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People v. Keating

June 7, 2010

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
NORMAN KENNETH KEATING, DEFENDANT AND APPELLANT.



APPEAL from a judgment of the Superior Court of Los Angeles County. Alice C. Hill, Judge. Affirmed as modified. (Los Angeles County Super. Ct. No. PA056847).

The opinion of the court was delivered by: Woods, J.

CERTIFIED FOR PUBLICATION

Norman Kenneth Keating appeals his multiple convictions of grand theft, forgery, second degree commercial burglary and theft. The charges all stem from various transactions relating to a business that appellant and his partner, James Anderson, established in 2007. Appellant claims that his convictions were not supported by sufficient evidence. Specifically he asserts that the prosecution failed to present evidence that he had the specific intent to commit any of the charged crimes and that there was little evidence linking him to the commission of the crimes. Appellant claims that if any crimes were committed, his partner Anderson committed them. As we shall explain below, appellant has failed to demonstrate that his convictions were not supported by sufficient evidence. Circumstantial evidence presented during the trial supported appellant's convictions on all charges. Accordingly, we affirm.

In a petition for rehearing, filed the same day as our opinion denying the appeal of his convictions, appellant argues that he is entitled to the benefit of 2009 amendments to Penal Code section 4019 which went into effect on January 25, 2010 pursuant to Senate Bill No. 18 (2009-2010 3d Ex.Sess.) (Senate Bill 18). These amendments increased the good conduct credits available to a defendant for presentence custody in a local detention facility. (Stats.2009-2010, 3d Ex.Sess.2009, ch. 28, § 50.) The amended statute became effective after appellant was sentenced and while this appeal was pending. Appellant argues the amendments must be applied retroactively to all sentences not yet final on appeal. We granted the petition for rehearing and now conclude that the amendments are retroactive and that appellant is accordingly entitled to recalculation of his presentence custody credits. We modify appellant's sentence accordingly and direct the abstract of judgment to be amended to correctly reflect the credits to which appellant is entitled.

FACTUAL AND PROCEDURAL BACKGROUND

Appellant's Business

Appellant and James Anderson met in late 2006. At the time, Anderson owned a small printing business, Xpressprint located in Valencia ("XPrint"). Anderson and appellant developed a business plan for a new business called Xpresstoonmaps ("XMaps"). The business plan envisioned that XMaps would develop a "cartoon-like" map of Santa Clarita. XMaps would design and produce the map and would sell advertising spaces on the map to local businesses.

Anderson and appellant had equal ownership shares in XMaps and they incorporated the company together in late March 2007. XMaps and XPrint shared office space and Anderson and appellant also shared a condominium. Under the XMaps business plan, Anderson and appellant agreed to divide up the responsibility for XMaps. Initially, it was agreed that appellant would sell advertising spaces on the map and manage the sales force while Anderson would oversee the graphic design and manage the company funds, including writing checks and paying vendors and payroll.*fn1 In 2007 Anderson had an existing checking account for his company XPrint at Telesis Credit Union ("Telesis"). Anderson opened a checking account for XMaps at Telesis. The two accounts were linked, allowing funds to be transferred back and forth between the two businesses. Anderson had Internet access to the accounts, which were password protected with Anderson having sole access to the passwords. Anderson was also the signatory on both checking accounts. Anderson testified that while appellant was never authorized to sign checks on behalf of XPrint, he did authorize appellant to sign on his behalf on the XMaps account under certain circumstances, if he, Anderson was sick or unavailable.*fn2 Although Anderson received the account statements for both Telesis accounts, he testified that he consulted appellant concerning management of the business and the company expenditures.

Appellant had the only debit card linked to the XMaps account at Telesis. Appellant used the debit card to pay for numerous business and personal purchases from March through August 2007. Appellant stated that he sold 90-95 percent of the sold spaces on the Santa Clarita map during the March through August 2007 time period and knew of the dollar amount of sales that came into the XMaps during that time.

