P. v. Graham

Filed 8/10/07 P. v. Graham CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Yvonne E. Campos, Judge. Affirmed.

A jury convicted Omar A. Graham of one count of burglary (Pen. Code,^[1] 459) and two counts of uttering a false check ( 470, subd. (d)). The trial court suspended imposition of the sentence and placed Graham on three years' probation on the condition, among others, that he serve 270 days in jail.

Graham appeals, contending there was insufficient evidence he had the requisite knowledge and intent to sustain his convictions on the two-check forgery counts.

FACTS

On March 11, 2006, Daniel Vanderhule lost his business checkbook while staying at a San Ysidro motel. The checkbook was for a Wells Fargo Bank account.

On March 17, 2006, Graham entered a Wells Fargo Bank branch in National City and handed two checks to bank teller Myla Tayco. The checks were drawn from the account of Vanderhule Rooftek Roofing in Sun City. Both checks were dated March 17, 2006, and signed "J. Vanderhule." Check No. 3158 was made out to "Omar A. Graham" for $300. Check No. 3159 was made out to "Omar H. Graham" for $250. The word "employment" was written on the memo line of each check. Tayco testified she had difficulty understanding Graham, who did not speak to her directly and appeared distracted. According to Tayco, as Graham handed her the two checks, he said: "They were okay to cash." Because Graham did not have an account with Wells Fargo Bank, Tayco asked him for two forms of identification. Graham gave her his California driver's license and a credit card. When Tayco looked up the roofing company account, she learned it had been closed. Tayco told Graham that she had to contact the account holder, and Graham replied, "Okay." Tayco contacted Vanderhule, who told her that he had not signed or authorized the two checks, had never employed Graham, and did not know him. At that point, Tayco informed the bank manager about the situation. The manager told Graham to sit in the waiting area.

Graham waited inside the bank for about 15 to 20 minutes until the police arrived. Graham filled out three handwriting exemplars for the police. His handwriting did not match the handwriting on the two checks.

Testifying in his own defense, Graham related that he lived in Tijuana with his girlfriend, Jacqueline Grimes, because rent was cheaper there. In early March a man named Alfredo hired Graham and Grimes to clean apartment units. Because Graham does not speak Spanish, Grimes, who is bilingual, dealt with Alfredo. Graham and Grimes worked eight-hour days for approximately one and one-half weeks. Graham was to be paid approximately $300 for his work.

On March 17, four days after they finished the job, Grimes gave Graham two checks to cash. Graham was not present, but assumed that Alfredo had made out the checks. Both checks were made payable to Graham because Grimes had lost her identification. Graham did not inspect the checks closely; he only noted what bank they were from and the amount of money.

Graham denied telling Tayco that the checks were good to cash; rather, he asked her if the checks were good to cash, meaning he inquired whether there were funds in the account. Graham had never worked for Alfredo before and did not suspect the checks had been stolen or that Alfredo was not authorized to use them. Graham trusted Grimes when she gave him the checks, and thus did not question whether they in fact were from Alfredo. Graham did not intend to defraud anyone.

DISCUSSION

Graham contends there was insufficient evidence he had the requisite knowledge and intent to sustain his convictions on the two-check forgery counts. The contention is without merit.

To constitute forgery by uttering (making use of ) a forged check, the evidence must show the check was in fact forged, the defendant presented the check as a true and genuine instrument, the defendant knew the check was forged at the time it was presented and the defendant passed the check with the intent to defraud. (People v. Luizzi (1960) 187 Cal.App.2d 639.)

" 'In reviewing the sufficiency of evidence . . . the question we ask is "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." ' " (People v. Young (2005) 34 Cal.4th 1149, 1175.) As an appellate court, we " 'must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.' " (People v. Johnson (1980) 26 Cal.3d 557, 576.) This standard applies to direct and circumstantial evidence. (People v. Catlin (2001) 26 Cal.4th 81, 139.)

If the verdict is supported by substantial evidence─that is, evidence which is reasonable, credible and of solid value─we accord due deference to the verdict and will not substitute our evaluations of the witnesses' credibility for that of the trier of fact. (People v. Koontz (2002) 27 Cal.4th 1041, 1078.)

A review of the evidence shows the checks in question here were not genuine, but in fact forged. Vanderhule, the account holder, had not issued the two checks and had not authorized them. It is also undisputed that Graham presented the checks to the Wells Fargo Bank branch in National City. As to whether Graham passed the checks as true and genuine instruments, teller Tayco testified that Graham told her: "The checks were okay to cash." According to Graham, he was not vouching for the checks but merely inquiring whether the checks were okay to cashthat is, was there sufficient money in the account to cover the checks. It is exclusively up to the trier of fact to assess the credibility of witnesses. (People v. Sanchez (2003) 113 Cal.App.4th 325, 330.)

Did Graham know the checks were forged when he presented them to Tayco? There was sufficient evidence from which the jury reasonably could have concluded Graham knew this. "Possession of a forged check is a circumstance affording some evidence of knowledge of its spurious nature . . . ." (People v. Reisdorff (1971) 17 Cal.App.3d 675, 679; see also People v. Martinez (2005) 127 Cal.App.4th 1156, 1161.) Furthermore, the checks were drawn on the business account of Vanderhule Rooftek Roofing of Sun City, which was clearly documented on the face of the checks. Graham did not have any connection to the roofing company, which was located in a different county. Graham said he did not pay any attention to the name of the account. Again, it was up to the jury whether to believe Graham's testimony.

Finally, we note there was substantial evidence of the requisite specific intent to defraud by Graham. "It is established that the requisite specific intent can be inferred from a finding that the defendant attempted to pass a check which he knew to be false." (People v. Fork (1965) 233 Cal.App.2d 725, 731.) "The intent to defraud is inferred from the very act of passing the check. [Citation.] Intrinsically, the act is inconsistent with any intent other than to defraud." (People v. Wing (1973) 32 Cal.App.3d 197, 200.) This is so because the defendant in passing the forged check "has misrepresented the genuineness of the instrument for the purpose of obtaining cash or property." (Ibid.)

"[T]he fact of possession, plus slight corroborative evidence of other inculpatory circumstances, is all that is required to support a conviction of forgery by uttering. [Citation.] Where the defendant's 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." (People v. Reisdorff, supra, 17 Cal.App.3d at p. 679.) The jury reasonably could have found the circumstances surrounding the check, such as two consecutive checks being issued to the same person, were inculpatory. Furthermore, a reasonable jury could have viewed Graham's testimony as inconsistent and improbable. Also, Graham was in need of money; he had moved to Tijuana because he could not afford rent in San Diego.

DISPOSITION

The judgment is affirmed.

BENKE, Acting P. J.

WE CONCUR:

O'ROURKE, J.

IRION, J.

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