Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County. Randy Rhodes, Judge. Reversed in part and affirmed in part as modified. Los Angeles County Super. Ct. No. LA053609.
Debra Fischl, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven D. Matthews and Beverly K. Falk, Deputy Attorneys General, for Plaintiff and Respondent.
BOREN, P. J.
Oscar Salazar (appellant) appeals from the judgment entered following a jury trial that resulted in his conviction of 11 counts of forgery (Pen. Code, § 470, subd. (d)) and grand theft of personal property (§ 487, subd. (a)).
All further statutory references are to the Penal Code unless otherwise indicated.
He contends that: (1) the evidence is insufficient to support his conviction of grand theft, in lieu of petty theft, as he withdrew only $100 in stolen cash from his account before the account was closed; (2) the bank was not a “direct victim” of the grand theft and forgeries, and the bank suffered an economic loss of only $100, thus supporting only an order of $100 in victim restitution; (3) the trial court’s sentencing orders violated section 654, which prohibits multiple punishment.
FACTS
I. The Trial Evidence
A. The Prosecution’s Case-in-chief
In June 2006, Abbie Korman had a checking account at Wells Fargo Bank. When she went online to obtain her account balance, she discovered that between May 25, 2006, and June 8, 2006, the bank had cashed 11 checks, numbered 1455, 1457, 1460, 1463, 1464, 1465, 1468, 1471, 1472, 1474, and 1475, against her account. The payee was a person named “Oscar Salazar.” She did not know Salazar, nor had she written checks to him or given him permission to write checks on her account. She still had the corresponding preprinted blank checks in her checkbook, and the checks cashed were poor copies of her own preprinted checks. The amount wrongfully withdrawn from her account totaled $12,800.
Korman immediately notified the bank and filed an affidavit of check fraud dated July 24, 2006. The bank credited her account for $12,800.
An investigator from the Department of Motor Vehicles (DMV) testified that the department’s computer records showed that on July 1, 2004, appellant, whose full name was Oscar Omar Salazar, submitted a DL-44 application for the issuance of a California identification card. The DMV investigator explained that to obtain the California identification card, appellant would have had to present his birth certificate. Employees of the DMV had taken a photograph of appellant during the application process, and a California identification card was subsequently issued to him at the residential address listed on his application: 5711 Fulcher Avenue, apartment No. 202, North Hollywood, California, 91601. Only one identification card was ever issued in that name by the DMV; no driver’s license was ever issued in that name.
After the bank was notified of the forgeries, a Wells Fargo Bank fraud investigator looked into what had occurred. He ascertained that appellant had deposited the forged checks into his Wells Fargo bank account. The investigator viewed the photographic images generated by the bank relating to 10 of the 11 deposited checks and two $100 cash withdrawals from appellant’s bank account. The photographs were not entirely clear, but the person using appellant’s ATM card or approaching the bank teller bore a resemblance to appellant.
The investigator testified that appellant had opened his Wells Fargo account on May 16, 2006. The bank had closed appellant’s account upon discovering the deposits of the forged checks, and the last statement for appellant’s account was generated on July 11, 2006. Appellant had used his DMV identification card to open the bank account, as well as another piece of identification, a card from another bank. The account application listed appellant’s address as 5711 Fulcher Avenue, apartment No. 202, North Hollywood, California, 91601. Appellant’s bank statements were mailed to the Fulcher Avenue address. Only one ATM and PIN number attached to that account was issued and mailed to appellant at the Fulcher Street address. Appellant never notified the bank of any fraudulent activity regarding his ATM card or his PIN number.
After the forgeries were discovered, the fraud investigator attempted to telephone appellant at the telephone number on the account application and the DMV identification card application. He could not reach appellant. At least two letters were sent to appellant’s address on Fulcher Avenue requesting that he contact the bank. There was no response.
The investigator opined that the fraudulent scheme appellant had attempted to use was known as a “bust out.” The thief opens a bank account and conducts fraudulent activity with the account. The thief then “walks away from the account” after he has withdrawn all the funds he has deposited, plus more, leaving the account overdrawn.
Appellant’s bank statements indicated that he had made only two cash withdrawals of $100 before the account was closed. These deposits occurred, respectively, on May 18, 2006, and May 26, 2006.
B. The Defense
In defense, appellant declined to testify.
