P. v. Keyes

Filed 10/5/06 P. v. Keyes CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Stanislaus County. Nancy Ashley, Judge.

Tara K. Allen and Donal M. Hill, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Kathleen A. McKenna and Connie A. Proctor, Deputy Attorneys General, for Plaintiff and Respondent.

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Appellant Larry Gene Keyes, Jr., suffered several felony convictions, including forgery and second degree burglary. He challenges the sufficiency of the evidence to support those convictions. He also contends the prosecutor committed prejudicial misconduct in closing argument. Keyes further challenges the sufficiency of the factual admissions to support the enhancements, the order to pay restitution, and the aggregate sentence.

We will correct the sentence with respect to the Penal Code section 667.5, subdivision (b)^[1] allegations and order the abstract of judgment be corrected to delete the reference to restitution under section 1202.4, subdivision (f). We otherwise will affirm the judgment.

FACTUAL AND PROCEDURAL SUMMARY

On December 26, 2002, Keyes entered a bank and presented a check in the amount of $900 to a teller. The check was payable to himself, drawn on the account of Lloyd L. Doshier, Sr., purportedly signed by Doshier, and dated December 26, 2002. The teller asked Keyes to endorse the back of the check, which he did. When the teller entered the account number into her computer, the computer issued an alert indicating that the account holder had died on October 31, 2002. Because the account holder was deceased, the teller was not authorized to cash the check. The teller contacted her supervisor regarding the situation and the police were notified.

When Modesto Police Officer Derrick Letsinger arrived, Keyes told him that a man named “Darrell” had dropped him off at the bank. A witness told the officer that Keyes drove a green car to the bank. Letsinger took the keys that were in Keyes’s pocket and attempted to unlock the only green car in the parking lot. The keys opened the door and started the ignition. Inside the car were a Kaiser insurance card with Keyes’s name on it, a datebook, and a Ziploc baggie with an off-white powder.

The datebook contained pay/owe sheets with lists of names and numbers that appeared to be denominations of money. Other pages contained lists of names with fractions, such as one-eighth, next to the name. While Letsinger was questioning Keyes, Keyes’s cell phone rang repeatedly.

Keyes eventually admitted that he initially lied to the officer about being driven to the bank by Darrell. Keyes then told the officer that Darrell had given him the check to cash because Darrell was not able to cash the check himself.

When asked about the baggie with the white powder, eventually determined to be methamphetamine, Keyes stated he was a “dope fiend.” Keyes claimed he used one gram of methamphetamine each time he used the drug and that he used it approximately 10 times a day. Although Keyes had purchased the baggie earlier in the day, he had not used any of the drug by 3:30 p.m. when he was being questioned.

Keyes claimed the pay/owe sheets reflected union dues owed and collected by the employees of a trailer company where he used to work. The woman in charge of collecting union dues at the trailer company testified that dues were deducted from the employees’ paychecks; no cash dues were collected. Further, Keyes’s duties never included collection of union dues.

A jury convicted Keyes of transportation of methamphetamine, possession of methamphetamine for sale, second degree burglary, and forgery. In a bifurcated proceeding, the trial court found true three prior felony convictions pursuant to section 667.5, subdivision (b), and two controlled substance priors pursuant to Health and Safety Code section 11370.2.

The trial court imposed consecutive terms of imprisonment for the transportation of methamphetamine and the second degree burglary convictions. Terms imposed for the forgery and possession for sale offenses were stayed pursuant to section 654. Terms were imposed for the enhancements appended to count 1, transportation of methamphetamine; the terms for the enhancements appended to the other three counts were stayed. A total unstayed term of 12 years 8 months was imposed.

DISCUSSION

I. Prosecutorial Misconduct

Keyes contends the prosecutor committed misconduct in closing argument by stating that Keyes was selling methamphetamine to “your neighbors” and “your children.”

When the issue “focuses on comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion.” (People v. Berryman (1993) 6 Cal.4th 1048, 1072.)

During the rebuttal portion of her argument, the prosecutor referred to defense counsel’s argument, stating: “The defense counsel said there’s a war going on. He’s got that very right. Methamphetamine is very prevalent in your community. It’s being sold to your neighbors, to your children.” The defense objected and the objection was overruled.

