Opinion
D047992
12-13-2006
THE PEOPLE, Plaintiff and Respondent, v. ANTHONY JAMES ZABZDYR, Defendant and Appellant.
A jury convicted Anthony James Zabzdyr of one count of second degree burglary (Pen. Code, § 459) and one count of forgery by uttering a false check (§ 470, subd. (d)). The court stayed imposition of sentence and placed Zabzdyr on three years probation.
All further statutory references are to the Penal Code.
Zabzdyr appeals, contending (1) his convictions for forgery and burglary must be reversed because there is insufficient evidence to show that he knew the two checks at issue in this case were forged and that he harbored a specific intent to defraud when he deposited them at a bank. He also contends (2) the court prejudicially erred by failing to instruct the jury sua sponte on a mistake of fact defense as required by due process, because his defense was based on his claims he mistakenly believed the checks were valid, and he received the checks in the mail as payment for a vintage Mustang automobile; and (3) the court deprived him of the opportunity to present a complete defense by excluding relevant evidence that third parties were passing similar false checks. We reject these contentions and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In the summer of 2005 Zabzydr periodically visited Discovery Bank (the Bank) in Poway to make general inquiries about the Banks operations. Later, on July 12 of that year, Zabzdyr opened an account at the Bank using his valid drivers license, his social security number and his current address. The following day, he returned to the Bank and deposited two out-of-state checks totaling $9,615. The payor on one check was Ek Ekcessories, a Utah sportswear manufacturer, and the payor on the other check was Ashland Investments, a Florida company. The Banks policy was to hold out-of-state checks for 10 to 14 days and Zabzdyr received no funds from the transaction.
The clerk who processed the transaction and observed Zabzydr endorse the checks became suspicious about the checks authenticity after reviewing them. Although the checks were made payable to Zabzydr, they were not signed. Instead, both checks had notations stating "Signature Not Required" which the clerk had never seen before. The checks were similar in all other respects except for the payment amount, payor and issuing bank.
The clerk informed her manager of her suspicions. Her supervisor directed her to contact the alleged payors and issuing banks for verification. While one of the checks bore the correct name, address and bank of the company alleged to be the payor, the account number was incorrect and the check was not issued by the company. The bank ultimately did not process the checks, both of which were invalid.
The police arrested Zabzydr. When detectives questioned him, Zabzydr offered conflicting explanations for how he obtained the checks. He initially claimed he had received the checks in the mail from a person named "Chris." He later stated he received the checks from "someone" whose name he did not recall. He later claimed he had found the checks and since they had his name on them, they were his. His final explanation was that he was selling a Mustang, and the checks were payments for the car, one from a buyer in Utah and another from a buyer in Florida. Zabzydr did not transfer title to the car, and he did not discuss any type of sales contract. He stated he intended to sign the pink slip over when he received the money. The police later searched Zabzydrs property, where they discovered a Mustang attached to a trailer under a tarp.
During cross-examination of Randall Anderson, the chief operating officer of Ek Ekcessories, Zabzydrs counsel attempted to inquire as to whether the witness had received phone calls regarding other false checks being written on the same account around the same time. The prosecution objected, and the court excluded the testimony on the grounds it was not relevant and constituted inadmissible hearsay.
Zabzydr presented no evidence in his defense.
DISCUSSION
I. SUFFICIENCY OF THE EVIDENCE
Zabzdyr first contends his convictions for forgery and burglary must be reversed because there is insufficient evidence to show he knew the two checks at issue in this case were forged and that he harbored a specific intent to defraud when he deposited them at the Bank. We reject this contention.
A. Standard of Review
When the sufficiency of the evidence is challenged on appeal, "the court must review the whole record in the light most favorable to the judgment to determine whether it contains substantial evidence — i.e., evidence that is credible and of solid value — such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Johnson (1980) 26 Cal.3d 557, 578.) We must draw all reasonable inferences in favor of the judgment, and we may not reweigh any of the evidence or evaluate witness credibility. (People v. Poe (1999) 74 Cal.App.4th 826, 830.) The substantial evidence standard of review is the same when the evidence of guilt is primarily circumstantial. (People v. Holt (1997) 15 Cal.4th 619, 668.)
