P. v. Harris

Filed 8/14/06 P. v. Harris CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Leo Valentine, Jr., Judge. Affirmed.

Colleen W. Harris appeals a judgment entered following her jury conviction of 13 offenses, including possession of a forged check (Pen. Code, § 475, subd. (c))^[1] and making or passing a forged check (§ 470, subd. (d)). On appeal, she contends: (1) her conviction of possessing a forged check (§ 475, subd. (c)) must be reversed because that offense is a lesser included offense of making or passing a forged check (§ 470, subd. (d)); and (2) the evidence is insufficient to support the trial court's order she pay $10,000 in restitution to the Chapman Walters Company (Company).

FACTUAL AND PROCEDURAL BACKGROUND

In 2003 Harris was Company's customer service manager. Company sells diving and swimming supplies to retailers. Harris had access to financial information of Company's customers. She also had access to the checking and credit card accounts of Cindi Walters, one of Company's owners. In late 2003, Company terminated Harris's employment.

On April 18, 2004, Harris purchased $169 worth of flowers from a florist using the name and credit card number of one of Company's customers (without his authorization to do so).

On June 19, Harris attempted to make a purchase at a Food-4-Less grocery store using a fake check bearing the name and address of her close friend Anisha Jackson. The handwritten portions of the check were in Harris's handwriting. Harris also presented the store with a counterfeit military identification card bearing Jackson's name. Because the check and identification card appeared false, the store's cashier called her manager, who took the check and identification card to her office and called police. Meanwhile, another manager engaged Harris in conversation to delay her. However, Harris became angry, left the store, and drove away. Store employees provided police with the license number of Harris's vehicle. Police prepared a photographic lineup and all three of the store employees involved in the incident identified Harris as the person who attempted to pass the counterfeit check.

On or about July 2, Harris registered at a Carlsbad hotel, using Walters's name, credit card, and hotel membership card. On July 3, police contacted the hotel's management and informed them they suspected Walters was not the person who had registered and there may be a theft involved. Hotel management later told Harris that her credit card had not been accepted and another form of payment would be required on her departure. Harris later departed the hotel without formally checking out or paying her bill. Police stopped her vehicle after it left the hotel. Police searched her vehicle and found a printer, a photocopier, a scanner, laminating sleeves, a laminator, blank check stock paper, networking cards, magnetic strips used in making credit cards and identification cards, teslon sheets used for making identification cards, false identification production software, internet and other information about making counterfeit identification cards, a computer print-out showing identifying information of certain individuals, and illegally obtained credit reports.

An information charged Harris with various fraud and theft offenses, including possession of a forged check in violation of section 475, subdivision (c) (count 4) and making or passing a forged check in violation of section 470, subdivision (d) (count 6). After a jury trial, the jury found Harris guilty of all of the charged offenses except one.^[2] The trial court sentenced Harris to a total term of five years eight months. Pursuant to section 654, the court stayed execution of the eight-month consecutive terms it imposed for counts 4 and 6. The court also ordered Harris to pay restitution directly to: (1) the florist in the amount of $169.80; (2) the hotel in the amount of $675.29; and (3) Company in the amount of $10,000.

Harris timely filed a notice of appeal.

DISCUSSION

I

Section 475, Subdivision (c) Offense as a

Lesser Included Offense of Section 470, Subdivision (d)

Harris contends her conviction on count 4 of possession of a forged check in violation of section 475, subdivision (c) must be reversed because it is a lesser included offense of making or passing a forged check in violation of section 470, subdivision (d) (count 6).

A

A defendant cannot be convicted of both an offense and a lesser offense that is necessarily included within that offense, based on his or her commission of the same act. (People v. Pearson (1986) 42 Cal.3d 351, 355, 359.) " 'The test in this state of a necessarily included offense is simply that where an offense cannot be committed without necessarily committing another offense, the latter is a necessarily included offense.' [Citations.]" (Id. at p. 355.) In People v. Reed (2006) 38 Cal.4th 1224, the California Supreme Court recently held that, if both the purported greater and lesser offenses are charged in the accusatory pleading (e.g., the information), a court may consider only the "statutory elements" test in deciding whether one offense is a necessarily included offense of the other and therefore multiple convictions are prohibited.^[3] (People v. Reed, supra, 38 Cal.4th at pp. 1229-1231.) Reed concluded: "Courts should consider . . . only the statutory elements in deciding whether a defendant may be convicted of multiple charged crimes." (Id. at p. 1231.) "Under the elements test, if the statutory elements of the greater offense include all of the statutory elements of the lesser offense, the latter is necessarily included in the former." (Id. at p. 1127.)

