Opinion
NOT TO BE PUBLISHED
Sonoma County Super. Ct. No. SCR-544765.
DONDERO, J.
Defendant was found guilty following a jury trial of possession of counterfeit currency (Pen. Code, § 476), and admitted that he served two prior prison terms (Pen. Code, § 667.5, subd. (b)). The trial court denied probation and imposed the upper term of three years in state prison.
Defendant was acquitted of charges of possession of a pyrotechnic device (Pen. Code, § 12303) and possession of an explosive device in a private residence (Pen. Code, § 12303.2). We will not discuss the facts pertinent to those charges.
Defendant claims in this appeal that the evidence does not support the conviction. We find that reasonable inferences drawn from the totality of the circumstantial evidence support the conviction, and affirm the judgment. At the request of the Attorney General, we remand the case with directions to either strike or impose sentence on the prior prison term enhancements admitted by defendant.
STATEMENT OF FACTS
Around 12:30 p.m. on Wednesday, September 3, 2008, Rohnert Park Police Officer Casey Thompson detained the vehicle defendant was driving as he left the mobile home park in which he lived. Officer Thompson then conducted a search of defendant. Inside defendant’s right front pants pocket the officer discovered three $100 bills that appeared to be counterfeit. The bills were stacked on top of each other and folded in the middle. When the officer asked “what was the deal with these hundred dollar bills, ” defendant replied that “he was going to throw them away.”
Defendant was arrested and transported to Sonoma County Jail, where an additional search of “his person” was undertaken. In a “different pocket” – that is, not defendant’s right front pants pocket – Officer Thompson found currency in the amount of “four hundred and ninety dollars and some change.” Defendant did not have a wallet in his possession.
Agent Jeffery Jones of the United States Secret Service counterfeit squad testified as an expert in the manufacturing, utterance and detection of genuine and counterfeit currency. He inspected and tested the three $100 bills seized from defendant’s front pants pocket. Based on his training and experience, Agent Jones testified that the seized bills were counterfeit. He described the “common counterfeit manufacturing technique” used to alter genuine $5 bills to become counterfeit $100 bills: the ink denomination on the genuine $5 bill is wiped off with a chemical cleaner or degreaser; the image of a $100 bill is scanned; then, the $5 bill is placed in a printer, and the image of a $100 note is printed on both sides of it. The $100 bills thus produced on genuine paper are usually not detected by the common counterfeit detection pen typically used by retailers to discover counterfeit bills. Neither additional counterfeit bills, bleach or cleaner used to alter bills, nor a computer or printer, were found during a search of defendant’s residence.
Agent Jones further testified that a “common technique” used by “counterfeit passers” is to “separate their counterfeit currency from their genuine currency” before entering a retail establishment. When counterfeit passers are then in the store they “know which pocket to pull the counterfeit from, ” and do not need to separate their currency in front of the cashier. Counterfeit passers do not frequently “just happen” to carry counterfeit currency around with them. Also, according to Agent Jones, “it’s extremely unlikely” that people who innocently obtain counterfeit bills carry “more than one bill at a time.”
The defense presented testimony from Lawrence Steckler, who owned and operated an auto dismantling business in Santa Rosa, in partnership with defendant’s uncle. Defendant, although not a “regular employee, ” would “come in and help” by moving parts or vehicles around and escorting customers through the yard, particularly on Saturdays. On a Saturday around August 30th of 2008, Steckler left the premises briefly and asked defendant to work in the office. When Steckler returned 15 or 20 minutes later, defendant pointed out three $100 bills in the cash register. Steckler later examined the bills and discovered that “they were reprinted hundreds on $5 bills.” He called defendant into the office and told him, “These aren’t real hundred dollar bills. They’re phony. You messed up. Get them out of here. I’m upset.” Defendant apologized and took the three $100 bills. Steckler did not see them again.
DISCUSSION
I. The Evidence to Support the Conviction.
Defendant complains that his conviction of possession of counterfeit currency in violation of Penal Code section 476 (section 476) is not supported by adequate evidence. He contends that the “prosecution failed to prove beyond a reasonable doubt two elements of section 476 – that [he] possessed the bill with intent to defraud, and that he possessed the bill with the intent to pass it.” Defendant therefore argues that he was “convicted on insufficient evidence, in violation of his federal right to due process.”
