P. v. Barker

Filed 7/30/07 P. v. Barker CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Gregg L. Prickett, Judge. Affirmed.

H. Reed Webb, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lilia E. Garcia and Elizabeth S. Voorhies, Deputy Attorneys General, for Plaintiff and Respondent.

Jay Raymond Barker appeals from a judgment after a jury convicted him of three counts of passing a forged check and three counts of second degree burglary. Barker argues the trial court erroneously denied his motion for acquittal (Pen. Code,  1118.1)[1] because there was insufficient evidence he acted with the requisite intent to defraud when he passed the forged checks. We disagree and affirm the judgment.

FACTS

Barker was the owner and sole employee of A-1 Flooring, a business dealing in the sale and installation of flooring materials.

On December 26, 2003, Barker deposited a counterfeit check made out to A-1 Flooring into his Wells Fargo Bank business account. The check was dated December 23, 2003, and was in the amount of $9,874.31. The check was purported to be drawn by Food 4 Less on its Bank of America account.

On December 29, 2003, Barker took another counterfeit check made out to A-1 Flooring to a Bank of America, where Food 4 Less maintained an account. The check was in the amount of $27,984 and was again purported to be drawn by Food 4 Less. Todd Kissam, customer service representative, introduced Barker to Ryan Naylor, a teller. Upon Kissams approval, Naylor exchanged the counterfeit check for three smaller cashiers checks made payable to Barker in the amounts of $9,040, $9,414.31, and $9,530. According to Naylor, Barker and Kissam were very friendly.

On January 5, 2004, Barker took a third counterfeit check from Food 4 Less to the same Bank of America branch. The check was made payable to A-1 Flooring in the amount of $9,874.31 and was dated December 30, 2003. With Kissams authorization, Naylor cashed the check for Barker.

In January 2004, the checks were brought to the attention of a Bank of America investigator, Randall Phelps. Phelps investigated and traced the three checks to Barker. Phelps telephoned Barker. Barker stated, he had received the checks in the mail. He said the first check was for payment of a contract he and his brother entered into with Food 4 Less to supply flooring for one of its new stores. He had the flooring material for the contract in stock and his brother delivered it. Barker stated it was an oral contract and he had no written documentation for the original purchase of the material, subsequent sale of the material to Food 4 Less, or delivery of the material.

As to the second and third checks, Barker confirmed he cashed them at a Bank of America. Barker said he received instructions from a Gary from Food 4 Less to cash the checks and return the money to him. Barker said he took the two checks to the Bank of America because he knew a couple of employees that worked there. When asked why he had broken the $27,000 check into three smaller cashiers checks, Barker stated he did not think he could receive cash for that much money and it just seemed easier that way. Subsequent to the initial telephone conversation, Phelps made additional efforts to contact Barker. He called five to 10 times and left various messages, which were never returned.

In June 2004, Officer Eric Halverson interviewed Barker at A-1 Flooring. Barker acknowledged cashing the three checks. Barker said he received the three checks in the mail in exchange for providing flooring material. He stated the flooring was purchased by a guy who needed flooring and his brother hooked him up with this contact[.] When Barker was asked why he went to the particular Bank of America to cash the checks, Barker stated he had some friends that worked there and he just felt comfortable cashing the checks there.

Halverson observed Barkers office did not seem busy. During the 20 to 25 minute interview, the office received no telephone calls and there was a lack of activity. Barker admitted he was the only employee and people helped him from time to time. Halverson described Barkers demeanor as straightforward, but observed he got nervous when asked for paperwork to support the business transaction in question and responded he did not have any. After Barker was asked how he kept track of sales for tax purposes, he responded the relevant paperwork was probably here somewhere.

An information charged Barker with three counts of passing a counterfeit check ( 476) (counts 1-3) and three counts of second degree commercial burglary

( 459, 460, subd. (b)) (counts 4-6). The jury convicted Barker on all counts. The trial court sentenced Barker to a total term of 16 months in state prison.

DISCUSSION

Barker argues the trial court erroneously denied his motion for acquittal at the conclusion of the prosecutions case-in-chief because there was insufficient evidence he acted with the requisite knowledge and intent to defraud when he passed the forged checks. We disagree.

