Opinion
NOT TO BE PUBLISHED
San Francisco Super. Ct. No. 199282
McGuiness, P.J.
Following a jury trial, appellant Julio C. Rosales was convicted of vehicle theft and unlawful possession of a completed check with intent to fraudulently utter or pass the check. On appeal, he contends the evidence was insufficient to support his conviction for unlawful possession of a completed check with intent to defraud. We affirm.
“Presenting a forged check for payment constitutes an uttering. [Citation.]” (People v. Jones (1962) 210 Cal.App.2d 805, 807.)
Factual and Procedural Background
A Mitsubishi minivan owned by Santos Suarez was reported stolen in June 2006. At the time Suarez’s minivan was stolen, the vehicle’s contents included an unopened piece of mail from Bank of America.
On June 30, 2006, a San Francisco police officer in an unmarked vehicle observed a Mitsubishi that was double parked. The driver of the Mitsubishi began staring at the officer, made a u-turn, and pulled in behind the officer’s vehicle. The driver then backed up, pulled alongside the officer’s car, stared at him, and pulled in front of the officer, who then called for assistance. When officers arrived in a marked police wagon, they approached the suspect car. At trial, appellant was identified as the driver of the Mitsubishi.
When one of the officers banged on the driver’s window and identified himself, appellant drove off. The officers pursued appellant. At one point, appellant stopped, backed up, hit the marked police wagon, and then drove off again. The pursuit lasted about five minutes but was unsuccessful in apprehending appellant.
Later on that same day, at about 10:00 p.m., two officers on patrol noticed the driver of a Mitsubishi “van or a station wagon” looking at them. Both officers identified appellant as the driver. Appellant braked, backed up, and started talking to a man on the sidewalk, who appeared confused. The officers became suspicious and made a u-turn. Appellant sped away and made an abrupt right turn without stopping at a stop sign. As the officers were pursuing the Mitsubishi, appellant abandoned the vehicle in a driveway and began walking away from the vehicle.
One of the officers got out of the patrol car and told appellant to stop. He complied. The officer asked whether appellant had been driving the minivan. He responded, “No, I’m walking. I don’t have a car.” When the officer asked appellant if he had any keys, he responded by taking out a set of keys from his pants pocket, including two Lexus keys, two Acura keys, and two plain keys.
The officer went over to the minivan that had been abandoned and looked inside. She saw an ignition device often associated with stolen vehicles that allows someone to start a car without a key. Inside the vehicle was a piece of mail from Bank of America addressed to Suarez that had been opened. The officer was advised by dispatch that the vehicle was involved in a possible assault on a police officer earlier that day.
The officer placed appellant under arrest, searched him, and seized his wallet. In appellant’s wallet she found a check for $90 written on Suarez’s Bank of America account. The check was dated June 30, 2006, made payable to appellant, and bore the signature of “Santo Suarez.” Although “90.00” was handwritten in the box on the check for filling in the amount of the check in numerals, the line on the check for filling out the check amount in words was left blank. The “memo” line on the check contained the handwritten word “gift.”
The check was apparently a “convenience check” that had originally been attached to correspondence received from Bank of America. The face of the check reflects an associated “special offer” expiring on July 31, 2006.
In an amended information, the San Francisco District Attorney charged appellant with automobile theft (Veh. Code, § 10851, subd. (a)), evading a pursuing police officer while driving with disregard for the safety of others (Veh. Code, § 2800.2), two counts of misdemeanor battery on a police officer (Pen. Code, § 242), unlawful possession of a completed check with intent to fraudulently utter or pass the check (Pen. Code, § 475, subd. (c)), and possession of burglary tools (Pen. Code, § 466).
All further statutory references are to the Penal Code unless otherwise specified.
A jury trial commenced on September 26, 2006. After the People rested their case, appellant moved pursuant to section 1118.1 to dismiss the charge of possessing burglary tools. The court granted appellant’s motion.
