Opinion
B225375
11-09-2011
THE PEOPLE, Plaintiff and Respondent, v. DESYREE CHANTEL PEARSON, Defendant and Appellant.
Jeffrey E. Thoma, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Paul M. Roadarmel, Jr., and Margaret E. Maxwell, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. PA064804)
APPEAL from a judgment of the Superior Court of Los Angeles County. Jeffrey M. Harkavy, Commissioner. Reversed in part, and affirmed in part.
Jeffrey E. Thoma, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Paul M. Roadarmel, Jr., and Margaret E. Maxwell, Deputy Attorneys General, for Plaintiff and Respondent.
Desyree Chantel Pearson appeals from the judgment entered upon her convictions by jury of three counts of forgery (Pen. Code, § 470, subd. (d), counts 1, 2 & 6) and three counts of commercial burglary (§ 459, counts 3-5). The trial court suspended imposition of sentence and placed appellant on five years probation subject to terms and conditions, including the condition that she spend 180 days in county jail. Appellant contends that (1) the trial court committed prejudicial error in instructing the jury in accordance with CALCRIM No. 361 because she did not fail to explain or deny the allegations against her during her testimony, (2) her conviction of forgery in count 6 should be vacated because it involves the same check that is the subject of the forgery charge in count 2, and (3) her conviction of burglary in count 5 should be vacated because appellant was invited to return to the bank on that occasion.
All further statutory references are to the Penal Code unless otherwise indicated.
We reverse in part and affirm in part.
PROCEDURAL AND FACTUAL BACKGROUND
Facts
Prosecution Evidence
On May 14, 2009, appellant went to the Canoga Park branch of Wells Fargo Bank (Wells Fargo). She asked teller, Djane Montemayor (Montemayor), to cash check No. 358, payable to appellant, in the amount of $4,700, dated the previous day and drawn on the account of Jim and Dana Diehl. Montemayor requested two forms of identification. Appellant provided an expired driver's license and a credit card and placed her fingerprint on the check.
Montemayor gave the check to Susan Kazimi (Kazimi) to verify. Kazimi told appellant to be seated while she attempted to do so. Because appellant's identification had expired, Kazimi had discretion whether to cash the check once it was verified. Kazimi telephoned the account holder's number listed in the bank's system and spoke with a woman. After 10 minutes, Kazimi told appellant that she had verified the check and would make an exception regarding appellant's expired identification. The check was then cashed. Appellant told Kazimi that she might have another check which was related to a lawsuit settlement.
On May 15, 2009, appellant returned to the bank to cash check No. 359, which was drawn on the same account as check No. 358. Carina Robles (Robles), a supervisor acting as a teller, assisted appellant. Robles obtained two forms of identification from appellant and told her that Robles had to call to verify the check. Appellant offered a phone number to call and told Robles that a woman at the bank had helped her the day before and had the number to call. Robles replied that she was required to call the number listed in the bank's system.
When Robles checked the bank's system, she saw that Dana Diehl's contact information had changed shortly before appellant arrived at the bank the previous day. She telephoned Jim Diehl who directed her to speak with his wife and provided his wife's cell phone number. Robles called that number and left a message.
After 30 to 45 minutes, Robles copied check No. 359 and appellant's identification so that she could continue the verification process in appellant's absence. As Robles did so, appellant became upset and uncomfortable with the copies being made, as it made her feel like she was doing something wrong. Appellant asked to speak with a manager. Robles and her manager, Elizabeth Alaniz (Alaniz), spoke to appellant, explaining that they copied the items so that they could continue their efforts to verify the check. Appellant, who had become loud and upset, calmed down. Alaniz told appellant that once the item was verified, someone would contact her to return to cash the check. Robles returned the original items to appellant, who left the bank.
Thereafter, Robles reviewed other items drawn on the Diehls' account and compared check Nos. 358 and 359 to another check drawn by Dana Diehl (No. 356). Check No. 356 had a Wells Fargo logo and other security features not present on the checks payable to appellant and listed an address for the account holder in Texas. Robles also spoke with Dana Diehl, who said she did not issue the check and had no business in California.
On May 18, 2009, after going to a different Wells Fargo Branch in an unsuccessful attempt to cash check No. 359, appellant returned to the Canoga Park branch and asked Robles why the check had not been verified and appellant called. Although Robles had already determined that check No 359 was forged, in order to stall until she could summon the police, she told appellant that she had not yet spoken with the account holder. During the wait, appellant became agitated. Alaniz spoke with her to calm her and questioned appellant about the check. Appellant said that she sold antiques online and that the check was payment for a "bike," as was the check cashed on May 14, 2009.
