Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. SA060865. Craig D. Karlan, Judge.
Randy S. Kravis, 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 Roberta L. Davis, Deputy Attorneys General, for Plaintiff and Respondent.
SUZUKAWA, J.
Joe Willie Stubbs (appellant) appeals from the judgment entered following a jury trial in which he was convicted of forgery (Pen. Code, § 476) and grand theft by false pretenses (§ 487, subd. (a)). He was sentenced to eight months in prison for the forgery, which was ordered to be served consecutively to a sentence he had received on another case, and a three-year concurrent term for the grand theft. He appeals, contending that there is insufficient evidence to support the conviction of theft, the court erred by failing to instruct the jury with CALCRIM No. 358 (Evidence of Defendant’s Statements) and CALCRIM No. 359 (Corpus Delicti: Independent Evidence of a Charged Crime), and to stay punishment on the grand theft pursuant to section 654. We affirm the judgment.
All further undesignated statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
Carolyn Lakey and her husband owned a dry cleaning business in Los Angeles. In July 2005, due to her husband’s death and personal health issues, Lakey placed an ad to sell the business. In August 2005, appellant visited Lakey and offered to upgrade her business in exchange for a percentage of the sale price. He told her he could not use his own bank account to pay for the upgrades because he did not have proper identification. He proposed using Lakey’s account at Citibank. He agreed to transfer funds into her account, and she would use the funds to buy machinery and pay for repairs. Appellant and Lakey signed a written agreement. Lakey provided him with her bank account number and wrote five checks to him for the promised upgrades. The checks she wrote were as follows: (1) $4,500 on December 5, 2005, marked “machinery”; (2) $4,500 on December 5, 2005; (3) $3,000 on December 5, 2005; (4) $4,900 on December 10, 2005; and (5) $4,750 on December 10, 2005.
Lakey could not produce a copy of the contract at trial.
The five checks were endorsed and cashed by appellant at various Citibank branches in Los Angeles between December 5 and December 12, 2005.
Lakey was notified by Citibank that a $33,900 check she had deposited into her account had been returned due to insufficient funds. The check, dated November 28, 2005, was from GMC Lending and Mortgage and had an endorsement on the back with Lakey’s name. The check had been written on a closed account. Lakey did not know of the bank, and had not deposited or endorsed the check. Citibank asked Lakey to reimburse it for the checks cashed by appellant and closed Lakey’s account. When Lakey explained her arrangement with appellant, Citibank opened an investigation. After reviewing surveillance tapes, Citibank discovered that appellant had deposited the $33,900 check at its West Hollywood branch on December 5, 2005, and had cashed the five checks. Citibank later told Lakey she would not be responsible for the $21,650 which appellant had received by cashing the five checks.
Appellant did not reimburse Lakey nor did he perform any work on the business.
At trial, appellant represented himself. Lakey and a representative from Citibank testified for the prosecution. Appellant did not testify or call any witnesses.
DISCUSSION
I. Sufficiency of the Evidence
Appellant contends that the theft conviction cannot stand since there is no evidence that Lakey suffered a loss. Appellant argues that the information and the verdict form both listed Lakey as the victim but since she did not reimburse Citibank for any loss, the true victim of the theft was Citibank.
Appellant’s contention has no merit. The elements of theft are met because appellant received the money from Lakey’s checking account. The fact that Citibank later declined to seek reimbursement from Lakey does not negate the fact that appellant took money from Lakey under false pretenses. (People v. Miller (2000) 81 Cal.App.4th 1427, 1440-1441.)
Appellant’s reliance on People v. Traster (2003) 111 Cal.App.4th 1377, 1390, is misplaced. In Traster, the defendant, who posed as a computer consultant, made false representations to a law firm which induced it to lend him the law firm’s credit card in order to purchase computer software licenses. The computer software company debited the firm’s credit card, but the transaction was blocked shortly thereafter. Upon discovery of the defendant’s deceit, the law firm cancelled the transaction. The software company credited the law firm’s account within the month. Since the defendant did not obtain possession or control of the firm’s money, the court held he could not be convicted of theft. (Id. at pp. 1390-1391.) That is not the case here. Lakey’s checks were cashed and appellant obtained possession of money from her account.
