(Super. Ct. No. 08F08448)
The opinion of the court was delivered by: Butz , J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Donald Edward Jefferson was convicted by a jury of nine counts of possession of a completed check with intent to defraud in violation of Penal Code section 475, subdivision (c).*fn1  After finding true special allegations that defendant had been convicted of four prior felonies, the trial court sentenced him to 15 years four months in state prison.
Defendant presents several contentions on appeal, including the trial court's erroneous failure to grant a mistrial, instructional error, and impairment of his constitutional right to present a defense. In a supplemental brief, defendant contends that eight of the nine convictions must be reversed because they were all encompassed within the same "possession" crime.
We shall reject all of defendant's claims of error and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In July 2008 (all further unspecified calendar dates are to that year), Ardith Bagwell's home was burglarized and her checks were taken. On August 7 and 8, checks for $4,000 and $2,500, respectively, written from Bagwell's account and made payable to Amerida Corona, were deposited into Corona's Golden 1 Credit Union (Golden 1) account. Bagwell has never met Corona or defendant and did not sign the checks.
In August 2008, Nadine Yassa's home was burglarized and some of her checks were stolen. Subsequently, seven checks written on Yassa's Wells Fargo bank account were deposited into the Golden 1 accounts of Corona and Kristopher Lindley. Three of the checks were made payable to Lindley and four were made payable to Corona. Yassa did not write any of the checks, nor does she know Lindley, Corona or defendant.
Corona, testifying under a grant of immunity, stated that defendant told her he needed a bank account to deposit checks because he was having trouble with the Internal Revenue Service. She agreed to allow defendant to use her automated teller machine (ATM) card and password identification number (PIN) on the promise that he would give her 10 percent of every check he deposited into her account. Corona went with defendant to deposit the first check. Thereafter, defendant used her ATM card and PIN number to make deposits and withdrawals. Bank records and surveillance footage established that defendant used Golden 1 ATM machines to make several deposits and withdrawals into and out of Corona's account.
Lindley testified under a grant of immunity. He was introduced to defendant by Torrey Love, who told him there was "somebody [Love] knew who had ways of getting [Lindley] money." At first, Lindley understood only that if he allowed defendant use of his bank account card and PIN number, he could earn $1,500. After Love drove Lindley to meet defendant, the scheme was explained to him by defendant in more detail.
Defendant told Lindley he was "scamming the bank," by writing blank checks using other people's signatures, depositing them in an ATM machine and withdrawing money. Lindley agreed to give defendant the ATM card and PIN number to his Golden 1 savings account. At defendant's behest, Lindley wrote his signature on a piece of paper, so defendant could practice writing it. In furtherance of the plan, and to make it appear that Lindley was not part of the scheme, he made a false report to Golden 1 that his ATM card and PIN number had been stolen.
When shown a series of checks that were deposited into his Golden 1 savings account, Lindley said he actually endorsed one of them, but that the others were written by defendant, who forged his signature. Defendant promised Lindley $1,500 for his participation in the scheme, but Lindley received only $100. Lindley was eventually convicted of check fraud in connection with this case.
It was undisputed that seven checks written from Yassa's bank account, three of them payable to Lindley and four payable to Corona, were deposited by defendant into Lindley's Golden 1 account. Defendant withdrew at least $500 from the same account.
When defendant was interviewed in jail following his arrest he denied knowing Lindley and claimed he had never seen him before. He also denied having ever seen the canceled checks bearing Lindley's signature. When confronted with a surveillance photo showing him making a deposit at an ATM machine using Lindley's account, defendant denied that the photo was of him and maintained that "[he] didn't put any checks in any dude's account."
Defendant testified that he ran his own music business, in which he sold large quantities of compact discs (CD's) to individuals. He claimed to have met Ardith Bagwell at a club. Two months later, Bagwell introduced him to Yassa. Defendant testified that each of these women purchased hundreds of CD's from him, and paid him with checks. Defendant testified that Corona and Lindley allowed him to use their accounts to deposit the checks and withdraw cash, because he was having trouble establishing his own bank account. He believed that the checks written by Yassa and Bagwell were legitimate.
Two defense witnesses testified that defendant ran his own music business for a number of years and sold CD's in connection with that business.
I. Denial of the Motion for Mistrial
Lindley, who was called by the prosecution, testified that defendant told him he was "scamming the bank." When the prosecutor asked for Lindley's understanding of how the scheme worked, Lindley replied: "He was writing blank checks using other people's signatures, depositing them in the ATM, withdrawing money. He said that it works quicker and faster if it's a checking account because he can pull out a larger amount of money. He tried to explain to me that it wouldn't work as well with the savings accounts because there had to be a certain amount of business days cleared before the amount on the check was received through the ATM. He also disclosed to me and explained to me that he has been doing this kind of thing for years." (Italics added.)
Defense counsel immediately objected to this testimony as "inadmissible per prior rulings." The trial court sustained the objection.
At a break in the proceedings, defense counsel moved for a mistrial based on Lindley's statement that defendant said he "has been doing this for years." Counsel reminded the court that he had pursued in limine rulings "trying to avoid contaminating this jury with information like that, and despite my best efforts, it came out, and I think it came out in a manner that could have been avoided, and I think the remedy is to excuse this jury and get another." The court denied the motion for mistrial, but offered to admonish the jury to disregard the comment. Counsel declined, stating that an admonition would "just ring that bell even louder." The trial court disagreed that the testimony had as large an impact as counsel thought it had, but again offered to admonish the jury "either now or later." The offer was never accepted.
Defendant now contends that Lindley's statement that defendant told him he had been engaging in bank fraud "for years" effectively communicated to the jury that he was guilty of uncharged acts of misconduct, and was so prejudicial that no admonition could have cured it. Accordingly, the trial court should have granted the motion for mistrial.
"We review the denial of a motion for mistrial under the deferential abuse of discretion standard. [Citations.] 'A motion for mistrial is directed to the sound discretion of the trial court. [The Supreme Court has] explained that "[a] mistrial should be granted if the court is apprised of prejudice that it judges incurable by admonition or instruction. [Citation.] Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial ...