Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. GA074418, Janice C. Croft, Judge.
William D. Farber, under appointment by the Court of Appeal, for Defendant and Appellant Lamont E. Moore.
Linda L. Gordon, under appointment by the Court of Appeal, for Defendant and Appellant Regina Denise Jennings.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., and Blythe J. Leszkay, Deputy Attorneys General, for Plaintiff and Respondent.
ARMSTRONG, J.
Appellants Lamont Moore and Regina Jennings were each convicted, following a jury trial, one count of forgery in violation of Penal Code section 475, subdivision (c) and one count of receiving stolen property in violation of section 496, subdivision (a). Appellant Jennings was also convicted of one count of identity theft in violation of section 530.5, subdivision (a). Appellants were sentenced to the mid-term of two years in state prison for receiving stolen property plus a concurrent two-year term for the forgery conviction. Jennings received an additional term of two years for the identity theft conviction, to run concurrently as well.
All further statutory references are to the Penal Code unless otherwise indicated.
Appellants appeal from the judgment of conviction. Jennings contends that there is insufficient evidence to support her convictions for forgery and identity theft and that the trial court erred in failing to stay sentence on the forgery conviction pursuant to section 654. Moore contends that the trial court erred in failing to give a unanimity instruction for the forgery charge and limiting the use of evidence introduced against appellant Jennings. We order appellants' sentences for forgery in violation of section 475 stayed pursuant to section 654. There is no change in the total period of imprisonment. We affirm the judgment of conviction in all other respects.
Facts
On March 27, 2008, Los Angeles County Sheriff's Department Detective Patrick Murphy stopped a 1997 black Jeep Cherokee with three occupants, including Moore and Jennings. The detective searched the vehicle and found six credit cards in the name of Stephanie Clark in the driver's side door pocket. Detective Murphy found five United States Treasury checks in the vehicle's center console. There were other pieces of mail addressed to other people in the console as well. The checks were all dated March 14, 2008 and were in envelopes. The checks were not made out to appellants. They were all addressed to addresses in Downey, with a zip code of 90242. Two of Jennings's fingerprints were found on the front of one of the envelopes.
A United States Secret Service agent verified that the checks were genuine.
Detective Murphy found a driver's license with Jennings's photo on it in her purse. The name on the license was "Linda Racht." It appeared fake. An employee of the Department of Motor Vehicles confirmed that the license was fake. There were also pieces of mail in other people's name in the purse.
Jennings was an employee of the United States Postal Service. In March 2008, she was a mail processing clerk at the Los Angeles Processing and Distribution Center working with a Delivery Bar Code Sorter ("DBCS") machine. A DBCS machine sorts the mail for a particular zip code into individual carrier routes. The clerk monitors the machine and removes any mail that will not go through the machine. Jennings was assigned to work on the DBCS machine for Downey 90242. She worked March 16 through March 18, when the U.S. treasury checks dated March 14 would likely have been processed through the DBCS machine.
Humberto Gutierrez and Jae Young Kim both testified that they were expecting IRS refund checks in about March 2008. They did not receive the checks and reported them missing. Gutierrez identified a check recovered from the Jeep Cherokee that was made out to Humberto and Claudia Gutierrez at the Gutierrez's address. There was a signature on the back of the check, but it was not his signature. Kim also identified a check recovered from the Cherokee which was made out to Jae Young Kim and Bo Kim at the Kims' address. Neither man authorized anyone to possess or endorse the check.
Stephanie Clark testified that she lost her wallet in 2001 and reported the credit cards lost. These were the credit cards recovered from the Jeep Cherokee. She did not give anyone permission to possess or use the cards.
Jennings's supervisor testified in Jennings's defense that employees were required to use clear plastic bags to carry their personal belongings at work. During the year prior to trial, the DBCS machine for Downey was moved about three times, and other machines were sometimes used to process mail for that zip code.
Jennings testified in her own behalf that the machine she worked on was 18 to 20 feet in front of her supervisor's desk. There was a security camera located above the feeder of her machine and in other areas throughout the room.
