In re Francisco N.

Filed 10/2/06 In re Francisco N. CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Tulare County. Hugo Loza, Commissioner.

Allen G. Weinberg, 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, Louis M. Vasquez and Leslie W. Westmoreland, Deputy Attorneys General, for Plaintiff and Respondent.

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The court adjudged appellant, Francisco N., a ward of the court (Welf. & Inst. Code, § 602) after it sustained allegations in a petition charging Francisco with possession of false instruments (count 1/Pen. Code, § 476), being an unlicensed driver (count 3/Veh. Code, § 12500, subd. (a))^[1] and driving without proof of insurance (count 4/Veh. Code, § 16028). On October 23, 2005, the court placed Francisco on probation. On appeal, Francisco contends: 1) the evidence is insufficient to sustain the court’s true finding on the possession of the false instruments offense; and 2) the court erred in ordering him to pay all or part of the costs of drug testing as a condition of probation. We will find the court did not impose the condition complained of and affirm the judgment.

FACTS

On April 30, 2005, a sheriff’s deputy pulled over a car driven by Francisco because it did not have a front license plate. Francisco told the deputy that he did not have a license or insurance. After confirming this, the deputy began to inventory the car and found three counterfeit $20 bills and a counterfeit $1 bill. A search of Francisco uncovered another counterfeit $20 bill in a wad of bills in his wallet.

Francisco initially told the deputy he found the currency at school. He then stated that someone at school had given the bills to him. He also told the deputy that the previous night he called his brother-in-law and told him he had some fake money. Francisco was on his way to the store when he was stopped; however, he claimed he did not intend to use the fake bills.

DISCUSSION The Sufficiency of the Evidence Issue

The court found that Francisco violated section 476 which provides:

“Every person who makes, passes, utters, or publishes, with intent to defraud any other person, or who, with the like intent, attempts to pass, utter, or publish, or who has in his or her possession, with like intent to utter, pass, or publish, any fictitious or altered bill, note, or check, purporting to be the bill, note, or check, or other instrument in writing for the payment of money or property of any real or fictitious financial institution as defined in Section 186.9 is guilty of forgery.”

Francisco contends the evidence is insufficient to sustain the court’s finding that he possessed false instruments because the statute does not apply to the possession of forged currency. We disagree.

“In reviewing a challenge to the sufficiency of the evidence, we do not determine the facts ourselves. Rather, we ‘examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence--evidence that is reasonable, credible and of solid value--such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’ [Citations.] We presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]” (People v. Guerra (2006) 37 Cal.4th 1067, 1129.)

Section 480 prohibits the possession of certain items used in the counterfeiting of certain specified items including “bank notes or bills.” (§ 480, subd.(a).) In finding that the term “bills” included federal reserve notes, i.e., currency, the court, in People v. Ray (1996) 42 Cal.App.4th 1718, explained:

“As originally enacted in 1872, section 480 was identical to its present form except for the triad term of imprisonment. [Citation.] The intent of the statute is to prevent fraud in the passing of counterfeit forms of gold, silver, and bank notes or bills by prohibiting the possession of apparatus intended for such purpose.

“The term ‘bills’ as used in section 480 refers to ‘our paper currency.’ [Citation.] The issuance of Federal Reserve notes is governed by 12 United States Code section 411. The purpose behind the federal statute is to make clear that Federal Reserve notes are authorized currency of the United States. [Citation.] Here, the term ‘bills’ used in section 480 must be construed to include ‘Federal Reserve notes.’ “ (People v. Ray, supra, 42 Cal.App.4th at p. 1722. fn. omitted.)

Additionally the court noted that “[t]he issuance of ‘bank notes or bills is generally forbidden private banks and “bills,” our paper currency, are issued only by the Federal Reserve banks.’ It would indeed lead to an absurd consequence if Federal Reserve notes, the bills which presently constitute the vast bulk of ‘our paper currency,’ were excluded from the scope of section 480 while bills issued by private banks, whose issuance is generally prohibited, were included.” (People v. Ray, supra, 42 Cal.App.4th at pp. 1722-1723, also cf. People v. Bedilion (1962) 206 Cal.App.2d 262, 269 [Court found that word “bills” as used in forgery statute, section 475, was synonymous with paper currency issued by the Federal Reserve Banks].) In accord with the above authorities, we find that the word “bills” as used in section 476 also included currency. Thus, we conclude that the evidence is sufficient to sustain the court’s finding that Francisco possessed counterfeit currency in violation of this section.

The Probation Condition Requiring Francisco to Pay

All or Part of Chemical Testing of Probation

Francisco contends that the court imposed an unauthorized sentence when it ordered him to pay all or part of the costs of drug testing as a condition of probation. Respondent contends the court did not order Francisco to pay any of the costs of drug testing and that the order requiring him to pay these costs, which appears as an attachment to the clerk’s minutes of Francisco’s disposition hearing, resulted from a clerical error. We agree with respondent.

“Entering a judgment of the trial court in the minutes is a clerical function. Any discrepancy between the minutes and the oral pronouncement of a sentence is presumed to be the result of clerical error. Thus, the oral pronouncement of sentence prevails in cases where it deviates from that recorded in the minutes. [Citation.]” (People v. Price (2004) 120 Cal.App.4th 224, 242.) Here, the clerk’s minutes of Francisco’s disposition hearing have attached a document entitled, “TERMS OF PROBATION CASE SERVICE AND TREATMENT PLAN.” This document has condition 17 checked off. This condition states, “The minor shall pay all or part of the costs associated with being tested based upon the minor’s ability to pay such costs. . . .” However, the disposition transcript indicates the court did not order Francisco to pay for the costs of drug testing. Thus, in accord with Price we conclude that the oral pronouncement of sentence controls and that the court did not order Francisco to pay all or part of these costs as a condition of probation.

DISPOSITION

The trial court is directed to correct its paperwork to reflect that the court did not order Francisco to pay for all or part of the costs of drug testing as a condition of probation. In all other respects, the judgment is affirmed.

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^* Before Cornell, Acting P.J., Gomes, J., and Hill, J.

^[1] Unless otherwise indicated, all further statutory references are to the Penal Code.