At trial, Suarez testified that he did not know appellant or give him permission to drive his vehicle. Suarez was shown the check seized from appellant’s wallet. He testified that he had not filled in the handwritten information on the check and denied that the signature on the check was his. He had not given the check to appellant or given anyone permission to write out a check payable to appellant.
Appellant testified in his own defense. He admitted that the check drawn on Suarez’s account had been in his wallet. He claimed it had been given to him by a friend, Brian, who told appellant he could not cash the check because he did not have any identification. Appellant testified that Brian had filled out the check and told him not to cash it until June 30. Appellant denied writing his own name on the payee line or signing Suarez’s name on the check.
During jury deliberations, the jury asked the court for a definition of “completed check.” Over the district attorney’s objection, the court responded to the jury’s request by noting that “the term ‘completed check’ is not specifically defined in the Penal Code section” and directing the jury to “use the ordinary, everyday meaning of the words.”
The jury found appellant guilty of vehicle theft (Veh. Code, § 10851, subd. (a)) and unlawful possession of a completed check with intent to fraudulently utter or pass the check (§ 475, subd. (c)). The jury found appellant not guilty of the remaining charges.
The trial court sentenced appellant to a total term of three years eight months, composed of the upper term of three years for vehicle theft with a consecutive term of eight months for possession of a completed check with intent to defraud. On April 25, 2007, this court granted appellant permission to file a late notice of appeal.
Discussion
The sole issue presented on appeal turns on the definition of a “completed check” as that term is used in section 475, subdivision (c). Appellant contends the evidence presented at trial was insufficient to support his conviction under section 475, subdivision (c) because the check was incomplete as a matter of law. He argues that the check he possessed at the time of his arrest was incomplete because the amount of the check was expressed in numerals only and not written out in words.
Ordinarily, we employ the substantial evidence standard of review when considering a claim that the evidence was insufficient to support a verdict. Here, however, although appellant frames his argument as a challenge to the sufficiency of the evidence supporting his conviction, he does not claim the evidence is insufficient to support the conclusion he intended to utter or pass the check. Rather, his sole contention is that a check is not “completed” for purposes of section 475, subdivision (c) if the amount of the check is not written out in words. Appellant does not dispute the facts but instead disputes their legal significance. The issue presented is one of statutory interpretation. In other words, under section 475, subdivision (c), is a check “completed” if it expresses the amount of the check in numerals but the line for expressing the amount in words is left blank? Because this question is purely legal in nature, our review is de novo. (People v. Singleton (2007) 155 Cal.App.4th 1332, 1337.)
“In reviewing the sufficiency of the evidence, we must determine ‘whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ [Citation.] ‘[T]he court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’ [Citation.] We ‘ “presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.” ’ [Citation.]” (People v. Davis (1995) 10 Cal.4th 463, 509.)
Appellant argues that the “check in this case was incomplete as a matter of law.”
Section 475, subdivision (c) provides as follows: “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.” By contrast with subdivision (c) of section 475, which concerns possession of a completed check or other designated financial instrument with the intent to defraud, subdivision (b) of section 475 concerns possession of any blank or unfinished check or designated financial instrument with intent to defraud, as follows: “Every person who possesses any blank or unfinished check, note, bank bill, money order, or traveler’s check, whether real or fictitious, with the intention of completing the same or the intention of facilitating the completion of the same, in order to defraud any person, is guilty of forgery.” Under section 475, therefore, one may be guilty of forgery either by possessing a completed check with the intent to pass or utter the check in order to defraud any person, or by possessing an unfinished check with the intent to complete or facilitate completion of the check in order to defraud any person. The statute contains no definition of the terms “completed” or “unfinished.”