Jennings testified that she had taken three to four days off around March 14, 2008.
Jennings owned the 1997 Jeep Cherokee which was stopped by Detective Murphy. Moore usually drove it.
Jennings denied stealing mail. She denied ever seeing the checks or credit cards found in the Jeep. She stated that the mail in her purse with other people's names on it belonged to her family members. She believed that her fingerprint got on the U.S. Treasury envelopes when she was looking for other paperwork in the Jeep.
Jennings admitted possessing the fake driver's license found in her purse. She lost her purse in 2001 or 2002. Some family members and friends gave her the fake license so that she could go hear her niece sing at a club. Jennings did not believe that the driver's license looked real and believed that she could go to jail for it. She put the license in a drawer. Shortly before her arrest in this case, she accidentally shredded her driver's license, so she put the fake one in her wallet.
The parties stipulated to the admission of Moore's statement to detectives made after he was arrested. Moore said that he found Clark's credit cards while working for street maintenance. He found the U.S. Treasury checks in a black bag left at a gas station. He intended to put both sets of items in a mailbox, but forgot. Moore stated that Jennings did not know anything about the checks.
Discussion
1. Sufficiency of the evidence
Appellant Jennings contends that there is insufficient evidence to support her count 1 forgery conviction and her count 4 identity theft conviction.
a. Forgery
Section 475, subdivision (c), provides: "Every person who possesses any completed check, money order, traveler's check, warrant or county order, whether real or fictitious, with the intent to utter or pass or facilitate the utterance or passage of the same, in order to defraud any person, is guilty of forgery." Jennings contends there is insufficient evidence that she passed or intended to pass the checks to defraud another person. She contends that the evidence shows mere possession, and that is insufficient to support her conviction.
In her job at the U.S. Postal Service, Jennings worked at the machine which sorted mail for the 90242 zip code in Downey. The U.S. Treasury checks found in the Jeep owned by Jennings were all addressed to locations in that zip code. The checks were dated March 14, 2008, and would have gone through the sorting machines on days when Jennings was working at the machine. Her fingerprints were on one of the check envelopes. One of the checks had a fraudulent signature on it. This is more than sufficient evidence to support an inference that Jennings intended to utter or pass the check, or to facilitate the utterance or passage of the checks by appellant Moore or someone else.
To the extent that Jennings contends that actual uttering or passing of a check is required by section 475, she is mistaken. As the cases she cites show, many convictions for forgery do involve passing or attempt to pass a check. The plain language of section 475 does not require such an act, however. Further, case law shows that possession plus slight corroborative evidence is sufficient. (See People v. Norwood (1972) 26 Cal.App.3d 148, 159 [fraudulent intent may be inferred from defendant's possession of checks and warrants and a driver's license in other people's names]; accord People v. Reisdorff (1971) 17 Cal.App.3d 675, 679 [possession plus slight corroborative evidence of other inculpatory circumstances is all that is required to prove fraudulent intent].)
b. Identity theft
Section 530.5, subdivision (a) provides in relevant part: "Every person who willfully obtains personal identifying information, as defined in subdivision (b) of Section 530.55, of another person, and uses that information for any unlawful purpose, including to obtain, or attempt to obtain, credit, goods, services, real property, or medical information without the consent of that person, is guilty of a public offense." Thus, to be guilty under section 530.5, subdivision (a), the defendant must (1) willfully obtain personal identifying information of another person, and (2) use the identifying information for an unlawful purpose without the person's consent. Appellant contends that there is no evidence that she used the fake driver's license for any unlawful purpose.
Jennings was charged with possession of a forged driver's license in violation of section 470b and possession of a counterfeit seal (on the driver's license) in violation of section 472. The jury deadlocked on those charges.
Respondent points out that possessing a false driver's license with the intent to use it to facilitate the commission of a forgery is unlawful under section 470b, and that this crime could be the necessary unlawful purpose required by section 530.5. We agree. We see sufficient evidence to infer such an intent.