His mother, Anselma Salazar (Mrs. Salazar), testified that her son was the victim of identity theft. She said that in January 2005, her Nissan Pathfinder was stolen in Tijuana. Identification documents, such as appellant’s birth certificate and his social security card had been in the glove compartment of her truck, as was her car registration. When Mrs. Salazar recovered her truck 11 days later, the documents were missing. She had reported her truck’s theft with the police locally.
Mrs. Salazar testified that at the time the checks were deposited, appellant was living with her in her apartment at 114311/4 Miranda Street, apartment No. 7, in Los Angeles. Mrs. Salazar testified that her brother lived at the 5711 Fulcher Street address listed on the DMV identification card and the application for the bank account. The DMV application noted that she was present when her son made the application. She claimed that during the period of the forgeries, her son was working construction three or four days a week with her brother.
She acknowledged that she had previously told a deputy district attorney that one of the photographs of the person using the ATM to access or withdraw money from appellant’s bank account looked like her son. She claimed that while her son never lived at the Fulcher Street address, he had probably once used that address as a mailing address.
DISCUSSION
I. The Sufficiency of the Evidence
Appellant contends that the evidence is insufficient to support his conviction of grand theft.
We disagree.
“‘On appeal we review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578 [162 Cal.Rptr. 431, 606 P.2d 738]; see also Jackson v. Virginia (1979) 443 U.S. 307, 317–320 [61 L.Ed.2d 560, 99 S.Ct. 2781].) The standard of review is the same in cases in which the People rely mainly on circumstantial evidence. [Citation.]’” (People v. Abilez (2007) 41 Cal.4th 472, 504.)
Section 484, subdivision (a), provides: “Every person who shall feloniously steal, take, carry, lead, or drive away the personal property of another, or who shall fraudulently appropriate property which has been entrusted to him or her, or who shall knowingly and designedly, by any false or fraudulent representation or pretense, defraud any other person of money, labor or real or personal property, or who causes or procures others to report falsely of his or her wealth or mercantile character and by thus imposing upon any person, obtains credit and thereby fraudulently gets or obtains possession of money, or property or obtains the labor or service of another, is guilty of theft.”
Section 487 provides in pertinent part: “Grand theft is theft committed in any of the following cases: [¶] (a) When the money, labor, or real or personal property taken is of a value exceeding four hundred dollars ($400) . . . .”
Appellant argues that the evidence supports only a conviction of petty theft. He asserts that he withdrew only $200 from his account before it was closed, and $100 of the withdrawals represents the reimbursement of the $100 that had to be deposited with the bank to open his bank account. He urges that as he withdrew from the bank account only $100 of the wrongfully obtained moneys, the theft was less than $400.
Appellant cites no authority to support his argument, and this court is not persuaded by his reasoning.
Appellant had access to all the moneys in his bank account, apparently some $12,900, after he cashed the forged checks. He had access to the money in the account until the forgeries were discovered. The theft was completed at the moment at which the bank transferred the moneys into appellant’s account from Korman’s, and he obtained access to the funds. It was unnecessary to show that the property was absolutely lost to the bank in order to demonstrate the theft. (See People v. Bryant (1898) 119 Cal. 595, 597-598; People v. Whiteside (1922) 58 Cal.App. 33, 41 [the proof of the offense is complete when it is shown that victim has been induced to part with his money or property in reliance upon the fraudulent pretenses of the accused]; People v. Brady (1969) 275 Cal.App.2d 984, 994-996 [financial loss is not a necessary element of the crime]; cf. People v. Shannon (1998) 66 Cal.App.4th 649, 653-654 [grand theft is committed when a person with a preconceived design to obtain or appropriate money by means of fraud or trickery gains possession of property, even though they do not retain or use it for their own benefit].)
As the bank transferred funds into appellant’s account for each forged check, which, even individually, were worth well over $400, the alleged theft was properly grand theft.
Appellant also argues that the bank suffered only a loss of $100 as half of his $200 of cash withdrawals represented the $100 he used to open his account. The argument is flawed because appellant commingled legally acquired funds with fraudulently acquired funds. Accordingly, he cannot identify which funds are “good” and which were fraudulently acquired. (Cf. People v. Gbadebo-Soda (1995) 38 Cal.App.4th 160, 167-169.)
