Opinion
C064381
10-13-2011
THE PEOPLE, Plaintiff and Respondent, v. DONALD EDWARD JEFFERSON, Defendant and Appellant.
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. 08F08448)
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). 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.
Undesignated statutory references are to the Penal Code.
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."
Defense
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.
DISCUSSION
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 motions."'" (People v. Cox (2003) 30 Cal.4th 916, 953, disapproved on a different ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
A witness's blurting out of inadmissible evidence does not require reversal unless the trial court abused its discretion in concluding the statement was not incurably prejudicial. (See People v. Bradford (1997) 15 Cal.4th 1229, 1336.) "Where, as here, a discretionary power is statutorily vested in the trial court, its exercise of that discretion 'must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice.'" (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125 (Rodrigues).) "Whether a particular incident is incurably prejudicial requires a nuanced, fact-based analysis." (People v. Chatman (2006) 38 Cal.4th 344, 369-370.)
The trial court did not abuse its discretion in ruling that Lindley's offhand comment was not so prejudicial as to warrant dismissing the jury. The remark was a vague allusion to misconduct rather than an admission by defendant that he had committed a crime. As soon as the statement was made, the judge immediately sustained an objection interposed by defense counsel. While defendant is correct that no admonition was given to the jury, he may not assert prejudice on that account because he refused the judge's offer to give one.
Moreover, the jury was already aware of the fact that Lindley was an immunized witness who had, by his own admission, actively participated in the fraud scheme. The case turned, in large part, on whether the jury found Lindley to be a credible witness. If it found him credible, his testimony virtually assured defendant's conviction. On the other hand, if the jury believed Lindley was lying, it would have rejected his entire testimony, including the gratuitous statement imputed to defendant that defendant told him he had been engaging in bank fraud "for years." Thus, the inadmissible statement could not have materially affected the outcome.
We conclude Lindley's single gratuitous comment was not so serious as to compel the grant of a mistrial. Any prejudice could easily have been cured by the giving of a jury admonition. No abuse of discretion appears.
II. Failure to Give Accomplice Instructions as to Love
At trial, Lindley testified that defendant was introduced to him by Torrey Love, who told him about "somebody he knew who had ways of getting [him] money." Before he met defendant, Lindley understood only that there was a "business proposition" under which he would earn $1,500 by letting defendant use his bank account and ATM card. After he met defendant, defendant explained the plan to him, which included "scamming the bank" through forged signatures.
Love, testifying under a grant of immunity, stated that he was a longtime friend of defendant and admitted having introduced Lindley to him. However, Love denied having explained the details of defendant's "business proposition" to Lindley.
In chambers, the parties went over the jury instructions. By this time, defendant was acting as his own attorney. The trial court announced that it was giving accomplice instructions as to prosecution witnesses Corona and Lindley. Among them was CALCRIM No. 335, advising the jury that the testimony of an accomplice could not, by itself, be used to convict defendant of the charges without corroborating evidence.
Defendant inquired as to why Love's name was not included in the accomplice instruction. The trial court then asked whether there was any evidence that Love was an accomplice. Both the prosecutor and defendant answered in the negative. Accordingly, the jury was given CALCRIM No. 335 with respect to witnesses Corona and Lindley, but not Love.
Pursuant to CALCRIM No. 335, the trial court instructed the jury, in pertinent part, as follows: "Now, if the crime of Section 475[, subdivision] (c) of the Penal Code was committed, then Kristopher Lindley and Amerida Corona were accomplices to those crimes. You may not convict the defendant of a violation of Section 475[, subdivision] (c) of the Penal Code based on the statement or testimony of an accomplice alone. You may use the statement or testimony of an accomplice to convict the defendant only if, one, the accomplice's testimony or statement is supported by other evidence which you believe. Two, that the supporting evidence is . . . independent of the accomplice's statements or testimony. And, three, that supporting evidence tends to connect the defendant to the commission of the crime."
Claiming that Love provided "crucial evidence" on at least three of the counts, defendant contends the trial court erred in failing to include Love in CALCRIM No. 335, or to at least give CALCRIM No. 334, which is proper when there is conflicting evidence whether a testifying witness was an accomplice.
Assuming, for the sake of argument, that the trial court erred in failing to give either CALCRIM No. 334 or 335 with respect to Love, any error was decidedly harmless.
