Opinion
B159210.
7-25-2003
THE PEOPLE, Plaintiff and Respondent, v. MELVIN LYNN SILAS, Defendant and Appellant.
Christopher C. Hawthorne, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Margaret E. Maxwell, Supervising Deputy Attorney General, and Theresa A. Cochrane, Deputy Attorney General, for Plaintiff and Respondent.
Melvin Silas appeals from the judgment entered following a jury trial in which he was convicted of forgery, grand theft by false pretenses, and second degree commercial burglary and a bifurcated bench trial in which he was found to have sustained a prior felony conviction within the meaning of the "Three Strikes" law. We affirm.
BACKGROUND
Defendant owned a company named TJS Electrical (TJS), which had been hired by ASI General Contractors (ASI) to do work on a construction project. TJS subcontracted some of its work to KD Acoustics (KD). In July 2000, ASI made out a check for $ 2,640 to TJS and KD as joint payees, representing the value of the work performed by KD under its subcontract with TJS. The check was made jointly to ensure that KD would get paid inasmuch as TJS was having financial difficulties at the time.
On July 20, 2000, defendant entered American Check Cashing (American) in Pomona, a company with which TJS had previously done business. Defendant presented the $ 2,640 check to co-owner Asma Zahid and endorsed it in her presence. Zahid observed that there was a second signature on the back of the check and asked defendant about it. Defendant responded, "Thats my company, too." Zahid believed that defendant was telling the truth and that the second signature represented KDs endorsement on the check. Consequently, she cashed it.
The bank on which the check had been written later returned it to American, accompanied by an affidavit that the KD endorsement had been forged. American was debited for the amount of the check. KDs co-owner testified at trial that neither he nor any other authorized person at KD had endorsed the check.
ISSUES
Defendant contends (1) his handwriting expert should have been allowed to testify at trial, (2) instructions on theft by false pretenses were erroneous, (3) CALJIC No. 17.41.1 should not have been given, (4) the finding of his prior conviction was not supported by substantial evidence, and (5) the trial court abused its discretion in denying his motion to dismiss his strike conviction.
DISCUSSION
1. Handwriting Expert
After the prosecution had rested its case, defense counsel announced that he wanted to call a handwriting expert who presumably would testify that defendant had not forged the KD endorsement on the check. (A specific offer of proof was never made.) The prosecutor objected on grounds, among others, that the expert would be irrelevant because defendant had not been charged with having personally signed the check on behalf of KD but rather with having passed a fictitious or altered check, irrespective of who signed it. Defense counsel argued the testimony would be relevant because "if the jury believes or speculates that [defendant] forged a signature, well, then they will believe inferentially he presented a false document . . . ." The trial court ruled that defendants handwriting expert "may be slightly relevant but under [Evidence Code section] 352 Im keeping it out. [P] . . . [P] . . . Im just saying that under 352 it would tend to confuse the jury. [P] I dont think it had any relevancy but on the outside chance that it might have a little bit, as you had explained, under 352 Im keeping it out . . . ."
The prosecutor argued the case and the jury was instructed in accordance with this theory.
"Under Evidence Code section 352, the trial court enjoys broad discretion in assessing whether the probative value of particular evidence is outweighed by concerns of undue prejudice, confusion or consumption of time. [Citation.]" (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124, 885 P.2d 1.) "[A] trial court, in making a determination whether certain evidence is substantially more prejudicial than probative, need not expressly weigh prejudice against probative value-or even expressly state that [it] has done so . . . ." (People v. Waidla (2000) 22 Cal.4th 690, 724, fn. 6, 996 P.2d 46.) "A trial courts exercise of discretion under Evidence Code section 352 will not be reversed unless it exceeds the bounds of reason, all of the circumstances being considered. [Citation.]" (People v. Tran (1996) 47 Cal.App.4th 759, 771.)
Given that whether or not defendant personally forged the KD endorsement was not an element of the charged offense, evidence tending to exonerate him of such conduct would have been marginally relevant at best. Defendant argues that if someone else had forged the KD endorsement, the jury could have inferred that he believed the endorsement to be valid and therefore lacked specific intent to defraud. But the efficacy of this highly speculative inference was more than offset by the potential of confusing the jury with the non-issue of who made the KD endorsement, diverting attention from the truly relevant issue of whether defendants representation to Zahid that KD was "[his] company too" demonstrated that defendant knew he was passing a forged instrument. As such, we cannot say that the trial court abused its discretion in excluding the proffered evidence.
2. Instruction on Theft by False Pretenses
Penal Code section 484, subdivision (a) provides in pertinent part that "every person . . . 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 . . . is guilty of theft." CALJIC No. 14.10 sets forth the language of the statute.
Here, as the trial court was reading the CALJIC No. 14.10 instruction to the jury, it stopped immediately after the word "designedly" and called the attorneys for a side-bar conference. At that conference, the court inquired about the meaning of "designedly." The prosecutor stated that it was the same as intent to defraud. The court commented that it had been thrown "for a loop" because "designedly could be that [defendant] was . . . drawing pictures like I do." (Earlier in the discussion, the trial court had made reference to the Designing Women television show.) The trial court concluded that it should continue reading the instruction. Defense counsel then noted that the instruction package did not contain CALJIC No. 1.21, which defines the word "knowingly." The court agreed to give the instruction. Proceedings resumed before the jury, with the court repeating the CALJIC No. 14.10 instruction in full and further instructing pursuant to CALJIC No. 1.21.
The instructions were given as follows:
"[CALJIC No. 14.10.] Every person who knowingly and designedly by false or fraudulent representation or pretense defrauds another person of money, labor, well, in this case money, is guilty of the crime of theft by false pretense. [P] In order to prove this crime each of the following elements must be proved: A person made or caused to be made to the alleged victim by word or conduct either a promise without intent to perform it or a false pretense or representation of an existing or past fact known to the person to be false or made recklessly and without information which would justify a reasonable person to believe in its truth; two, the person made the representation — the pretense, representation, or promise with the specific intent to defraud; [three,] the pretense, representation, or promise was believed and relied upon by the alleged victim and was material in inducing him or her to part with his or her money even though the false pretense, representation, or promise was not the sole cause; and four, the theft was accomplished in that the alleged victim parted with his or her money or property intending to transfer the ownership thereof.
"[CALJIC No. 1.21.] The word knowingly means with knowledge of the existence of the facts in question. Knowledge of the unlawfulness of an act or omission is not required. A requirement of knowledge does not mean that the act must be done with any specific intent." (Italics added.)
Defendant contends that the trial court prejudicially erred in not defining the word "designedly" and in failing to delete the last sentence of the instruction defining "knowingly" (see fn. 1, ante). We disagree.
"The language of a statute defining a crime or defense is generally an appropriate and desirable basis for an instruction, and is ordinarily sufficient when the defendant fails to request amplification. If the jury would have no difficulty in understanding the statute without guidance, the court need do no more than instruct in statutory language. [Citations.]" (People v. Estrada (1995) 11 Cal.4th 568, 574, 904 P.2d 1197.) Indeed, when a "phrase is commonly understood by those familiar with the English language and is not used in a technical sense peculiar to the law, the court is not required to give an instruction as to its meaning in the absence of a request. [Citation.]" (People v. Rowland (1992) 4 Cal.4th 238, 270-271, 841 P.2d 897.) No such request was made by defendant here, and in spite of the trial courts references to doodling and a television show, we see nothing about "designedly" in the context of the CALJIC No. 14.10 instruction that would mandate clarification sua sponte.
As to the second prong of defendants contention, we note that theft by false pretenses is a specific intent crime. (See People v. Ashley (1954) 42 Cal.2d 246, 259, 267 P.2d 271; People v. Shannon (1998) 66 Cal.App.4th 649, 656.) But to the extent that instructing with the CALJIC No. 1.21 definition of "knowingly" (especially the last sentence) constituted error, it was harmless. Because the CALJIC No. 14.10 instruction made clear that "the specific intent to defraud" was one of the elements of theft by false pretenses and because the jury found this element to be present by finding defendant guilty of forgery under proper instructions, it cannot be said that defendant was prejudiced by instruction pursuant to CALJIC No. 1.21. (People v. Mincey (1992) 2 Cal.4th 408, 438, 827 P.2d 388; People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243.) Accordingly, defendants contention must fail.
3. CALJIC No. 17.41.1
Defendant contends his conviction should be reversed because the trial courts instruction pursuant to CALJIC No. 17.41.1 (1998 new) infringed on his constitutional rights. The issue of the constitutionality of CALJIC No. 17.41.1 was resolved in People v. Engelman (2002) 28 Cal.4th 436. There, the Supreme Court rejected state and federal constitutional challenges to the instruction but determined that because the instruction created a risk to the proper function of jury deliberations, it should be omitted from a courts charge to the jury in the future. (Id. at pp. 439-440, 449.) In this case, as in Engelman, the jury did not indicate any problem had developed with respect to deliberations. Thus, in light of Engelman, defendants contention must be rejected. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal. Rptr. 321, 369 P.2d 937.)
The instruction provides as follows: "The integrity of a trial requires that jurors, at all times during their deliberations, conduct themselves as required by these instructions. Accordingly, should it occur that any juror refuses to deliberate or expresses an intention to disregard the law or to decide the case based on penalty or punishment, or any other improper basis, it is the obligation of the other jurors to immediately advise the Court of the situation."