Section 1118.1 provides in relevant part: In a case tried before a jury, the court on motion of the defendant . . . , at the close of the evidence on either side and before the case is submitted to the jury for decision, shall order the entry of a judgment of acquittal of one or more of the offenses charged in the accusatory pleading if the evidence then before the court is insufficient to sustain a conviction of such offense or offenses on appeal.

In ruling on a motion for judgment of acquittal pursuant to section 1118.1, a trial court applies the same standard an appellate court applies in reviewing the sufficiency of the evidence to support a conviction, that is, whether from the evidence, including all reasonable inferences to be drawn therefrom, there is any substantial evidence of the existence of each element of the offense charged. [Citations.] [Citation.] Where the section 1118.1 motion is made at the close of the prosecutions case-in-chief, the sufficiency of the evidence is tested as it stood at that point. [Citations.] [] . . . [] We review independently a trial courts ruling under section 1118.1 that the evidence is sufficient to support a conviction. [Citations.] (People v. Cole (2004) 33 Cal.4th 1158, 1212-1213.)

Section 476 criminalizes the passing of a fictitious check.[2] Intent to defraud is an essential element of forgery and can be proven by circumstantial evidence. (People v. Prantil (1985) 169 Cal.App.3d 592, 601.) 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.)

Here, the prosecution provided sufficient evidence to establish knowledge and intent to defraud. Barker possessed three counterfeit checks, affording some evidence Barker knew the checks were forged and he intended to defraud. In addition, the circumstances surrounding the manner in which he came into possession of the checks and negotiated the checks provided corroboration he knew they were counterfeit.

Barker gave inconsistent and implausible accounts of how he obtained the checks. Barker initially claimed he received only the first check as payment for flooring, but later stated all three checks were for flooring. Moreover, Barker had no written

documentation confirming any flooring contract. Furthermore, Barker stated two checks totaling $37,858.62 were sent to him by mail from Gary, instructing him to cash the checks and send the money back to him. Barker claims he was simply following instructions of a man, whose identity he did not know, when he cashed the checks and returned the proceeds to the individual. The implausible nature of Barkers explanation is sufficient corroborative evidence to support a finding he knew the checks were counterfeit.

Additionally, the circumstances surrounding Barkers negotiation of the checks corroborates the fact he knew the checks were counterfeit. Barker deposited the first check he received into his own Wells Fargo Bank business account. However, he brought the two subsequent checks to Food 4 Lesss bank, Bank of America; one of the checks was for the identical uneven amount ($9,874.31) as the first check he deposited. The jury could infer this was done to avoid detection. He requested the largest check ($27,984.31) be broken up equally into three smaller cashiers checks payable to himself. To further support the suspicious nature of Barkers actions, he sought out a contact at the bank who personally authorized all Barkers transactions. Considered together, the steps Barker took to negotiate the checks provides corroborating evidence Barker knew the checks were forged and he intended to defraud. Therefore, the prosecution presented sufficient evidence to establish knowledge and intent to defraud.

Barker argues the following facts support the conclusion he did not know the checks were forged and he did not intend to defraud: he deposited the first check into his business account, the bank employees accepted for deposit checks that by all appearances were genuine, he never tried to conceal his identity, and his brother was the person in contact with the person who was the source of the fraudulent checks. Essentially, Barker asks us to reweigh the evidencethat is not our role on appeal. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206 [not our role to reassess witness credibility or reweigh the evidence].) And Barker asks us to consider evidence he offered in his defense. That we cannot do. Our inquiry is limited to the evidence offered by the prosecution in its case-in-chief.

DISPOSITION

The judgment is affirmed.

OLEARY, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

IKOLA, J.

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[1] All further statutory references are to the Penal Code.

[2] Section 476 provides: Every person who makes, passes, utters, or publishes, with intent to defraud any person, or who, with the like intent, attempts to pass, utter, or publish, or who has in his or her possession, with like intent to utter, pass, or publish, any fictitious or altered bill, note, or check, purporting to be the bill, note, or check, or other instrument in writing for the payment of money or property of any real or fictitious financial institution as defined in [s]ection 186.9 is guilty of forgery.