Although Anderson and appellant had agreed to divide the responsibilities for the XMaps, ultimately appellant handled some of the financial transactions, including making deposits for both businesses. In addition, as the evidence presented at trial showed, appellant also dealt almost exclusively with certain XMap vendors, opened a bank account for XMaps at the Mission Valley Bank, and handled a few print orders for XPrint.

Grand Theft Charges (Counts 9 and 11): Express Personnel Services

In March 2007, appellant and Anderson met with the owners of Express Personnel Services ("EPS"), Ray and Mary Flores. EPS provided personnel to businesses on a contract basis. Appellant signed the staffing agreement and credit application on behalf of XMaps with EPS to provide office staff for XMaps. EPS supplied a total of six staff people to XMaps from March 2007 to middle of July 2007. Under the staffing agreement, EPS would pay each of its contract employees and then send an invoice to XMaps for payment.*fn3 Although the credit application indicated that Anderson was in charge of accounts payable for XMaps, the Floreses testified that they dealt exclusively with appellant on the account, and that they did not discuss account balances or invoices with Anderson. Anderson confirmed that appellant handled all of the dealings with EPS and that he had little interaction with EPS. The Floreses stated that they spoke to appellant weekly when they stopped by to distribute weekly paychecks to EPS staff working at XMaps.

Mr. Flores testified that by mid-April 2007 he began to have a number of conversations with appellant about unpaid invoices that EPS had sent to XMaps.*fn4 During each discussion, appellant told Mr. Flores that he would look into the matter or that he would "take care of it." On a number of occasions, appellant told Mr. Flores that checks to pay the invoices been "cut" and put in the mail.

On June 27, 2007, the Floreses met with appellant to discuss the unpaid invoices. Appellant told them he was unaware the invoices had been unpaid. Appellant later faxed copies of two unsigned checks made out to EPS dated June 22, 2007, one in the amount of $8,171.64 and another for $3,079.30. Appellant claimed that these checks had been mailed out the week before to EPS' out of state corporate headquarters. The checks, however, were never received by EPS. Appellant also told the Flores that checks to EPS totaling $22,000 would be sent to the corporate office the week of July 4, 2007.

After none of the promised payments arrived at the EPS corporate office, the Floreses met in person with appellant on July 12, 2007. During the meeting, appellant stated that he would obtain a check with "guaranteed funds" and would drop it off at EPS offices the next evening.*fn5

Appellant also stated that he wanted to pay $39,000 of XMaps' outstanding balance on his credit card. The Floreses sent appellant a credit card authorization form via e-mail. The completed form, bearing appellant's signature and his "debit" card number was faxed back to EPS on the morning of July 13. The credit authorization indicated that appellant's "Mastercard" would expire in March 2008;*fn6 it also authorized EPS to charge the card five separate transactions in the amount of $9,999 on five separate dates a few days apart. Later on July 13, 2007, the Floreses were informed by their corporate headquarters that a $2,500 check (dated May 5, 2007) from XMaps had been returned for a second time for insufficient funds; the Floreses decided to remove their personnel from the XMaps' office. Both Floreses testified that until July 13, they had intended to continue the business relationship with XMaps and wanted to work something out with appellant.

On the following Monday, July 16, Mary Flores received an e-mail from appellant in which he advised her that on advice of his legal counsel, he had cancelled his "credit" card.*fn7

Forgery and Commercial Burglary Charges (Counts 12-15): Mission Valley Bank Check Transactions

On July 19, 2007, appellant opened a corporate checking account at Mission Valley Bank in the name of XMaps. He deposited $100 cash into the account when he opened it. The next day he deposited $1,691.70 into the account. Appellant signed the signature card to open the account, and although Anderson's name was listed as a co-owner of the business and was also on the signature card, Anderson never signed the card. At trial, Anderson said that he had no interaction or dealings with Mission Valley Bank and testified that appellant never told him that they needed to deposit any funds into any account for XMaps at Mission Valley Bank.

