P. v. Rodrigues

Filed 2/28/07 P. v. Rodrigues CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Tulare County. Darryl B. Ferguson, Judge.

Richard D. Miggins, 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, Julie A. Hokans and Stephanie A. Mitchell, Deputy Attorneys General, for Plaintiff and Respondent.

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Mary Odilia Rodrigues (appellant) was originally charged with 58 separate counts of burglary, forgery, and larceny. Following the Peoples case-in-chief, the trial court dismissed 13 of the 58 counts. The jury found appellant guilty of six counts of first degree burglary (Pen. Code,  459),^[1]20 counts of grand theft personal property ( 487, subd. (a)), three counts of forgery ( 475, subd. (c)), seven counts of making, drawing, uttering, or delivering a nonsufficient fund check ( 476a, subd. (a)), and two counts of misdemeanor petty theft ( 484, subd. (a)). The trial court sentenced appellant to a total prison term of 13 years 4 months.

Appellant contends there is insufficient evidence to support the burglary convictions in four counts and the grand theft convictions in three counts. Appellant also contends the trial court erred when it failed to instruct with CALJIC No. 17.01, when it imposed the upper term on one count, and when it failed to stay sentence on numerous counts, pursuant to section 654, for crimes committed as part of an indivisible continuous course of conduct. We agree only with appellants last contention, and in all other respects affirm.

FACTS

Appellant was a licensed real estate agent in Tulare County from 1991 to 2002. All of the charges against appellant stem from various real estate transactions which occurred in 2001 and 2002. We include evidence relating only to the charges of which appellant was convicted and that she now appeals from but, to avoid confusion, we will refer to them by their original numbering.

At trial, Lino Pimentel testified that he was a realtor with Century 21/Jordan Link and had an ownership interest in All Valley Mortgage. He had been selling real estate for 15 years. Pimentel met appellant in the early 1990s when they worked for different companies but were both selling real estate. Appellant came to work for Century 21/Excel Realty in 1995 or 1996. At the time, Pimentel was the owner and office manager. Pimentel sold Century 21/Excel Realty to Century 21/Jordan Link in December 1999, a company with offices in both Visalia and Tulare. Both Pimentel and appellant remained as salespersons in the Tulare office after the sale.

Pimentel was asked numerous questions pertaining to standard real estate transactions. According to Pimentel, a real estate agent assisting a buyer in purchasing a home begins with a process in which the real estate agent will prequalify the buyer. When a buyer then makes an offer to purchase, a purchase contract is completed and the buyer makes an earnest money deposit to apply toward the home. The buyer is given a receipt for the deposit, which, during the time in question, usually consisted of $500. Pimentel explained that the payee for the deposit is usually the real estate company or the title company. If the deposit lists the real estate company as the payee, the deposit will stay in the office file. Pimentel testified that the purchase offer is submitted to the seller, and, if accepted, the earnest money deposit is forwarded to the title company handling the escrow. If the offer is rejected, the deposit is returned to the buyer as soon as possible. If the buyer wishes to continue looking for a home, he or she may give the real estate agent written permission to keep the earnest money deposit on file for a future offer.

Pimentel testified that a real estate agent must enter all deposits received from clients into the offices trust account log, and it would be a violation of the Department of Real Estate (DRE) rules for an agent to deposit a clients money into his or her own account.

Pimentel testified that it is a violation of the DRE rules for a real estate agent to assist clients or collect a fee for assisting clients in refinancing their property, to charge clients to prequalify for a loan or to show them houses, or to collect a fee for helping clients add or remove a name on a title. He also testified that it would not be the norm for buyers to give the real estate agent a deposit prior to finding a home they wished to make an offer on, or for buyers to make a money order deposit payable to the real estate agent.