II. Failure to Instruct With CALCRIM No. 358
Appellant contends the trial court erred by failing to instruct the jury sua sponte with CALCRIM No. 358, which states, “You have heard the evidence that the defendant made [an] oral or written statement[s] (before the trial/while the court was not in session). You must decide whether or not the defendant made any (such/of these) statement[s], in whole or in part. If you decide that the defendant made such [a] statement[s], consider the statement[s], along with all the other evidence, in reaching your verdict. It is up to you to decide how much importance to give to such [a] statement[s]. [¶] [You must consider with caution evidence of a defendant’s oral statement unless it was written or otherwise recorded.]”
Appellant contends that this instruction was warranted because Lakey’s statements about what he said were the only evidence to support the elements of false pretenses.
We agree that a jury must be instructed to view evidence of a defendant’s oral admissions or confession with caution. (People v. Dickey (2005) 35 Cal.4th 884, 905.) “‘Since the cautionary instruction is intended to help the jury to determine whether the statement attributed to the defendant was in fact made, courts examining the prejudice in failing to give the instruction examine the record to see if there was any conflict in the evidence about the exact words used, their meaning, or whether the admissions were repeated accurately. [Citations.]’ (People v. Pensinger (1991) 52 Cal.3d 1210, 1268.)” (Id. at p. 905.)
Here, however, there was no conflict in the evidence. All of the testimony concerning appellant’s statements came from Lakey, and appellant presented nothing that refuted the accuracy of her testimony in that regard. There was no evidence that raised an inference that he had a legitimate purpose in cashing Lakey’s checks. People v. Lopez (1975) 47 Cal.App.3d 8, cited by appellant, is distinguishable because in that case there was conflicting evidence about what the defendant had said.
In any event, given the lack of any dispute in the evidence regarding appellant’s statements, any conceivable error in failing to give the instruction was utterly harmless. It is not reasonably probable that the jury would have reached a different result had the instruction been given. (Dickey, supra, 35 Cal.4th at pp. 905-906; People v. Carpenter (1997) 15 Cal.4th 312, 391.)
III. CALCRIM No. 359
Appellant next contends that the court should have instructed the jury sua sponte with CALCRIM No. 359, which provides as follows:
“The defendant may not be convicted of any crime based on (his/her) out-of-court statement[s] alone. You may only rely on the defendant’s out-of-court statements to convict (him/her) if you conclude that other evidence shows that the charged crime [or a lesser included offense] was committed. [¶] That other evidence may be slight and need only be enough to support a reasonable inference that a crime was committed. [¶] The identity of the person who committed the crime [and the degree of the crime] may be proved by the defendant’s statement[s] alone. You may not convict the defendant unless the People have proved (his/her) guilt beyond a reasonable doubt.”
Appellant contends that this instruction was necessary because the prosecution was required to prove that the charged crime actually occurred with evidence other than the accused’s extrajudicial statements, in particular, his “pre-offense statements of later intent.”
“[T]he rule in California has been that one cannot be convicted when there is no proof a crime occurred other than his or her own earlier utterances indicating a predisposition or purpose to commit it. [Citations.]” (People v. Alvarez (2002) 27 Cal.4th 1161, 1171.) “[T]he modicum of necessary independent evidence of the corpus delicti, and thus the jury’s duty to find such independent proof, is not great. The independent evidence may be circumstantial, and need only be ‘a slight or prima facie showing’ permitting an inference of injury, loss, or harm from a criminal agency, after which the defendant’s statement may be considered to strengthen the case on all issues. [Citations.] If, as a matter of law, this ‘slight or prima facie’ showing was made, a rational jury, properly instructed, could not have found otherwise, and the omission of an independent-proof instruction is necessarily harmless.” (Id. at p. 1181.)
