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The People v. Saul Barba et al

November 20, 2012

THE PEOPLE, PLAINTIFF AND APPELLANT,
v.
SAUL BARBA ET AL., DEFENDANTS AND RESPONDENTS.



APPEAL from an order of the Superior Court of San Diego County, Gary M. Bubis, Judge. (Super. Ct. No. SCE310580)

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

CERTIFIED FOR PUBLICATION

Reversed.

I.

INTRODUCTION

The People appeal from an order of the trial court dismissing count 1 of the information, which alleged that defendants Saul Barba*fn1 and Jessica Jean Lofgreen violated Penal Code*fn2 section 530.5, subdivision (a) by engaging in a check forging scheme in which they cashed stolen checks at multiple check cashing stores. Section 530.5, subdivision (a) makes it unlawful to willfully obtain personal identifying information of another person and use that information for any unlawful purpose. The trial court dismissed this charge on the ground that the evidence presented at the preliminary hearing did not demonstrate that the defendants had portrayed themselves to be anyone other than themselves while participating in the check forging scheme.

The People argue that section 530.5, subdivision (a) does not require that a defendant have personated another individual in using someone else's personal identifying information, and that the trial court erred in so interpreting the statute and dismissing the charge.

We agree with the People that the trial court erred in interpreting section 530.5, subdivision (a), and reverse the court's order.

II.

FACTUAL AND PROCEDURAL BACKGROUND

A. Factual background*fn3

On April 18, 2011, Aaron Ashby parked his vehicle and left it unlocked with the windows rolled down. The following day, Ashby returned to the vehicle and found that someone had taken a checkbook and files from his business, Ashby Remodeling & Services, from the car. Ashby's company's name, the company phone number, a checking account number, bank name, and bank routing number were printed on the checks.

Ashby called his bank to cancel the checks. When the police later contacted Ashby to ask whether he knew any of the three defendants, he said that he did not know them, and also that he had not given any of those people permission to possess his checks.

Around April 21, 2011, Barba entered the Lakeside Discount Market and presented a check to the clerk for cashing. The clerk remembered that the check Barba handed over was a business check that had the word "Ashby" on it, and that the business involved construction. The check was No. 029, which was one of the checks stolen from Ashby's vehicle. The check was dated April 18, 2011, and had been made payable to Saul Hinojosa in the amount of $250. The notation on the check read "materials/labor," and the check had a signature on it.

The clerk did not verify the authenticity of the check but made a copy of the check before cashing it. The clerk had seen Barba in the store on prior occasions and believed that Barba had cashed checks in the store before.

Barba later returned to Lakeside Discount Market to cash check No. 039. He was accompanied by Claudia Lizethe Aguilera, who is Barba's wife. The check was made out to Aguilera in the amount of $600. The clerk photocopied the check and also made a copy of Aguilera's identification card. The check had a signature on it. After receiving the check from Aguilera and Barba, the clerk called the telephone number that was printed on the check. When there was no answer, Barba told the clerk that he had the business owner's cell phone number. The clerk called that number and left a message stating that he wanted to verify the check that Barba and Aguilera had provided to him. Shortly after the clerk left this message, a woman called the clerk back from a telephone number that came up on the clerk's caller identification as "private." The clerk told the woman that he could not verify the check from a telephone number that was blocked on his caller identification. The woman hung up and called back. This time, the telephone number was displayed. The clerk asked the woman if she had issued the check that Barba and Aguilera were trying to cash, and she said that she had. The clerk proceeded to cash check No. 039 for Barba and Aguilera.

On April 21, 2011, Barba entered a store called "The Check Cashing Place" and attempted to cash another one of the checks stolen from Ashby's vehicle. The check was dated April 20, 2011, was made payable to Saul Hinojosa in the amount of $600, and was signed. When Barba handed the check to the clerk, he also handed over an identification card in the name of "Saul Barba Hinojosa." The clerk called the telephone number printed on the check but received no answer. The clerk asked Barba for another contact number for the check issuer. Barba provided a different telephone number, which the clerk called. The clerk spoke to a woman whose name she could not recall, although she remembered that the woman said she had the same last name as the name that was printed on the check.

The clerk then called her manager, who questioned the story that Barba had provided to the clerk about why he received the check. The manager told the clerk to further investigate whether the check was authentic. The clerk searched for another telephone number for Ashby Remodeling & Services, and found a different number, which she called. The clerk spoke with Ashby, who told the clerk that the check was one of a number of checks that had been stolen. Ashby informed the clerk that he would come to the store. After speaking with Ashby, the clerk called the police.

Officer Roberto Bonilla responded to the clerk's call regarding a stolen check. When he arrived at the store, Bonilla observed Barba facing the clerk's window. Bonilla asked Barba to verify his identity. The clerk gave the stolen check to the officer, and the officer verified that the account holder for the check was Aaron Ashby. When Ashby arrived at the store, he explained to the officer that the checks had been stolen from his vehicle.

Officer Anthony Kolombatovic also went to The Check Cashing Place to investigate the report of a stolen check. When he saw that other officers were already inside the store, Kolombatovic looked around the store's parking lot to see whether there were any other individuals who may have accompanied Barba to the store. Kolombatovic noticed a brown van in the parking lot. He approached the van to investigate and discovered three people in the van: Aguilera, a female juvenile, and Lofgreen. Officer Kolombatovic asked Lofgreen to step out of the van so that he could speak with her. During their discussion, Lofgreen told Kolombatovic that she had disposed of several checks in a nearby trash can. Kolombatovic retrieved a number of items from the trash can, including three checks that were not Ashby's, two of Ashby's checks, a check carbon with writing on it, and an automobile insurance card with Barba's name on it. The two Ashby checks had been signed. One was made out to Claudia Gutierrez and the other was made out to Jessica Lofgreen.

Officer Kolombatovic also found stolen checks in Aguilera's purse, including two of Ashby's stolen checks, which had been made out payable to Barba and Aguilera, respectively. Kolombatovic found a third Ashby ...


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