IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FOUR
December 29, 2010
THE PEOPLE, PLAINTIFF AND RESPONDENT,
STEPHANIE ANN STEPHENS, DEFENDANT AND APPELLANT.
(Contra Costa County Super. Ct. No. 05-090450-8)
The opinion of the court was delivered by: Sepulveda, J.
P. v. Stephens
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Stephanie Ann Stephens appeals following her conviction of various crimes stemming from her use of checks that did not belong to her. She argues that (1) two of her three convictions for possession of forged checks (Pen. Code, § 475, subd. (a))*fn1 must be reversed because the checks at issue were taken from only one account holder, and that the evidence therefore supports only one possession conviction, (2) the trial court erred by failing to give a unanimity instruction as to two of the forgery counts (§ 470, subd. (d)), and (3) the trial court was not authorized to "roll over" fines and fees that had previously been imposed in an unrelated case. Finding no error, we affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
While running an errand on October 21, 2008,*fn2 Kathleen Conover lost her purse, which contained her checkbook, driver's license, and other items. She reported the loss to police after she searched for the purse where she last remembered having it.
On October 23, a checker at a grocery store in Martinez rang up a woman's purchase. The female customer tried to pay with one of Ms. Conover's checks, but the customer left without paying after the checker asked her for identification. The grocery store's digital surveillance cameras captured the transaction, and defendant later acknowledged in an interview with police that she was the person who appeared in the surveillance photographs.
A pizza restaurant in Martinez received three checks from Ms. Conover's account in October, and copies of all three checks were admitted into evidence at trial. The jury heard evidence regarding the circumstances surrounding the presentation of two of Ms. Conover's checks to the restaurant. One was received by the store manager at the front counter of the restaurant by a woman who said she was Kathleen Conover, and who said that she worked at a nearby train station. A second check was received on October 26, when a restaurant deliverer delivered a pizza to a train station parking lot in Martinez. The female customer paid for the pizza with a check, which the deliverer gave to her manager at the end of her shift. Both the deliverer and the restaurant manager later selected defendant out of photographic lineups as the person who had given them checks; however, neither witness was entirely certain of the identification, and neither witness was asked to identify defendant at trial.
Defendant was charged by information with two counts of second degree commercial burglary (§§ 459, 460, subd. (b)--counts 1, 5), one count of receiving stolen property (§ 496, subd. (a)--count 2), three counts of forgery (§ 470, subd. (d)--counts 3, 6, 8), and three counts of possession of a forged instrument (§ 475, subd. (a)--counts 4, 7, 9). The information further alleged that defendant was ineligible for probation because she had four prior felony convictions (§ 1203, subd. (e)(4)).
A jury convicted defendant on all counts. The trial court sentenced defendant to two years on count 1 and a consecutive eight-month term on count 5, for a total of two years, eight months in prison.*fn3 As discussed more fully below, the trial court also imposed various fines and fees. Defendant timely appealed.
A. Evidence Supported Multiple Possession Convictions.
Defendant first argues that two of her three convictions for possession of forged checks must be reversed, because possession of forged checks taken from one victim can give rise to only one violation of section 475, subdivision (a). The relevant statute provides: "Every person who possesses or receives, with the intent to pass or facilitate the passage or utterance of any forged, altered, or counterfeit items, or completed items contained in subdivision (d) of Section 470 [which includes checks] with intent to defraud, knowing the same to be forged, altered, or counterfeit, is guilty of forgery." (§ 475, subd. (a).) The jury was instructed that it was to determine whether defendant was guilty of possessing (1) the forged check provided to the grocery store checker (count 4), (2) the forged check provided to the pizza restaurant manager (count 7), and (3) the forged check provided to the pizza deliverer (count 9).
Defendant argues that "[f]orgery by possession of checks occurs once per victim" (the holder of the checking account), and that because there was only one victim here (accountholder Ms. Conover), there could be only one conviction for possession. Defendant relies on cases holding that, where defendant possessed several checks at the same time, he or she could be convicted of only one count of possession. (People v. Morelos (2008) 168 Cal.App.4th 758, 761, 763-764 [where police seized sheets of blank checks, defendant could be convicted of only one possession count under § 475, subd. (b), even though checks involved six victims]; People v. Carter (1977) 75 Cal.App.3d 865, 868-869, 871 ["simultaneous possession of several checks" found at same time may not constitute multiple violations of possession statute (former § 475a), even though checks payable to different payees]; People v. Bowie (1977) 72 Cal.App.3d 143, 156 [where defendant possessed 11 checks "at the same time," he could be guilty of only one violation of possession statute (former § 475)].)