Here, appellant’s intent to commit theft was established by the bank officer’s testimony regarding appellant’s acts of depositing the fraudulent check into Lakey’s account and cashing the checks Lakey had written to him. Appellant’s statements to Lakey established the modus operandi of the crime, but were not the only proof of the theft itself. There was sufficient evidence of theft independent of appellant’s statements. Error, if any, was harmless.
IV. Sentencing
Appellant was sentenced on this case after he had been sentenced on another case, (People v. Stubbs (Super. Ct. L.A. County, 2006, No. LA052226)), in which he was convicted of second degree burglary and four prior prison terms within the meaning of section 667.5, subdivision (b) and received seven years.
In this case, appellant was sentenced to eight months for the forgery (one-third the midterm) to run consecutive to the seven years in case No. LA052226. He was sentenced to a concurrent upper term of three years for the theft. Appellant contends on appeal (he did not raise it at sentencing) that the theft and the forgery were part of a continuous course of conduct with a single objective, to steal money from Lakey’s bank account. Thus, he should not have been subject to a separate sentence for the theft.
Appellant is correct when he states the general rule that section 654 bars separate punishment for multiple offenses where the offenses are committed in a single course of conduct and directed to one objective. (Neal v. State of California (1960) 55 Cal.2d 11, 19.) However, that is not the end of the inquiry. “It seems clear that a course of conduct divisible in time, although directed to one objective, may give rise to multiple violations and punishment.” (People v. Beamon (1973) 8 Cal.3d 625, 639, fn. 11.) “This is particularly so where the offenses are temporally separated in such a way as to afford the defendant opportunity to reflect and to renew his or her intent before committing the next one, thereby aggravating the violation of public security or policy already undertaken.” (People v. Gaio (2000) 81 Cal.App.4th 919, 935.)
In a very similar case, People v. Andra (2007) 156 Cal.App.4th 638, the defendant used another’s personal information to open a checking account. Over the next several weeks, she deposited fraudulent and stolen checks in the account and later withdrew money from the account. She was convicted and sentenced for obtaining money by false pretenses and identity theft. She argued that one of the sentences had to be stayed pursuant to section 654 as her conduct had the same objective—to obtain money from the bank by fraud. The court disagreed, finding that the temporal separation between the crimes gave the defendant time to reflect on her conduct, and she nonetheless continued to commit crimes in furtherance of her objective. (Id. at pp. 641-642.)
In our case, appellant committed the forgery when he signed Lakey’s name to the $33,900 check. That act took place no later than December 5, the date he deposited the check into her account. The thefts took place when appellant cashed the checks Lakey gave him. Those acts took place between December 5 and December 12. Each time appellant cashed a check he had an opportunity to reflect on his conduct. Nonetheless, he decided to commit a new and separate criminal act. Permitting consecutive sentences in this case achieves the objective stated in Neal of insuring that punishment is commensurate with culpability. (Neal v. State of California, supra, 55 Cal.2d at p. 20.) Appellant’s receipt of a concurrent sentence for the theft conviction is appropriate.
The case cited by appellant, People v. Rosenberg (1963) 212 Cal.App.2d 773, is distinguishable. In that case, the defendant purchased a television set using a forged check as the down payment. In holding that the defendant could not be sentenced for forgery and theft, the court observed the two offenses were “susceptible of only one inference, namely, that the use of the check and the taking of possession of the television set were parts of a continuous course of conduct and were motivated by one objective, the theft of the set, the use of the check being incident to and a means of perpetrating the theft.” (Id. at p. 777.) Unlike our case, Rosenberg’s acts were not divisible in time. The forgery and the theft were simultaneous parts of the same transaction.
DISPOSITION
The judgment is affirmed.
We concur: WILLHITE, Acting P. J., MANELLA, J.