At the time of their arrest, Jennings and Moore had numerous U.S. Treasury checks which did not belong to them. At least one check had a forged signature on it. It is reasonable to infer that Jennings intended to use the forged driver's license to facilitate the passing of the stolen checks. The stolen checks could have been endorsed over to Racht, and Jennings could have used the forged driver's license when cashing the checks.
This inference is made more reasonable in light of Jennings's unbelievable explanation for her possession of the forged license. She claimed that she acquired it six or seven years before her arrest in this case when she misplaced her license and wanted to hear her niece sing at a club. She then kept the forged license in a drawer for six or seven years, until, shortly before her 2008 arrest she accidentally shredded her valid legitimate license and decided to put the old forged driver's license in her wallet. The forged license had an expiration date in 2002 printed on it.
In her reply brief, Jennings contends that respondent is relying on section 470, subdivision (b) to support its argument. She further contends that the jury deadlocked on whether she violated section 470, subdivision (b), and that that count was subsequently dismissed by the court. She concludes that respondent's reliance is improper. Respondent is relying on section 470b, not 470, subdivision (b). The jury was instructed that section 470, subdivision (b) requires that a defendant "signed the name of another or fictitious person to any driver's license" or "falsely made, altered, forged or counterfeited any driver's license." Section 470b requires only that the defendant possess a forged driver's license and intend to use it to "facilitate the commission of any forgery." Thus, a finding that Jennings did not forge, alter or counterfeit the driver's license would not exclude a finding that Jennings intended to use a forged driver's license to cash a check containing a signature forged by another.
Jennings's confusion is understandable. The information alleges in count 5 that she violated section 470b, possession of a forged driver's license. The jury was instructed that Jennings was accused in count 5 of having violated section 470, subdivision (b). The crime set forth in section 470 is forgery. It does not appear that this discrepancy is the result of an amended information, since the People's attempt to file an amended information was rejected as untimely. Further, that amended information still showed count 5 as alleging a violation of section 470b.
2. Section 654
Appellant Jennings's convictions for forgery and receiving stolen property were both based on the same U.S. treasury checks. She contends that section 654 barred imposition of sentence on one of the counts, and the trial court erred in imposing sentence on both counts. We agree. Moore's convictions are also based on the same U.S. Treasury checks, and should be stayed as well.
Section 654 is applicable where there is a single act or an indivisible course of conduct which violates more than one statute. The divisibility of the conduct depends on the intent and objective of the actor. If all the offenses are incident to one objective, the defendant may be punished for any one of them but not for more than one. (People v. Bauer (1969) 1 Cal.3d 368, 376; Neal v. State of California (1960) 55 Cal.2d 11, 19.)
"'The question whether [Penal Code] section 654 is factually applicable to a given series of offenses is for the trial court, and the law gives the trial court broad latitude in making this determination. Its findings on this question must be upheld on appeal if there is any substantial evidence to support them.' [Citation.] The court's findings may be either express or implied from the court's ruling. [Citation.] In the absence of any reference to Penal Code section 654 during sentencing, the fact that the court did not stay the sentence on any count is generally deemed to reflect an implicit determination that each crime had a separate objective. [Citations.]" (People v. Tarris (2009) 180 Cal.App.4th 612, 626-627.)
Here, there was no reference to section 654 during sentencing, by the trial court or the parties. Thus, there is only an implicit determination that appellants had separate intents or objectives in committing forgery and receiving stolen property. We see no evidence to support such a determination.
The stolen property consisted entirely of stolen U.S. Treasury checks dated
March 14, 2008. At least one of the checks had a forged signature on it. Appellants were convicted of possessing the checks with the intent to pass or utter them. The only reasonable inference from this evidence is that appellants acquired all the stolen checks at one time with the intent to cash them. Appellants' commission of the receiving crime was essential to their successful commission of the forgery crime, and they had the same objective when they committed both crimes: to steal money. (See People v. Britt (2004) 32 Cal.4th 944, 952 [section 654 applied to sex offender who changed residences without notifying authorities at old or new locations for purpose of concealing his whereabouts].)
