Opinion
NOT TO BE PUBLISHED
San Mateo County Super. Ct. No. SC064384
Jenkins, J.
This is an appeal from a final judgment of conviction and sentencing order following a court trial, in which the case was submitted on the transcript of the preliminary hearing. The trial court found appellant Kiet M. Ly guilty of a misdemeanor violation of Penal Code section 648 and a felony violation of Penal Code section 476. Appellant’s counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 and People v. Kelly (2006) 40 Cal.4th 106, requesting that we conduct an independent review of the entire record on appeal. Having done so, we affirm the judgment of the trial court.
Penal Code sections 648 and 476 provide as follows:
FACTUAL STATEMENT AND PROCEDURAL BACKGROUND
On August 23, 2007, an information was filed charging appellant with felony violations of Penal Code section 648 (count one) and Penal Code section 476 (count 2). The information further alleged that, prior to the commission of the offenses charged in counts one and two, appellant had, within the meaning of section 1170.12, subdivision (c)(1), suffered a prior conviction or juvenile adjudication on or about April 23, 1997, for violation of section 246. The information was based upon the following evidence revealed at the preliminary hearing held August 9, 2007.
Unless otherwise stated, all statutory citations herein are to the Penal Code.
On November 15, 2005, appellant, a passenger in a vehicle drive by Brian Morales, entered the parking lot of the Shell Gas Station on South Airport Boulevard in South San Francisco. Appellant got out of the vehicle, approached the station attendant, Edward Pulusian, and handed him a $100 bill to buy two packs of cigarettes and $20 worth of gas. Pulusian noticed that the bill's color was “distorted or faded.” After comparing the bill to another $100 bill, Pulusian formed the belief that the bill was fake and told appellant he doubted its authenticity. Appellant asked Pulusian to return the bill. Pulusian warned appellant that he intended to notify the police. In response, appellant became “startled and walked rapidly back to his vehicle.” Pulusian thus notified the police.
Jason Fukushima, an officer with the South San Francisco Police Department, was assigned to investigate the incident. Officer Fukushima testified that Pulusian gave him the fake bill and indentified appellant from a photo lineup as the person who attempted to use it to purchase items from the gas station. Officer Fukushima also spoke with Brian Morales, the boyfriend of the registered owner of the car in which Pulusian saw appellant leave the gas station. Morales told Officer Fukushima that he had spoken with appellant by telephone a few days after the incident, and that appellant admitted trying to buy cigarettes and gas with a fake $100 bill. Appellant then told Morales that police had become involved in the incident, and asked him to make up a story regarding what happened.
Officer Fukushima further testified that, at his request, appellant was interviewed by his colleague, Detective Chetucuti, on February 17, 2006. Officer Fukushima spoke with Detective Chetucuti regarding the interview soon after it finished, and was advised by the detective that appellant admitted attempting to purchase cigarettes and $20 worth of gas at the gas station on November 15, 2005, with a $100 bill that he knew was counterfeit.
The prosecution introduced into evidence at the preliminary hearing the $100 bill that appellant had attempted to use at the gas station. Following voir dire, Officer Fukushima testified that the bill in question was not authentic based upon several factors, including the bill’s faded and discolored appearance, the absence of clear and sharp detailing, the presence of smudging, a hologram that should have, but did not, resemble Benjamin Franklin, and the misplacement of a ribbon.
Officer Fukushima testified that he had experience with identifying counterfeit dollar bills based on his field training with the South San Francisco Police Department, his work on about 10 police investigations involving counterfeit U.S. currency, and his work with and training from others at the department, including Detective Bob Collins, who had expertise on the subject of counterfeit U.S. currency.
Following the preliminary hearing, appellant moved to dismiss the case on two grounds: (1) count one should have been charged as a misdemeanor rather than a felony because there was no evidence appellant had a prior conviction for the same offense, and (2) count two should have been charged as a misdemeanor violation of section 648 rather than a felony violation of section 476 based on the rule that a specific intent misdemeanor statute applies over a general intent felony statute. Following a hearing on the motion, the prosecution agreed to reduce count one to a misdemeanor, and the trial court rejected appellant’s second argument after concluding section 648 is not more specific than section 476 given that it lacks section 476’s intent-to-defraud requirement.