On July 23, 2007, appellant entered the Sun Valley branch of the Mission Valley Bank and deposited a check (#6036) in the account of XMaps for $5,618. The check was drawn on the XPrint's Telesis account. According to appellant, Anderson printed, signed and gave him the check and told him to put it in XMaps' account at the Mission Valley Bank. Mission Valley Bank had a policy to give a customer immediate credit for any amount they deposited without first verifying that the check had sufficient funds. Immediately after appellant deposited check #6036, he obtained a cashier's check drawn on XMaps' Mission Valley Bank account for $6,022 payable to Delta Printing Solutions, which was XMaps' landlord in Valencia.

Also on July 23, 2007, appellant entered a different branch of the Mission Valley Bank and deposited another check (#6035) in the account of XMaps for $4,368 drawn on the XPrint Telesis account. Appellant testified that Anderson gave him the check and told him to deposit it in XMaps' account in the Mission Valley Bank. Appellant immediately obtained a cashier's check in the amount of $3,011 payable to Delta Printing Solutions.

Both checks #6035 and #6036 were returned marked "NSF."

Although when initially interviewed by police Anderson said that the signatures on both checks looked like his signature or could be his signature, he also stated that he had no recollection of signing the checks or printing them. At trial, Anderson stated that the checks did not contain his signature. Anderson denied he printed or signed either check. He also stated that he did not authorize appellant to sign the checks. He further testified that given the size of the business and the large amount of the checks--nearly $10,000 in one day--if he had signed them he would remember the transaction.

Theft Charges (Counts 16-18) Mission Valley Bank Credit Card Charges

In 2007, Carrie Burrell was marketing director for Mission Valley Bank in the Sun Valley Branch. In 2007, she placed two orders for pens with XPrint--one order for 6,000 pens at a cost of $2,500 and a second order for 500 pens costing $600. She placed the order with appellant and authorized him to charge Mission Valley Bank's credit card for the purchases. Burrell testified although she spoke with others working at XPrint about the order, she believed that she gave appellant the credit card number and that appellant called her on the telephone and instructed her to pay for the orders "up-front." The Mission Valley Bank credit card was charged for both orders in June 2007. Burrell received the larger order of pens, but never received the other order.

On August 7, 2007, XPrint charged the Mission Valley Bank credit card for $2,508.32 and on August 22, XPrint charged the Mission Valley Bank credit card for $1,650. Neither charge was authorized by Mission Valley Bank. Burrell testified that when she received the August statement for the Mission Valley Bank credit card and saw the unauthorized charges she called appellant. He apologized and blamed it on a "bookkeeping" error. He told her that the card would receive a credit for both charges. At the end of the month the credit card had not been credited notwithstanding appellant's assurances. Thereafter, on September 11, 2007, XPrint charged the Mission Valley Bank credit card in the amount of $1,059; this charge was also not authorized by the bank. When Burrell discovered the September charge, she called appellant again. He apologized and blamed it on a "personnel error." Burrell cancelled the card and submitted a fraud claim concerning the charges. She testified that she never made any credit card transactions on her own and was unaware that the charges were not authorized.

Anderson testified that he was not involved with the Mission Valley Bank pen orders, and that appellant had handled the Mission Valley Bank orders on behalf of XPrint. He testified that appellant had access to the XPrint credit card machine and that both XMaps and XPrint used the same credit card terminal. Anderson said that he knew nothing about the credit card charges for the Mission Valley Bank pen orders at the time. Anderson did recall later discussing the September 11 charge with appellant. Anderson testified that appellant told him the September 11 charge on the Mission Valley Bank card was for "advertising."

At trial appellant conceded that he handled the Mission Valley Bank pen order in 2007. He denied, however, that Burrell gave him the Mission Valley Bank credit card numbers. He stated that the card number was "on-file." He further testified that if he did direct Diaz to charge the card in August, it was only because he did not realize the bank had already paid for the order. He ...


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