Pimentel testified that he spoke Spanish and sometimes assisted appellant with her Spanish-speaking clients. When appellant left Century 21/Jordan Link toward the end of 2001, she transferred the file related to Sonia Mendes (counts 18-20) to Pimentel, and he took over the transaction. She did not transfer to him the files for Mercedes Padilla (counts 2-4), Leticia Contreras (counts 11 & 12), Maria Goulart (counts 24 & 25), Margarito Revelas (count 26), Martina Luna (counts 38 & 39), Antonia Salazar (count 43), Iris Caballero (counts 46-48), or Maricella Quinones (counts 54 & 55), and he did not receive any money from those individuals.

After appellant left Century 21/Jordan Link, Pimentel received telephone calls from appellants clients. He reported the calls to the officer manager, Andre Rocha, and after Pimentel received three or four calls, he contacted appellant and told her to take care of this before it became a problem. Pimentel told appellant that she was in violation of DRE rules by accepting money that had nothing to do with deposits and things of that nature[.] Appellant assured Pimentel that she would correct the problem. Pimentel received more telephone calls from appellants clients and met with her. Pimentel informed appellant that he was going to advise the office manager about the situation, and he encouraged her to correct the problem. After receiving quite a few phone calls from people, Pimentel began giving the clients appellants phone number. Pimentel eventually refused to accept any more calls from appellants clients. Appellant told Pimentel she had taken approximately $67,000 from her clients, but that she was going to repay it.

Andre Rocha, the manager of Century 21/Jordan Link, testified that appellant worked for him as a sales agent. Rocha testified that appellant received training on how to complete a purchase agreement and how to properly log deposit checks.

Rocha testified that, around Thanksgiving 2001, appellant told him that she was thinking of leaving real estate and becoming an insurance agent or lender by the end of the year. Around Christmas 2001, Rocha received a phone call from one of appellants clients. As a result, Rocha spoke to appellant about not commingling funds, which is a violation of DRE rules. Appellant told Rocha she would take care of the problem. Rocha asked appellant to complete her open escrows, and that he would terminate her employment at the end of January. Appellant agreed to complete the transactions that were open and not to open any new ones.

Appellants association with Century 21/Jordan Link terminated on January 31, 2002. That same day, Rocha reviewed appellants files and found none had been left open, with the exception of one home for which Pimentel was the listing agent. Rocha found no money in the office trust account attached to any of appellants files. Rocha testified that appellant did not have her license with a broker between January 31, 2002, and May 2002.

Rocha was also asked numerous questions pertaining to real estate transactions. Rocha testified that a sales agent can only perform real estate functions when his or her license is with a broker. A sales agent that no longer has a license with a broker can refer someone to a real estate agent, but cannot collect a referral fee. The person making the referral cannot assist the agent with any transaction that requires a license. A real estate agent who no longer has a license with a broker cannot show clients property. According to Rocha, an agent can hire an assistant to help with paperwork and the escrow process, but the assistant cannot solicit business, retain any fees, sign any contracts, collect down payments, or share in the commission. Per DRE rules, an agent may give someone a gift for a referral, but the monetary value of the gift cannot exceed $50.

Rocha also testified that once a purchase agreement is accepted or a listing agreement is signed, the file becomes the real estate companys file. When a house is sold, the seller, not the buyer, pays a commission to the agent and real estate company. According to Rocha, it is illegal for a sales agent to write a personal check for a client for a down payment, as it would constitute commingling of funds. Funds received from a buyer cannot be commingled with an agents own money or deposited into an agents bank account.

Rocha testified that a real estate agent is not permitted to hold such a deposit in his or her own account while a purchase is pending. Rocha testified that any funds received must be logged into the trust log, and it was Century 21/Jordan Links preference to not accept cash. If cash was received, it would be photocopied, a copy placed in the file, and the file placed in a locked cabinet. Rocha stated that it was generally not Century 21/Jordan Links policy to keep a deposit if an offer was rejected.

Defense

Appellant testified that she received her real estate license in 1991 and worked as a real estate agent until January of 2002, when she left Century 21/Jordan Link. Appellant testified that she worked with low-income buyers, and most of them received loan assistance through the federal government.