B. Applicable Legal Principles
A person may be convicted of forgery by uttering a forged instrument if he or she (1) passes or attempts to pass the fraudulent instrument as true and genuine, (2) knowing it to be fraudulent, and (3) with the intent to defraud. (§ 470, subd. (d).) The requisite knowledge and intent may be inferred from circumstantial evidence. (People v. Poland (1963) 219 Cal.App.2d 422, 428-429.) "Possession of a forged check is, by itself, some evidence of forgery. Combined with some corroborative evidence, however slight, possession of a forged check is enough to support a conviction for forgery. [Citation.]" (People v. Martinez (2005) 127 Cal.App.4th 1156, 1161.) "The intent to defraud is inferred from the very act of passing the check. [Citations.]" (People v. Wing (1973) 32 Cal.App.3d 197, 200.) "Where the defendants testimony contains inconsistencies and is inherently improbable and it is also shown that he was in need of money and thus had a motive for uttering the forged instrument, the prosecution has met its burden. [Citation.]" (People v. Reisdorff (1971) 17 Cal.App.3d 675, 679).)
Section 470, subdivision (d) (hereafter section 470(d)) provides: "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 of the following items, knowing the same to be false, altered, forged, or counterfeited, is guilty of forgery: any check . . . ."
C. Analysis
At trial the prosecution presented substantial evidence from which a reasonable trier of fact could have found that Zabzydr had the requisite knowledge and intent. It was undisputed that Zabzydr attempted to pass a forged instrument as true and genuine. He opened an account at the Bank, presented two checks, endorsed them in front of the teller, and asked that they be deposited in his account. The checks, which totaled almost $10,000, were not genuine.
Zabzdyrs possession of a forged check is some evidence of forgery, and, combined with some corroborative evidence, however slight, such possession is enough to support his conviction for forgery. (See People v. Martinez, supra, 127 Cal.App.4th at p. 1161.)
Substantial evidence presented by the prosecution at trial provided the slight corroboration required to establish the elements of knowledge and intent to defraud. Specifically, the prosecution presented evidence that before he opened the account and attempted to deposit the forged checks, Zabzydr repeatedly visited the Bank to inquire about the Banks operations. Detective Robert Bishop testified he spoke with the Banks operations manager, Carolyn Kennedy, who told him that Zabzdyr had been "hanging out" in the lobby of the Bank for about nine months. Terelyn Enguillado, a teller at the Bank, testified that Zabzdyr had come to the Bank "for months," and had asked her questions about the Bank. She also stated she had seen him during that period talking with one of her coworkers. Enguillado thought it was odd that Zabzdyr had been coming into the Bank for several months without doing any banking. The foregoing testimony supports a reasonable inference that Zabzdyr engaged in planning and acted with intent to defraud.
The Banks employees also testified that the checks appeared suspicious, indicating that Zabzydr should have suspected that the checks were forged. Kennedy testified that several things about the checks were unusual and caused her to be suspicious about Zabzdyrs attempt to deposit them. The check from Ek Ekcessories did not have a signature line, the name was typed on the signature line in lower case letters, and Zabzdyrs name was typed on the payee line in upper case letters. She stated a business check typically requires a signature, but here the checks contained a notation, "Signature Not Required."
Enguillado, the teller, testified she watched Zabzdyr endorse the two checks, and she prepared the deposit slip for him. Like Kennedy, she also found the checks to be suspicious. The checks had the notation "Signature Not Required," which normally would not be on a check. Also, the checks were similar to each other, but they were not drawn on the same issuing bank.
Substantial evidence showing that Zabzydr gave conflicting and implausible accounts of how he obtained the checks also corroborated both that he knew the checks he was attempting to pass were forged and that he acted with intent to defraud. (See People v. Reisdorff, supra, 17 Cal.App.3d at p. 679.) Detective Bishop testified Zabzydr offered conflicting explanations for how he obtained the checks. Zabzdyr first told him that he had received the checks in the mail from a person named "Chris." Zabzdyr later stated he had received the checks from someone whose name he did not recall. He then claimed he had found the checks and they were his because they had his name on them. Detective Bishop testified that Zabzdyrs final explanation was that the checks were payments for the Mustang he was selling, one of the checks had come from a buyer in Utah, and the other came from a buyer in Florida. Detective Bishop also testified that when he interviewed Zabzdyr, Zabzdyr told him he had received an offer of $3,000 for the Mustang, but he had countered with an offer to sell the car for $8,000. The two checks totaled $9,615, about $1,600 more than the amount of his counteroffer. The evidence showed that Zabzdyr had not transferred title to the car. A rational jury could find that such inconsistent explanations indicated a consciousness of guilt.
Viewing the entire record in the light most favorable to the judgment, as we must, we conclude that substantial evidence supports Zabzdyrs convictions. (People v. Johnson, supra, 26 Cal.3d at p. 578.)
II. CLAIM OF INSTRUCTIONAL ERROR
Zabzdyr also contends the court prejudicially erred by failing to instruct the jury sua sponte on a mistake of fact defense as required by due process. Specifically, he asserts that he "defended the charges by arguing that he received the checks in the mail as payment for a vintage Mustang he had been attempting to sell," his defense was based on his mistaken belief the checks were valid, and thus the courts failure to instruct on a mistake of fact defense "prejudiced [his] constitutional right to present a complete defense." We conclude the court did not have a duty to give sua sponte such an instruction, and, even if it did, any such error was harmless beyond a reasonable doubt.
A. Applicable Legal Principles
"It is settled that, even in the absence of a request, a trial court must instruct on general principles of law that are commonly or closely and openly connected to the facts before the court and that are necessary for the jurys understanding of the case. [Citations.]" (People v. Montoya (1994) 7 Cal.4th 1027, 1047.) "[A] defendant is entitled to an instruction as to any recognized defense for which there exists evidence sufficient for a reasonable jury to find in his favor. [Citations.]" (Matthews v. United States (1988) 485 U.S. 58, 63; People v. Cummings (1993) 4 Cal.4th 1233, 1311.)
Error in instructing the jury does not require reversal if the jury necessarily resolved the factual issue in question against the defendant under properly given instructions. (People v. Howard (1992) 1 Cal.4th 1132, 1172.) The jury is presumed to have followed the trial courts instructions. (People v. Aranda (1965) 63 Cal.2d 518, 524-525.) When a trial courts error has constitutional ramifications, the error must be reversed unless the appellate court finds beyond a reasonable doubt that the error was harmless. (Chapman v. California (1967) 386 U.S. 18, 24.)
A mistake of fact may negate the intent required to commit a specific intent crime. Section 26 provides: "All persons are capable of committing crimes except [¶] . . . [¶] [p]ersons who committed the act . . . charged under an ignorance or mistake of fact, which disproves any criminal intent." The California Supreme Court has explained that section 26 "provides generally that a person is incapable of committing a crime when the act was committed under a mistake of fact disproving any criminal intent." (People v. Snyder (1982) 32 Cal.3d 590, 597.) "A mistake of fact may constitute a defense even though it is unreasonable." (1 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Defenses, § 39, p. 371, citing People v. Navarro (1979) 99 Cal.App.3d Supp. 1.)
B. Analysis
The crimes of which Zabzdyr was convicted — second degree burglary (§ 459) and forgery by uttering a false check (§ 470(d)) — require proof of a specific intent, namely, that he entered the Bank with the intent to defraud. (See §§ 459, 470(d); CALJIC Nos. 14.50, 15.01.) The reporters trial transcript shows that Zabzydr did not testify and the defense rested without presenting any evidence. Thus, he presented no evidence to support a mistake of fact defense.
Zabzdyr contends that evidence presented by the prosecution — showing, for example, that he did not deny that he tried to cash the checks, he made no attempt to conceal his identity when he opened the bank account and attempted to deposit the checks, he was in the process of selling the Mustang, and he received the checks in the mail — was "probative of the fact that [he] did not know the checks were bad and he sought to deposit [them] in good faith."