Once the trial court denied his motion to dismiss the case, appellant waived his right to a jury trial and submitted the matter as a court trial based upon the preliminary hearing transcript and additional court records regarding his prior juvenile adjudication. The trial court then found appellant guilty of count two, a felony violation of section 476, and of the lesser included offense of count one, a misdemeanor violation of section 648. The trial court also found true that appellant had committed a prior juvenile strike offense under section 246, shooting at an uninhabited dwelling.
Before sentencing, the trial court granted appellant’s Romero motion. In doing so, the trial court reasoned that, despite appellant’s rather significant criminal history (which included criminal charges then pending against him in other counties), the current offense was rather “minimal by felony standards” and that a significant period of time had passed since his more serious juvenile strike offense. The trial court thereafter rejected the prosecution’s request that appellant receive a 32-month sentence in state prison, suspended imposition of a sentence for count two, and admitted appellant to a three-year period of supervised probation subject to several terms and conditions, including serving a one-year term in county jail. The trial court further credited appellant for 137 actual days served plus 68 days for good time/work time, for a total of 205 days. This appeal followed.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 530.
The sentence as to count one was stayed by the court.
DISCUSSION
As we previously stated, appellant’s appointed counsel has filed an opening brief setting forth the material facts, but raising no issue for our consideration. Counsel requests that we independently review the record to decide whether there exists any nonfrivolous issue for appeal. (People v. Wende, supra, 25 Cal.3d 436; People v. Kelly, supra, 40 Cal.4th 106.) In doing so, counsel has attested that appellant was advised of his right to file his own brief with this court. Appellant has failed to file such a brief.
After an independent review of the record, we agree with appellant’s counsel that there are no reasonably arguable legal or factual issues for our consideration. Appellant, represented by competent counsel, was found guilty by the trial court of a felony violation of section 476 and a misdemeanor violation of section 648 after admitting that he tried to purchase gas and cigarettes with a $100 bill that he knew at the time was fake. The trial court also found true the allegation as to count two that appellant had suffered a prior juvenile adjudication for violation of section 246 within the meaning of section 1170.12, subdivision (c)(1), a fact proven by court records. The trial court thereafter granted appellant’s Romero motion, suspended imposition of a sentence for count two, and admitted appellant to a three-year period of supervised probation subject to several terms and conditions, including serving a one-year term in county jail. In doing so, the trial court declined the prosecution’s request that appellant be sentenced to 32 months in state prison.
The trial court’s judgment of conviction and sentencing decision were lawful. (§§ 1385, 476, 648; Cal. Rules of Court, rules 4.414, 4.423.) Having ensured appellant received adequate and effective appellate review, we thus affirm the trial court’s rulings. (People v. Wende, supra, 25 Cal.3d at pp. 441-442; People v. Kelly, supra, 40 Cal.4th at pp. 112-113.)
DISPOSITION
The final judgment of conviction and sentencing order are affirmed.
We concur: McGuiness, P. J., Pollak, J.
Ҥ 648. Issuing or circulating paper money
Every person who makes, issues, or puts in circulation any bill, check, ticket, certificate, promissory note, or the paper of any bank, to circulate as money, except as authorized by the laws of the United States, for the first offense, is guilty of a misdemeanor, and for each and every subsequent offense, is guilty of felony.”
Ҥ 476. Forgery; fictitious or altered bills, notes, or checks
Every person who makes, passes, utters, or publishes, with intent to defraud any other person, or who, with the like intent, attempts to pass, utter, or publish, or who has in his or her possession, with like intent to utter, pass, or publish, any fictitious or altered bill, note, or check, purporting to be the bill, note, or check, or other instrument in writing for the payment of money or property of any real or fictitious financial institution as defined in Section 186.9 is guilty of forgery.”