Appellant testified that, when she first met her clients, she would ask for good faith money toward obtaining a credit report. According to appellant, these clients usually gave her money orders, and she would leave them blank because escrow had not yet opened. She would put the money orders in the clients file at the office. Appellant testified that, near the end of her career, she would fill in her name on the money orders. Appellant testified that most of her clients opened escrow with a good faith payment of $500, which was brought into the office or deposited into escrow. Client money was logged into the trust account log and the money kept in the client file or sent to the Visalia office trust account. Appellant acknowledged that some of her clients names did not appear in the trust account log, but that the log was not the original one.

Appellant testified that she was also an agent for U.S. Mortgage, a reduction company that allows homeowners to make mortgage payments every two weeks, accelerating the reduction of their overall debt. Appellant testified that she offered this program to clients to whom she had previously sold homes.

While she worked at Century 21/Jordan Link, appellant testified that she helped past clients make their mortgage payments [v]ery often. She estimated that she helped an average of 10 clients per month with their mortgage payments.

Appellant testified that she made the decision to leave real estate in October of 2001 and considered becoming an insurance agent or a mortgage/lending agent. But she did not begin either of those careers after she left Century 21/Jordan Link.

Appellant testified that Rocha instructed her to stop writing offers in December 2001, so that all of her files would be closed when she left. Rocha told appellant that any escrows still open on her last day of work, January 31, 2002, would be transferred to Pimentel. Appellant testified that she closed all her open escrows by the end of January 2002, but she also testified that she had about five open escrows with Pimentel when she left, as well as ten or so pending matters. Appellant testified that Pimentel agreed to have her assist him and bring referrals to him for buyers and/or people wishing to refinance their homes, and he would pay her a 20 percent referral fee.

Appellant testified that Pimentel knew her phone number, pager number, and where she was living at all times, although she canceled her cell phone and pager in June of 2002. Appellant testified that she met with Pimentel 10 to 15 times after she left the office to discuss files she had transferred to him.

Appellant testified that she closed her own bank account in 1998 when she got divorced. Instead of opening another account in her name, she opened a checking account for CMR Enterprises (CMR), a business opened in the names of her daughter, Cindy Rodrigues, and her mother in April of 2000. Appellant acknowledged that she was not on the signature card for the account, although she signed Cindys name on the checks. According to appellant, very few of the transactions in question at trial were written on the CMR account. Instead, appellant testified that they were drawn on Cindys personal account. Appellant testified that she had permission to sign Cindys name on the checks.

Cindy testified that she gave appellant permission to write checks on the CMR account and to sign her name. Cindy testified that she wrote checks on the CMR account when her mother allowed her to. The CMR account was closed on January 11, 2002.

Cindy testified that she had a personal checking account in her name alone, but appellant had permission to write checks on the account and sign Cindys name. Cindy testified that she wrote checks on that account [o]nly when my mom would ask me to write out a check for her[,] and that the account was primarily used by appellant. Cindy testified that she did not review the bank statements, but gave them to her mother because that was her business not mine.

Appellant testified that she spoke to the manager at the bank and let her know that she was signing her name to the checks. According to appellant, she made deposits totaling $15,000 into Cindys account in May of 2002. She claimed the bank statements shown to her by the prosecutor had mistakes and were not the proper statements for the account.

Appellant denied she ever wrote checks on Cindys account when the account had nonsufficient funds, and she denied any checks had been returned for nonsufficient funds. Appellant testified that, if a check had nonsufficient funds, she would receive notification from the bank and she would deposit money to cover the check. Appellant estimated that she had received about five calls between January 2001 and January 2002 advising her that Cindys account had insufficient funds.

Jerry Sell, the branch manager of the bank where Cindy had her personal account, testified that, as a courtesy, the bank would call to warn an account holder if there were insufficient funds to cover a check written on the account. This would give the individual a chance to come in to make a deposit to cover the amount.

