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People v. Otubuah

April 7, 2010


APPEAL from the Superior Court of San Bernardino County. Steve Malone, Judge. Affirmed in part as modified; reversed in part. (Super.Ct.No. FWV801484).

The opinion of the court was delivered by: Ramirez P. J.


A jury convicted defendant and appellant Michael Ayiku Otubuah of 19 counts (1, 2, 5, 7, 9, 14, 16, 18, 24 -34) of unlawful use of personal identifying information (Pen. Code, § 530.5, subd. (a)),*fn1 nine counts (3, 4, 6, 8, 11, 12, 15, 17, 19) of burglary from a store (§ 459), one count (10) of grand theft (§ 487), one count (13) of attempted grand theft (§§ 664, 487), one count (20) of receiving stolen property (§ 496, subd. (a)), one count (21) of possessing a firearm as a felon (§ 12021, subd. (a)), one count (22) of possessing a counterfeit driver's license with the intent of using it to commit any forgery (§ 470b), and 27 counts (counts 35-61) of forgery for possessing completed checks with the intent to defraud (§ 475, subd. (c)). Defendant contends that only one conviction lies for all of the 27 forgery counts because all 27 checks were possessed on a single occasion. We reverse 24 of the 27 forgery convictions, leaving one conviction per victim, and modify to impose omitted court security fees.


Defendant was involved in an identity theft ring. The parties stipulated that, on or about May 20, 2008, one of the other participants in the identity theft ring was found with 27 counterfeit checks. According to the stipulation, two checks issued by 3P Delivery, Inc., seven checks issued by Escrows Unlimited, Inc., and 18 checks issued by Capital One, were found in the other participant's car. Found in the same participant's bedroom were one check issued by Capitol One, and one check issued by Escrows Unlimited, Inc. The checks were also admitted into evidence. All of the checks had signatures on them and were made out to several different payees, including two of the participants in the identity theft ring.

One of the participants in the theft ring testified that the first time defendant gave her a counterfeit check she deposited it into her bank account; the bank then closed her account because the check was counterfeit. Subsequently, she would just take the checks into a bank for cashing. She cashed eight or nine checks that defendant gave her ―from a woman that he identified as Anne.‖ All of the checks from Anne went through. She attempted to cash ―a lot‖ more checks provided by defendant than just the eight or nine checks from Anne. Most of the time, the checks that were not from Anne did not go through.

At sentencing, count 1 was set as the principle count. Defendant was sentenced to consecutive terms of one-third the midterm, eight months, on three counts, one pertaining to each of the three different issuers (counts 35, 37 & 44). The trial court imposed and stayed the upper term of three years on each of the 24 remaining section 475, subdivision (c), counts. Including the sentences for the convictions not challenged in this appeal, defendant was sentenced to a total prison term of 20 years four months.

Only one $20 court security fee was imposed.


Defendant contends he should have only received one consecutive sentence rather than three because all the checks were possessed on a single occasion. The People contend that the three consecutive sentences were proper because there were three victims, but that the 24 stayed counts should be reversed. Defendant agrees with the People's contention that the stayed counts should be reversed, and further argues that only one sentence was proper and thus 26 of the 27 counts should be reversed. We agree with the People. First we determine that three convictions lie, then we discuss the case law relied upon by defendant and in particular an opinion, with which we disagree, from one of our sister districts.

A. Number of Convictions

Section 475, subdivision (c), states: ―Every person who possesses any completed check, money order, traveler's check, warrant or county order, whether real or fictitious, with the intent to utter or pass or facilitate the utterance or passage of the same, in order to defraud any person, is guilty of forgery.‖

Defendant contends section 475 specifies a mere possessory offense. The People contend that section 475 is a forgery offense that occurs once for each victim, because each victim has had their autonomy violated. We agree that section 475 states one of many ways of committing forgery, and hold that, forgery by possession of checks occurs once per victim.

The single crime of forgery may be committed in many ways. (See §§ 470-476.) ―The real essence of the crime of forgery . . . is not concerned with the end . . . it has to do with the means, i.e., the act of signing the name of another with intent to defraud and without authority, or of falsely making a document, or of uttering the document with intent to defraud.‖ (People v. Neder (1971) 16 Cal.App.3d 846, 852-- 853.) Because forgery has to do with the means of attempting fraud, forgery offenses target invasions of financial autonomy. In the context of possession of checks, each real person, or entity, whose checks are possessed by a forger, has had their autonomy over their financial accounts violated.

Defendant was convicted of 27 counts of forgery for possessing completed checks with intent to defraud. The checks were from three issuers. Defendant thus violated the financial autonomy of three victims, and committed forgery once for each victim. Accordingly, one conviction for each victim is appropriate, and the remaining 24 counts must be reversed.

B. Applying Section 654

Having concluded that three convictions lie, we evaluate whether the sentence for any of the three convictions should be stayed pursuant to section 654.

―Section 654 precludes multiple punishment for a single act or omission, or an indivisible course of conduct. [Citations.] If, for example, a defendant suffers two convictions, punishment for one of which is precluded by section 654, that section requires the sentence for one conviction to be imposed, and the other imposed and then stayed. [Citation.] Section 654 does not allow any multiple punishment, including either concurrent or consecutive sentences. [Citation.]‖ (People v. Deloza (1998) 18 Cal.4th 585, 591-592.)

When a court sentences a defendant to separate terms, it makes an implicit determination that the defendant held more than one criminal objective. (People v. Osband (1996) 13 Cal.4th 622, 730-731.) ―A trial court's implied finding that a defendant harbored a separate intent and objective for each offense will be upheld on appeal if it is supported by substantial evidence.‖ (People v. Blake (1998) 68 Cal.App.4th 509, 512.)

The trial court imposed three separate terms, one for each of the three issuers, and applied a section 654 stay to the remaining 24 section 475, subdivision (c) counts. Checks possessed with the intent to defraud could be intended to defraud issuers, drawees, payees, and third parties. The completed checks contained account information of three issuers. Because the ring had previously cashed checks, it may be inferred that the intent was to defraud the issuers by cashing their checks. Accordingly, there was substantial evidence supporting the trial court's implied finding that defendant's identity theft ...

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