P. v. Castro

Filed 6/25/07 P. v. Castro CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

APPEAL from a judgment of the Superior Court of Los Angeles County. Michael L. Schuur, Commissioner. Affirmed in part, reversed in part.

Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Keith H. Borjon and Viet H. Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.

_______________

Appellant Juan Francisco Castro appeals from a judgment entered after a jury found him guilty of unlawfully driving or taking a vehicle (Veh. Code, 10851, subd. (a); count 1); receiving stolen property (Pen. Code, 496d, subd. (a);^[1]count 2), two counts of forging and counterfeiting a California State Seal ( 472; counts 3 & 4), and grand theft by false pretenses ( 487, subd. (a); count 5). The trial court found true the allegation that appellant committed all the offenses while he was released from custody on bail or on his own recognizance. ( 12022.1.) The trial court sentenced appellant to the midterm of two years for count 1 plus two years for the enhancement. It also imposed concurrent terms of two years on counts 3 through 5.

CONTENTIONS

Appellant contends that: (1) the evidence was insufficient to support appellants conviction for two counts of making a counterfeit seal; and alternatively, (2) the sentences for count 4 and 5 must be stayed pursuant to section 654.

FACTS AND PROCEDURAL HISTORY

Viewing the record in the light most favorable to the judgment below as we must (People v. Ceja (1993) 4 Cal.4th 1134, 1138-1139), the evidence established the following.

In February 2006, Hilda Cruzs 2002 Toyota Tacoma was stolen. Anthony Estrada, the owner of a 1993 Honda Accord, received a telephone call from appellant who said he was interested in exchanging a Tacoma for the Honda. Appellant drove to Estradas house and introduced himself as Umberto Pineda Arellano. The men test drove each others cars and agreed on the terms of the sale. A few days later, appellant exchanged the Tacoma for the Honda for an additional $2,000 cash and a blank check for $1,000. Appellant gave Estrada keys, a pink slip, certificate of title, insurance booklet, and registration containing the name of Umberto Pineda Arellano. Because the documents looked phony to Estrada, he took the Tacoma to a Los Angeles County Sheriffs station. Los Angeles County Deputy Sheriff Jose Ambriz compared the DMV registration card and certificate of title with the Tacoma. He ran the license plate on the Tacoma, which came back as a 2003 Toyota truck with a different vehicle identification number (VIN) than the Tacoma. After Deputy Ambriz ran the Tacomas VIN number and determined that the registered owner of the Tacoma was Hilda Cruz, he impounded the Tacoma.

A month later, Estrada saw his Honda parked at a 7-Eleven store in Commerce. Appellant was standing behind the counter. Estrada called the police who arrested appellant. At the 7-Eleven store and at trial, Estrada identified appellant as the man who sold him the Tacoma.

At trial, Department of Motor Vehicles employee Ide Gonzalez testified that the certificate of title that appellant gave Estrada was fraudulent because it was missing a watermark on the back as well as a hologram of four bears. The vehicle registration had been altered to show Umberto Pineda Arellano as the owner, rather than Hilda Cruz.

DISCUSSION

I. Whether substantial evidence supported the jurys finding that appellant counterfeited California seals

Appellant contends that there was insufficient evidence to support the jurys finding on counts 3 and 4 that appellant counterfeited California seals because Ms. Gonzalez did not specifically testify that a seal had been altered or counterfeited on the certificate of title and the registration card. We disagree with the argument as to the certificate of title, but agree as to the registration card.

In reviewing the sufficiency of the evidence, the appellate court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence, that is, evidence which is reasonable, credible, and of solid value. (People v. Ceja, supra, 4 Cal.4th at pp. 1138-1139.)

Section 472 provides that a person who counterfeits the seal of the State of California with the intent to defraud another, or who counterfeits any impression of the seal of the State of California or who possesses a counterfeit impression, knowing it to be counterfeited, and willfully conceals it, is guilty of forgery.

The defendant in People v.Castellanos (2003) 110 Cal.App.4th 1489, 1490 was properly found guilty of a violation of section 472 where he possessed a permanent resident card on which the writing within the seal was illegible; the fingerprint was in the wrong place; the ink on the card was blue; an authentic card would not have an original signature or fingerprint; the card did not contain a point of entry on the front of the card; the card represented a combination of Immigration and Nationalization cards issued in 1977 and 1989; and the card did not have a legitimate number. Here, appellant contends that Ms. Gonzalez testified that the certificate of title was a fake because it was missing a watermark and a hologram, but that she said nothing about a forged seal. The record shows, however, that Ms. Gonzalez testified that the document was fake because watermarks on the title should be visible through the back of the certificate of title. In closing argument, the People argued that the certificate of title and the registration card were fraudulent, directed the jurys attention to the seal or imprints, and told the jury that the watermark was missing, as Ms. Gonzalez testified. We conclude that sufficient evidence supports the jurys finding that appellant counterfeited the California seal on the phony certificate of title.

Appellant further contends that Gonzales testified that the registration card was altered by someone typing the name Umberto Pineda Arellano in place of the name Hilda Cruz. He claims she did not testify that the card bore a forged seal. His contention has merit. While Ms. Gonzales testified that the certificate of title was a fake document, she stated that the registration card was an actual registration, but that only the owners name had been altered. Accordingly, the evidence did not support the jurys finding on one of the counts for counterfeit of a California seal. One of the counts shall be stricken.

II. Whether counts 4 and 5 should be stayed pursuant to section 654

The People concede that counts 4 and 5 should be stayed because there was no evidence of a separate intent and objective for counts 3, 4, and 5. Section 654 bars punishment for two offenses arising out of the same course of conduct for which the actor entertained the same intent and objective. (People v.Latimer (1993) 5 Cal.4th 1203, 1208.) The People agree that appellant had a single criminal intent and objective, to defraud Estrada of his Honda, which supported his convictions for counterfeiting of seals and grand theft by false pretenses, which requires proof that the defendant made a false representation to the owner of property, with the intent to defraud, and the owner transferred the property to the defendant in reliance on the representation. ( 487, subd. (a).)

Because we have ordered one of the counts for counterfeiting of seals stricken, only one of the concurrent sentences need be stayed.

DISPOSITION

The judgment is reversed as to count 4, counterfeiting a California seal. The concurrent sentence on Count 5 is stayed. In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

___________________, P. J.

BOREN

We concur:

______________________, J.

ASHMANN-GERST

______________________, J.

CHAVEZ

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^[1] All further statutory references are to the Penal Code unless otherwise indicated.