P. v. Le

Filed 3/20/06 P. v. Le CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Roger A. Luebs, Judge. Affirmed.

Susan Cardine, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Pamela Ratner Sobeck, Supervising Deputy Attorney General, David Delgado-Rucci and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.

Appellant Quoc Tri Le (appellant) was charged with six counts of commercial burglary in counts 3, 6, 9, 12, 15 and 18 (Pen. Code, § 459)^[1] and six counts of check fraud in counts 4, 7, 10, 13, 16 and 19 (§ 476a). The trial court dismissed counts 1, 2, 5, 8, 11, 14, 17 and 20 pursuant to section 1118.1. A jury found appellant guilty of five counts of the commercial burglary in counts 3, 6, 9, 12, 15 and five counts of the check fraud in counts 4, 7, 10, 13, 16. The jury also found appellant not guilty of the September 19, 2003, transaction set forth in counts 18 and 19. Appellant was sentenced to two years for the principal count, burglary, as alleged in count 3. The other burglary counts (counts 6, 9, 12, 15) were run concurrently to count 3. The bad check counts (counts 4, 7, 10, 13, 16) were stayed pursuant to section 654. Thus, the total prison term was two years.

On appeal, appellant contends that there was insufficient evidence that he was the person who wrote the bad check on September 20, 2003, resulting in counts 15 and 16, because, like the September 19 transaction in counts 18 and 19, no Sam's Club employee verified that the photograph on the California photo identification card and the photograph on the Sam's Club card matched the person who presented the check. Appellant requests that counts 15 and 16 be reversed.

FACTS

On July 3, 2003, appellant opened a checking account at Washington Mutual with a $100 deposit. On September 4, 2003, the Washington Mutual account was closed by the bank because it was overdrawn. The bank notified appellant of the closure of the account via mail, but appellant claims not to have received these notices because he moved from Corona to Santa Ana and his mail was not forwarded.

On July 29, 2003, appellant opened an additional checking account at Bank of America. Appellant opened this account with a check written in the amount of $100, but the check was returned for insufficient funds and the bank closed the account on October 6, 2003.

On September 13, 2003, appellant obtained a Sam's Club card for $35 by presenting a California photo identification card and writing a check from the closed Washington Mutual account. After obtaining the Sam's Club card, which has a photo of the member on it, appellant wrote six high value checks to Sam's Club using the membership card. Sam's Club considers checks over $300 high value. When checks above this amount are written, Sam's Club managers or supervisors follow certain procedures to verify the check. These procedures require the cashier to call the manager/supervisor to the checkout stand to verify the check is written by the same person who holds the Sam's Club card. The manager/supervisor compares the person's photograph on the identification card they present (here a California photo identification card) to the photo on the Sam's Club card and makes sure both photos match the person writing the check. The manager/supervisor also compares the name and address on the photo identification card with that on the check. The employee then writes his/her name on the check, along with the identification number that is being presented. This indicates that the employee verified that the person writing the check is the same person on the photo identification card.

1. Counts 3 and 4

On September 13, 2003, minutes after the Sam's Club card was issued, it was used to purchase a computer with a check drawn from the closed Washington Mutual account. The receipt for the computer reflected appellant's Sam's Club membership number and payment by check from appellant's closed Washington Mutual account. Sam's Club supervisor Merissa Murillo followed the store's check verification procedure for this transaction. However, Murillo could not identify appellant in court.

2. Counts 6, 7, 9 and 10

On September 14, 2003, at noon, appellant's Sam's Club card was used to purchase a 42-inch plasma television with a check drawn on appellant's Bank of America account (counts 6 and 7). The Sam's Club card was again used an hour later to buy another 42-inch plasma television with another check from the same Bank of America account (counts 9 and 10). The store's procedure for check verification was followed by Sam's Club supervisor Christal Esparza for both purchases. Esparza could not identify appellant in court.

3. Counts 12 and 13

On September 15, 2003, at approximately 1:00 p.m., appellant's Sam's Club card was used to purchase a Movado watch and a ring with a check drawn on the Bank of America account. The store's procedure for check verification was followed by Sam's Club general manager Michael Cataldo for this purchase. Cataldo had an independent recollection of this transaction and was able to identify appellant in court because appellant's Sam's Club account had a â€