Respondent cites section 492, which provides: “If the thing stolen consists of any evidence of debt, or other written instrument, the amount of money due thereupon, or secured to be paid thereby, and remaining unsatisfied, or which in any contingency might be collected thereon, or the value of the property the title to which is shown thereby, or the sum which might be recovered in the absence thereof, is the value of the thing stolen.” Section 492 abrogated the common law rule that the theft of a mere document, as the property right in the paper is merely nominal, cannot be a felony. (People v. Quiel (1945) 68 Cal.App.2d 674, 678; see Buck v. Superior Court (1966) 245 Cal.App.2d 431.) This section fails to elucidate the issue because, here, the checks were the means by which appellant secured another’s funds; they were not the items stolen.
II. The Order for Victim Restitution to Wells Fargo Bank
Appellant contends that Wells Fargo Bank is not entitled to restitution as it is not a “direct victim” within the meaning of the California Constitution and section 1204. Also, even if the bank is properly a “victim” in this instance, the restitution order for $12,800 was excessive as the bank’s economic loss was limited to $100.
The contention is partially meritorious.
At sentencing, the trial court ordered victim restitution in the amount of $12,800 to be paid to Wells Fargo Bank.
Article I, section 28 (b), of the California Constitution provides, as follows: “It is the unequivocal intention of the People of the State of California that all persons who suffer losses as a result of criminal activity shall have the right to restitution from the persons convicted of the crimes for losses they suffer. [¶] Restitution shall be ordered from the convicted persons in every case, regardless of the sentence or disposition imposed, in which a crime victim suffers a loss, unless compelling and extraordinary reasons exist to the contrary.”
Section 1202.4, subdivision (a), states that “It is the intent of the Legislature that a victim of crime who incurs any economic loss as a result of the commission of a crime shall receive restitution directly from any defendant convicted of that crime.” Subdivision (f) of that section provides that “in every case in which a victim has suffered economic loss as a result of the defendant’s conduct, the court shall require that the defendant make restitution to the victim or victims in an amount established by court order, based on the amount of loss claimed by the victim or victims or any other showing to the court.” Subdivision (k) provides that: “For purposes of this section, ‘victim’ shall include all of the following: . . . (2) Any corporation, business trust, estate, trust, partnership, association, joint venture, government, governmental subdivision, agency, or instrumentality, or any other legal or commercial entity when that entity is a direct victim of a crime.” (Italics added.)
“A ‘victim’ is a ‘person who is the object of a crime . . . .’” (People v. Crow (1993) 6 Cal.4th 952, 957, quoting from Black’s Law Dict. (5th ed. 1979) p. 1405, col. 2.) Here, the bank was the object of the crime, because, ordinarily, it is the entity that by law suffers a loss when one of its depositor passes forged checks on the account of another depositor. (Cooper v. Union Bank (1973) 9 Cal.3d 371, 376-377 & fn. 5.) It is not an insurer under the pertinent definitions. (People v. Birkett (1999) 21 Cal.4th 226, 244 [insurer, who indemnifies the victim, is not a “‘direct victim’” entitled to restitution].) Accordingly, the trial court properly exercised its discretion by ordering that victim restitution be paid to Wells Fargo Bank. (People v. Saint-Amans (2005) 131 Cal.App.4th 1076, 1086-1087; People v. Moloy (2000) 84 Cal.App.4th 257, 260-261 [where losses that flowed from a large-scale scheme to defraud insurance companies was borne entirely and directly by the insurance companies, they were the direct victims of the fraudulent scheme].)
Insofar as appellant claims that the bank’s economic loss was only $100, we disagree. The immediate loss to the bank may have been limited to $200, but that is not the measure of the economic loss suffered by the bank as a result of the forgeries and grand theft. The bank was entitled to damages as specified in subdivision (f) of section 1202.4. We deem the existing order to constitute an abuse of discretion 3 because it improperly focused on the aggregate amount of the forged checks, in lieu of being a measure of the bank’s actual economic loss as defined in section 1202.4, subdivision (f), above. The bank was entitled to be reimbursed for $200, as well as for the costs that it incurred in investigating the forgeries and assisting the state in prosecuting the forgeries and grand theft. (See People v. Maheshwari (2003) 107 Cal.App.4th 1406, 1409-1411.) Accordingly, we will order the existing victim restitution order vacated and order a remand for a new hearing concerning victim restitution so that the trial court may issue an order based on the bank’s actual economic losses.
