Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Sonoma County Super. Ct. No. SCR475009
Reardon, J.
A jury convicted appellant Roberto T. Murcia of three counts of forgery and one count of conspiracy to commit forgery. (See Pen. Code, § 182, subd. (a)(1); former § 470, subd. (a) [as added by Stats. 1998, ch. 468, § 2].) Sentenced to a term of three years, eight months in state prison, he appeals. Murcia challenges two jury instructions and contends that his sentence constitutes multiple punishment. (See § 654.) We affirm the conviction, including the sentence.
All statutory references are to the Penal Code unless otherwise indicated.
Given the issues presented on appeal, only a brief summary of the facts underlying the crimes and the circumstances of the trial is necessary.
On October 1, 2004, intruders entered the Santa Rosa home occupied by James Huppert and Kimberle Muegee. Using a shotgun, the intruders attempted to rob Muegee and after they left, Huppert discovered that some of his financial records were missing. The victims were unable to identify either of the intruders, although Muegee told a friend that she suspected that appellant Roberto T. Murcia was one of them.
In November 2004, Murcia asked Gabriel Tamayo to assist him in using Huppert’s financial records to forge several checks. Over time, Tamayo used the Huppert records that Murcia provided him to obtain electronic access to Huppert’s bank account. He also blocked Huppert from having access to his own money. Tamayo created checks for this account, on which Huppert’s name was forged. When Tamayo showed him the completed checks, Murcia instructed that the amount of one of the checks be modified.
In late December 2004, Tamayo transferred $11,819 from Huppert’s savings account into the related checking account. On December 31, 2004, Murcia and Tamayo had a third man—Guillermo Garcia—attempt to cash three of these checks against Huppert’s account at various check cashing stores. Garcia obtained $3,425 in cash for one check made out to Jose Gonzalez, but was unable to cash the other two. Garcia gave the money he got to Murcia, who gave Tamayo and Garcia between $600 and $900 each. Murcia kept the rest of the money.
When workers at a check cashing store became suspicious and called Santa Rosa police, Garcia was still there when authorities arrived. Garcia was questioned. He identified Tamayo in a photographic lineup as one of the two men who asked him to cash the checks. Garcia was unable to identify Murcia’s photograph. At one of the check cashing stores, an identification card was found in the name of “Robert Murcio.”
In December 2005, Murcia, Tamayo and others were charged by information with conspiracy to commit residential robbery, conspiracy to commit forgery and three counts of forgery. (See § 182, subd. (a)(1); former § 470, subd. (a).) In April 2006, Murcia was charged in a second information with robbery, attempted robbery, and residential burglary stemming from the October 2004 home invasion. During the commission of each of these offenses, Murcia was alleged to have personally used or been armed with a firearm. (See §§ 211, 459; former §§ 664 [as amended by Stats. 1997, ch. 412, § 1], 12022, subd. (a)(1) [as amended by Stats. 2002, ch. 126, § 2], 12022.5, subd. (a)(1) [as amended by Stats. 2003, ch. 468, § 21], 12022.53, subd. (b) [as amended by Stats. 2003, ch. 468, § 22].) Two days later, the informations against Murcia were consolidated. The conspiracy to commit forgery charge included a list of overt acts allegedly committed in furtherance of the conspiracy, including that Murcia and an unknown co-conspirator took financial records belonging to Huppert in October 2004.
An amended consolidated information eliminating the conspiracy to commit residential robbery charge was filed in February 2007, as trial began. In other respects, it appears to be the same as the first consolidated information, which we rely on as that is what the verdict forms recite that the jury determined.
By this time, Tamayo had agreed to cooperate with authorities in their case against Murcia. At trial, he testified for the prosecution, implicating Murcia in the burglary, the conspiracy to commit forgery and the forgeries themselves. The prosecution’s theory was that Murcia obtained Huppert’s financial records when he entered the home during the robbery. It also theorized that Murcia used those records to commit forgery and in furtherance of the conspiracy to commit forgery. During deliberations, the jury suggested that it believed that Murcia knew about the October 2004 burglary and helped to plan it, but was not convinced that he actually entered the house.
Ultimately, the jury acquitted Murcia of the burglary, robbery and attempted robbery charges related to the October 2004 home intrusion, opting instead to find him guilty of misdemeanor theft by larceny—a lesser included offense of the burglary charge. (See § 484, subd. (a).) It convicted Murcia of conspiracy to commit forgery, as well as three counts of forgery. (See § 182, subd. (a)(1); former § 470, subd. (a).) The verdict form stated that the jury found that Murcia or his co-conspirators committed one or more of a list of specific overt acts, including that Murcia took Huppert’s financial records in October 2004.