Our role in construing a statute is to ascertain the Legislature’s intent in order to effectuate the statute’s purpose. (People v. Jefferson (1999) 21 Cal.4th 86, 94.) “The language is construed in the context of the statute as a whole and the overall statutory scheme . . . .” (People v. Canty (2004) 32 Cal.4th 1266, 1276.) “ ‘ “ ‘[L]anguage of a statute should not be given a literal meaning if doing so would result in absurd consequences which the Legislature did not intend.’ ” ’ [Citation.] In such circumstances, ‘[t]he intent prevails over the letter, and the letter will, if possible, be so read as to conform to the spirit of the act.’ [Citations.]” (People v. Broussard (1993) 5 Cal.4th 1067, 1071-1072.)
As a matter of common sense, a check is “completed” if it is sufficiently filled out so that it might be accepted as genuine. By contrast, an “unfinished” check is one that would not be accepted as genuine because some key element is missing from the check. The question remains what key elements must be included on a check.
For the answer to this question, we turn to California’s Uniform Commercial Code, which defines a “check” as “(1) a draft, other than a documentary draft, payable on demand and drawn on a bank, (2) a cashier’s check or teller’s check, or (3) a demand draft.” (Cal. U. Com. Code, § 3104, subd. (f).) With certain qualifications not relevant here, a “negotiable instrument” is an unconditional promise or order to pay a fixed amount of money payable on demand or at a definite time to the bearer. (Cal. U. Com. Code, § 3104, subd. (a).)
Under California’s Uniform Commercial Code, a check is negotiable even if it is undated and no payee is identified, provided that it otherwise qualifies as a negotiable instrument. (See People v. Landry (1971) 14 Cal.App.3d 445, 448 [omission of date does not affect negotiability of check]; Cal. U. Com. Code, §§ 3108, subd. (a), 3109, subd. (a)(2).) In such a case, the check is payable on demand (Cal. U. Com. Code, § 3108, subd. (a)) to the bearer of the check (id., § 3109, subd. (a)(2)). Thus, a check is “complete” as a negotiable instrument and may be accepted as genuine even if it is undated and does not identify a payee.
Appellant has not cited any provision in California’s Uniform Commercial Code or elsewhere that requires the amount of a check to be expressed in words. The only potentially relevant statute appears to be section 3114 of California’s Uniform Commercial Code, which specifies that “[i]f an instrument contains contradictory terms, typewritten terms prevail over printed terms, handwritten terms prevail over both, and words prevail over numbers.” (Italics added.) Notably, this statute does not require that the amount of a check be expressed in words but merely provides that words prevail over numbers if the two are contradictory. If the amount of a check is expressed solely as a number and not in words, and the check does not contain contradictory terms, there is thus no reason to resort to the rule that “words prevail over numbers.” (Cf. In re Blasco (Bankr.N.D.Ala. 2006) 352 B.R. 888, 892-893 [where words on check were ambiguous but numerical amount was not ambiguous, terms were not contradictory and it was possible to determine fixed amount of check solely by reference to numerical amount].)
Here, the check was for a fixed amount and was purportedly signed by the holder of the account on which it was drawn. On its face, the check qualified as a negotiable instrument, and in this respect it was a completed check.
The appellate court in People v. Mares (2007) 155 Cal.App.4th 1007 employed a similar analysis in assessing whether a withdrawal slip presented to a teller qualified as a completed check. There, a defendant who had obtained the bank account number for a car dealership signed a withdrawal slip at the bank with the dealership’s account number. (Id. at p. 1011.) The defendant contended he could not be guilty of possessing a completed check, because the withdrawal slip was “a blank form, accessible to the public, which was completed by the teller and signed by defendant.” (Id. at p. 1014.) The Court of Appeal disagreed, holding that “[w]hat matters is that the essential elements of a negotiable instrument are met: it is an unconditional order to pay a fixed amount of money payable on demand to the bearer. (Cal. U. Com. Code, § 3104, subd. (a).)” (People v. Mares, supra, 155 Cal.App.4th at p. 1015.) The same is true here.