On cross-examination, Sell testified that the bank would not have permitted appellant to sign Cindys name to checks because Cindy was the only one on the signature card. According to Sell, appellant was not allowed to sign on her daughters account, even if she had her daughters permission, as it would be forgery. Sell also testified that if there were nonsufficient funds in the account, the bank would call Cindy, not appellant, because Cindys name appeared on the account.

Sell testified that the bank statements for Cindys account showed a number of check returned entries, which would mean the checks had not cleared due to nonsufficient funds. When Cindys account was closed by the bank on May 29, 2002, it had a negative balance of $832.22, due to a number of nonsufficient fund checks being written and charges owed the bank.

(1) Counts 2 (Grand Theft), 3 (Residential Burglary), and 4 (Grand Theft): Mercedes Padilla

Mercedes Padilla testified that appellant helped her purchase a house in 1999. Appellant told Padilla that, to be eligible for government assistance, title to the house could not be in her name because she owned another home. Instead, title was put in the names of two of Padillas friends and her son-in-law. Appellant told Padilla that the names on the title could be changed after six months.

In 2001, Padilla asked that appellant assist her in removing the original names on the title and substituting Padillas oldest daughter instead. Appellant agreed to help Padilla for $400, which Padilla paid, but the title was never changed.

In 1999 and 2000, Padilla sent her mortgage payments directly to the bank. By August 2001, Padilla was behind in her payments. According to Padilla, some of her mortgage payments had gotten lost and appellant offered to help. Appellant helped Padilla cure a default on her house, and thereafter, appellant came to her house each month to collect the mortgage payments in cash.

Padilla testified that appellant came to her house on October 26, 2001, and Padilla gave her $859 for the mortgage payment. In return, appellant gave Padilla a copy of a check for $859, which appellant signed in the name of appellants daughter, Cindy Rodrigues. Appellant assured Padilla that she would make the payment to the mortgage company.

On November 1, 2001, Padilla gave appellant $796 in cash for the mortgage payment. Appellant gave Padilla a copy of the check appellant had written out to the mortgage payment.

Padilla could not recall if she gave appellant money in December 2001, but she had a copy of a receipt indicating that she had given appellant $691 on Friday 17th, which Padilla believed was for December.

At some point, Padilla received a debt validation notice stating that, as of January 18, 2002, her mortgage was delinquent $4,134.89. Padilla called appellant, who told her to give her that amount and she would take care of it. Appellant came to Padillas house several days later, and Padilla gave appellant over $4,100 to bring the account current. Padilla did not send the money directly to the mortgage company because she trusted appellant.

Padilla gave appellant an additional $3,000 to $5,000 between January and August of 2002, thinking appellant had rectified the situation. Padilla did not know appellant had not made the mortgage payments until Padilla received notice from the mortgage company that she owed $8,000. Padilla eventually lost her house because her loan was in default. Appellant never returned her money.

Defense

Appellant testified that she sold Padilla a home in 1999. Title to the property was in three names other than Padillas. One was Martin Vega.

In July 2001, Padilla came to appellants office at Century 21/Jordan Link and brought a notice of default of foreclosure, which was recorded on July 12, 2001, stating Padilla was in default in the amount of $3,775.04. Appellant testified that she called the mortgage company on Padillas behalf and then explained to Padilla that she could lose her property if she did not cure the default.

Appellant testified that she gave Padilla $750 toward the needed monies to cure the default because Padilla did not have the necessary amount at the time. She testified that, together, she and Padilla purchased a Quick Collect to send to the mortgage company. According to appellant, the default on the property was cured and Padilla paid appellant the $750 she had borrowed.

In December, appellant went to Padillas house at her request to look at a mortgage statement she had received. The statement indicated that Padilla had not paid her mortgage for November and December. Padilla was also unsure why the mortgage payment amount had increased. Appellant testified that she called the mortgage company and found out that the payments had increased because Padillas insurance had been canceled and the lender had put its own insurance, which was more expensive, on the house.

Appellant testified that Padilla told her she could no longer afford the payments and asked that appellant help her refinance to lower payments. Appellant told Padilla that refinancing was not an option and suggested selling the house to Padillas daughter.