The parties stipulated that: (1) Jim and Dana Diehl were the sole account holders for the account upon which check Nos. 358 and 359 were drawn; (2) they did not issue those checks or authorize anyone else to issue the checks to appellant; (3) they had never had contact with appellant or given anyone permission to use the account; and (4) check Nos. 358 and 359 were false, altered, forged, or counterfeit.
The defense's evidence
Appellant testified on her own behalf. In May 2009, she applied for employment positions on a number of internet sites. In her work e-mail account, she received an e-mail, dated May 7, 2009, from a "Gmail" account (the Gmail), stating that it had received her resume and other information for a "stay-at-home" job for a company called "All Action Trade." It included a link to that company's Web site and a job listing for a customer service marketing representative. Appellant opened the May 7, 2009 Gmail the following week. From the Gmail and subsequent instructions, appellant understood the job responsibilities to include processing checks from United States customers sent to her home address. Appellant provided the Gmail, her name, address, telephone number, and e-mail information. She was not interviewed and did not provide a social security number or date of birth. She received a call informing her that she was approved for the position. All further communications were through e-mails, which directed her to go online and provide information about the checks that arrived and to wait for instructions.
According to appellant, in 1997, she was charged with four counts and was convicted by no contest plea of one count of theft of an access card or account information. She claimed that the charges were the result of her failing to obtain bank authorization when a coemployee at Macy's used a Macy's card that was missing information. She did not receive merchandise in the incident and pled no contest only because she could not afford to miss five days of work.
In rebuttal, Mark Garcia, a loss prevention assistant manager at the Macy's where appellant had worked, testified that over a twoday period, he investigated appellant and another Macy's employee concerning possible fraudulent use of a credit card following the cardholder's report that the card had been lost or stolen. Mr. Garcia reviewed closed circuit video showing cash registers where the card was used in the store. Appellant authorized use of the stolen card for the other employee.
On the morning of May 14, 2009, appellant received a check at her home payable to her. She provided the check information to the Gmail account and awaited instructions. She received an e-mail telling her to cash the check at Wells Fargo. Appellant did not know the account holders and had never spoken to them. She went to Wells Fargo and gave the check to a teller, Montemayor, also giving Montemayor her correct address and phone number. She denied telling Montemayor that the check was part of any settlement.
After receiving the cash, appellant went home and sent an e-mail to the Gmail account requesting further instructions. She received a response stating that the "customer" wanted her to transmit $4,350 to Poland. Appellant took the cash to a Western Union, wired $4,350 to Poland, and kept $350 as her 7.5 percent commission. She had a receipt for the money she had wired and e-mailed the Gmail account with the Western Union "NCN" number. She did not find the directions she received to be odd. Appellant sent e-mails inquiring whether she would receive another check. Gmail responded that she would receive another check to cash at Wells Fargo.
On May 15, 2009, appellant renewed her California Identification Card and obtained a printout from the Department of Motor Vehicles. She then took the second check to the same branch of Wells Fargo and spoke with Robles, who was unable to reach the customer. Appellant gave her fingerprint and correct address. Appellant became frustrated after waiting 30 minutes. She denied complaining about Robles making copies of the check and of appellant's identification. Appellant went home and telephoned the bank that afternoon and was told that she would receive a return call. Appellant corresponded with the Gmail account and was instructed to return to the bank on Monday.
On Monday, May 18, 2009, appellant took the check to a different branch of Wells Fargo located on Sherman Way closer to her home, but the bank personnel would not accept her expired driver license or the DMV renewal of her California Identification Card. She then returned to the Canoga Park branch and again spoke with Robles and gave her the second check to be cashed. Robles stated that she had been unable to verify the check and proceeded to go to the telephone. Appellant was frustrated because she felt she was receiving poor service. Alaniz spoke with her. Appellant denied telling Alaniz that appellant sold antiques online.
Daniel Nolte (Nolte), a forensic computer investigator, analyzed appellant's computer. He examined the data on the hard drive, including 72 e-mails from appellant's Yahoo account. He found no evidence the e-mails had been altered. Artifacts present on the computer demonstrated appellant's e-mails were sent from her computer. He also found that a large number of job search sites were visited. He examined the hard drive for internet activity on May 14, 2009, around 9:00 a.m. and did not find any activities with Wells Fargo Bank account transactions. He did find visits to the branch locator.
