some checks. Defendant told Chaudhry that she had deposited a check for $45,000 but her bank put a hold on the check.

Chaudhry, who had known defendant for a year agreed to help her. Over the next several days, Chaudhry cashed multiple checks and gave defendant $17,000 in cash. About one week later, Chaudhry was told by her bank that all of the checks she cashed had bounced.

VICTIM VIVEROS — ISSUANCE OF NSF CHECKS (COUNT 17-19) AND GRAND THEFT (COUNT 20)

On May 27, 2006, defendant approached victim Floriberto Viveros ("Viveros") and asked him to cash a check for her. After showing him a check for $45,000 which she said she could not deposit, Viveros agreed to assist her.

On May 27, 2006, and on two separate occasions over the next three days, Viveros either cashed, or deposited into his account via the ATM, four separate checks in the sum of $6,200, and then gave defendant the cash. Soon after, Viveros was advised by his bank that none of the checks had cleared.

II

DISCUSSION

THE COURT CORRECTLY IMPOSED COUNT 5 TO RUN CONCURRENTLY.

As respondent concedes defendant is correct in asserting that section 654 bars imposition of separate punishment as to counts 4, 16, and 20, we decline to further address these counts.

Defendant contends that count 5 should have been stayed pursuant to section 654, rather than imposed concurrent. Defendant argues she was engaged in the same course of conduct, i.e., she wrote the second check to ensure that she could keep the $2,900 in cash that she took in count 5, even though the "temporal relationship" between the two specific transactions was removed by one week. We disagree.

Section 654, subdivision (a), provides in pertinent part: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." Thus, "[s]ection 654 precludes multiple punishments for a single act or indivisible course of conduct. [Citation.]" (People v. Hester (2000) 22 Cal.4th 290, 294.)

In reviewing a trial courts sentencing decision, we give deference to the trial courts factual findings. "`The question of whether the acts of which defendant has been convicted constitute an indivisible course of conduct is primarily a factual determination, made by the trial court on the basis of its findings concerning the defendants intent and objective in committing the acts. This determination will not be reversed on appeal unless unsupported by the evidence presented at trial. [Citation.]" (People v. Nichols (1994) 29 Cal.App.4th 1651, 1657.)

The Attorney General argues that each criminal act of which a defendant is convicted, may be considered separately punishable if one act is not necessary to effectuate the second act, (see In re Jesse F. (1982) 137 Cal.App.3d 164, 171); or one criminal act is completed before the second act begins. (cf. People v. Durant (1999) 68 Cal.App.4th 1393, 1396-1406.)

For example, in People v. Martin, (1962) 208 Cal.App.2d 867, 877-878; the defendants were convicted of multiple counts of issuing checks with insufficient funds, grand theft, forgery, and conspiracy. The court concluded that issuing an NSF check and grand theft of the property received for the check constituted indivisible criminal conduct. The defendants should not have been separately punished for the two charged offenses committed in each transaction, i.e., grand theft and check fraud. However, the court noted they could be punished separately for each check issued with insufficient funds. (See People v. Guastella (1965) 234 Cal.App.2d 635, 640; [each insufficiently funded check amounts to a separate criminal act].)

Thus based on the facts, the trial court here could have reasonably concluded that either one or both scenarios occurred. That is, the theft in count 5, was completed a full week in time before the NSF check was ever issued, or that the latter crime of writing out the NSF check (count 6) on May 6, 2006, was not necessary to effectuate the earlier taking of the money.

We conclude the evidence at trial reasonably supports the trials courts findings in this regard. Thus, the two-year concurrent term imposed for count 5 will remain undisturbed.

III

DISPOSITION

The judgment of conviction is affirmed as modified. The superior court is ordered to amend the abstract of judgment to reflect that defendants sentence as to counts 4, 16, and 20, are stayed pursuant to section 654, and to transmit a copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.


Summaries of

People v. Kasie

Court of Appeal of California
Apr 22, 2009
No. G040232 (Cal. Ct. App. Apr. 22, 2009)
Case details for

People v. Kasie

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. SANDRA KASIE Defendant and…

Court:Court of Appeal of California

Date published: Apr 22, 2009

Citations

No. G040232 (Cal. Ct. App. Apr. 22, 2009)