Opinion
A151337
08-14-2018
THE PEOPLE, Plaintiff and Respondent, v. BRADFORD KAUFMAN, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. 5-162108-5) MEMORANDUM OPINION
We resolve this case by memorandum opinion pursuant to the California Standards of Judicial Administration, section 8.1. (See also People v. Garcia (2002) 97 Cal.App.4th 847, 853-855.)
Appellant Bradford Kaufman appeals from a judgment sentencing him to an aggregate term of eight years after a jury convicted him of four counts each of possessing, receiving or uttering a forged item (Pen. Code, § 475, subd. (a)), identity theft (§ 530.5, subd. (a)), second degree burglary (§ 459), and forgery (§§ 470, subd. (d) & 473); one count of grand theft (§ 487, subd. (a)); and two counts of obtaining money by false pretenses (§532, subd. (a)). The jury also found that appellant had suffered prior convictions and served prior prison terms. Appellant contends: (1) possessing, receiving or uttering a forged item in violation of section 475, subdivision (a), is a lesser included offense of forgery in violation of section 470, subdivision (d), and four counts must consequently be vacated; and (2) sentence for only one count per incident can be imposed under section 654. We agree with the second contention (as does the Attorney General) and affirm as modified.
Further statutory references are to the Penal Code. --------
I. FACTS
Given the nature of the issues on appeal, a detailed rendition of the facts is unnecessary. Suffice it to say, on four separate occasions, appellant cashed or attempted to cash a counterfeit check at a check cashing commercial establishment.
II. DISCUSSION
A. Lesser Included Offense
Appellant contends that possessing, receiving or uttering a forged item (§ 475, subd. (a)) is a necessarily included offense of intentionally making or passing a forged check (§ 470, subd. (d)) and that he therefore may not be convicted of both offenses. (See People v. Reed (2006) 38 Cal.4th 1224, 1227.) Both sides agree that we apply only the statutory elements test in answering this contention. (Id., at pp. 1227-1231.) "Under the 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." (Id. at p. 1227.)
Section 470, subdivision (d), the alleged greater offense in this case, provides, "Every person who, with the intent to defraud, falsely makes, alters, forges, or counterfeits, utters, publishes, passes or attempts or offers to pass, as true and genuine, any of the following items, knowing the same to be false, altered, forged, or counterfeited, is guilty of forgery: any check . . . ." Section 475, subdivision (a), the alleged lesser offense, provides, "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, is guilty of forgery."
Utilizing the elements test, it is possible to commit forgery under section 470, subdivision (d) [falsely making or uttering], without also committing forgery under section 475, subdivision (a) [possession or receipt of forged item]. As the Attorney General points out, section 470, subdivision (d) can be violated by attempting or offering to pass the instrument, an act that does not necessarily require possession or receipt. Section 475, subdivision (a), therefore, is not necessarily a lesser included offense of section 470, subdivision (d). To the extent the court in People v. Reisdorff (1971) 17 Cal.App.3d 675, 679-680, reached a different conclusion based on an analysis of the evidence actually introduced at trial, we decline to follow it. (People v. Chaney (2005) 131 Cal.App.4th 253, 256 [analysis of statutory elements test should be conducted without reference to the facts of the particular case].)
B. Section 654
The Attorney General agrees that under section 654, only one sentence may be imposed for each incident. We accept the concession.
III. DISPOSITION
The sentences on counts 5 to 8, 10 to 13, 15 to 18 and 20 to 22, are stayed under section 654. The abstract of judgment will be modified accordingly and a copy sent to the Department of Corrections and Rehabilitation. As so modified, the judgment is affirmed.
/s/_________
NEEDHAM, J. We concur. /s/_________
SIMONS, ACTING P.J. /s/_________
BRUINIERS, J.