In May 2002, Padilla purchased some money orders made out to Citi Mortgage as the payee, signed by Vega. Appellant testified that because Padilla, not Vega, was listed as the purchaser, the money orders were not operable. Appellant testified that she met with Vega at his home and tried to get him to go with her to the post office to complete paperwork to transfer the money orders, but he would not go.

Appellant testified that, the same day or the next, she and Pimentel went to Padillas house, and that she gave Pimentel the file on this transaction when she left Century 21/Jordan Link.

(2) Counts 11 (Grand Theft), and 12 (Grand Theft): Leticia Contreras

Leticia Contreras testified that she met appellant around September 2000; appellant helped her purchase a home about a year later. Appellant made offers on three homes for Contreras. Prior to making the offer on one of the houses, Contreras gave appellant $500 for paperwork. One offer, on a home owned by Jose and Lucia Mendes, was accepted.

In September 2001, Contreras gave appellant $2,500 in money orders for a down payment on the house. Two months later, Contreras borrowed $2,500 from her family for an additional down payment on the house, and moved in. Contreras could not recall what type of paperwork was completed on the house, but she believed title to the house would be in her name once she moved in. Contreras testified she understood the $5,000 was for a down payment, and that she would pay the mortgage payments of $645 monthly to appellant for five years while improving her credit, and, after five years, she would assume the loan. Contreras did not give the mortgage payments directly to Mr. and Mrs. Mendes because appellant had told her she would collect the money for them as a favor. After three or four months, the Mendeses asked that Contreras give the mortgage payments directly to them, because they had not received any payments from appellant between September 2001 and March 2002.

Lucia Mendes testified that she never saw or signed any paperwork for the sale of the house. It was Mendess understanding that, until the paperwork for the sale of the house was complete, Contreras would give appellant the mortgage payments, and appellant would send them on to the mortgage company. Around February of 2002, the bank notified Mendes that the mortgage was in default. Appellant gave Mendes a check for $2,500, written on appellants daughters account. Appellant then spoke to Mendess daughter and told her to not cash the check until money was deposited into the account. Appellant later told Mendess daughter to destroy the check and she would pay them in cash.

In April or May 2002, Contreras asked appellant for her money back because she would not be able to stay in the house. In May 2002, appellant returned $5,500 to Contreras, and she moved out of the house the following month.

Defense

Appellant testified that she met Contreras in September of 2001. Contreras wanted to purchase a home, but had bad credit. Contreras decided on the Mendes home and gave appellant $3,500 toward the purchase. Appellant had $2,000 of Contrerass money already, from a previous dealing.

Appellant testified that she negotiated a deal with the Mendeses in which they would carry the loan for three years until Contreras improved her credit. After that, Contreras would refinance, pay the Mendeses, and title to the house would be transferred. During the three-year period, Contreras would pay the Mendeses $645 per month. According to appellant, the $5,500 Contreras had given her was to remain in the file until the property transferred. The money would then go to the Mendeses.

According to appellant, Contreras moved into the house in December of 2001 with a rental agreement. Appellant testified that Contreras brought the rental payments, made out to the mortgage holder Washington Mutual, to her at the office. Contreras did not have enough to make the January payment, so appellant took money from the file to make up the difference, purchased a money order, and mailed it to Washington Mutual. Contreras paid appellant in installments for the February 2002 payment. Appellant wrote a check on her daughters account and sent the payment to Washington Mutual.

The Mendeses contacted appellant that same month and told her they had received a call from Washington Mutual saying two months payments had not been received on the Contreras house, as well as on another property appellant was managing for them. It was decided by the Mendeses and appellant that the Mendeses would start collecting the monthly payments from Contreras directly.

In May 2002, appellant returned the $5,500 to Contreras because she was going to deal with the Mendeses directly. Appellant testified that she never transferred Contrerass file to Pimentel after she left Century 21/Jordan Link. Appellant claimed not to know why three money orders from Contreras, each for $500, had appellant as the payee or why her signature appeared on the back.