Despite the grant of immunity, Love was a marginal figure in the case. He merely told Lindley that he knew somebody who could get him some money and then introduced him to defendant. Even if Lindley's testimony left room for the inference that Love told him he could earn $1,500 by allowing defendant to use his bank account and ATM card, there was no evidence that Love aided or participated in the scheme carried out by defendant and Lindley. (See People v. Lewis (2001) 26 Cal.4th 334, 369 [witness's mere presence at scene and intimate knowledge of crime insufficient to warrant an accomplice instruction].)
More importantly, Love's testimony was amply corroborated by independent evidence. Only "slight evidence" is needed to satisfy the corroboration requirement of section 1111. (Rodrigues, supra, 8 Cal.4th at p. 1128.) "The corroborating evidence is sufficient if it tends to connect the defendant with the commission of the crime in such a way as may reasonably satisfy the jury that the witness who must be corroborated is telling the truth." (People v. MacEwing (1955) 45 Cal.2d 218, 224; see People v. Sanders (1995) 11 Cal.4th 475, 534-535.)
There was overwhelming evidence, apart from Love's testimony, that defendant committed the charged crimes. Both Corona and Lindley decisively pointed the finger at defendant as the initiator and mastermind of the forgery scheme. Surveillance photos showed defendant making deposits of the forged checks at ATM machines. Finally, defendant made highly incriminating statements in his postarrest police interview. On this record, there is no doubt that giving an accomplice instruction as to Love would not have made the slightest difference in the outcome of the trial. (Cal. Const., art. VI, § 13; People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).)
III. Refusal to Give Pinpoint Instructions Re Immunity
Before the case went to the jury, defendant requested a pinpoint instruction singling out Corona and Lindley by name and directing the jurors to determine whether their testimony had been influenced by the grant of immunity each had received. The trial court declined to do so, pointing out that the subject was covered by the pattern instruction, CALCRIM No. 226.
In accordance with CALCRIM No. 226, the jury was instructed that, "[i]n evaluating a witness's testimony, you may consider anything that reasonably tends to prove or disprove the truth or accuracy of that testimony. Among the factors that you may consider are: [¶] . . . [¶] Was the witness promised immunity or leniency in exchange for his or her testimony?"
Defendant faults the trial judge for failing to adopt his proposed instruction regarding Lindley and Corona. He claims the failure to give it abridged his right to have the jury instructed on all principles essential to its determination of the case. We disagree.
A court may properly refuse to give a pinpoint instruction when the concepts in that instruction are covered in other instructions. (People v. Gurule (2002) 28 Cal.4th 557, 660.)
Defendant's proposed instruction was covered by CALCRIM No. 226, which informed the jury that it may consider any promise of immunity in weighing the credibility of a witness's testimony. Furthermore, since Lindley and Corona were accomplices as a matter of law, the trial court also gave CALCRIM No. 335, advising the jury that such testimony needed to be independently corroborated before it could be relied upon to convict defendant.
Defendant insists the pattern instruction was insufficient because there is a "vast difference" between a "promise" of immunity as referenced in the standard instruction, and a "grant" of immunity, which was given to the witnesses in this case. We are unpersuaded.
First, the key point is that the witness received immunity for giving testimony damaging to the defendant. It is doubtful a lay jury would parse any distinction between a "grant" and a "promise" of immunity. Second, if anything, a "promise" of immunity sounds more damaging to the testifying witness, since it implies his or her testimony is being given as a quid pro quo in exchange for leniency arranged by the district attorney. Third, defendant was free to point out in closing argument that the grant of immunity given to Lindley and Corona induced them to color their testimony to inculpate defendant.
We conclude the trial court properly rejected defendant's pinpoint instruction.
IV. Alleged Infringement on Presentation of the Defense
Prior to trial, the prosecutor brought a motion in limine precluding defendant from introducing receipts showing he deposited checks in conjunction with his music business, unless he first laid a foundation for them by testifying. No ruling was made at that time.
The subject came up at a midtrial conference in chambers, wherein the trial court stated: "Counsel, my feeling is that if the defendant testifies and he places himself in a legitimate business as a defense to the charge, then there would be some probative value to other witnesses who would corroborate that testimony. So I would be inclined to allow you, [defense counsel], to call some witnesses if the defendant testifies on that issue. If the defendant doesn't testify on that issue, I don't think it would be appropriate to have third party witnesses attempt to create a defense for the defendant by
putting him in a legitimate business. [¶] . . . [¶] So what I will do is read the additional proffers which you gave me this morning in chambers, have you identify for me the say two or three witnesses that are highest on your list of priorities, and we can identify if the defendant testifies which two or three I would allow in." (Italics added.)
Subsequently, defendant took the stand and testified that he received checks as payment for CD's as part of his music business. The trial court then permitted the defense, over the People's objection, to call witnesses to corroborate his claim that he had been in the music business for several years. The court also allowed defendant to introduce copies of receipts for purchases of CD's in 2008.
Defendant argues that the trial court's preliminary ruling on the admission of the receipts unfairly burdened his right not to testify and interfered with his right to call witnesses in whatever order he wished, thus violating his constitutional right to present a defense.
The claim fails at the outset because defendant failed to preserve it below. "[A] criminal defendant who does not challenge an assertedly erroneous ruling of the trial court in that court has forfeited his or her right to raise the claim on appeal. [Citations.] As the United States Supreme Court recognized in United States v. Olano [(1993)] 507 U.S. [725], 731 [123 L.Ed.2d 508, 517-518], '"[n]o procedural principle is more familiar to this Court than that a constitutional right," or a right of any other sort, 'may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it."' [Citations.] 'The purpose of this rule is to encourage parties to bring errors to the attention of the trial court, so that they may be corrected.'" (In re Sheena K. (2007) 40 Cal.4th 875, 880-881.) The rule applies to constitutional objections, as well. (People v. Rudd (1998) 63 Cal.App.4th 620, 628.)
Defendant cites no objection to the trial court's comment that defendant's testimony about his music business would be needed to provide a foundation for the documentary evidence he wished to introduce. Nor did defense counsel ever indicate that his client wanted to exercise his right not to testify while presenting receipts showing he ran a music business. Finally, there was never a complaint by defendant that his right to present evidence in the order he wished was being curtailed. Because defendant completely acquiesced to the trial court's comments, he has forfeited the point on appeal.
In any event, given the scenario that unfolded after the cited comments by the trial judge, it is impossible for defendant to show prejudice. (Cal. Const., art. VI, § 13; Watson, supra, 46 Cal.2d at p. 836.) Defendant and his corroborating witnesses were permitted to testify without restriction, and all of the receipts he wanted introduced were admitted. Defendant cannot seriously claim that the outcome of the case would have been any different had the trial court not made a tentative ruling that he had to testify before the receipts would be admitted. No reversible error appears.
V. Faretta Motion
Faretta v. California (1975) 422 U.S. 806 (Faretta).
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During presentation of the defense's case-in-chief, defendant made a request to the trial court to dismiss his appointed attorney and represent himself for the remainder of the trial. After inquiring into defendant's capability to represent himself, advising him of his constitutional rights and obtaining his signature on a waiver form, the trial court granted his motion for self-representation under Faretta, supra, 422 U.S. 806 .
In an 11-page dissertation, quite possibly copied from another source, defendant claims that the trial court should not have granted the motion because Faretta was incorrectly decided. He disingenuously fails to acknowledge that, as an intermediate appellate court, we are bound by Faretta and have no power to depart from it as precedent. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 (Auto Equity).) Defendant's argument is clearly addressed to the wrong court.
VI. Restriction on Closing Argument
While defendant was representing himself, the trial judge told defendant: "All right. Now there is a security issue, Mr. Jefferson. Now that you're representing yourself, you will be presenting a closing argument. Because you are in custody and because you have an extensive felony criminal record, I can't have you walking around the courtroom at will during your closing argument. The sheriff is in charge of security issues. The bailiff has advised me of their concern of security issues. [¶] You can present your closing argument either standing or sitting at counsel table, whichever you prefer. It's completely up to you. If you choose to sit and if you want me to tell the jury that they should not consider that fact for any purpose, I would be happy to do that if you want me to."
Later in the proceedings, defendant's escort officer stated that because defendant had "a serious history of a violent felony [ sic]," he preferred that defendant remain seated during closing argument. The court ruled that defendant could either remain seated during closing argument or could stand up at the counsel table with additional security officers present. Defendant replied, "I'm not going to be actually standing up through my closing," so "[t]hey [the officers] have nothing to worry about."
