California Court of Appeal, Fourth District, Second Division
[DEPUBLISHED BY ORDER]
APPEAL from the Superior Court of Riverside County. Larrie R. Brainard, Judge. (Retired judge of the San Diego Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed. (Super.Ct.No. SWF10001239).
[167 Cal.Rptr.3d 319] Cynthia M. Jones, under the appointment of the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael T. Murphy and Donald W. Ostertag, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted defendant, Aaron Falls, of second degree burglary (Pen.Code, § 459), making, passing, uttering, publishing or possessing a fraudulent check with intent to defraud (§ 476) and possessing a completed check with the intent to utter and pass and facilitate the uttering and passing of it in order to defaud Vons (§ 475, subd. (c)). In bifurcated proceedings, defendant admitted having suffered four prior convictions for which he served prison terms. He was sentenced to four years in county jail and appeals, claiming he was incorrectly charged with an act not proved at the preliminary hearing, the trial court failed to hold a hearing on his motion to represent himself, the jury was misinstructed and he was improperly convicted of violating both sections 475 and 476. We reject his contentions and affirm.
The facts involving the offenses will be described in the connection with our discussion of the first issue raised by defendant. After defendant was tracked down by the police, he told a deputy sheriff that [167 Cal.Rptr.3d 320] he did not do anything, but he knew who " snitched" on him. Later, he changed his story and said that his mother was going through a hard time financially, he wanted to help her out and he had reverted to his old ways of making money by using fraudulent checks. He admitted that he had used a fraudulent check at the Vons on May 28, 2010, and he did it to help his mother.
ISSUES AND DISCUSSION
1. Charging Defendant with an Act Not Proved at the Preliminary Hearing
Defendant was charged by complaint with one count of burglary and one count of making, passing, uttering, publishing or possessing a fraudulent check with the intent to defraud any other person. At the preliminary hearing, a Riverside County Deputy Sheriff, who was the only witness to take the stand, testified that on May 28, 2010, a cashier at the Vons ...