Nolte viewed a Web site for All Action Trade using a site which archives views of internet sites and found 431 alterations in that site in 2006, 39 alterations in 2007, and four alterations in 2008 but no changes since June 10, 2008. This information suggested the site was a "zombie" or inactive site.
The information
As a result of the foregoing, appellant was charged in a six-count information, with three counts of forgery and three counts of burglary. Count 1 pertained to the passing of check No. 358 on May 14, 2009, and count 3 to entering Wells Fargo on that date to do so, count 2 pertained to the attempted passing of check No. 359 on May 15, 2009, and count 4 to entering Wells Fargo on that date to do so, and count 6 pertained to the attempted passing of check No. 359 on May 18, 2009, and count 5 to entering of Wells Fargo to do so.
DISCUSSION
I. Instruction on CALCRIM No. 361
A. Background
The trial court instructed the jury in accordance with CALCRIM No. 361, which, as given here, states: "If the defendant failed in her testimony to explain or deny evidence against her, and if she could reasonably be expected to have done so based on what she knew, you may consider her failure to explain or deny in evaluating that evidence. Any such failure is not enough by itself to prove guilt. The People must still prove each element of the crime beyond a reasonable doubt. [¶] If the defendant failed to explain or deny, it is up to you to decide the meaning and importance of that failure." Appellant raised no objection to the instruction.
B. Contention
Appellant contends that the trial court committed prejudicial error in giving CALCRIM No. 361. She argues that she gave a plausible explanation of her actions, which was confirmed by the computer expert. CALCRIM No. 361, she argues, should be given only where there is a "specific and significant" defense omission, not where there is merely a contradiction between a defendant's testimony and other witnesses. This contention lacks merit.
C. Standard of review
We independently review a claim of instructional error. (People v. Rodriguez (2009) 170 Cal.App.4th 1062, 1066.) We note at the outset that appellant did not object to the giving of CALCRIM No. 361. Nonetheless her claim is reviewable if the alleged error affected her "substantial rights," as she contends. (§ 1259; People v. Anderson (1994) 26 Cal.App.4th 1241, 1249 ["Ascertaining whether claimed instructional error affected the substantial rights of the defendant necessarily requires an examination of the merits of the claim-at least to the extent of ascertaining whether the asserted error would result in prejudice if error it was"].)
D. When CALCRIM No. 361 should be given
In criminal cases, "'"the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citations.]"'" (People v. Breverman (1998) 19 Cal.4th 142, 154; People v. Saddler (1979) 24 Cal.3d 671, 681 (Saddler).) The trial court has the correlative duty "'to refrain from instructing on principles of law which not only are irrelevant to the issues raised by the evidence but also have the effect of confusing the jury or relieving it from making findings on relevant issues.'" (Saddler, supra, at p. 681.)
CALCRIM No. 361 should be given when there are facts or evidence in the prosecution's case within the defendant's knowledge which the defendant did not explain or deny. (People v. Lamer (2003) 110 Cal.App.4th 1463, 1469 (Lamer).) Conflict between a defendant's testimony and that of prosecution witnesses is not a failure to explain or deny. (Saddler, supra, 24 Cal.3d at p. 682.) Of critical importance in determining whether the instruction should be given is whether the facts or evidence that the defendant allegedly fails to explain or deny are within the defendant's knowledge. (See id. at pp. 682-683.)
E. CALCRIM No. 361 proper
Here, the trial court did not err in giving CALCRIM No. 361. As the People point out, appellant failed to explain why she believed she was involved in a legitimate business when she received two separate checks payable to her from a woman in Texas whom appellant did not know, for the purpose of wiring the money, less appellant's 7.5 percent commission, to Poland. While appellant attempted to explain that she was working an internet job in processing checks and blindly following directions of her employer, her explanation was simply implausible in light of the obvious questions raised by the transactions. CALCRIM No. 361 is appropriately given when a defendant's testimony, while superficially accounting for the defendant's conduct, nonetheless appears strange or implausible. (See People v. Belmontes (1988) 45 Cal.3d 744, 784 [dealing with CALJIC No. 2.62], disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
F. Harmless error
Even if it was error to instruct the jury with CALCRIM No. 361, that error was harmless in that it is not reasonably probable that had it not been given a more favorable result for appellant would have ensued. (Lamer, supra, 110 Cal.App.4th at p. 1471; People v. Watson (1956) 46 Cal.2d 818, 836.)