Furthermore, a court should not consider the evidence at trial in determining whether one offense is a necessarily included offense within another. (People v. Ortega (1998) 19 Cal.4th 686, 698, disapproved on another ground in People v. Reed, supra, 38 Cal.4th at pp. 1228-1229, 1231.)

B

Applying only the statutory elements test as required by People v. Reed, supra, 38 Cal.4th 1224, we conclude that a section 475, subdivision (c) offense is not necessarily included in a section 470, subdivision (d) offense. At the time of Harris's offenses in 2004, section 470, subdivision (d), the purported "greater" offense, provided:

"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, bond, bank bill, or note, cashier's check, traveler's check, money order, post note, draft, any controller's warrant for the payment of money at the treasury, county order or warrant, or request for the payment of money, receipt for money or goods, bill of exchange, promissory note, order, or any assignment of any bond, writing obligatory, or other contract for money or other property, contract, due bill for payment of money or property, receipt for money or property, passage ticket, lottery ticket or share purporting to be issued under the California State Lottery Act of 1984, trading stamp, power of attorney, certificate of ownership or other document evidencing ownership of a vehicle or undocumented vessel, or any certificate of any share, right, or interest in the stock of any corporation or association, or the delivery of goods or chattels of any kind, or for the delivery of any instrument of writing, or acquittance, release or discharge of any debt, account, suit, action, demand, or any other thing, real or personal, or any transfer or assurance of money, certificate of shares of stock, goods, chattels, or other property whatever, or any letter of attorney, or other power to receive money, or to receive or transfer certificates of shares of stock or annuities, or to let, lease, dispose of, alien, or convey any goods, chattels, lands, or tenements, or other estate, real or personal; or any matter described in subdivision (b)." (Italics added.)

In comparison, section 475, subdivision (c), the purported "lesser" offense, provided:

"Every person who possesses any completed check, money order, traveler's check, warrant or county order, whether real or fictitious, with the intent to utter or pass or facilitate the utterance or passage of the same, in order to defraud any person, is guilty of forgery." (Italics added.)

As the People assert, a person can falsely make a check or other document under section 470, subdivision (d) without necessarily possessing it under section 475, subdivision (c). For example, if a check is placed before a person who, with intent to defraud, then falsely makes, alters or forges it and that check is then taken and possessed by another person (who may or may not attempt to pass that forged check), that first person could be found guilty of a section 470, subdivision (d) offense, but not a section 475, subdivision (c) offense. Alternatively, a person also could be convicted of making or passing a forged check under section 470, subdivision (d) under an aiding and abetting theory, which theory would not require that person to have actually possessed the forged check for purposes of section 475, subdivision (c).^[4] Accordingly, under the statutory elements test, a section 475, subdivision (c) offense is not a lesser included offense of a section 470, subdivision (d) offense. Therefore, Harris was properly convicted of both counts 6 and 4.^[5]

II

Restitution Order

Harris contends the evidence is insufficient to support the trial court's order she pay Company $10,000 in victim restitution.

A

At Harris's sentencing hearing, the probation department's representative informed the trial court that he had recently received an "e-mail" letter from Walters, who was out of town and unable to attend the hearing. He commented: "So I'm not really sure what [Company] would request as far as restitution. As you can see in this letter, your Honor, she indicates $10,000 for fees to get her credit history back on track, but I don't have an itemized listing. This was the only correspondence that I received from Ms. Walters."

The trial court stated:

"For the record, the court was provided a copy of the letter that probation is referring to. I've had a chance to review and consider it and will also admit it into evidence for purposes of sentencing.

"There is an indication in that letter where Ms. -- it is not signed by anyone. It doesn't say that it's authored by anyone. But based upon the representations made by probation, it appears that it is from the victim in this case. The court will receive it as such. But it says[:] 'There was close to $10,000 that I had to spend to clean up my credit. And people to compensate me [sic] to assist me in that effort.'

"Under normal circumstances, what the court would do is make an order of restitution. We generally make it in the amount that's requested by the victim. The law provides if there is any dispute that the defendant would have a right to have a restitution hearing . . . to challenge the amount that the court orders. So the court would be inclined to make a tentative restitution amount as requested by the victim.

"[Addressing Harris's counsel:] [W]ould Ms. Harris like to have a restitution hearing? We can set a date for that sometime in the future."

Harris's counsel replied: "That's fine, your Honor."

