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People v. Eusebio

June 18, 2010

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
GERALD JOHN EUSEBIO, DEFENDANT AND APPELLANT.



APPEAL from a judgment of the Superior Court of Los Angeles County, John A. Torribio, Judge. Modified and affirmed. (Los Angeles County Super. Ct. No. VA107591).

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

CERTIFIED FOR PARTIAL PUBLICATION*fn1

In the published portion of this opinion, we decide that an amendment to Penal Code section 4019*fn2 concerning conduct credit for county jail inmates is not to be applied retroactively and that prospective application does not violate appellant's right to equal protection under the California Constitution. In the unpublished portion of the opinion, we conclude that section 654 precludes punishment of appellant Gerald J. Eusebio for both passing a forged check and false personation where there was no temporal separation in the commission of the crimes and that the false personation offense was committed to facilitate the passing of the forged check under the instructions given the jury.

FACTUAL AND PROCEDURAL SUMMARY

Appellant Gerald J. Eusebio was charged with multiple offenses arising from forging or altering checks and then cashing them at commercial banks. Since his only challenge is to the sentence imposed on count 6, false personation, we confine our factual summary to the circumstances of that charge and the related charge in count 7.

In 2008, Nicholas Weber made out check No. 995 on his checking account with Washington Mutual Bank (Exh. 5). It was payable to the ACLU in the amount of $10. He placed the check in the mailbox just outside his house. When shown the check at trial, Weber said the check was his, but that the amount and the "person on here" was not. The payee had been altered to "Ariel Francisco" and the amount raised to $400. Weber did not give appellant permission to cash that check.

Ariel Francisco testified that he lived with appellant for some months in the first quarter of 2008. Early that year his California driver's license and other cards were stolen. He identified his name on exhibit 5, but said he had never received a check from Nicholas Weber, whom he did not know. He denied cashing the check on April 19, 2008. He did not give appellant permission to use his identity or to impersonate him.

Norine Jarrett, a fraud investigator for Washington Mutual Bank, identified exhibit 5 as a check she pulled from bank records, which indicated it was cashed on April 19, 2008 in Los Angeles County. Dominique Enriquez, a fingerprint expert for the Los Angeles County Sheriff's Department, compared a fingerprint on exhibit 5 with appellant's fingerprint and concluded that they matched. Appellant told Detective Brett Zour that he had used Ariel Francisco's identification to cash a check, but could not remember the details.

Based on the alteration and cashing of exhibit 5, appellant was charged and convicted of one count of forgery (count 6, § 470, subd. (d)) and one count of false personation of Ariel Francisco (count 7, § 529)). The court selected a three-year term on count 2, an unrelated crime, as the base term. One-third the midterm (8 months) was imposed for each of counts 6 and 7, to be served consecutively. Together with the sentences on the other unrelated counts, the total term of imprisonment was seven years. This timely appeal followed.

DISCUSSION

I.

Application of the multiple punishment provision of section 654 often presents intricate issues. One of these is whether and when a temporal break in the commission of two crimes sharing the same overall objective--theft--may both be punished. Courts have drawn a distinction between multiple crimes committed in close proximity for one objective and crimes committed with a significant temporal break, and that circumstance appears to apply to the facts of this case. Nevertheless, because of the way the case was pleaded and the jury instructed, we conclude that section 654 bars the multiple punishment imposed.

"An accusatory pleading may charge different statements of the same offense. (§ 954.) As a general rule, 'a person may be convicted of, although not punished for, more than one crime arising out of the same act or course of conduct. "In California, a single act or course of conduct by a defendant can lead to convictions 'of any number of the offenses charged.' [Citations.]" [Citation.]' (People v. Reed (2006) 38 Cal.4th 1224, 1226-1227.)" (People v. Mitchell (2008) 164 Cal.App.4th 442, 460.) But section 654 prohibits multiple punishment under certain circumstances. It provides in relevant part: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." (§ 654, subd. (a).)

Appellant argues the false personation of Ariel Francisco (count 7) was merely the method used to accomplish the forgery (count 6). He cites cases precluding multiple punishment for burglary and conspiracy to commit grand theft (In re Romano (1966) 64 Cal.2d 826), for forgery and grand theft (People v. Kagan (1968) 264 Cal.App.2d 648), and for issuing worthless checks and grand theft (People v. Caruth (1965) 237 Cal.App.2d 401; People v. Martin (1962) 208 Cal.App.2d 867). Appellant argues the single intent and objective in these cases was to steal money, as it was here.

Respondent argues the crime of forgery was complete when appellant knowingly passed an altered check that he intended to be accepted as genuine, with the intent to defraud. The contention is that "the forgery count did not require any subsequent acts by appellant to convince the bank to give him money, such as presentation of identification." According to respondent, appellant's intent in presenting Ariel Francisco's stolen identification "was not to complete the crime of forgery, which had already been completed, but to illegally obtain money from the bank by presenting both the altered check (count six) and Francisco's stolen identification (count seven)." At oral argument, it appeared that respondent was arguing that false personation required appellant to act with the intent of making Francisco liable. If so, appellant would have one intent as to Mr. Weber, and a separate intent as to Francisco. The California Supreme Court concluded that section 529, paragraph 3 is "reasonably susceptible of only one ...


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