“Section 476 provides: ‘Every person who makes, passes, utters, or publishes, with intent to defraud any other person, or who, with the like intent, attempts to pass, utter, or publish, or who has in his or her possession, with like intent to utter, pass, or publish, any fictitious or altered bill, note, or check, purporting to be the bill, note, or check, or other instrument in writing for the payment of money or property of any real or fictitious financial institution as defined in [Penal Code s]ection 186.9 is guilty of forgery.’ ” (People v. Mathers (2010) 183 Cal.App.4th 1464, 1467, italics added.) Defendant concedes that the evidence established his possession of the $100 bills and knowledge of their counterfeit nature, but challenges the proof of the essential elements of intent to pass the bills and intent to defraud.
We thus focus our review on the evidence that defendant had the specific intent to pass the bills and defraud someone in doing so. “An intent to defraud is an intent to deceive another person for the purpose of gaining a material advantage over that person or to induce that person to part with property or alter that person’s position by some false statement or false representation of fact, wrongful concealment or suppression of the truth or by any artifice or act designed to deceive.” (People v. Pugh (2002) 104 Cal.App.4th 66, 72.)
Our role as “an appellate court in reviewing the sufficiency of the evidence is limited.” (People v. Ceja (1993) 4 Cal.4th 1134, 1138; see also People v. Lewis (2001) 25 Cal.4th 610, 643; In re Carl R. (2005) 128 Cal.App.4th 1051, 1061.) “[W]e ask not whether there is evidence from which the trier of fact could have reached some other conclusion, but whether, viewing the evidence in the light most favorable to respondent, and presuming in support of the judgment the existence of every fact the trier reasonably could deduce from the evidence, there is substantial evidence of appellant’s guilt, i.e., evidence that is credible and of solid value, from which a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt. Thus, our sole function as a reviewing court in determining the sufficiency of the evidence is to determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (In re Michael M. (2001) 86 Cal.App.4th 718, 726, fn. omitted; see also In re Babak S. (1993) 18 Cal.App.4th 1077, 1088–1089.)
As a reviewing court we do not resolve creditability issues or evidentiary conflicts. Those determinations are made by the trier of fact. (People v. Young (2005) 34 Cal.4th 1149, 1181.) “We may not reverse a conviction for insufficiency of the evidence unless it appears that upon no hypothesis whatever is there sufficient substantial evidence to support the conviction.” (People v. Tripp (2007) 151 Cal.App.4th 951, 955; see also People v. Wader (1993) 5 Cal.4th 610, 640.)
As in many cases, defendant’s intent to defraud must “be proven by the circumstances surrounding the transaction in question (Pen. Code, § 21).” (People v. Rush (1959) 172 Cal.App.2d 431, 435.) “Actual intent is wholly subjective, and in a broad sense is shown only by circumstances (see Pen. Code, § 21), at least in the absence of direct admission by the defendant.” (People v. Gomez (1963) 223 Cal.App.2d 572, 574.) “Indeed, it is recognized that ‘[t]he element of intent is rarely susceptible of direct proof and must usually be inferred from all the facts and circumstances disclosed by the evidence.’ [Citations.]” (People v. Falck (1997) 52 Cal.App.4th 287, 299; see also People v. Massie (2006) 142 Cal.App.4th 365, 371; People v. Misa (2006) 140 Cal.App.4th 837, 843; People v. Pre (2004) 117 Cal.App.4th 413, 420.) “To constitute the crime, the law only requires the guilty possession, ” and the defendant’s “intention may be sufficiently manifested by the circumstances of his possession alone.” (People v. Ah Sam (1871) 41 Cal. 645, 656; see also People v. Castellanos (2003) 110 Cal.App.4th 1489, 1493–1494.)