A prosecutor is given wide latitude during closing argument. The argument may be vigorous as long as it is a fair comment on the evidence, which can include reasonable inferences or deductions to be drawn therefrom. “‘A prosecutor may “vigorously argue his case and is not limited to ‘Chesterfieldian politeness’“ [citation], and he may “use appropriate epithets .”’ [Citations.]” (People v. Wharton (1991) 53 Cal.3d 522, 567-568.)

As to this remark, the statement was a fair comment in response to the defense argument and the evidence. Here, the prosecutor merely responded to defense comments regarding the “battle on the war on drugs“ and the defense position that Keyes was guilty of only “simple possession.”

At the end of her rebuttal argument, the prosecutor stated: “Is he using ten grams a day right there? No. He has these drugs to sell to your neighbors, and we are fighting a big war.” No objection was made to this second remark. Because Keyes did not object to the second remark, he has forfeited any claim of error as to it. (People v. Valdez (2004) 32 Cal.4th 73, 127.)

In any event, Keyes suffered no possible prejudice from the remarks. The defense had already commented on the war on drugs in the community and it is not reasonably probable the outcome would have been different if the two brief comments had not been made by the prosecutor. (People v. Hines (1997) 15 Cal.4th 997, 1062.)

II. Sufficiency of the Evidence

In determining the sufficiency of the evidence, we review the entire record to determine whether there was evidence that was reasonable, credible and of solid value from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Catlin (2001) 26 Cal.4th 81, 139.) We resolve all conflicts in the evidence and questions of credibility in favor of the verdict and indulge every reasonable inference the jury could draw from the evidence. (People v. Autry (1995) 37 Cal.App.4th 351, 358.) Reversal on this ground is unwarranted unless “‘upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’ [Citation.]” (People v. Bolin (1998) 18 Cal.4th 297, 331.)

Forged check Keyes argues the evidence was insufficient to establish that the check was forged, altered, false or counterfeit. We disagree.

Section 470, subdivision (d), makes it a crime to pass or attempt to pass as true any check that is false, forged, altered or counterfeited. On December 26, 2002, Keyes attempted to cash a check purportedly signed by a man who had died two months prior to the date on the check. Because a dead man cannot sign a check, this evidence by itself was sufficient to support the jury’s finding that Keyes attempted to pass a forged check.

Defense counsel questioned the teller regarding the practice of postdating checks, and the teller did testify that the bank counsels “customers they should never post-date a check.” Keyes maintains that the possibility of postdating, and the questions asked by his counsel, establish the insufficiency of the evidence. Keyes is mistaken. Questions of counsel do not constitute evidence. (People v. Holloway (2004) 33 Cal.4th 96, 151.) Furthermore, the check was made payable to Keyes and he told Letsinger he had received the check that day from a person named Darrell in payment for a truck, which claim is inconsistent with the contention that the check was signed by Doshier and postdated.

The prosecution’s choosing not to present testimony from a handwriting expert in no way undermines the verdict. The statute does not require that testimony be presented from a handwriting expert and the prosecution established the forgery by other evidence.

There was sufficient evidence from which a reasonable jury could conclude that Keyes forged the check.

Intent to commit a felony

Keyes contends that because the evidence was insufficient to establish a forgery, the target felony, the evidence was insufficient to establish that he committed second degree burglary. As we have concluded that the evidence was sufficient to support the forgery verdict, it follows that Keyes’s contention regarding the burglary conviction fails.

Second degree burglary requires that the defendant enter a building with the intent to commit a felony. (§ 459.) Keyes entered the bank with a check made payable to him purportedly signed by a man who had died two months before the date of the check. Immediately upon entering the bank, Keyes presented the check to a teller, requested that the check be cashed, and signed the back of the check in the presence of the teller.

There was sufficient evidence from which a reasonable jury could conclude that Keyes entered the bank with the intent to commit forgery, thus committing a burglary.