We begin by looking at the language of CALCRIM No. 361. Initially, we note that CALCRIM No. 361 applies only if the jury finds that the defendant failed to deny or explain evidence against him or her. It states: "If the defendant failed in his testimony to explain or deny evidence against him, and if he could reasonably be expected to have done so based on what he knew, you may consider his failure to explain or deny in evaluating that evidence." (Ibid., italics added.) It is therefore conditional in that it requires the jury to determine whether the defendant has failed to explain or deny evidence. Further, unlike its predecessor, CALJIC No. 2.62, CALCRIM No. 361 does not specifically tell the jury that it can draw an adverse inference from the failure to explain or deny. It simply authorizes the jury to consider the failure without stating how the jury should do so. Moreover, other portions of CALCRIM No. 361 are favorable to the defense, such as cautioning the jury that the failure to deny or explain evidence is not sufficient alone to prove guilt and reminding the jury that the prosecution must prove each element of the crime beyond a reasonable doubt. (See People v. Ballard (1991) 1 Cal.App.4th 752, 756 [interpreting CALJIC No. 2.62].)
CALJIC No. 2.62 provides: "In this case defendant has testified to certain matters. [¶] If you find that [a] [the] defendant failed to explain or deny any evidence against [him] [her] introduced by the prosecution which [he] [she] can reasonably be expected to deny or explain because of facts within [his] [her] knowledge, you may take that failure into consideration as tending to indicate the truth of this evidence and as indicating that among the inferences that may reasonably be drawn therefrom those unfavorable to the defendant are the more probable. [¶] The failure of a defendant to deny or explain evidence against [him] [her] does not, by itself, warrant an inference of guilt, nor does it relieve the prosecution of its burden of proving every essential element of the crime and the guilt of the defendant beyond a reasonable doubt. [¶] If a defendant does not have the knowledge that [he] [she] would need to deny or to explain evidence against [him,] [her,] it would be unreasonable to draw an inference unfavorable to [him] [her] because of [his] [her] failure to deny or explain this evidence."
It is also noteworthy that CALCRIM No. 361 only informs the jury of what is obvious. Even without instruction, a juror would likely draw an adverse inference from a defendant's gaping failure to deny or explain critical evidence in the case.
During closing argument, the prosecutor did not call the jury's attention to CALCRIM No. 361, making no reference to it or to appellant's failure to explain or deny any evidence. Hence, it is unlikely that such an intuitively correct and unhighlighted instruction, buried among the numerous other instructions, would impact the jury's verdict.
Other instructions further mitigated any prejudice from CALCRIM No. 361. The jury was instructed that not all of the instructions given may be applicable, to consider all of the instructions together (CALCRIM No. 200), that the jury is the sole judge of the credibility of the witnesses and may consider, anything that reasonably tends to prove or disprove the truth or accuracy of that testimony, including whether the witness answered questions directly (CALCRIM No. 226) and that the prosecutor must prove each charged offense beyond a reasonable doubt (CALCRIM No. 220). "Jurors are presumed able to understand and correlate instructions and are further presumed to have followed the court's instructions. [Citation.]" (People v. Sanchez (2001) 26 Cal.4th 834, 852.)
II. Vacating forgery conviction in count 6
A. Background
On May 15, 2009, appellant unsuccessfully attempted to cash check No. 359 at Wells Fargo for which she was charged with forgery in count 2. On May 18, 2009, appellant returned to the bank to cash check No. 359, and was charged with forgery in count 6. Appellant was convicted of both counts, as well as counts 1, 3 and 5. The trial court suspended imposition of sentence on count 1 and placed appellant on five years probation on conditions, including the condition that she spend 180 days in county jail. On counts 2 and 6 it imposed the same terms and conditions but did not impose any additional jail time. It stayed imposition of sentence on counts 3 through 5 pursuant to section 654.
B. Contentions
Appellant contends that she could not be convicted of forgery of the same check in counts 2 and 6 and that her conviction of count 6 should therefore be vacated. She argues that "there cannot be multiple convictions based upon any subdivision of Penal Code section 470 where only one document is involved. Thus, appellant's conviction for forgery in count 6 should be vacated."
The People argue that "serial attempts to pass a forged instrument over the course of multiple transactions spanning multiple days constitutes multiple forgery offenses." However, the People contend that even if we conclude that appellant's conviction of count 6 must be stricken, we should remand so that the trial court may determine whether to sentence appellant on the burglary conviction (count 5) that was stayed pursuant to section 654.