Here, by contrast, the prosecution presented evidence that defendant possessed three of Ms. Conover's checks on three different occasions: in the grocery store, in the pizza restaurant, and in the train station parking lot when she presented one to the pizza deliverer. It is true, as defendant argues, that she was convicted of only one count of receiving stolen property (§ 496, subd. (a)--count 2). That count was alleged to have occurred on or about October 23, the date defendant attempted to pass the first forged check, at the grocery store. Where the evidence shows that stolen goods were received on a single occasion, only one offense of receiving stolen property has occurred. (People v. Smith (1945) 26 Cal.2d 854, 859; People v. Morelos, supra, 168 Cal.App.4th at p. 763; People v. Mitchell (2008) 164 Cal.App.4th 442, 461-462.) The evidence presented in the instant case supports that conclusion, and the prosecution properly pleaded only one count of receiving stolen property.
As to the violations of section 475, subdivision (a), however, the evidence supports the conclusion that defendant only possessed each of the checks in question, in a forged condition with the requisite intent to defraud, on the three specific and separate dates alleged. There was no evidence that defendant possessed all three of these checks, in a forged condition with the requisite intent, at any one time. Thus defendant was properly convicted of three counts of possession of a forged item.
B. No Error in Jury Instructions on Forgery Counts.
Before closing arguments, the trial court instructed the jury on the elements of a violation of section 470, subdivision (d) in connection with the three charged forgery counts.*fn4 During his closing argument, the prosecutor highlighted the evidence showing that defendant presented one check to the pizza restaurant manager and another to the restaurant's deliverer. The prosecutor also told jurors that they could examine the three checks belonging to Ms. Conover that were given to the pizza restaurant. After the prosecutor's closing argument, and outside the presence of the jury, the trial court noted that there was nothing in the information to tie a particular check given to the pizza restaurant with a specific charged count. After discussing the issue with counsel, the court assigned specific counts to specific transactions, and modified the written jury instructions and verdict forms accordingly. The modified written jury instructions and verdict forms stated that count 6 related to the forgery of the check provided to the restaurant manager, and that count 8 related to the forgery of the check provided to the pizza deliverer. Neither the instructions nor the verdict forms stated that the jury had to determine which two of the three checks given to the pizza restaurant were connected with the two transactions described by the two restaurant witnesses, because the prosecutor acknowledged that there was no evidence as to which specific check was used in either transaction.
Consistent with the modified written instructions and verdict forms, the trial court instructed the jury after closing arguments: "The defendant is charged in Counts Three, Six, and Eight with forgery of a bank check and attempting to pass a forged bank check in violation of Penal Code Section 470(d). [¶] The crime charged in Count Three relates to the check allegedly provided to [the grocery store checker]. That's the [grocery store] transaction. [¶] Count Six relates to the check allegedly provided to [the pizza restaurant manager], one of the two pizza checks. [¶] And Count Eight relates to the check allegedly provided to [the pizza deliverer], one of the pizza checks."*fn5
Defendant argues for the first time on appeal that the trial court erred by failing to give a unanimity instruction with respect to the two forgery counts that were associated with the checks presented at the pizza restaurant (§ 470, subd. (d)--counts 6, 8).*fn6 "In a case in which the evidence indicates the jurors might disagree as to the particular act defendant committed, the standard unanimity instruction should be given." (People v. Jones (1990) 51 Cal.3d 294, 321.) "[W]hen the evidence suggests more than one discrete crime, either the prosecution must elect among the crimes or the court must require the jury to agree on the same criminal act." (People v. Russo (2001) 25 Cal.4th 1124, 1132.) In such circumstances, a trial court has a sua sponte duty to give a unanimity instruction. (People v. Davis (2005) 36 Cal.4th 510, 561.) "[S]ome assurance of unanimity is required where the evidence shows that the defendant has committed two or more similar acts, each of which is a separately chargeable offense, but the information charges fewer offenses than the evidence shows." (People v. Sutherland (1993) 17 Cal.App.4th 602, 611-612.) Here, the prosecution presented evidence of only two incidents when defendant presented a forged check at the pizza restaurant, so this was not a situation where the evidence revealed more offenses than were charged in the information.