The trial court then pronounced its judgment, which included an order that Harris "pay restitution pursuant to Penal Code section 1202.4[, subdivision (f)] to . . . [Company], a.k.a. Cindi Walters, . . . in the amount of $10,000." The minute order clarified any ambiguity regarding whether that restitution was payable to Company or Walters personally, stating: "Defendant to pay restitution per PC1202.4(f) to the following victims: . . . (3) [Company] - $10,000.00, to be paid as provided in PC2085.5."

B

In 1982, Proposition 8 was enacted, adding California Constitution, article I, section 28, subdivision (b), which provides: "It is the unequivocal intention of the People of the State of California that all persons who suffer losses as a result of criminal activity shall have the right to restitution from the persons convicted of the crimes for losses they suffer. [¶] Restitution shall be ordered from the convicted persons in every case, regardless of the sentence or disposition imposed, in which a crime victim suffers a loss, unless compelling and extraordinary reasons exist to the contrary. The Legislature shall adopt provisions to implement this section . . . ." (People v. Birkett (1999) 21 Cal.4th 226, 230.) In 1983, the Legislature enacted legislation implementing that constitutional directive. (Ibid.) That legislation has since been amended and is now included in section 1202.4. (People v. Birkett, supra, at pp. 230-231, fn. 2; People v. Keichler (2005) 129 Cal.App.4th 1039, 1045.) At the time of Harris's offenses in 2004, section 1202.4, subdivision (f) provided in pertinent part:

"In every case in which a victim has suffered economic loss as a result of the defendant's conduct, the court shall require that the defendant make restitution to the victim or victims in an amount established by court order, based on the amount of loss claimed by the victim or victims or any other showing to the court. If the amount of loss cannot be ascertained at the time of sentencing, the restitution order shall include a provision that the amount shall be determined at the direction of the court. The court shall order full restitution unless it finds compelling and extraordinary reasons for not doing so, and states them on the record.

"(1) The defendant has the right to a hearing before a judge to dispute the determination of the amount of restitution. The court may modify the amount, on its own motion or on the motion of the district attorney, the victim or victims, or the defendant. . . . [¶] . . . [¶]

"(3) To the extent possible, the restitution order shall be prepared by the sentencing court, shall identify each victim and each loss to which it pertains, and shall be of a dollar amount that is sufficient to fully reimburse the victim or victims for every determined economic loss incurred as a result of the defendant's criminal conduct . . . ." (Italics added.)

Furthermore, section 1202.4, subdivision (k) provided:

"For purposes of this section, 'victim' shall include all of the following:

"(1) The immediate surviving family of the actual victim.

"(2) Any corporation, business trust, estate, trust, partnership, association, joint venture, . . . or any other legal or commercial entity when that entity is a direct victim of a crime.

"(3) 'Derivative victims' as defined in Section 13960 [sic] of the Government Code."^[6]

"The standard of review of a restitution order is abuse of discretion. 'A victim's restitution right is to be broadly and liberally construed.' [Citation.] ' "When there is a factual and rational basis for the amount of restitution ordered by the trial court, no abuse of discretion will be found by the reviewing court." ' [Citations.]" (In re Johnny M. (2002) 100 Cal.App.4th 1128, 1132.) "When considering a trial court's restitution determination, we consider whether it is arbitrary, capricious, or beyond the bounds of reason under all the circumstances. [Citation.]" (People v. Hove (1999) 76 Cal.App.4th 1266, 1275.) "Thus, while the amount of restitution cannot be arbitrary or capricious, '[t]here is no requirement the restitution order be limited to the exact amount of the loss in which the defendant is actually found culpable, nor is there any requirement the order reflect the amount of damages that might be recoverable in a civil action. . . .' [Citation.]" (People v. Ortiz (1997) 53 Cal.App.4th 791, 800, fn. omitted.) Sentencing judges are given broad discretion regarding the information they can consider and the source of that information. (People v. Foster (1993) 14 Cal.App.4th 939, 947, superseded by statute on another ground as noted in People v. Sexton (1995) 33 Cal.App.4th 64, 70.) A restitution hearing on the amount of restitution "does not require the formalities of other phases of a criminal prosecution." (Foster, at p. 947.)

When a defendant on appeal challenges the sufficiency of the evidence to support a trial court's restitution order, we apply the substantial evidence standard of review. (People v. Baker (2005) 126 Cal.App.4th 463, 468-469.) Under the substantial evidence standard of review, the " 'power of the appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted,' to support the trial court's findings." (Estate of Leslie (1984) 37 Cal.3d 186, 201.) "Further, the standard of proof at a restitution hearing is by a preponderance of the evidence, not proof beyond a reasonable doubt. [Citation.] 'If the circumstances reasonably justify the [trial court's] findings,' the judgment may not be overturned when the circumstances might also reasonably support a contrary finding. [Citation.] We do not reweigh or reinterpret the evidence; rather, we determine whether there is sufficient evidence to support the inference drawn by the trier of fact. [Citation.]" (Baker, at p. 469.)

