Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County No. BF119087A. Sidney P. Chapin, Judge.
Joshua G. Wilson, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Catherine Chatman and George M. Hendrickson, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Ardaiz, P.J., Vartabedian, J. and Cornell, J.
A jury convicted appellant A.D. Webb of second degree burglary. (Pen. Code, § 460, subd. (b).) The trial court found true the two prior strike conviction allegations and sentenced appellant to 25 years to life under section 667, subdivision (e), plus three years for section 667.5, subdivision (b) enhancements. On appeal, appellant claims there is insufficient evidence to support the finding that he entered Money Mart with the specific intent to commit forgery. Thus, his burglary conviction must be reversed. We disagree and will affirm.
Further statutory references are to the Penal Code.
FACTS
On May 8, 2007, appellant entered Money Mart, a check cashing store in Bakersfield. Appellant informed the assistant manager, Diana Guzman, that he would like to cash a check but did not have identification. Guzman asked for the check, and several items of personal information, including appellant’s name, date of birth, and social security number. Appellant said his name was Jorge Ramirez, the name to which the check was made payable.
Guzman asked appellant to sign the back of the check and to include the last four digits of his social security number, his home phone number, and a thumbprint. She watched as appellant signed the back of the check. Guzman told appellant that she needed to verify the check because the company that had issued it, Ron Almstrom Plastering, was new to the Money Mart system. Guzman went to the back of the office, called the company and contacted the owner Ron Almstrom. She informed Almstrom that appellant was attempting to cash a check from his company. Guzman also testified that she realized the signature line on the front of the check was left blank and told Almstrom that Money Mart would not cash unsigned checks.
Almstrom informed Guzman that he had reason to believe appellant was not Jorge Ramirez. Guzman returned to the front of the store and kept appellant occupied while Almstrom called the police. Approximately 15 minutes later Bakersfield Police Officers arrived on the scene. Guzman turned the check over to the police and identified appellant as the person who had attempted to cash it.
The officers searched appellant and found a Mexican identification card in Ramirez’s name, a wallet containing pictures of Hispanic individuals and Spanish business cards, and appellant’s Department of Corrections identification card.
At trial, Almstrom identified the photo on the Mexican identification card as Ramirez, who had previously worked for him but had returned to Mexico. Almstrom stated that the check was issued to Jorge Ramirez by his company. He also testified that the check was unsigned due to his wife’s clerical error and the same error had occurred periodically in the past.
DISCUSSION
1. Substantial Evidence
Standard of Review
In considering appellant’s claim of insufficient evidence, we 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.’” (People v. Hillhouse (2002) 27 Cal.4th 469, 496.) We presume “in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.’ [Citation.] This standard applies whether direct or circumstantial evidence is involved.” (People v. Catlin (2001) 26 Cal.4th 81, 139.)
BURGLARY
Burglary (§ 459) has two elements: the person (1) enters one of the statutorily specified premises; (2) with the intent to steal something or commit any felony. (People v. Magallanes (2009) 173 Cal.App.4th 529, 535-536.) “[T]he crime of burglary is complete when an entry with the essential intent is made, regardless whether the felony planned is committed or not [citation].” (People v. Walters (1967) 249 Cal.App.2d 547, 550.) It is irrelevant whether the underlying felony is a factual possibility; all that is required is that the act would constitute a crime were it completed in the manner intended by the defendant. (People v. Braz (1997) 57 Cal.App.4th 1, 7 (Braz).) A burglary of anything other than an inhabited dwelling is burglary of the second degree under section 460, subdivision (b).
Appellant claims the evidence is insufficient to support the element of entering with the intent to commit a felony. He also contends that this intent cannot exist because the unsigned check was not likely to deceive anyone. Alternatively, he contends that the check was genuine and thus his attempt to negotiate it was not illegal. He is mistaken.
(a) Entry With Intent to Commit Forgery
Appellant contends that the jury could not reasonably infer that he entered Money Mart with the requisite intent, because he forged the endorsement only after Guzman directed him to sign the check. He claims that his attempt to tender the unendorsed check is conclusive evidence that he lacked specific intent to commit a forgery at the time of entry. We find this reasoning unconvincing.