Defendant eventually agreed to sit during his summation but asked if the prosecutor was going to be subject to the same restriction. Although the judge initially agreed, he reversed his ruling after the prosecutor objected. The judge then offered to give an instruction telling the jury not to draw any inference from the fact that defendant was seated during closing argument. Defendant declined the offer, but wanted to tell the jury that "[he] was not allowed to stand during closing." The trial judge refused the proposal, however, since defendant had the option of standing with additional security officers present. The colloquy ended with the agreement that defendant would be seated during closing argument and the jury would not be given any instruction drawing its attention to that fact.
Defendant claims his constitutional rights were violated when the trial judge imposed a restriction on his movement during closing argument that was "tantamount to physical restraint." He compares the trial court's ruling to an order shackling him and contends that it was improper absent a showing that he posed an imminent security threat.
We reject the argument on multiple grounds. First, defendant forfeited the claim by failing to raise a cognizable objection in the trial court. On the contrary, the record shows that defendant and the trial judge jockeyed back and forth on the issue until a satisfactory arrangement was agreed upon.
Second, defendant's suggestion that preventing him from walking back and forth during closing argument was the functional equivalent of shackling him is spurious. Restricting a self-represented defendant's movement around the courtroom does not bear any of the indicia of guilt associated with shackles, stun belts or chains. Thus, the California Supreme Court has recognized that, unlike shackling, other reasonable security measures may be imposed on a defendant without a showing of "manifest need." (People v. Marks (2003) 31 Cal.4th 197, 224.) The trial court noted, without objection, that defendant had "an extensive felony criminal record," and court security personnel were uncomfortable with him roaming the courtroom without additional officers present. Accordingly, it was reasonable for the court to require defendant to either stand at the counsel table or sit while delivering closing argument.
Third, and finally, given the overwhelming evidence of guilt, any restriction imposed on defendant's movement during closing argument was decidedly harmless under any standard of review.
VII. Defendant's Absence During Trial of the Priors
Immediately after the guilty verdicts were rendered, defendant—after being fully advised—waived his right to a jury trial on the truth of prior felony convictions.
The next day, the court announced that the bailiff had received a message from the jail indicating that defendant did not want to come to court that day. Deputy James Russell of the Sacramento County Sheriff's Department then testified that, according to the "pull list" which the department compiles, defendant had refused to come to court, telling one of the officers, "I was found guilty yesterday, I don't give a shit." The trial judge then announced, "I find that the defendant, Mr. Jefferson, has intentionally, willfully and knowingly, voluntarily absented himself from the proceeding, intentionally choosing not to appear." A brief trial on the priors was conducted in defendant's absence, based solely on documentary evidence.
Defendant claims this procedure violated his constitutional right to be present at all stages of the proceedings.
A criminal defendant ordinarily has a constitutional right to be present at all phases of the proceedings. (People v. Gutierrez (2003) 29 Cal.4th 1196, 1202 (Gutierrez).) The right is also embodied in sections 977 and 1043. (Gutierrez, at p. 1202.)
As the California Supreme Court explained in Gutierrez, while section 977, subdivision (b) provides that, under certain circumstances, a defendant may execute a written waiver of the right to be present prior to trial, once trial commences, a defendant may waive his right to be present by his voluntary absence as provided for by section 1043, subdivision (b)(2). (Gutierrez, supra, 29 Cal.4th at pp. 1203-1204.) Moreover, a trial judge may properly rely on the representations of custodial jail personnel in determining that defendant has voluntarily absented himself from the trial. (Id. at p. 1205.)
Defendant does not dispute that his absence from the trial was voluntary. Rather, apparently, he contends that because he was acting as his own attorney, the trial court had no power to proceed with trial on the priors while defendant lacked legal representation. Because defendant cites no authority for this proposition, he has forfeited this argument. (People v. Sipe (1995) 36 Cal.App.4th 468, 481.)
In any event, we reject the notion that defendant could unilaterally bring a halt to the proceedings merely by refusing to come out of his jail cell and appear for trial. "'"[T]here can be no doubt whatever that the governmental prerogative to proceed with a trial may not be defeated by conduct of the accused that prevents the trial from going forward."'" (Gutierrez, supra, 29 Cal.4th at p. 1204, quoting Taylor v. United States (1973) 414 U.S. 17, 20 [38 L.Ed.2d 174, 178].)