C

Applying the substantial evidence standard of review to the record in this case, we conclude there is substantial evidence to support the trial court's order that Harris pay $10,000 in restitution to Company. The evidence supporting the trial court's restitution order included Walters's e-mail letter to the probation department, which the court received in evidence.^[7] Walters's e-mail stated: " 'There was close to $10,000 that I had to spend to clean up my credit. And people to compensate me [sic] to assist me in that effort.' " Although, as Harris asserts, it may not be entirely clear whether Walters was referring to her personal losses or Company's losses, the trial court could reasonably infer that she was referring to losses suffered by Company, of which she was an owner.^[8] It is not uncommon for owners (even if only part owners) of corporations or other businesses to "personalize" them. Therefore, although Walters referred to the $10,000 amount that "I had to spend to clean up my credit," the court could reasonably infer that amount was spent by Company to "clean up" Company's credit.

Furthermore, Walter's e-mail letter to the probation department was not the only evidence relating to the losses suffered by Company because of Harris's criminal acts. Walters testified at trial that she suffered personal losses because of Harris's criminal acts (e.g., reduction in her personal credit score), and that Company also suffered losses. Walters stated:

"Specifically, . . . I had to close all my corporate accounts in addition to my personal accounts. . . . That was the only way to make sure. If I didn't close them, then they would stop being responsible. And so obviously, then you throw away all the old checks and you have to buy new checks. The personnel man[-]hours ranked in the hundreds trying to run down every time -- because we were basically told by our bank and by the credit card companies that it was our responsibility to point out when the fraud -- to get them stopped as quickly as possible, even though all of them had been notified . . . . I had . . . a couple [of] customers that were afraid to pay us by credit card and I lost the orders." (Italics added.)

Furthermore, Kimberly Mjoen, Company's bookkeeper and credit manager, testified at trial that "there were some checks drafted on our Company bank accounts that were not ours." (Italics added.) Mjoen testified she had to follow up with "tons" of entities or individuals, stating: "It seemed like every day for about a month and-a-half there was a new one." By "new one," she meant "[a] new credit card that [Walters] hadn't asked for and checks. I think there were three or four checks. . . . [And] some new charges on the Company American Express [credit card]." (Italics added.) Mjoen estimated that she spent "easily four or five weeks . . . making notes [and speaking] on the phone with the credit card people." As a result, "[a] lot of [Mjoen's] work was put aside and [she] was just doing this stuff."

Based on the evidence admitted at trial and at Harris's sentencing, the trial court could reasonably infer Company had suffered losses of about $10,000 because of Harris's criminal acts. Both Walters and Mjoen spent substantial Company time (at least hundreds of hours) dealing with the problems Harris caused Company because of her acts (e.g., disputing unauthorized checks and credit card charges, closing Company's corporate accounts, etc.). Furthermore, Company lost some customer orders because of Harris's criminal acts. Finally, the trial court could reasonably construe Walters's e-mail letter as a representation that Company lost $10,000 because of Harris's criminal acts. Statements by victims about losses they incurred from criminal acts constitute prima facie evidence of those losses. (People v. Keichler, supra, 129 Cal.App.4th at p. 1048; People v. Foster, supra, 14 Cal.App.4th at p. 946.) Accordingly, the trial court could reasonably infer that Walters's request of $10,000 in restitution for Company was both reasonable and supported by the evidence. The exact dollar amount of Company's losses was not required to be proved with certainty or specificity. (People v. Carbajal (1995) 10 Cal.4th 1114, 1121; People v. Thygesen (1999) 69 Cal.App.4th 988, 992; People v. Ortiz, supra, 53 Cal.App.4th at p. 800.) Because there is a rational basis for, and substantial evidence supports, the trial court's order that Harris pay Company $10,000 in restitution, we conclude the court did not abuse its discretion in ordering her to pay Company that restitution amount. (In re Johnny M., supra, 100 Cal.App.4th at p. 1132; People v. Hove, supra, 76 Cal.App.4th at p. 1275; People v. Baker, supra, 126 Cal.App.4th at pp. 468-469.)^[9]

DISPOSITION

The judgment is affirmed.

McDONALD, Acting P. J.

WE CONCUR:

McINTYRE, J.

O'ROURKE, J.

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

^[2] The jury found her not guilty of the charge of making or possessing counterfeiting die or apparatus in violation of section 480, subdivision (a).