III. Enhancements

Keyes argues that the evidence was insufficient to sustain the findings on four of the five sentence enhancements found true by the trial court. Although Keyes admitted the truth of the allegations, Keyes contends the trial court failed to inquire into the factual basis of four of the enhancements, requiring reversal. Keyes challenges the section 667.5, subdivision (b), enhancements and one of the Health and Safety Code section 11370.2 enhancements.

The four enhancements challenged by Keyes were set forth in the amended information filed January 3, 2005. Each allegation specified the docket number of a prior conviction, the offense of which Keyes was convicted, and the date of the prior conviction. As to the section 667.5, subdivision (b), enhancements, the amended information also alleged that Keyes had served a prior prison term and had not remained free of custody for a period of five years before committing another offense.

After the verdicts were rendered on the underlying offenses, Keyes informed the trial court that he was willing to admit all enhancement allegations. The trial court thereafter asked Keyes to admit to the facts set forth in the amended information, including a prior conviction for a specific felony, the date of the conviction, the docket number, and in some instances to having served a prior prison term. After the trial court finished reciting the facts of each allegation, Keyes admitted the truth of each allegation.

If Keyes believed the amended information contained insufficient facts to support the enhancement allegations, he should have filed a special demurrer. (People v. Bow (1993) 13 Cal.App.4th 1551, 1559.) Because he failed to file a special demurrer, he cannot challenge the sufficiency of the allegations in the pleading. (Id. at p. 1559-1560.)

Keyes admitted the facts set forth in the amended information prior to the trial court accepting his admission of the truth of the prior enhancement allegations. His admission deprived the prosecution of the opportunity to allege a more specific factual basis for the enhancement allegations. Keyes now cannot challenge the true findings on the enhancements he admitted. (People v. Bow, supra, 13 Cal.App.4th at p. 1560.)

Regardless, the factual admissions made by Keyes specified the prior offenses of which he was convicted, the docket number for each case in which he suffered a prior conviction, the date of the prior conviction, and that he spent time in prison for the prior offenses. This information provided a sufficient factual basis for the admission. (See People v. Holmes (2004) 32 Cal.4th 432, 444.)

IV. Restitution

At sentencing, the trial court imposed a restitution fine of $800, pursuant to section 1202.4, subdivision (b). The abstract of judgment reflects this restitution fine, in addition to restitution pursuant to section 1202.4, subdivision (f), in an amount to be determined. Keyes objects to the imposition of restitution under subdivision (f) of the code.

The People concede that restitution pursuant to section 1202.4, subdivision (f), was not imposed at sentencing and should not be reflected on the abstract.

We will direct the preparation of a corrected abstract of judgment reflecting the deletion of restitution pursuant to section 1202.4, subdivision (f).

V. Sentence

As to each count of the amended information, the prosecution alleged, and the trial court found true, three enhancements pursuant to section 667.5, subdivision (b). At sentencing, the trial court imposed each of the three section 667.5, subdivision (b), enhancements on all four convictions. The enhancements were stayed as to the convictions on counts 2, 3, and 4.

Keyes contends the section 667.5 subdivision (b), enhancements imposed on counts 2, 3, and 4 must be stricken, not stayed. The People agree and so do we.

Section 667.5, subdivision (b), enhancements go to the nature of the offender and do not attach to particular counts. They are imposed just once as the final step in computing the sentence. (People v. Tassell (1984) 36 Cal.3d 77, 90.)

When the trial court has imposed an unauthorized sentence, as here, the appellate court may correct the sentence. (People v. White Eagle (1996) 48 Cal.App.4th 1511, 1521.) The duplicate section 667.5, subdivision (b), enhancements must be stricken and an amended abstract of judgment prepared.

DISPOSITION

The duplicate section 667.5, subdivision (b), enhancements on counts 2, 3, and 4 and the restitution pursuant to section 1202.4, subdivision (f), are stricken. The trial court is directed to prepare an amended abstract of judgment in conformance with this opinion and forward a copy to the appropriate agencies. In all other respects the judgment is affirmed.

_____________________

CORNELL, J.

WE CONCUR:

_____________________

HARRIS, Acting P.J.

_____________________

KANE, J.

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