Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Appeal from a judgment of the Superior Court of Orange County No. 07WF2096, Richard W. Stanford, Jr, Judge.
Kazoua Cha, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
MOORE, J.
There is sufficient evidence in the record to support defendant’s convictions. If the court erred in its evidentiary ruling, the error was harmless. The court did not err when it sentenced defendant to prison and denied probation. We affirm.
I
FACTS
A jury found defendant Tien Luu guilty of two counts of possessing a forged check as charged in counts one and three of the information and guilty of two counts of commercial burglary as charged in counts two and four. The court sentenced him to seven years four months in prison.
Robert Kim is the owner of Jerry’s Liquor located on Westminster Avenue in Garden Grove. On December 30, 2006, at about 3:00 o’clock in the afternoon, Kim was the only employee in the store when defendant asked him to cash a payroll check. Defendant provided a California identification card. Kim made a copy of both the check and the card. Kim cashed the check. The next day defendant returned to the store with another check to cash, explaining he works for the same boss but for two different companies. Kim made copies of the check and the card, and cashed the second check.
Kim deposited the checks into his bank account. Five days later, his bank notified him the checks were counterfeit and were being returned to him. At trial, Kim identified copies of the card and checks, bearing check Nos. 42491 and 98230, totaling $1,470.
Ramon Moody is the operations manager at City National Bank. Exhibit 1, check No. 42491, was identified as a fraudulent check when it was presented to the bank. The name and signature did not match the names and signatures on the account. The bank concluded the check was counterfeit.
Kenneth Thompson is a forensic specialist with the Orange County Sheriff’s Department. He recovered nine fingerprints from check No. 98230. Those prints were photographed and marked as exhibits 7 (A) through (I). Karen Ford, a lead forensic specialist with the Orange County Sheriff’s Department, testified latent prints in exhibits 7 (A) through (I) matched defendant’s fingerprints.
William Lukas investigates checks fraud and forgery at the Garden Grove Police Department. Lukas conducted a photo lineup with defendant’s picture in position number four in the lineup. When Kim was shown the photo lineup, he picked out defendant’s photo in position number four.
We appointed counsel to represent defendant on appeal. Counsel filed a brief which set forth the facts of the case. Counsel did not argue against the client, but advised the court no issues were found to argue on defendant’s behalf. Pursuant to Anders v. California (1967) 386 U.S. 738, 744 appointed counsel noted three potential issues in order to assist this court with its independent review under People v. Wende (1967) 25 Cal.3d 436: 1) Whether there was sufficient evidence to prove defendant was the person who committed the crimes; 2) Whether or not the trial court erred in making an evidentiary ruling; and 3) Whether or not the trial court abused its discretion when it did not order probation.
II
DISCUSSION
Sufficiency of evidence
In addressing such challenges, “the reviewing court must examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence — evidence that is reasonable, credible and of solid value — such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] The appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citations.] The same standard applies when the conviction rests primarily on circumstantial evidence. [Citation.] Although it is the jury’s duty to acquit a defendant if it finds the circumstantial evidence susceptible of two reasonable interpretations, one of which suggests guilt and the other innocence, it is the jury, not the appellate court that must be convinced of the defendant’s guilt beyond a reasonable doubt. [Citation.] ‘“If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment. [Citation.]”’ [Citation.]” (People v. Kraft (2000) 23 Cal.4th 978, 1053-1054.)
Here, defendant was identified as the person who cashed both counterfeit checks. His fingerprints were found on one of the checks. We conclude there is sufficient evidence to sustain his convictions.
Evidentiary ruling
During the trial, the court held a hearing regarding the admission of evidence. From what is on the court reporter’s record, it appears the following arguments took place beforehand off the record: the prosecutor wanted to have part of the defendant’s interview with a police officer admitted; the defense wanted the rest of the interview admitted because it contained some potentially exculpatory information; the prosecutor argued that if the whole statement came into evidence, defendant was putting his credibility at issue and, accordingly, defendant could be impeached with his prior crimes.
The court explained the issue as follows: “if the prosecutor puts in statements of the defendant in any way, the defendant then being entitled 356 of the Evidence Code to bring in the totality of the statements, anything and everything else the defendant said during the same statement.”
Evidence Code section 356 provides: “Where part of an act, declaration, conversation, or writing is given in evidence by one party, the whole on the same subject may be inquired into by an adverse party; when a letter is read, the answer may be given; and when a detached act, declaration, conversation, or writing is given in evidence, any other act, declaration, conversation, or writing which is necessary to make it understood may also be given in evidence.”
The prosecutor informed the court: “The people would be asking investigator — specifically with respect to his interview of Mr. Luu, investigator Lukas had asked whether or not Mr. Luu had gone into Jerry’s Liquor and cashed the two checks, showing him a copy of the checks. [¶] Mr. Luu apparently looked at the checks and stated that he does not have a job, has not received any payroll checks, had never seen the two checks before investigator Lukas had showed them to him. Investigator Lukas asked him a second time if he had ever seen the checks before. He said — Mr. Luu said no, he had never handled any of the checks and investigator Lukas asked Mr. Luu if there is any reason his fingerprints would be on those checks and Mr. Luu said ‘No.’ That would be the extent of the statements that the people would be seeking to introduce.”