We reject this contention and conclude that Zabzdyr has failed to meet his burden on appeal of showing that "there exists evidence sufficient for a reasonable jury to find in his favor" on his purported defense of mistake of fact. (Matthews v. United States, supra, 485 U.S. at p. 63.) Based on the prosecutions evidence in this case, a reasonable jury could not find, as Zabzdyr maintains, that he acted with the mistaken belief that the checks were genuine and he received them as payment for his Mustang. As already discussed, the evidence was sufficient to support his convictions, and thus was sufficient for a reasonable jury to conclude beyond a reasonable doubt that he attempted to pass the forged checks with knowledge they were forged and with intent to defraud. (§ 470(d).) Zabzdyrs claim that the prosecutions evidence was sufficient to show he received the checks in the mail as payment for the car distorts the trial record. In support of this claim, he cites and relies upon Detective Bishops testimony. However, Zabzdyr ignores Detective Bishops testimony (discussed, ante) showing that Zabzdyr gave conflicting and implausible accounts of how he obtained the checks. Specifically, Detective Bishops testimony established that Zabzdyr first told him that he had received the checks in the mail from a person named Chris, but later told the detective he had received the checks from someone whose name he did not recall, and also that he had found the checks somewhere. Such conflicting statements by Zabzdyr and the prosecutions evidence regarding other circumstances on which he relies are insufficient to constitute substantial evidence that in attempting to pass the forged checks, he acted with a mistaken belief that the checks were genuine. We thus conclude the court did not err.
The record also shows that the court properly instructed the jury under CALJIC No. 2.90 regarding the prosecutions burden to prove beyond a reasonable doubt that he was guilty of each charge, under CALJIC Nos. 14.40 and 15.01 regarding the specific intent required to commit burglary and forgery, under CALJIC No. 15.26 regarding the definition of "intent to defraud," and under CALJIC No. 3.31 to the effect that the specific intent for the charged crimes must exist in a "union or joint operation" with his actions.
As already discussed, the jury is presumed to have followed the trial courts instructions. (People v. Aranda, supra, 63 Cal.2d at pp. 524-525.) We conclude that in finding Zabzdyr guilty of burglary and forgery under these instructions, the jury necessarily rejected any defense that Zabzdyr had acted under a mistaken belief that the checks were genuine and, thus, in light of the overwhelming evidence of Zabzdyrs guilt, any error by the court in failing to give a mistake of fact instruction was harmless beyond a reasonable doubt. (People v. Howard, supra, 1 Cal.4th at p. 1172; see Chapman v. California, supra, 386 U.S. at p. 24.)
III. EXCLUSION OF EVIDENCE
Last, Zabzdyr contends the court erroneously excluded relevant evidence that someone else was passing similar false checks bearing the Ek Ekcessories name, and this evidentiary error prejudiced his right to present a complete defense. We reject this contention.
A. Background
The chief operating officer of Ek Ekcessories testified at trial that the Ek Ekcessories check Zabzdyr attempted to cash was not one of that companys checks. During cross-examination, defense counsel asked Anderson whether he had received phone calls regarding whether other false checks were being written on the companys account. The prosecutor objected on hearsay grounds. Following a sidebar discussion, the court excluded the testimony on the grounds it was not relevant and was inadmissible hearsay.
B. Analysis
One need not create a forged instrument to be found guilty of forgery. (§ 470(d) ["[e]very person who, with the intent to defraud, falsely . . . passes or attempts or offers to pass, as true and genuine" a check is guilty of forgery]; see also People v. Effman (1963) 212 Cal.App.2d 414, 415-416 [the definition of forgery under § 470 "includes the passing of a check known to be forged with intent to defraud"].) Thus, whether other persons were forging Ek Ekcessories checks and possibly sending them to Zabzdyr was not relevant to the issue of whether Zabzdyr possessed the requisite knowledge or intent to defraud when he passed the forged checks at the Bank. Because the court did not err in excluding the profferred testimony on the ground it was not relevant, we need not reach the issue of whether the court properly excluded the testimony on the ground it was inadmissible hearsay.
Moreover, if we were to conclude the court erred in excluding the testimony, any such error was not reversible error. We have already concluded that substantial evidence supports the jurys finding that Zabzydr knew that the checks were not genuine and that in passing them he possessed the requisite intent to defraud. We conclude it is not "reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error." (People v. Watson (1956) 46 Cal.2d 818, 836.)
DISPOSITION
The judgment is affirmed.
We Concur:
HALLER, J.
McDONALD, J.