Defendant claims that jurors "should have been told that to find her guilty, they were required to either unanimously identify which of the three checks [defendant] forged, or agree that she forged all three." She apparently contends that the trial court should have instructed the jury with optional language in CALCRIM Nos. 1904 and 1905, which provides: "The People allege that the defendant (falsely made[,]/[or] altered[,]/[or] forged[,]/[or] counterfeited) the following documents: . You may not find the defendant guilty unless you all agree that the People have proved that the defendant (falsely made[,]/[or] altered[,]/[or] counterfeited) at least one of these documents and you all agree on which document (he/she) (falsely made[,]/[or] altered[,]/[or] forged[,]/[or] counterfeited)." This instruction is to be given where, unlike here, the prosecution has alleged under a single count that the defendant forged multiple documents. (People v. Sutherland, supra, 17 Cal.App.4th at p. 618, fn. 6; Bench Notes to CALCRIM No. 1904 (Summer 2010 ed.) vol. 2, p. 15.) Here, defendant was accused of using only one forged check for each transaction.
Defendant argues that because the prosecution did not (apparently because it could not) tie the two pizza restaurant transactions with two specific checks of the three that were presented to the restaurant, the prosecution failed to prove the "corpus delicti" of the forgery crime. "Forgery has three elements: a writing or other subject of forgery, the false making of the writing, and intent to defraud. [Citation.]" (People v. Gaul-Alexander (1995) 32 Cal.App.4th 735, 741.) Here, the prosecution presented evidence of all three elements of the crime. As for the writing that was the subject of forgery, witnesses testified that defendant presented two checks to the pizza restaurant (one to the manager and one to the deliverer). The manager testified that the person who gave her a check represented that she was Kathleen Conover, whereas the deliverer testified that she did not look at the check that was given to her, and she did not remember the name of the woman who gave her the check. The fact that the pizza restaurant had three of Ms. Conover's checks in its possession after the two described transactions was one piece of circumstantial evidence tying defendant to the forgeries, as the prosecutor argued to the jury. It was not necessary for jurors to select which of the three checks was involved with each transaction, only that (as they were instructed) defendant used a check belonging to Ms. Conover. There was no risk, as defendant apparently contends, that some (but not all) jurors might have believed that defendant was guilty of using the third check admitted into evidence, because witnesses testified as to only two transactions. On the record before us, the trial court did not err by failing to provide a unanimity instruction.
C. No Error to Transfer Fines and Fees.
After the trial court imposed its sentence in the present case, the court noted that defendant was on probation in a separate and unrelated case (Super. Ct. Contra Costa County, No. 01-134512-3),*fn7 and defense counsel agreed to the court's suggestion that probation be terminated as unsatisfactory in the unrelated case because defendant's actions in this case violated the terms of her probation. The court then stated that defendant still owed $1,455 in fines and fees in the unrelated case, and proposed that the money now be owed in this case. Defense counsel agreed that the plan "ma[de] sense." The court then ordered that probation in the unrelated case be ordered terminated unsuccessfully, and also ordered that the $1,455 in fines and fees owed in the other case become an obligation in this case.*fn8
Although defendant agreed below to the transfer of the fines and fees imposed in the separate probation case to this case, she argues for the first time on appeal that the trial court lacked authority to transfer the $1,455 levied in her previous probation case to the present case, because there is no statute which expressly empowers a trial court to shift an "undifferentiated lump sum" of fines and fees from one case to another. Although we agree that a defendant may raise the issue of an unauthorized fine for the first time on appeal (People v. Chambers (1998) 65 Cal.App.4th 819, 823), we disagree that the trial court's order was unauthorized.
Defendant argues at length that a trial court may impose fines, fees, and penalty assessments only if authorized by statute (or, in the case of victim restitution, by the state constitution). However, she does not claim that the original imposition of $1,455 in the separate case was unauthorized, or that the fines and fees imposed in the separate case did not survive the revocation of her probation. (E.g., People v. Chambers, supra, 65 Cal.App.4th at p. 820 [restitution fine imposed at time probation is granted survives revocation of probation].) She also concedes that the trial court acted within its power to terminate defendant's probation in the unrelated case. In the absence of any argument that the fines and fees imposed in the previous case did not survive the revocation of probation, we agree with respondent that the striking of the $1,455 transferred to this case would amount to a windfall for defendant. We therefore decline to strike the $1,455 that was transferred to this case.
The judgment is affirmed.
We concur: Ruvolo, P. J. Rivera, J.