Finally, in order to secure a reversal based on his absence from the proceedings, a defendant must demonstrate prejudice. (People v. Bradford, supra, 15 Cal.4th at p. 1358.) Defendant makes no effort to do so. Instead, he argues for a per se rule of reversal, while recognizing that such a rule would be contrary to the holding of our state Supreme Court. We are, of course, not free to depart from the higher court's precedent. (Auto Equity, supra, 57 Cal.2d at p. 455.)
VIII. Cumulative Error
Defendant argues that if any of his individual assignments of error fail, their cumulative effect should justify reversal. Since we have not found trial error, we reject this argument summarily.
IX. Multiple Convictions for Violating Section 475
In a supplemental opening brief defendant contends that, under the authority of People v. Morelos (2008) 168 Cal.App.4th 758 (Morelos), People v. Carter (1977) 75 Cal.App.3d 865 (Carter), and People v. Bowie (1977) 72 Cal.App.3d 143 (Bowie), eight of the nine counts of forgery must be reversed and cannot be retried, because a defendant can be convicted of only one count of unlawful possession of forged checks, regardless of the number of victims. He is wrong.
Defendant was convicted of eight counts of violating section 475, subdivision (c), which provides: "Every person who possesses any completed check, money order, traveler's check, warrant or county order, whether real or fictitious, with the intent to utter or pass or facilitate the utterance or passage of the same, in order to defraud any person, is guilty of forgery." (Italics added.)
Defendant relies on a series of cases holding that a person found in possession of completed forged or blank checks on one occasion can be convicted only of a single count of forgery, despite the fact that there were several checks targeting multiple victims or potential victims. However, as we shall explain, all of those cases are distinguishable.
In Bowie, the defendant was convicted of 11 counts of possession of blank checks with intent to defraud where he possessed 11 checks in the same amount, drawn on the account of a defunct organization. He agreed to sell the checks to an undercover agent, with the intent to have the agent fill in the checks and pass them to others. (Bowie, supra, 72 Cal.App.3d at pp. 146-147.) The Bowie court held the defendant should have been convicted of a single offense because he "possessed all 11 checks at the same time," even though there were different potential victims. (Id. at p. 156.)
In Carter, the defendant and a companion were suspected of passing fake checks at a store. Their vehicle was searched and they were found in possession of three fraudulent checks. The checks were drawn on the same account, made out to three different payees, and were going to be used to defraud the payees. (Carter, supra, 75 Cal.App.3d at pp. 868-869, 871.) The defendant was convicted of three counts of possession of a completed check with fraudulent intent, based on the three checks. Relying on Bowie, Carter held the defendant's simultaneous possession of multiple checks with the requisite intent only constituted one offense, even though the checks were made out to different payees. (Id. at pp. 871-872.)
In Morelos, officers executed a search warrant at a house and found sheets of blank checks, check printing software, sheets of currency, various forms of identification, and credit cards. The defendants were convicted of multiple felonies, including 15 counts of forgery of blank checks involving six different victims (§ 475, subd. (b)). (Morelos, supra, 168 Cal.App.4th at pp. 761-762, 764.) On appeal, the defendants argued all but one blank check count had to be reversed; the People countered that only multiple convictions involving the same victims should be stricken. (Id. at p. 763.) Morelos held that Bowie and Carter required reversal of all but one count, even though there were different victims, since the defendants were found in possession of all the checks at the same time. (Morelos, at p. 765.)
None of these "single possession" cases is applicable because defendant here was convicted of possessing eight individual fraudulent checks on eight different dates. Possession of each check was a separate transaction and defendant deposited each one into a bank account with intent to defraud. Accordingly, this case falls within the rule that, where the evidence shows independent acts of unlawful possession on separate occasions, a defendant may be convicted of separate counts based on each possession. (See People v. Municipal Court (Marandola) (1979) 97 Cal.App.3d 444, 447 [a defendant charged with possession of some obscene films on one day and other films the next day may be charged with two counts of possession]; People v. Roberts (1960) 182 Cal.App.2d 431, 436-437 [receipt at separate times of property stolen from separate victims constituted separate offenses].)
Acceptance of defendant's argument would mean that a person could write phony checks defrauding multiple victims on multiple occasions, without ever facing exposure to more than one count of completed check forgery. We reject an interpretation of the statute that would lead to such absurd results.
DISPOSITION
The judgment is affirmed.
BUTZ, J. We concur:
HULL, Acting P.J.
HOCH, J.