^[3] We requested, and have received and considered, supplemental briefing by the parties on the question of how People v. Reed, supra, 38 Cal.4th 1224 affects Harris's instant contention. The People assert, and Harris concedes, that because in this case the information charged the commission of both offenses (i.e., §§ 475, subd. (c), 470, subd. (d)), Reed precludes the application of the "accusatory pleading" test as an alternative to the "statutory elements" test. As Reed stated: "The accusatory pleading test arose to ensure that defendants receive notice before they can be convicted of an uncharged crime. . . . But this purpose has no relevance to deciding whether a defendant may be convicted of multiple charged offenses. '[I]t makes no sense to look to the pleading, rather than just the legal elements, in deciding whether conviction of two charged offenses is proper. Concerns about notice are irrelevant when both offenses are separately charged . . . .' [Citation.]" (Reed, at pp. 1229-1230.)

^[4] Furthermore, as the People note, because section 470, subdivision (d) includes a greater variety of instruments and documents that can be forged than the instruments and documents that can be possessed under section 475, subdivision (c), a person can be convicted of a section 470, subdivision (d) offense by falsely making or passing an instrument or document listed in section 470, subdivision (d) (e.g., bonds, receipts, contracts, trading stamps, etc.) without possessing an instrument or document listed in section 475, subdivision (c).

^[5] To the extent Harris argues her acts of creating, possessing, and passing the forged check were indivisible and therefore she could be convicted of only one crime, she suggests we should consider evidence or facts that are not part of "statutory elements" test. However, a court should not consider the evidence at trial in determining whether one offense is a necessarily included offense within another. (People v. Ortega, supra, 19 Cal.4th at p. 698.) Likewise, to the extent Harris cites and relies on People v. Reisdorff (1971) 17 Cal.App.3d 675 as authority for her contention that section 475, subdivision (c) is a necessarily included offense of section 470, subdivision (d), we decline to follow that case. Because Reisdorff relied on the evidence admitted at trial, it has been effectively overruled by Ortega and Reed. (People v. Reisdorff, supra, at p. 679.) In any event, Reisdorff is factually inapposite to this case because in that case there was no evidence admitted that the defendant himself actually forged the check prior to uttering it. (Ibid.) Finally, Harris argues that she cannot be convicted of both section 475, subdivision (c) and section 470, subdivision (d) because they are both "merely" alternative definitions of the same crime of "forgery," which is punishable according to section 473. We are not persuaded by this argument. We conclude the Legislature's "alternative" definitions of the crime of forgery under those statutes constitute independent offenses. The mere labeling of those offenses under the general description of "forgery" does not preclude multiple convictions under sections 475, subdivision (c) and 470, subdivision (d).

^[6] Section 1202.4, subdivision (k)(3)'s reference to Government Code section 13960 apparently is a misnomer carried over from former versions of section 1202.4. (See generally People v. Birkett, supra, 21 Cal.4th at pp. 236-239.) The Legislature apparently intended to refer to the definition of a "derivative victim" set forth in Government Code section 13951, subdivision (c): " 'Derivative victim' means an individual who sustains pecuniary loss as a result of injury or death to a victim."

^[7] Although the trial court noted that the e-mail letter was unsigned, it could reasonably infer from its circumstances that it was authored and sent by Walters.

^[8] Furthermore, a victim need not be named in the information or other accusatory pleading to be awarded restitution under section 1202.4. As discussed post, the evidence at trial supported a finding that Company was, in fact, a victim of Harris's criminal acts.

^[9] To the extent Harris also contends the trial court erred by not conducting a further or postsentencing evidentiary hearing to determine the amount of restitution to be paid to Company, we conclude she waived or forfeited that contention by not raising it at the time of sentencing (or shortly thereafter) when it could have been addressed by the trial court. (People v. Gibson (1994) 27 Cal.App.4th 1466, 1468 ["a defendant should not be permitted to assert for the first time on appeal a procedural defect in imposition of a restitution fine"]; People v. Scott (1994) 9 Cal.4th 331, 354 ["claims deemed waived on appeal involve sentences which, though otherwise permitted by law, were imposed in a procedurally or factually flawed manner"].) We are unpersuaded by Harris's assertion that the waiver or forfeiture doctrine should not be applied in this case because she was unable to object to the trial court's restitution order and/or any objection would have been futile. Furthermore, Harris did not avail herself of the option to file a section 1202.4, subdivision (f)(1) postsentencing motion for modification of the trial court's order awarding Company $10,000 in restitution, thereby adding support to our conclusion that she waived or forfeited any challenge to the court's order based on a purported procedural error.