(3) Counts 18 (Grand Theft), 19 (Grand Theft), and 20 (Grand Theft): Sonia Mendes

Sonia Mendes testified that she had known appellant for about 18 years. In September of 2001, Mendes asked appellant for her help in purchasing a vacant lot owned by Pimentel. Mendes gave appellant $1,000 for a deposit on the lot, but the transaction eventually fell through when Mendes was unable to secure financing.

The following month, Mendes asked appellant to help her purchase a house. Mendes was unfamiliar with real estate transactions. Appellant explained some of the paperwork, but not all. Appellant gave Mendes a copy of the signature page of the contract, but not the entire contract. Appellant told Mendes she would use the $1,000 from the previous transaction, but later requested an additional $4,000. Mendes paid appellant $360 in cash, with money orders made payable to appellant, and with a personal check for over $1,000 made payable to appellant.

Mendes and her husband drove by the house they thought they were purchasing, only to find the for sale sign removed and people working on the house who claimed to be the buyers. Mendes contacted appellant, who called someone about the transaction, but she never explained why Mendes did not get the house or where her $5,000 was. Because Mendes trusted appellant, she asked that she help her look for another house.

In February of 2002, Mendes made an offer on appellants home, which was accepted. Pimentel, who helped with the transaction, testified that there was no money in the file when it was transferred to him. Appellant asked Mendes not to tell Pimentel she had her money. Instead, appellant told Mendes that, if Pimentel requested money, she should contact appellant, and appellant would give him the $5,000 Mendes had already paid. At some point, Pimentel asked Mendes for $900 for escrow fees and termite inspection, which appellant gave to Mendes to give to Pimentel.

In early March 2002, Mendes cancelled the transaction due to health concerns. Appellant did not return any of Mendess remaining $4,100, but $900 was returned from Pimentel. When Mendes asked appellant for the money, appellant stated that she did not have it right now. On another occasion when Mendes asked that appellant return her money, appellant told Mendes to meet her at a title company where the money was at, but appellant never showed up. Mendes made a number of unsuccessful attempts to contact appellant and get her money back.

Defense

Appellant testified that she met with Mendes in 2001 to help her purchase a house. Appellant showed Mendes and her husband a vacant lot owned by Pimentel. The Mendeses were interested in the lot and gave appellant a money order for $1,000, which was deposited in the Tulare office. When Mendes and her husband changed their minds about the lot, appellant showed them a house they were interested in purchasing, but the purchase fell though due to a stronger offer. Appellant then showed them her own house, which they were interested in. Appellant asked Pimentel for help with the transaction, which eventually fell through.

Appellant testified the $360 that Mendes gave her was to rent a tractor for a leach line on property owned by Mendess parents. Appellant acknowledged that Mendes gave her a check for $1,200 and a check for $750, made out to appellant, in November of 2001, but it was to buy a money order for Mendes and was not part of a down payment on a house. Appellant denied that Mendes tried to contact her in May of 2002 about getting her money back.

(4) Counts 24 (Residential Burglary), and 25 (Grand Theft): Maria Goulart

Maria Goulart testified that appellant was a family friend and had represented her when she bought her first home in the 1980s. In late 2001, Goulart spoke to appellant about buying rental property. The following spring, appellant showed Goulart and her husband a property, and they were interested in making an offer. Goulart testified that appellant told her the house was to be auctioned within a few days, and that they needed to give her $5,000 in cash. Appellant told Goulart that if she had the cash, they would likely get the house.

Goulart withdrew $5,000 in cash on April 19, 2002, and purchased money orders that she gave to appellant. Goulart left the payee line on the money orders blank, but at trial, the money orders showed appellants name as payee. At the Goularts house, the three signed what Goulart described as a blank piece of paper stating that the $5,000 the Goularts gave appellant was to go toward the purchase of the house. Appellant promised them a copy of the agreement, but they never received one.