The cases cited by appellant support this conclusion. In People v. Curtin (1994) 22 Cal.App.4th 528, the defendant was convicted of inter alia, commercial burglary and forgery arising from a single incident when he entered a bank to cash a forged check. On appeal, the defendant contended that he should not have been sentenced separately for the two crimes because they were part of the same indivisible transaction, both committed for a single criminal objective, to cash the check. The People conceded the issue. The Court agreed that the defendant's argument had merit. (Id. at p. 532.) In People v. Conners (2008) 168 Cal.App.4th 443, the Court of Appeal held that the defendant could not be sentenced for both money laundering and receiving stolen property because "there was clearly a single, indivisible course of conduct: [defendant] received and cashed five checks representing stolen funds, all in amounts under $10,000." (Id. at p. 458.)
We do not agree with respondent that this case should be disregarded because the People agreed with the defendant's argument. The Court specifically stated that the argument had merit.
Respondent points to People v. Morelos (2008) 168 Cal.App.4th 758, 761 to support the trial court's decision to sentence Jennings for both crimes. In Morelos, the Court of Appeal upheld the trial court's decision to sentence the defendants for receiving stolen property and possession of blank checks in violation of section 475, subdivision (a). We are unable to ascertain from that opinion what property formed the basis of the receiving stolen property convictions. Thus, we do not find Morelos useful in analyzing this case.
Further, the defendants in Morelos did not make the narrow argument that they could not be sentenced for receiving stolen property and possession of blank checks. They argued that all of the "'possession-related' counts (the receiving counts, the blank check counts, the driver's license counts, and the altered check counts)" must be stayed since they all arose from an indivisible transaction pursuant to a single objective. (Id. at p. 768.) As the Court of Appeal noted, defendants were requesting that their entire "counterfeiting and forgery operation [be treated] as 'essentially a single act of possession.'" (Id. at p. 769.) That is not the situation here.
3. Unanimity
Appellant Moore contends that the trial court erred in failing to give a unanimity instruction for the count 1 forgery count. We do not agree.
When a defendant is charged with a single criminal act, and the evidence reveals more than one such act about which the jury may disagree, a unanimity instruction is required. (People v. Davis (2005) 36 Cal.4th 510, 561.) Each act must be capable of supporting a separate charge. (Ibid. [defendant entitled to unanimity instruction where "[e]vidence disclosed two distinct takings: the taking of Harris's car from Boyd and Harris, and the taking of Boyd's rings from her person"].) In such circumstances, a trial court has a sua sponte duty to give a unanimity instruction. (Ibid.)
A unanimity instruction is not required when the evidence shows only one criminal act or a continuous course of conduct. (People v. Ibarra (2007) 156 Cal.App.4th 1174, 1198.) It is also not required when there are different possible theories supporting a charge. (People v. Davis (1992) 8 Cal.App.4th 28, 40-41.) For example, a jury need not agree on the method of theft or the felony supporting a burglary conviction. (Ibid.)
Here, appellant Moore was charged with and convicted of one count of forgery in violation of section 475, subdivision (c). The jury was instructed that appellant Moore was guilty of that charge if he possessed a completed IRS Treasury Tax Refund Check with the "specific intent to utter or pass or facilitate the utterance or passage of the same, " and "with the specific intent to defraud." This charge was based on the five U.S. Treasury checks found in the center console of the Jeep.
Appellant Moore does not and could not contend that possession of each check could constitute a separate count. (People v. Morelos, supra, 168 Cal.App.4th at pp. 763-765.) He contends that there were four possible factual scenarios that the jury could have used to find him guilty of forgery: (1) he found the checks and did not return them; (2) he found the checks and forged the endorsements on them; (3) he received the checks from appellant Jennings with the endorsements already forged; and (4) he falsely endorsed one or more of the checks.
