P. v. Lujan

Filed 8/15/06 P. v. Lujan CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from a judgment of the Superior Court of Los Angeles County, John S. Fisher, Judge. Affirmed in part, reversed in part, and remanded.

Karyn H. Bucur, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lawrence M. Daniels, Stephanie C. Brenan and Stacy S. Schwartz, Deputy Attorneys General, for Plaintiff and Respondent.

__________________________

Arturo Lujan appeals his conviction on several counts of forgery and receiving stolen property. He challenges the sufficiency of the evidence, claims certain counts are duplicative and must be reversed, claims he was denied effective assistance of counsel, and asserts sentencing errors. We agree there is insufficient evidence to support his conviction on counts 2, 3, 4, 5, 6, 7 and 9, and reverse that portion of the judgment; in all other respects, we affirm.

FACTUAL AND PROCEDURAL SUMMARY

On September 22, 2004, Los Angeles Police Officers John Smith and Rio Dominic were in the area of the Corona Motel on Saticoy. In the motel parking lot, they noticed an older Volkswagen Cabriolet convertible with a torn 2004 registration sticker on the rear license plate. Suspecting that the sticker had been removed from one vehicle and placed on another, Officer Smith ran the license plate number through his police computer. He learned that the last registered owner of the car was a Mr. Schwartz, and that this particular license plate had not been registered since 2001. He concluded that the vehicle was not entitled to have the 2004 sticker.

Officer Smith went into the motel office and spoke with the manager. He determined that the registered owner of the Cabriolet, Mr. Schwartz, was not a guest at the motel, and that the car was not registered with the motel.

The officers began an impound of the vehicle. They removed the license plates and conducted an impound inventory of the car's contents. During the impound search, Officer Smith found a sales slip from a tow yard showing that the vehicle had been purchased by appellant Arturo Lujan on August 19, 2003. He found a credit card statement and some other documents in defendant's name, as well as a document in the name of Guadalupe Lujan. Smith found bank statements, cancelled checks, a passport, a driver's license, credit card statements and numerous other documents, all in names other than Arturo Lujan. Most of the documents were recent, and would not normally have been thrown out. This indicated to Officer Smith that they were probably taken from the mail. Officer Smith also found a composition book with handwritten information including names of different individuals; near each name was additional information, such as a driver's license number, address, date of birth, Social Security number, or credit card number. Based on the items discovered in the inventory search, Smith believed the operator of the vehicle was engaged in forgery, fraud, and identity theft.

Officer Smith returned to the motel office and asked if Arturo Lujan was registered as a guest. He was not, but Guadalupe Lujan was registered as a guest in room 214. She registered a Ford Explorer as her car; that vehicle was parked next to the Cabriolet in the parking lot. Officer Smith knocked on the door of room 214. Appellant answered the door, and Officer Smith asked him if he owned the Cabriolet. He said he did. Officer Smith explained that the vehicle had not been registered since 2001, and appellant replied that he had bought the car with the 2004 tags on it.

As Officer Smith asked appellant for identification, appellant exhibited distinct symptoms of being under the influence of cocaine or methamphetamine: he was restless and fidgeting, his pupils were dilated, he was sweating, and he talked incessantly. Smith asked appellant if he had any medical problems. Appellant said he suffered from headaches. Officer Smith detained him for being under the influence of a controlled substance. As the officer prepared appellant to be transported to the police station, he found two prescription bottles on the vanity near the bathroom. One of the bottles contained hydrocodone, and appellant's name was not on the bottle. Officer Smith again asked appellant if he had medical problems. Appellant indicated he took some of the medications for his headaches.

Appellant was charged in counts 1 through 6 with receiving stolen property (Pen. Code, § 496, subd. (a)),^[1] in counts 7 through 9 with forgery (§ 475, subd. (c)); in count 10 with possession of hydrocodone (Health & Saf. Code, § 11350, subd. (a)); and in count 11 with being under the influence of methamphetamine or cocaine (Health & Saf. Code, § 11550, subd. (a)). After jury trial, appellant was found guilty on counts 1 through 10, and acquitted on count 11. He was sentenced to state prison for an aggregate term of five years. This is a timely appeal from the judgment of conviction.

DISCUSSION

I

Appellant claims the three forgery counts must be reversed because there was insufficient evidence that he possessed three completed checks with intent to pass or utter those checks fraudulently. Section 475, subdivision (c) provides: â€