Appellant informed them a few days later that the house was no longer available. Goulart was still interested in looking at other houses. Appellant told Goulart that she would need an additional $5,000 to do so, which Goulart did not have.

Appellant then suggested the Goularts form a partnership with her to purchase and resell older homes. Appellant told the Goularts that she would contribute $5,000 in addition to the $5,000 they had already given her. They agreed to this arrangement.

In May or June of 2002, appellant showed Goulart two houses, one of which Goulart was not interested in and the other of which was unavailable. Appellant did not show Goulart any additional houses, and Goulart was not able to contact appellant.

In late 2002, Goulart saw appellant at a casino. Appellant promised to come to the Goulart home the following day with a copy of the paper, but said she did not have the money to pay them back because she had been in some trouble. Appellant did not show up as promised.

In early 2003, Goulart saw appellant at a store. When Goulart asked appellant why she had not given them the paper or returned their money, appellant was at first apologetic and then became really nasty and told Goulart to contact appellants attorney if she had questions.

Defense

Appellant testified that she had had several discussions with Mr. Goulart about purchasing investment properties. When they discussed the matter in November of 2001, appellant explained that she would be leaving the office soon, but they could discuss it the following year.

Appellant testified that she saw Mr. Goulart at a store in April 2002 and told him they could begin partnership discussions. After a meeting at the Goulart house, they all signed a partnership agreement. Appellant testified that Mrs. Goulart gave her $5,000 for their portion of the agreement, but not as a down payment on a house. Appellant deposited the $5,000 in her daughters account. Appellant testified that she did not contribute $5,000 to the partnership at the time but would do so when they found a property to purchase. Appellant testified that, although she showed the Goularts some houses, they chose not to purchase any.

Appellant denied that Mr. Goulart ever asked to terminate the partnership and, when he asked for a copy of the agreement, she told him she was busy with the sale of another property and he would need to wait. Appellant testified that she saw Mrs. Goulart in June of 2002 and, when she asked about the money, appellant informed her that she had an attorney and could not speak to her. Appellant denied that Mrs. Goulart ever asked for the money back. Appellant claimed, at the time of trial, that she did not know where the money was.

(5) Count 26 (Grand Theft): Margarito Revelas

Margarito Revelas testified that appellant represented him when he purchased his house. Later, appellant contacted him to talk to him about refinancing a loan. In order to do so, Revelas gave appellant a money order for over $600. Revelass daughter, who translated for her father, testified that, in return, appellant gave Revelas a check for $677, written on appellants daughters account and signed in her name. Revelass house was never refinanced. Revelas never got his money back from appellant, nor was he able to contact her.

Defense

Appellant testified that she had sold Revelas two houses. According to appellant, title to the homes was in multiple names, and Revelas asked her to help him remove his sons and daughter-in-laws names from the title. Appellant explained to Revelas a process whereby a name could be removed, a new person added, and the property refinanced, which would cost about one months mortgage payment, which was $677.

A couple of weeks later, appellant went to Revelass house because he wanted to add his wife to the title. Appellant gave Revelas a check written on Cindys account and made payable to the mortgage company, explaining that she could not complete the transaction in the time promised. Appellant testified that she did not hear from Revelas again, and did not know that the check had been returned for nonsufficient funds.

(6) Counts 38 (Residential Burglary), and 39 (Grand Theft): Martina Luna

Martina Luna testified that appellant represented her when she purchased a home in February of 2001. In March 2002, Luna paid $450 to have her pool repaired. Appellant told Luna that the repairs should have been covered by her insurance and offered to contact the insurance company for her. Luna gave appellant the receipts for the repairs. A couple of weeks later, appellant told Luna she had faxed the receipts to the insurance company. When Luna called the insurance company, they said they had not received the receipts and could not reimburse her without them.

In April 2002, appellant came to Lunas house and Luna gave appellant a check for $550, written on her fiancs account. Appellant told Luna she would pay the $200 difference for the mortgage payment and send the entire amount to the mortgage company. Appellant asked Luna to leave the checks payee line blank.