The probation report recommended that the trial court impose consecutive terms for the conspiracy and one of the forgeries, reasoning that these offenses were committed a month apart in time. It recommended that concurrent terms be imposed for the other two forgeries because all three forgeries were committed during a single incident.
At sentencing, Murcia encouraged the trial court to follow the probation department’s recommendation. The trial court sentenced Murcia to a total term of three years, eight months in state prison. It imposed an upper term of three years for conspiracy as the principal term. It sentenced Murcia to a consecutive one-third midterm of eight months for his first forgery conviction and concurrent three-year upper terms for the remaining two forgeries. It stated that these two forgery terms were imposed concurrently “by operation of law.”
II. WITNESS CREDIBILITY
First, Murcia challenges the CALCRIM standard jury instruction on witness credibility, arguing that it has been changed and weakened from its predecessor CALJIC instruction without judicial sanction, thus denying him a state-created right and depriving him of due process of law. In this matter, the jury was twice instructed: “If you decide that a witness deliberately lied about something significant in this case, you should consider not believing anything that witness says. Or if you think the witness lied about some things but told the truth about others, you may simply accept the part that you think is true and ignore the rest.” (See CALCRIM Nos. 105, 226.) Murcia prefers the comparable CALJIC instruction, which states: “A witness, who is willfully false in one material part of his or her testimony, is to be distrusted in others. You may reject the whole testimony of a witness who willfully has testified falsely as to a material point, unless, from all the evidence, you believe the probability of truth favors his or her testimony in other particulars.” (CALJIC No. 2.21.2.)
In the trial court, Murcia did not object the giving of the CALCRIM jury instructions. As he notes, we may review “any instruction given, refused or modified, even though no objection was made thereto” in the trial court. (§ 1259.) However, Murcia actually requested that the jury be instructed with the specific language that he now challenges on appeal. Section 1259 does not relieve him of the implications of the affirmative act of requesting that an instruction be given. Thus, the doctrine of invited error applies, estopping Murcia from complaining on appeal of the language of this instruction. (See People v. Lucero (2000) 23 Cal.4th 692, 723-724, cert. den. sub nom. Lucero v. California (2001) 531 U.S. 1192; People v. Williams (1980) 102 Cal.App.3d 1018, 1025; see also 5 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Criminal Trial, § 663, pp. 952-955; 6 Witkin & Epstein, Cal. Criminal Law, supra, Reversible Error, § 31, p. 489 [nature of invited error].)
The prosecution also requested that it be given.
III. CORROBORATION OF ACCOMPLICE TESTIMONY
Murcia also challenges the CALCRIM standard jury instructions telling jurors to view accomplice testimony with “care and caution.” In this matter, the jury was instructed: “Any testimony of an accomplice that tends to incriminate the defendant should be viewed with caution. You may not, however, arbitrarily disregard it, and you should give that testimony the weight you think it deserves after examining it with care and caution and in the light of all the other evidence.” (See CALCRIM Nos. 334, 335.) Murcia reasons that he had a state-created right to have the jury told that the testimony of an accomplice should be viewed with distrust, which he regards as a stronger instruction. The failure to provide him this state right constitutes a violation of his due process rights, he asserts.
However, Murcia also acknowledges that the California Supreme Court has approved the exact CALCRIM language that he challenges and has rejected the jury instruction that he claims forms the basis of a state-created right. (See People v. Guiuan (1998) 18 Cal.4th 558, 560-561, 569; see also CALCRIM Nos. 334, 335.) He intends to ask the California Supreme Court to reconsider its holding, but accepts that at this time, we are bound to apply this authority. He is correct that we must do so. (See People v. Guiuan, supra, 18 Cal.4th at pp. 560-561, 569; Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
IV. BAN ON MULTIPLE PUNISHMENT
The trial court sentenced Murcia for his four offenses to a total term of three years, eight months—a principal term of three years for conspiracy, an eight-month consecutive term for the first forgery, and two concurrent three-year terms for the remaining two forgery convictions. On appeal, Murcia contends that the underlying forgeries were the same crimes as those supporting the conspiracy conviction. Thus, he reasons, once he was sentenced for conspiracy, sentencing him for the three forgery convictions violates the ban on multiple punishment. He asks us to stay the forgery sentences. (See § 654.)