Section 1202.4, subdivision (f), provides in pertinent part: “[I]n every case in which a victim has suffered economic loss as a result of the defendant’s conduct, the court shall require that the defendant make restitution to the victim or victims in an amount established by court order, based on the amount of loss claimed by the victim or victims or any other showing to the court. If the amount of loss cannot be ascertained at the time of sentencing, the restitution order shall include a provision that the amount shall be determined at the direction of the court. The court shall order full restitution unless it finds compelling and extraordinary reasons for not doing so, and states them on the record. . . . [¶] (1) The defendant has the right to a hearing before a judge to dispute the determination of the amount of restitution. . . . [¶] . . . [¶] (3) To the extent possible, the restitution order shall be prepared by the sentencing court, shall identify each victim and each loss to which it pertains, and shall be of a dollar amount that is sufficient to fully reimburse the victim or victims for every determined economic loss incurred as the result of the defendant’s criminal conduct, including, but not limited to, all of the following: [¶] (A) Full or partial payment for the value of stolen or damaged property. The value of stolen or damaged property shall be the replacement cost of like property, or the actual cost of repairing the property when repair is possible. [¶] . . . [¶] (D) Wages or profits lost due to injury incurred by the victim . . . . Lost wages shall include any commission income as well as any base wages. Commission income shall be established by evidence of commission income during the 12-month period prior to the date of the crime for which restitution is being ordered, unless good cause for a shorter time period is shown. [¶] (E) Wages or profits lost by the victim . . . . Lost wages shall include any commission income as well as any base wages. Commission income shall be established by evidence of commission income during the 12-month period prior to the date of the crime for which restitution is being ordered, unless good cause for a shorter time period is shown. [¶] . . . [¶] (G) Interest, at the rate of 10 percent per annum, that accrues as of the date of sentencing or loss, as determined by the court. [¶] (H) Actual and reasonable attorney’s fees and other costs of collection accrued by a private entity on behalf of the victim.” (Italics added.)
III. Section 654
Appellant contends that the trial court’s sentencing orders violated the provision barring multiple punishment. (§ 654.) He argues that (1) he is liable to be punished for only one of the forgery offenses because all 11 forged checks were passed pursuant to one objective and intent, and (2) that the term imposed for grand theft additionally must be ordered stayed as its imposition constitutes multiple punishment.
Again, the contention is only partially meritorious.
At sentencing, the trial court imposed an aggregate term in state prison of nine years four months, consisting of a two-year middle term for the forgery in count 1, with 10 consecutive eight-month terms (one third the middle term of two years) for the remaining 10 forgery offenses. It also imposed an additional and consecutive eight-month term (one third of the middle term of two years) for the grand theft in count 12.
Appellant relies on the principle that where the commission of a crime involves continuous conduct which may range over a substantial length of time and a defendant conducts himself in such a fashion that he acts but with a single intent and objective, that defendant can be convicted of only a single offense. However, that is the rule for a determination of whether a series of thefts amounts to grand theft. (See People v. Bailey (1961) 55 Cal.2d 514, 518-520.) Another rule applies to sentencing for a series of forgeries: it is settled that even the forgery of several documents at the same time and in the course of one transaction constitutes a separate offense for each instrument. (People v. Neder (1971) 16 Cal.App.3d 846, 852, citing People v. Gayle (1927) 202 Cal. 159, 162-163; People v. Woods (1986) 177 Cal.App.3d 327, 332.)
We agree with appellant that he cannot be punished for the 11 forgeries, as well as for grand theft. Section 654 precludes multiple punishment for a single act or indivisible course of conduct. (People v. Deloza (1998) 18 Cal.4th 585, 591–592.) If a course of conduct has only one objective, then it is indivisible and punishable only once. (Neal v. State of California (1960) 55 Cal.2d 11, 19.) The misconduct underlying the grand theft offense was committed with the same intent and objective appellant entertained when he uttered and passed the forged checks. Consequently, he may be punished in the alternative for the series of forgeries or for the grand theft, but not for both the forgeries and the grand theft.
To cure the error, the judgment is modified to stay the consecutive eight-month term imposed for grand theft, thus reducing appellant’s aggregate term in state prison to eight years eight months.
DISPOSITION
The judgment is modified to stay the term imposed for the count 12 grand theft offense, thus reducing appellant’s aggregate term in state prison term to eight years eight months. The trial court’s order requiring $12,800 in victim restitution (§ 1202.4, subd. (a)) is vacated, and the matter is remanded for a further hearing on victim restitution. In all other respects, the judgment is affirmed.
On remand, after a new restitution hearing, the superior court shall have its clerk prepare and send to the California Department of Corrections and Rehabilitation an amended abstract of judgment that reflects the modifications to the judgment.
We concur: ASHMANN-GERST, J., CHAVEZ J.