We conclude that count 6 must be stricken and that remand for possible resentencing on the burglary conviction on count 5 is unnecessary.
C. The forgery offense
Section 470, subdivision (d) provides in part: "Every person who, with the intent to defraud, falsely makes, alters, forges, or counterfeits, utters, publishes, passes or attempts or offers to pass, as true and genuine [any check], . . . knowing the same to be false, altered, forged, or counterfeited, is guilty of forgery. . . ."
Nearly a century and one-half ago, our Supreme Court stated: "[T]ake the statute against forgery, under which the indictment in this case was found, where we find several acts enumerated, all of which are declared to be forgery. Thus 'the falsely making,' 'altering,' 'forging,' 'counterfeiting,' 'uttering,' 'publishing,' 'passing,' 'attempting to pass' any of the instruments or things therein mentioned, with the intent specified, is declared to be forgery. Now, each of those acts singly, or all together, if committed with reference to the same instrument, constitute but one offense. Whoever is guilty of either one of these acts is guilty of forgery; but if he is guilty of all of them, in reference to the
same instrument, he is not therefore guilty of as many forgeries as there are acts, but of one forgery only." (People v. Frank (1865) 28 Cal. 507, 513; italics added.) Numerous other cases have reiterated this long-standing principle. (People v. Kenefick (2009) 170 Cal.App.4th 114, 123-124 [doing one or more of the proscribed acts with one instrument constitutes one act of forgery, thus forging two names on each of two instruments does not support four counts of forgery as each note is a single forged instrument]; People v. Martinez (2008) 161 Cal.App.4th 754, 761-763 [forging two signatures on one deed of trust in violation of section 470, subdivision (d) is only one count of forgery]; People v. Neder (1971) 16 Cal.App.3d 846, 853, fn. 2 [false making and uttering of an instrument is one offense]; see also People v. Harrold (1890) 84 Cal. 567, 568-569.) "The rule of one count of forgery per instrument is in accord with the essence of forgery, which is making or passing a false document." (People v. Kenefick, supra, at p. 123.)
None of the foregoing cases deal with the precise issue presented here, and we have been referred to, and found, no case involving multiple attempts at passing the same forged check. However, we see no reason that the attempts should constitute separate forgeries. If injuring two people by forging two names on one deed of trust is only one offense (People v. Martinez, supra, 161 Cal.App.4th at pp. 761-763), attempting to pass one forged check on multiple occasions on a single account should not constitute separate offenses.
In any event, the facts here refute the notion that there were two attempts. The visits to Wells Fargo Bank on May 15, 2009, and May 18, 2009, in an effort to cash check No. 359, were one continuous attempt to pass that check. Appellant visited the bank on May 15th and could not cash check No. 359 until it had been verified. In order to do so, Robles made copies of the check and appellant's identification so that appellant did not have to wait at the bank until verification was complete, but verification could continue in her absence. Her return to the bank on May 18th was an effort to complete the attempted passing of the check begun the previous Friday, not a new attempt.
D. Remand for resentencing of Burglary count related to May 18, 2009 entry
The People argue that if we reverse the forgery conviction related to appellant's May 18, 2009, visit to Wells Fargo, we should remand this matter so the trial court can decide if it should sentence appellant on the burglary conviction connected with it (count 5). We disagree.
The trial court "suspended" imposition of sentence and placed appellant on probation. Thus, resentencing will only be required should appellant violate probation. Hence, there is no need to remand for resentencing on count 5 at this time.
Given that appellant was placed on probation and imposition of sentence was stayed, it is unclear why the trial court stated with respect to counts 3, 4 and 5 "that the imposition of sentence is stayed pursuant to Penal Code section 654."
--------
III. Vacating count 5 burglary conviction
A. Background
On May 15, 2009, appellant asked Robles why her check had not been verified. Robles responded that the bank had not yet been able to have contact with Dana Diehl and was trying to do so. Alaniz advised appellant that copies of the check and appellant's identification were made in order to allow them to continue attempting to verify the check. Once verified, appellant would be contacted so she could return to the bank and cash it.
B. Contention
Appellant contends that her conviction for the May 18, 2009, burglary in count 5 must be vacated because she was invited to return to the bank with the same check. She argues that by telling appellant to return to cash the check after the bank had verified its authenticity, the bank "was inviting [her] back into the bank, and was facilitating another attempt to cash this same check by having returned it to appellant after copying it." This contention is meritless.