This case is similar to Braz, supra, 57 Cal.App.4th 1, where the court found substantial evidence of the defendant’s specific intent to obtain money from an ATM. (Id. at pp. 7-8.) There, Braz used an ATM card from a wallet she had found in an attempt to obtain money from an ATM. (Ibid.) Braz testified she was just trying to show her codefendant, Harrell, that she would not be able to obtain any money without the PIN. (Id. at p. 7.) Braz claimed she was punching in random numbers to demonstrate that the plan was hopeless. (Ibid.) In ruling there was substantial evidence to uphold her burglary conviction, the court found that Braz “shared Harrell’s intent to obtain money, but just not his optimism that she might come up with the correct sequence of numbers.” (Id. at pp. 7-8.) The court pointed to the fact that Braz stood in the rain for 15 minutes trying six different combinations as circumstantial evidence of a “methodical approach to determining the correct PIN,” rather than an attempt to convince Harrell of the plans futility. (Id. at p. 8.)
Here there is similar circumstantial evidence of appellant’s felonious intent prior to being asked to endorse the check. Appellant entered Money Mart in possession of someone else’s wallet and a check made payable to Jorge Ramirez. He stated that he wanted to cash a check but did not have identification. He claimed to be Jorge Ramirez, and he endorsed the check with the name Jorge Ramirez.
Appellant’s actions inside Money Mart provide credible evidence that he entered with the specific intent to do everything necessary to cash a check made payable to Jorge Ramirez. The jury could reasonably infer that appellant anticipated he would need to endorse the check and entered with the specific intent to forge Ramirez’s signature. (People v. Smith (1978) 78 Cal.App.3d 698, 703-704 [defendant being armed with a knife when confronted by victim was sufficient evidence from which to infer defendant’s felonious intent on entry of victims apartment].)
(b) No Intent Because the Check was not Likely to Deceive
Appellant argues that he could not have intended to forge the check by passing it as genuine because the check was unsigned by its maker. He contends that a check unsigned by the party to be charged is not likely to deceive anyone.
The test for determining if a check can be the instrument of a forgery is “‘whether upon its face it will have the effect of defrauding one who acts upon it as genuine. [Citations.]’” (People v. Jones (1962) 210 Cal.App.2d 805, 808.) Furthermore, the intent to commit an act that is not a felony or not a crime will not support a burglary conviction. (People v. Cortez (1970) 13 Cal.App.3d 317, 327.) Appellant contends, under these principles, his burglary conviction must be reversed. We disagree.
Appellant attempts to distinguish his case from People v. Jones, supra, 210 Cal.App.2d 805, in which the court held an incomplete check was still likely to deceive, and thus could be the instrument of a forgery. (Id. at pp. 809.) There, Jones stole two blank payroll checks from the middle of his employer’s check book and attempted to cash one of them at a supermarket. (Id. at pp. 806-807.) The assistant manager of the supermarket found the check to be suspicious because the space for writing the amount long hand was left blank. (Id. at p. 807.) He immediately telephoned the employer. (Ibid.) Appellant claims that his case is distinguishable because the “signed” check in Jones was more capable of deceiving than the check in this case. We do not agree.
There is ample evidence in this case that the check was able to deceive. In Jones, the assistant manager of the supermarket was the first person to come in contact with the check and was immediately suspicious. By contrast, in this case the check deceived at least two people: Ron Almstrom’s wife (who issued what was intended to be a valid check), and appellant (who attempted to negotiate the check). It is also reasonable to infer that Guzman did not discover the error immediately but was initially deceived by the check. Guzman asked for the check, and after seeing it continued to ask appellant for his personal information and to endorse the check.
Moreover, a burglary conviction may stand as long as appellant’s intended result would be a crime or felony regardless of whether that result was factually possible. (Braz, supra, 57 Cal.App.4th at p. 7.) Though appellant’s plan to cash the check, unsigned by its maker, presented difficulties, his intended result was nonetheless criminal and thus may sustain a burglary conviction.
(c) No Intent Because the Check Was Genuine
Alternatively, appellant argues that he could not have intended to commit a forgery because the check was genuine. He asserts that if the endorsement on the check was truly that of Ramirez then there was nothing illegal about his attempt to negotiate it. Appellant supports this assertion by claiming the jury could have believed the defense expert’s testimony that Ramirez, not appellant, endorsed the check. Appellant also states, “The only evidence of alteration or falsification of the check was Guzman’s testimony that appellant signed ‘Jorge Ramirez’ to the back of the check after she had observed that the back of the check was blank.”
Unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction. (People v. Allen (1985) 165 Cal.App.3d 616, 623.) An appellate court does not retry the facts, but presumes every fact the trier could reasonably deduce in the light most favorable to the judgment. (People v. Catlin, supra, 26 Cal.4th at p. 139.) There is nothing physically impossible or inherently improbable regarding Guzman’s testimony that appellant signed “Jorge Ramirez” to the back of the check. Therefore, her testimony amounts to substantial evidence of appellant’s fraudulent intent.
DISPOSITION
The judgment is affirmed.