Opinion
B228179
01-26-2012
THE PEOPLE, Plaintiff and Respondent, v. FRANK WELLS, Defendant and Appellant.
Julia J. Spikes, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BA361617)
APPEAL from a judgment of the Superior Court of Los Angeles County. Craig E. Veals, Judge. Affirmed.
Julia J. Spikes, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
Defendant appeals from his convictions of 12 counts of second degree burglary and 12 counts of forgery, all arising out of transactions at various Costco Wharehouse stores (Costco) in southern California during the summer of 2009. Following our independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436, 441 (Wende), we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant was arrested on August 14, 2009 and charged by felony complaint with seven counts of burglary in violation of Penal Code section 459 and seven counts of forgery in violation of Penal Code section 475, subdivision (c). During most of the pretrial proceedings defendant represented himself. A month before the preliminary hearing the court deferred to the trial judge a motion to reduce the charges to misdemeanors and denied without prejudice defendant's motion for discovery of a handwriting analysis defendant said was done by the police.
All future undesignated statutory references are to the Penal Code.
Defendant represented himself at the preliminary hearing on January 8 and 9, 2010. From the 37 count information, the trial court dismissed counts 4, 11, 12, 20, 25, 26, 27, 28, 31, 32, 33 and 36. Defendant was held to answer on the remaining twelve counts of second degree burglary (counts 1, 2, 3,7, 9, 13, 15, 17, 21, 23, 29, 34) and twelve counts of forgery (counts 5, 6, 8, 10, 14, 16, 18, 19, 22, 24, 30, 35); eight section 667.5, subdivision (b) prior conviction enhancements were also alleged.
At a hearing on February 22, 2010, defendant was appointed standby counsel and an investigator. Defendant renewed his request for discovery of the signature analysis and also complained that he had not received copies of all of the checks upon which the charges were based. The trial court arranged for copies of all of the checks for defendant. On April 23, 2010, the prosecutor gave defendant copies of additional checks intended to be introduced pursuant to Evidence Code section 1101, subdivision (b), as well as copies of Costco membership documentation and photos. The prosecutor stated that no signature analysis report had been prepared and none was intended to be introduced at trial. An unredacted police report was available to give to defendant's appointed standby counsel, who did not appear at the hearing. Defendant elected to give up his right to self-representation and the public defender was provisionally appointed pending verification of defendant's financial qualifications.
After initially accepting defendant's case, the Public Defender subsequently informed the trial court that defendant did not qualify for appointed counsel. The matter was continued for defendant to find an attorney. When defendant was unable to hire an attorney, the trial court appointed standby counsel and an investigator. Defendant confirmed that the public defender had returned all discovery to defendant. At a trial setting conference on June 1, 2010, defendant stated, "I just dropped off the discovery to standby counsel, Your Honor, since I have everything." But on June 10, 2010 defendant complained he had not received a handwriting analysis done by the police. The prosecutor reiterated that no handwriting analysis had been done and, in any case, that was not the theory of the People's case. The trial court appointed a handwriting expert for defendant and continued the matter to give the expert time to do an analysis. On June 24, the trial court granted defendant's request for a continuance to receive a report from an F.B.I. agent he intended to call as a witness.
When jury trial commenced on June 28, 2010, defendant was represented by previous standby counsel. Viewed in accordance with the usual rules on appeal (People v. Virgil (2011) 51 Cal.4th 1210, 1263 (Virgil)), the evidence established that every Costco membership application includes identifying information and a photo of the member. The photo is imprinted on the membership card, which also has a barcode that is scanned by the cashier at the start of each transaction. Cashiers are trained to check the photo on the card against the person making the transaction. There is no legitimate reason for an individual (as opposed to a business entity) to have multiple Costco memberships. In July 2009, Stanley Bostwick, a Regional Loss Prevention agent for Costco, learned of checks returned unpaid to the Costcos in Burbank, Alhambra, Azusa and San Dimas. Bostwick determined that the unpaid checks were associated with different accounts held in the names of Frank Wells, Brian Walsh, and Bob Michaels; defendant was the person depicted in the membership photo associated with each of these account. Bostwick showed defendant's photograph to employees at the Costco on Los Feliz Boulevard. On August 14, 2009, defendant tried to return something to the Los Feliz Boulevard Costco. An employee recognized defendant from a photograph and alerted the store's general manager, Bob Holden. Holden was familiar with defendant from seeing him in the store on occasion. As Holden approached the counter where defendant was waiting, Holden greeted defendant as "Frank" but then said, " 'Is it Bob or Kevin?' or I said another name that I knew [defendant] to go by." Defendant replied, "Oh, you know." Defendant admitted using different names. The police were called and defendant was arrested. A Los Angeles Financial Credit Union employee testified that the credit union had no accounts in the name of Kevin Miller or Brian Walsh; there had been an account in the name of Frank Wells but that account had been closed.