The People contend that he may not raise this issue on appeal because he raised no objection to his sentence in the trial court. We disagree. The imposition of multiple sentences in violation of section 654 is an act in excess of jurisdiction. Such an issue cannot be waived even if the defendant fails to raise it in the trial court. (People v. Scott (1994) 9 Cal.4th 331, 354 fn. 17.)
Under the terms of section 654, an act that is made punishable in different ways by different provisions of the Penal Code may be punished under either provision, but not both. (§ 654; Neal v. State of California (1960) 55 Cal.2d 11, 18, cert. den. sub nom. Neal v. California (1961) 365 U.S. 823.) The ban on multiple punishment applies when there is one act in the ordinary sense, but also when the crimes arise as the result of an indivisible course of conduct. Whether a course of conduct is divisible and thus gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any of these offenses, but not for more than one of them. (Neal v. State of California, supra, 55 Cal.2d at pp. 18-19; see People v. Latimer (1993) 5 Cal.4th 1203, 1208.)
If a defendant is sentenced for conspiracy and for offenses arising from the conspiracy, California courts have announced a more nuanced approach. If the conspiracy contemplated only the other underlying crimes of which the defendant was convicted, punishment for both the conspiracy and the substantive offenses that were its object is improper. (People v. Ramirez (1987) 189 Cal.App.3d 603, 615; People v. Cavanaugh (1983) 147 Cal.App.3d 1178, 1182; see People v. Lewis (2008) 43 Cal.4th 415, 539, petn. for cert. pending, petn. filed Oct. 2, 2008, No. 08-6635.) However, if the conspiracy had an objective apart from, different than or broader than the offenses for which the defendant is being punished, then punishment for all these offenses is proper. (In re Cruz (1966) 64 Cal.2d 178, 181; People v. Flores (2005) 129 Cal.App.4th 174, 185; People v. Ramirez, supra, 189 Cal.App.3d at pp. 615-616.) If the acts contemplated by the conspiracy exceeded those listed in the charged forgery counts, punishment for conspiracy and the underlying offenses would not violate section 654. (See People v. Amadio (1971) 22 Cal.App.3d 7, 15 [conspiracy and receiving stolen property].)
Multiple punishment can occur whether the sentences are ordered to run concurrent or consecutive to another sentence. (People v. Moringlane (1982) 127 Cal.App.3d 811, 819.)
The prosecution must show that the conspiracy had an unlawful objective beyond, apart from or in addition to the commission of the substantive offenses. (In re Romano (1966) 64 Cal.2d 826, 828; People v. Cooks (1983) 141 Cal.App.3d 224, 317, cert. den. sub nom. Green v. California (1984) 464 U.S. 1046.) We determine if the complaint allowed the jury to find a conspiracy that was broader than the underlying substantive offenses. (See In re Romano, supra, 64 Cal.2d at p. 829.) When determining whether substantial evidence supports the trial court’s imposition of multiple terms, we construe its underlying findings in the light most favorable to the judgment. (See People v. Cleveland (2001) 87 Cal.App.4th 263, 271.)
The People contend that no impermissible multiple punishment occurred because the conspiracy was broader than the three forgeries. An examination of the charging complaint satisfies us that the forgeries were distinct from the related conspiracy. The illegal act charged in the forgery counts was signing the name of another person to a check. The conspiracy to commit forgery count alleged the commission of other overt acts by one of the conspirators, including taking Huppert’s records; accessing Huppert’s bank account; scanning his signature into a computer; creating a check without Huppert’s name on it; transferring funds from Huppert’s saving account to his checking account; and obtaining identification in the name of Jose Gonzalez, the bearer of the check. The signing of the checks was not an overt act charged by the prosecution and was not one of the listed overt acts that the jury found to support the conspiracy conviction. As the forgeries were completed by the mere signing of the checks, the conspiracy to commit forgery charge was based on a broader range of activities. We find that the conspiracy had an objection broader than the substantive offenses. Thus, the trial court properly imposed separate punishments for forgery convictions and the conviction for conspiracy to commit forgery. (See In re Cruz, supra, 64 Cal.2d at p. 181; People v. Flores, supra, 129 Cal.App.4th at p. 185.)
Although there was no evidence that Murcia personally signed the three checks, he concedes on appeal that Murcia’s instructions to others that they create the checks is sufficient to make him liable for the forgeries as an aider and abettor.
The judgment—including the sentence—is affirmed.
We concur: Ruvolo, P.J., Sepulveda, J.