4. Sufficiency of Evidence of Prior Conviction
Defendants Three Strikes prior conviction resulted from a 1983 plea of guilty to a charge of violating Penal Code section 245, subdivision (a)(1), which forbids any "assault upon the person of another with a deadly weapon or instrument other than a firearm or by any means of force likely to produce great bodily injury." A conviction of this offense constitutes a "strike" only if the evidence establishes that the assault was committed with a deadly weapon. (See People v. Winters (2001) 93 Cal.App.4th 273, 280; Williams v. Superior Court (2001) 92 Cal.App.4th 612, 623.) In determining the nature of a prior conviction, the court may look at the entire record of the case, "but when the record does not disclose any of the facts of the offense actually committed, the court will presume that the prior conviction was for the least offense punishable under the [relevant statute]." (People v. Guerrero (1988) 44 Cal.3d 343, 352, 243 Cal. Rptr. 688, 748 P.2d 1150.) We reject defendants contention that the evidence here was insufficient to establish the nature of the assault conviction.
In People v. Rodriguez (1998) 17 Cal.4th 253, 261, 949 P.2d 31, an abstract of judgment characterized a violation of what is now Penal Code section 245, subdivision (a)(1) as " ASLT GBI/DLY WPN." The Supreme Court found that the abstract did not constitute sufficient evidence to establish that the crime qualified as a serious felony under the Three Strikes law. (Ibid.; accord, People v. Cortez (1999) 73 Cal.App.4th 276, 283-284 [record containing only a notation of guilty plea to discharging a firearm at a motor vehicle without showing of personal use found insufficient to qualify as a prior conviction within the meaning of the Three Strikes law].)
In contrast to People v. Rodriguez, supra, 17 Cal.4th 253, and People v. Cortez, supra, 73 Cal.App.4th 276, the record of defendants prior conviction includes a complaint and an information, which identically alleged as count 4 that defendant had assaulted his victim "with a deadly weapon, to wit, a coat hanger, and by means of force likely to produce great bodily injury." The relevant minute order reflects that defendant withdrew his plea of not guilty to count 4 and entered a plea of guilty to violation of Penal Code section 245, subdivision (a)(1), and the abstract of judgment recites that defendant had been convicted of "ASSLT WITH DLY WPN." Under these circumstances, this constitutes substantial evidence that defendant was convicted of violating Penal Code section 245, subdivision (a)(1), based on an assault with a deadly weapon. The evidence was therefore sufficient that defendants prior conviction constituted a strike within the meaning of the Three Strikes law.
5. Motion for Dismissal of Strike
Defendant was born in 1954. In addition to his 1983 strike prior, defendant was convicted of grant theft in 1991, battery in 1997, and perjury in 1998.
At sentencing, defendant requested that his prior conviction be dismissed in furtherance of justice on the ground that it was remote, that his more recent convictions were for non-violent crimes, and that he and his family would suffer financial and emotional difficulties from an increased sentence. The trial court denied the motion and sentenced defendant to a middle term of two years for forgery, doubled under the Three Strikes law to four years. Sentence on defendants convictions of grand theft by false pretenses and second degree commercial burglary was stayed pursuant to Penal Code section 654.
Defendant contends that the trial court abused its discretion in denying his request to dismiss his strike prior. Assuming this issue may be given full consideration on appeal (compare People v. Benevides (1998) 64 Cal.App.4th 728, 730, and People v. Gillispie (1997) 60 Cal.App.4th 429, 434, with People v. Myers (1999) 69 Cal.App.4th 305, 309-310), we reject it.
"On appeal . . . the burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review. [Citation.] Concomitantly, [a] decision will not be reversed merely because reasonable people might disagree. "An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge." [Citations.] [Citation.]" (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978, 928 P.2d 1171; accord, People v. Bishop (1997) 56 Cal.App.4th 1245, 1249-1250.) Thus, discretion is abused when it "exceeds the bounds of reason, all of the circumstances being considered. [Citations.]" (People v. Warner (1978) 20 Cal.3d 678, 683, 143 Cal. Rptr. 885, 574 P.2d 1237.) And "where the Legislature establishes a sentencing norm and requires the court explicitly to justify a departure therefrom, and the court sentences in conformity with the legislative standard, all that is required on the appellate record is a showing that the court was aware of its discretion to select an alternate disposition." (People v. Langevin (1984) 155 Cal. App. 3d 520, 524, 202 Cal. Rptr. 234.)
Three Strikes sentencing is a norm from which Penal Code section 1385 permits departure when explicitly justified. (See People v.Superior Court (Romero) (1996) 13 Cal.4th 497, 531, 917 P.2d 628 [minutes must reflect trial courts reasons for section 1385, subdivision (a) dismissal in furtherance of justice].) The instant record reflects that the trial court was well aware of the proper parameters of its discretion and that it acted solely within those parameters. Accordingly, we are in no position to disturb that exercise of discretion on appeal. (See People v. Bishop, supra, 56 Cal.App.4th at pp. 1249-1250; see also People v. Williams (1998) 17 Cal.4th 148, 162, 948 P.2d 429 [dismissal of strikes in furtherance of justice improper if defendant not outside the "spirit" of the Three Strikes law].)
DISPOSITION
The judgment is affirmed.
We concur: ORTEGA, Acting P.J., VOGEL (MIRIAM A.), J.