Bostwick created People's Exhibit 31, which was a spreadsheet of 12 checks defendant tendered to Costco which were unpaid; each check was the basis of one forgery and one burglary count.
Over defendant's relevancy, lack of foundation, Evidence Code sections 352 and 1101 objections, the People introduced evidence of nine returned checks that were not the subject of criminal charges in this case. The checks were made payable to Costco from accounts ostensibly belonging to Frank Wells, Kevin Miller and Robert Michaels, and were returned to Costco unpaid for various reasons including that the account had been closed or could not be located by the financial institution. The trial court admonished the jurors that they may not consider this evidence to prove defendant is a person of bad character or that he has a disposition to commit crimes, only for the limited purpose of showing method, plan or scheme tending to show intent or identity as to the charged offenses. Defendant did not introduce any evidence. The theory of defense was that in the absence of direct evidence the prosecution had failed to prove its case.
The jury convicted defendant on all counts; defendant later admitted the prior conviction enhancements. He was sentenced to a total of seven years, eight months in prison comprised of the three year high term on count 1, plus a consecutive eight months (one third the three year term) on each of counts 2, 3, 7, 9, 13, 15 and 17; plus a concurrent three years on count 5 and a concurrent two years on each of counts 16, 21, 23, 29 and 34. Sentences on counts 6, 8, 10, 14, 18, 19, 22, 24, 30 and 35 were imposed but stayed pursuant to section 654. Defendant timely appealed.
We appointed counsel to represent the defendant on this appeal. After examination of the record, appointed counsel filed an opening brief which contained an acknowledgment that she had been unable to find any arguable issues and requesting that we independently review the record pursuant to Wende, supra, 25 Cal.3d 436. Appellant's motion to relieve his appointed counsel was denied. On November 29, 2011, we advised defendant that he had 30 days within which to personally submit any contentions or issues which he wished us to consider.
Appellant filed a Supplemental Brief on December 1, 2011, an Amended Supplemental Brief on December 13, 2011, and a Second Amended Supplemental Brief on December 16, 2011. As we understand defendant's contentions, they are that (1) when he was arrested he was charged with violation of section 470, subdivision (a) [signing name of fictitious person], but he was ultimately charged and convicted of violation of section 459 [burglary] and section 475, subdivision (c) [forgery]; (2) the prosecution did not comply with its discovery obligation to turn over a signature report; (3) in the absence of direct evidence that defendant entered Costco and wrote the checks, there was insufficient evidence to support the convictions; (4) he was denied the right to confront a witness that was subpoenaed by the prosecution but did not testify; and (5) he received ineffective assistance of counsel because defense counsel did not pursue discovery of the signature analysis and did not investigate defendant's claim that he had multiple Costco memberships because he lost his membership card. We find no merit in any of these contentions.
Defendant has also filed three petitions for habeas corpus relief, which we address under separate orders.
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First, that the police noted a particular criminal code violation on his arrest report is irrelevant to the charges brought by the prosecutor. Second, the prosecutor stated that no handwriting analysis was done and defendant has not established otherwise; despite obtaining appointment of a handwriting expert, defendant presented no evidence that it was not his handwriting on any of the checks. Third, notwithstanding the absence of direct evidence, substantial circumstantial evidence supported the convictions. Fourth, defendant misunderstands the nature of the right to confrontation; the prosecution's choice to not call a particular witness does not deprive the defendant of the right to confrontation. Finally, defendant has shown neither that counsel was ineffective nor the probability of a more favorable result.
We have examined the entire record and are satisfied that appointed counsel has fully complied with her responsibilities and that no arguable issues exist. (Wende, supra, 25 Cal.3d at p. 441.)
DISPOSITION
The judgment is affirmed.
RUBIN, ACTING P. J. WE CONCUR:
FLIER, J.
GRIMES, J.