The circumstances surrounding defendant’s possession of the counterfeit bills suggest more than his mere awareness that they were altered. Mere possession of a forged instrument is a circumstance affording some evidence of knowledge of its spurious nature, and requires only “ ‘ “ ‘slight corroborative evidence of other inculpatory circumstances’ ” ’ ” to prove intent. (People v. Swope (1969) 269 Cal.App.2d 140, 143–144, citation omitted; see also People v. Prieto (2003) 30 Cal.4th 226, 249; People v. Barker (2001) 91 Cal.App.4th 1166, 1176, fn. 6; People v. Green (1995) 34 Cal.App.4th 165, 180–181.) Defendant had been in possession of the bills, knowing they were counterfeit, for at least four to five days, and had not disposed of them as his employer Steckler directed. When defendant was detained he still had possession of all three of the counterfeit bills in one pocket, neatly stacked and folded, and more than $490 in genuine bills in another pocket. Agent Jones testified that an “innocent victim” who has obtained counterfeit bills does not typically carry them in his possession, and does not possess “more than one bill at one time.” Jones also explained that counterfeit passers commonly “separate” counterfeit and genuine currency to prepare for passing the counterfeit bills; as defendant had done. A reasonable inference drawn from defendant’s possession of the counterfeit bills coupled with Agent Jones’s expert testimony is that defendant was carrying the bills with the intent to pass them as genuine currency.
Defendant suggests that innocent explanations may also be associated with his possession of the counterfeit bills separately from the genuine currency and his failure to dispose of the bills. He points out that he may have wanted to “make sure he did not accidentally use them, ” or he may have separated the bills through “inadvertence, interest in their novelty value, or even indecision, ” which, he asserts, “is insufficient to show that he had the specific intent to defraud.” While we do not discount the conflicting possibilities proposed by defendant, on appeal we cannot for that reason reverse the finding of the jury. “ ‘Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court which must be convinced of the defendant’s guilt beyond a reasonable doubt. “ ‘If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment.’ ” [Citations.]’ [Citation.]” (People v. Stanley (1995) 10 Cal.4th 764, 792–793; see also People v. Snow (2003) 30 Cal.4th 43, 66.) “Thus, ‘ “where the jury rejects the hypothesis pointing to innocence by its verdict, and there is evidence to support the implied finding of guilt as the more reasonable of the two hypotheses, this court is bound by the finding of the jury.” ’ [Citation.]” (People v. Tabb (2009) 170 Cal.App.4th 1142, 1152.) In reviewing a jury’s determination that the requisite intent existed “we view the whole record in a light most favorable to the verdict, drawing all reasonable inferences and resolving all conflicts in support of the jury’s verdict. [Citation.] We must uphold the verdict unless it clearly appears that upon no hypothesis whatever is there sufficient evidence to support it.” (People v. Massie, supra, 142 Cal.App.4th 365, 371.) The finding that defendant possessed the counterfeit bills with the requisite intent is supported by substantial circumstantial evidence.
II. The Trial Court’s Failure to Impose Sentence on the Prior Prison Term Enhancements.
The Attorney General asserts in its response brief that the trial court erred by failing to either strike or impose sentence on the two prior prison terms admitted by defendant. We are asked to remand the case to the trial court to “make a proper sentencing choice on these enhancements.” We agree.
Defendant did not respond to the Attorney General’s claim in his reply brief.
“Ordinarily, an enhancement must be either imposed or stricken ‘in furtherance of justice’ under Penal Code section 1385. [Citations.] The trial court has no authority to stay an enhancement, rather than strike it-not, at least, when the only basis for doing either is its own discretionary sense of justice.” (People v. Lopez (2004) 119 Cal.App.4th 355, 364; see also People v. Bracamonte (2003) 106 Cal.App.4th 704, 711.) Moreover, “[t]he trial court had a duty to impose sentence in accord with the law. [Citations.] The failure to impose or strike an enhancement is a legally unauthorized sentence subject to correction for the first time on appeal.” (People v. Bradley (1998) 64 Cal.App.4th 386, 390–391.) Review of the record discloses to us that the trial court neither imposed sentence on the prior prison term enhancements nor exercised discretion to strike the enhancements.
At the sentencing hearing the trial court merely recognized that “defendant has served a prior prison term.”
DISPOSITION
We therefore remand the case to the trial court to either exercise its discretion to strike the prior prison term enhancements pursuant to section 1385, subdivision (a), or to impose sentence on those enhancements if they are not stricken. The clerk of the superior court is directed to then prepare an amended abstract of judgment which reflects the disposition of the trial court in connection with the imposition or striking of the prior prison term enhancements. The clerk of the superior court is further directed to forward a copy of the amended abstract of judgment to the California Department of Corrections. In all other respects the judgment is affirmed.
If a trial judge exercises the power to strike pursuant to section 1385, subdivision (a), the reasons for the exercise of discretion must be set forth in writing in the minutes. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 531–532.)
We concur: Margulies, Acting P. J., Banke, J.