C. The crime of burglary
Any person who enters a house or building with the intent to commit a felony or theft is guilty of burglary. (§ 459.) The entry need not be a trespass to support a burglary conviction. (People v. Frye (1998) 18 Cal.4th 894, 954, disapproved on other grounds in People v. Doolin, supra, 45 Cal.4th at p. 421, fn. 22.) As a general rule, one who enters for a felonious purpose may be found guilty of burglary even if he or she enters with the owner's or occupant's consent. (People v. Frye, supra, at p. 954; People v. Deptula (1962) 58 Cal.2d 225, 228.)
An exception to this general principle has been judicially crafted. Under limited circumstances, consent by the owner of property will constitute a defense to a burglary charge. As stated in People v. Felix (1994) 23 Cal.App.4th 1385, 1397-1398, a defense to a charge of burglary is available "'when the owner actively invites the accused to enter, knowing the illegal, felonious intention in the mind of the invitee. . . . [T]he owner-possessor must know the felonious intention of the invitee. There must be evidence "of informed consent to enter coupled with the 'visitor's' knowledge the occupant is aware of the felonious purpose and does not challenge it."'" (See also People v. Sherow (2011) 196 Cal.App.4th 1296, 1302; People v. Superior Court (Granillo) (1988) 205 Cal.App.3d 1478, 1484 (Granillo).) If the occupant does not know the person he is inviting into the home intends to interfere with his possessory rights a business could never be burglarized by an employee, nor could a business open to the public ever be burglarized. (People v. Deptula, supra, 58 Cal.2d at pp. 226-228 [manager of bowling alley burglarized the premises when he stole from the commercial safe, even though he had the keys to the business and had permission to be there at any time].)
On May 15, 2009, when appellant was told that she could return to Wells Fargo when check No. 359 was verified, there was no evidence that anyone at Wells Fargo knew that check No. 359 was a forged check that appellant intended to pass. The day before, Wells Fargo had cashed a similar check for her after verifying that it was good. When appellant returned on May 15th to cash check No. 359, Robles sought to verify it. She learned that the contact information for Dana Diehl had changed shortly before appellant had come into the bank the previous day. That alone was no indication of appellant's nefarious intentions. By the time appellant left the bank on May 15th, Robles had not yet been able to speak with Dana Diehl, who subsequently indicated that the checks presented by appellant had been forged and that she did not know appellant. Robles had also not yet compared check Nos. 358 and 359 with a check properly drawn on the Diehls' account, where she learned of the discrepancies in the checks' appearances.
As a result, even if one could characterize what appellant was told by Wells Fargo employees on May 15, 2009, as a consent to return, it was not informed because it was not given with knowledge of appellant's felonious intentions. (People v. Felix, supra, 23 Cal.App.4th at pp. 1397-1398.) Thus, when appellant returned on May 18, 2009, it was not with consent. Moreover, there was no evidence that appellant was aware that anyone at Wells Fargo knew of her intentions. If she was, she most certainly would not have returned. We conclude that appellant's conviction in count 5 of burglary on May 18, 2009, need not be vacated.
Appellant's reliance on Granillo and our opinion in People v. Thomas (1977) 74 Cal.App.3d 320 (Thomas) is misplaced. In Granillo, the Court of Appeal sanctioned a consent defense raised at trial in circumstances where the defendant entered an undercover policeman's residence with the policeman's consent to sell stolen property during a sting operation. The police therefore knew the illegal purpose of the entry and therefore gave informed consent to the entry. The defendant knew that victim was aware of the defendant's felonious purpose in entering.
In Thomas, the owner of a television store fearing an imminent break-in invited the accused to the store to remove designated items for safekeeping. The defendant believed that the store owner was a fence and that he was therefore entering the business to receive stolen property. (Thomas, supra, 74 Cal.App.4th at pp. 322-323.) We concluded that if the facts were as the defendant believed, his entry into the store would not be burglary, and thus, it was error to instruct the jury in the disjunctive that the defendant could be found guilty of burglary if he entered the store to commit either theft or receipt of stolen property. He could not be guilty of burglary if he entered to receive stolen property as he had the informed consent of the owner to enter for that purpose. (Ibid.)
DISPOSITION
Count 6 is reversed, and the judgment is otherwise affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
ASHMANN-GERST, J.
We concur:
BOREN, P. J.
DOI TODD, J.