Appellant contends “[t]he amount of a check is determined by the amount written out longhand,” citing the principle that the numerical amount is “a mere ‘marginal notation to be used as a convenient index and as an aid to removing ambiguity in the amount written out in the instrument itself.’ [Citation.]” (People v. Landry, supra, 14 Cal.App.3d at p. 448.) Further examination of the authorities relied upon by appellant reveals that this principle is not necessarily germane to the question of whether a check is completed for purposes of section 475, subdivision (c).
In support of the proposition that the numerical amount on a check is a mere marginal notation, appellant cites People v. Jones, supra, 210 Cal.App.2d 805. In that case, the defendant was convicted of forgery under section 470. (People v. Jones, supra, 210 Cal.App.2d at p. 806.) The defendant’s primary contention on appeal was that the check as presented was void on its face because the line was left blank where the amount was to be written out in longhand. (Id. at pp. 807-808.) In assessing this question, the court turned to the decision of the District of Columbia Municipal Court of Appeal in De Bose v. Los Angeles Teachers Credit Union (D.C. Mun. Ct. App. 1957) 129 A.2d 700 (De Bose). In De Bose, the court applied California law when considering the question of whether recovery on a promissory note was barred because no fixed sum appeared in the body of the note. (Id. at p. 701.) Finding no California law on point, the District of Columbia court relied on the majority rule that bars recovery unless there is proof of the existence and the amount of the underlying debt. (Id. at p. 702.) Relying upon the reasoning in De Bose, the California appellate court in People v. Jones upheld the defendant’s forgery conviction, holding that the check “would have been legally enforceable in its incomplete state if, as it represented, there was in fact an underlying debt.” (People v. Jones, supra, 210 Cal.App.2d at p. 809, italics added.) Thus, the instrument might “have easily defrauded someone.” (Ibid.)
As currently drafted, section 470, subdivision (d) provides in relevant part that a person is guilty of forgery if the person “falsely makes, alters, forges, or counterfeits, utters, publishes, passes or attempts . . . to pass, as true and genuine, any of” a variety of listed items, including a check.
Appellant seizes on the reference in People v. Jones to a check in an “incomplete state,” suggesting that the passing reference supports his position that the check here was not “completed” for purposes of section 475, subdivision (c). We cannot agree. The question of what constitutes a completed check under section 475, subdivision (a) was not before the court in People v. Jones. It is axiomatic that a decision is not authority for propositions not considered. (Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659, 680.)
Furthermore, appellant’s reliance on De Bose, cited by the court in People v. Jones, is misplaced. At issue in De Bose was the legal enforceability of a promissory note the defendant sought to avoid paying. Criminal liability for forgery, however, does not turn upon whether the instrument is genuine or legally enforceable. (People v. Bartsch (1963) 217 Cal.App.2d 318, 320-321.) The court in People v. Jones recognized this fundamental fact, and offered the following analysis: “The purpose of the statute against forgery is to protect society against the fabrication, falsification and the uttering of instruments which might be acted upon as genuine. The law should protect, in this respect, the members of the community who may be ignorant or gullible as well as those who are cautious and aware of the legal requirements of a genuine instrument. An instrument is not the subject matter of forgery only where it is so defective on its face that, as a matter of law, it is not capable of defrauding anyone.” (People v. Jones, supra, 210 Cal.App.2d at pp. 808-809.) “California early adopted the rule which was well settled by precedents that to constitute the crime of forgery, the forged instrument must be one which, if genuine, must be legally capable of working the intended fraud or injury. [Citation.]” (Id. at p. 808.) “[T]he mere fact that an instrument is legally unenforceable is not a defense to a prosecution for forgery so long as upon its face it may have the effect to defraud one who acts upon it as genuine. [Citations.]” (Ibid.)
In this case, the check on its face was sufficiently complete to qualify as a negotiable instrument, irrespective of whether it was genuine or legally enforceable. The check possessed by appellant was “completed” as a matter of law and properly supported his conviction for violating section 475, subdivision (c).
Disposition
The judgment is affirmed.
We concur: Pollak, J., Jenkins, J.