The defense attorney responded: “These are statements that are elicited by the investigator as a part of her investigation and Mr. Luu then responds, responds by saying that that is his I.D. card and that he had lost the I.D. card when his car was stolen. [¶] He explains to the investigator that that is his I.D. card and where that I.D. card is because he is trying to explain to the investigator that the I.D. is not on him. In fact, the investigator asked Mr. Luu to search his wallet. The investigator then finds an I.D. card in the wallet that is not the same one that is in the copies here. In fact, it is a newer I.D. card that Mr. Luu has in his wallet and those are the acts and the statements that I do want to get in because these are statements that are elicited by the investigator herself.”
The court responded to defense counsel: “But if you do want to get in his own statement, I see now why his credibility as a witness now becomes at issue and it’s actually unfair the other way to allow him to present his whole defense without having to take the witness stand. So I think you have to make a decision. You can still prove up that another I.D. was found. . . . Then his credibility is at issue. [¶] . . . [¶] I think there was a couple of 211’s so they may well be impeachable.”
If the evidence came in, the People intended to introduce certified copies of defendant’s prior convictions. The defense attorney argued the People were trying to force defendant to take the stand because “if he is impeached without even taking the stand, then we would have no recourse.” He said the court’s ruling violated his client’s right to remain silent. Counsel tried to sum up the court’s ruling: “Your Honor, basically what the court is saying is that Mr. Luu is either going to have to testify in order to get his statements in or if he doesn’t testify and those statements come in, he is going to be impeached without his testimony either way, right?” The court responded: “If exculpatory[,] statements come in. . . . If the defense wants to get in the defendant’s out-of-court statements in lieu of the defendant’s testimony, then his credibility as a declarant is admissible according to this case just as if he were a witness.”
The court stated the ruling was based on the holding of “the Jacobs case at 78 Cal.App.4th.” Defense counsel asked for a recess to read the case. Later in the trial, defense counsel informed the court it would not be calling Lucas after all. The court responded: “Then I won’t have to make any rulings on admissibility of the priors for impeachment and I won’t have to make any rulings on the limited purpose of such evidence, so on and so forth.”
In People v. Jacobs (2000) 78 Cal.App.4th 1444, the defendant asserted it was error for the trial court to admit evidence of his convictions to attack his credibility when he did not testify. (Id. at p. 1449.) The court concluded: “Taken together, sections 1202 and 788 seem to provide that evidence of prior felony convictions is admissible to attack the credibility of a hearsay declarant.” (Ibid.)
Evidence Code section 1202 provides: “Evidence of a statement or other conduct by a declarant that is inconsistent with a statement by such declarant received in evidence as hearsay evidence is not inadmissible for the purpose of attacking the credibility of the declarant though he is not given and has not had an opportunity to explain or to deny such inconsistent statement or other conduct. Any other evidence offered to attack or support the credibility of the declarant is admissible if it would have been admissible had the declarant been a witness at the hearing. For the purposes of this section, the deponent of a deposition taken in the action in which it is offered shall be deemed to be a hearsay declarant.”
Evidence Code section 788 provides: “For the purpose of attacking the credibility of a witness, it may be shown by the examination of the witness or by the record of the judgment that he has been convicted of a felony. . . .”
In the Jacobs case, it was the defendant who offered the statement. (People v. Jacobs, supra, 78 Cal.App.4th at p. 1448.) But here it is the prosecutor who offered part of a statement; defendant merely asked that, if part of the statement was admitted, the rest of it should come in too. In fact, the Jacobs court noted: “Our conclusion that evidence of appellant’s prior felony convictions was admissible to attack the credibility of his potentially exculpatory out-of-court statement to the police is limited to the facts of this case. We offer no view regarding admissibility of such convictions where a defendant is not the proponent of his own statement.” (Id. at p. 1454.)
However, no matter who offered the statement in this case, the evidence against defendant was overwhelming, and it would have made no difference in the outcome had the whole statement been admitted. Here there were both eyewitness and scientific evidence that defendant presented counterfeit checks to a commercial establishment and received almost $1500 in exchange for them. In the context of a violation of a constitutional right, the record must demonstrate beyond a reasonable doubt that an error did not contribute in any way to the defendant’s conviction. (Chapman v. California (1967) 386 U.S. 18.) We conclude that if the trial court erred in ruling defendant could be impeached with his prior crimes if he introduced evidence of the entire statement of Lukas, the error was harmless beyond a reasonable doubt.
Probation
In addition to being convicted of four felonies in the instant action, defendant admitted he was previously convicted of a prior felony which comes under the “Three Strikes” law, Penal Code section 667. He also admitted three prison priors under Penal Codesection 667.5.
Penal Codesection 667, subdivision (c)(2), states: “Probation for the current offense shall not be granted.” Under the circumstances in this record, where defendant is a habitual criminal, we cannot conclude the trial court erred.
III
DISPOSITION
We have examined the record and found no arguable issue. (People v. Wende, supra, 25 Cal.3d 436.) Defendant was given 30 days to file written argument on his own behalf. That period has passed, and we have received no communication from defendant. The judgment is affirmed.
WE CONCUR: BEDSWORTH, ACTING P. J., ARONSON, J.