APPEAL from a judgment of the Superior Court of Shasta County, Wilson Curle, Judge. Reversed in part and affirmed in part. (Super. Ct. No. 08F3727).
The opinion of the court was delivered by: Nicholson, Acting P. J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
A jury convicted defendant Robert Jay Mathers of possession of a forged completed check (Pen. Code, § 475, subd. (c) -- count 1),*fn2 possession, passing, or attempting to pass a fictitious check (§ 476 -- count 2), second degree burglary (§ 459 -- count 3), writing a check with insufficient funds (§ 476a, subd. (a) -- count 4), and resisting a peace officer (§ 148, subd. (a)(1) -- count 5). In a trial by court, defendant was found to have a prior strike conviction and to have served a prior prison term.
Sentenced to state prison for nine years four months, defendant appeals, contending (1) the evidence is insufficient to support the fictitious check conviction (count 2); (2) the court's instruction on prior uncharged conduct was prejudicial error; (3) the convictions for counts 1, 2, 3, and 4 must be reversed because the court failed to give a unanimity instruction; (4) cumulative instructional error resulted in prejudice; (5) the consecutive sentence imposed on count 2 should have been stayed pursuant to section 654; and (6) the consecutive sentence imposed for count 2 must be reversed because the facts relied upon by the court were not submitted to a jury and found true beyond a reasonable doubt. We agree with defendant that the evidence is insufficient to support his conviction for count 2, a conclusion which renders his fourth and fifth contentions moot. We reject his remaining contentions.
In November 2007, defendant opened a business account with North Valley Bank (NVB) in the name of Mathers Remodel and Maintenance. The initial deposit was $50 and no further deposits were made. In December 2007, the account was closed for insufficient funds. In January 2008, five checks, totaling over $1,800 and dated either January 11 or 18 and payable to various individuals, were drawn on the closed account. Pursuant to bank policy, notices were sent to the account holders that the checks were not being honored because of insufficient funds.
On or about April 26, 2008, by means of a computer program, defendant created three checks for his closed NVB account. Each check was numbered 1078. Two of the checks were payroll checks made payable to defendant and the third check was blank.
Although the record is not clear, also on or about April 26, 2008, a woman entered a Food Maxx store in Redding and tried to cash one of the payroll checks drawn on defendant's NVB account in the amount of $482.63. The store's manager informed the woman that the check could not be cashed because it had not been signed by the issuer. The women left but returned moments later with defendant who then signed the check. The manager "ran it in the computer" and the account came up "closed." The manager returned the check to defendant and told him the check could not be cashed because the account was closed. Defendant left the store.
About 9:00 p.m., on April 26, 2008, defendant returned to Food Maxx and attempted to cash the same check he had previously tried to cash. Based upon the manager's prior determination that the account upon which the check was drawn was closed, he told an assistant to call the police and then attempted to delay defendant until the police arrived. After a short time, defendant departed, leaving the check at the store.
Officers responding to Food Maxx saw defendant, who matched the description of the suspect, walking from the store to a vehicle in the parking lot and ordered him to stop. Defendant ran but was caught and taken into custody. A search of defendant disclosed two checks, both bearing the number 1078, one of which was made out to defendant in the sum of $482.63, the same as the check he was attempting to cash at Food Maxx, and the second check was blank.
Defendant explained to the officers he had printed the checks on a computer, that he had made copies of the same check because he was trying to improve their quality, and that he had run because his girlfriend had told him he had "enemies that were looking to assault him." Unfortunately, defendant was unable to provide either an address or phone number for his girlfriend.
Defendant contends the evidence is insufficient to support his conviction on count 2, passing or possessing a fictitious check in violation of section 476, because the checks ...