"[N]o unanimity instruction is required as to a single count of forgery involving a single instrument, even though the evidence shows different acts of forging and acts of uttering." (People v. Sutherland (1993) 17 Cal.App.4th 602, 618 [evidence showed that defendant either forged or uttered checks or both, depending on what part of the evidence the jury believed].) This is so because forging and uttering are different legal theories under which the defendant could be found guilty of forgery. (Ibid.)
Here, the different scenarios described by appellant Moore are simply different theories under which he could have been found guilty of forgery. The jury was only required to find that appellant Moore possessed the checks with the appropriate fraudulent intent. It did not matter whether Moore acquired possession of the checks by finding them at a gas station or receiving them from appellant Jennings. It did not matter whether Moore endorsed the checks or someone else did as long as Moore had a fraudulent intent. The differences described by Moore are similar to "whether a defendant [in a burglary case] pried open a window with a screwdriver or a crowbar, " a factual detail for which unanimity is not required. (Schad v. Arizona (1991) 501 U.S. 624, 638, 656.)
Appellant Moore cites many cases in which a unanimity instruction was required. In all of these cases, there were at least two distinct criminal acts which could possibly have supported a single charge. (See People v. Davis, supra, 36 Cal.4th at p. 561; People v. Riel (2000) 22 Cal.4th 1153, 1199; People v. Norman (2007) 157 Cal.App.4th 460, 464; People v. Melhado (1998) 60 Cal.App.4th 1529, 1534-1539; People v. Castaneda (1997) 55 Cal.App.4th 1067, 1070-1071; People v. Crawford (1982) 131 Cal.App.3d 591, 596-599; People v. Ferguson (1982) 129 Cal.App.3d 1014, 1020.) That is not the case here.
Even assuming for the sake of argument that the trial court had erred in failing to give a unanimity instruction, any error would be harmless. Appellant Moore's defense was that he found the checks at a gas station and intended to put them in the mail. The jury did not believe him. Reversal is not required where, as here, "the jury's verdict implies that it did not believe the only defense offered." (People v. Riel, supra, 22 Cal.4th at p. 1200.)
4. Separate count instructions
Appellant Moore contends that the trial court erred in failing to instruct the jury pursuant to CALJIC No. 17.02 that each count is separate from the other.
CALJIC No. 17.02 provides: "Each Count [other than Count[s] __] charge[s] a distinct crime. You must decide each Count [other than Count[s] __] separately. The defendant may be found guilty or not guilty of [any or all] [either or both] of the crimes charged [in Count[s] __]. Your finding as to each Count must be stated in a separate verdict."
The trial court did not have a sua sponte duty to give CALJIC No. 17.02. (People v. Cook (2006) 39 Cal.4th 566, 601; People v. Beagle (1972) 6 Cal.3d 441, 456.) Appellant did not request CALJIC No. 17.02. His claim is thus forfeited. (People v. Wilson (2008) 43 Cal.4th 1, 30 [failure to request instruction forfeited claim].)
Assuming for the sake of argument that the claim were not forfeited, we would see no prejudice to appellant from the lack of CALJIC No. 17.02. Appellant contends that the instruction was needed to prevent evidence against appellant Jennings from being used against him. He contends that evidence was irrelevant to the charges against him. Evidence that Jennings's job with the U.S. Postal Service gave her the opportunity to steal U.S. Treasury checks was relevant as to Moore. It helped explain how Moore obtained possession of the Treasury checks, which was particularly relevant to the receiving stolen property charge. Appellant Moore is correct that evidence related to Jennings's possession of fake identification was also introduced, and was irrelevant to the charges against Moore. There is no reason to believe that Moore was prejudiced by this evidence. Moore was not charged with any offenses related to the fake identification, and there was no evidence that he was aware of the fake identification. Thus, there is no reasonable probability or possibility that Moore would have received a more favorable outcome if CALJIC No. 17.02 had been given.
Disposition
Jennings's sentence for forgery is stayed pursuant to section 654. The judgment of conviction is affirmed in all other respects.
We concur: TURNER, P. J., KRIEGLER, J.