Appellant came to Lunas house the following month and offered to do the same. But Luna told appellant that the statement from the mortgage company indicated that the previous months payment had not been received. Appellant told Luna there had been a problem at the bank and she would take care of it. Luna then gave appellant a check for $650 with the payee line blank.

In mid-June 2002, Luna received notice that her loan was in default and foreclosure because the April and May payments had not been received. When Luna spoke to appellant on the phone, she was told not to worry about it and that appellant would send the payments. When Luna called again a week or so later, appellants phone was disconnected.

The checks Luna gave appellant were cashed, but she never got her money back.

Defense

Appellant testified that, in the summer of 2001, Luna came to her office to ask for assistance in getting reimbursed for money she paid to a pool company for repairs that should have been covered under her insurance. Appellant testified that she contacted the home warranty company, but was not able to get a reimbursement for Luna.

Appellant testified that in March of 2002, Luna asked that she come to her house to help her remove names from her home title so that the title was only in Lunas sons name. Appellant told Luna that a streamline would cost her $450, and Lunas boyfriend wrote a check in the amount.

Appellant testified that Luna then asked for her help with their April mortgage payment because they were unable to pay it. Appellant agreed and gave Luna a check for $841, made out to the mortgage company, and a few days later, Luna and her boyfriend paid appellant back in cash. Evidence at trial showed that the check, written on appellants daughters account, was returned for nonsufficient funds, although appellant testified that her daughter had given her permission to sign the check and there were sufficient funds in the account.

Appellant testified that she gave Luna the original $450 back, and when she spoke to Luna, Luna did not tell her that the April mortgage check had been returned for nonsufficient funds.

(7) Count 43 (Grand Theft): Antonia Salazar

Antonia Salazar testified that appellant helped her purchase her house. At the time of the purchase, title was held in the names of Candeido and Julian Salazar.

In April 2002, appellant came to Salazars house and asked if she wanted to add her son to the title on the house, which Salazar said she did. No fee for this service was discussed. Salazar gave appellant a money order in exchange for a check from appellant for $581.30, which Salazar sent to the mortgage company. Salazar testified that this was so appellant had proof that everybody [was] making payments. A month later, Salazar found out that the check appellant had given her had been returned for nonsufficient funds. Salazar never got her money back from appellant.

Defense

Appellant testified that she went to Salazars house in March 2002, when Salazar wanted to remove the names of the cosigners on the title and add her sons name. Appellant testified that she explained the process to Salazars son, who translated for his mother. Salazar then gave appellant a money order made out to appellant in the amount of one months mortgage, around $500, to begin the paperwork. Appellant started the process, but did not finish.

In early April 2002, Salazar changed her mind and asked that the money be returned. Appellant testified that she gave Salazar a check, written on appellants daughters account, payable to the mortgage company, and signed by appellant in her daughters name. Appellant claimed she had her daughters permission to write the check, and she believed there were sufficient funds in the account to cover the check. Appellant acknowledged that the check was returned for nonsufficient funds.

(8) Counts 46 (Residential Burglary), 47 (Forgery), and 48 (Nonsufficient Funds Check): Iris Caballero

Iris Caballero testified that appellant represented her when she purchased a house in August 2001. Title to the house was in both Caballero and her brothers names. In March 2002, Caballero fell behind in her $821 monthly mortgage payments. Caballero testified that appellant came to her house and offered to lend her the difference so that she could make her mortgage payment. Caballero gave appellant $600 in cash, and appellant gave her a check for $854.70, which included a late fee penalty, made payable to the mortgage company. The check was written on appellants daughters account and appellant signed her daughters signature. Caballero sent the check to the mortgage company the following day and a week later gave appellant the remaining $250.

Caballero then received a letter from her mortgage company stating that the check had been returned for nonsufficient funds. Caballero called appellant and asked her to return her money. Instead, appellant suggested that Caballero give her an additional $850 to cover March and Aprils mortgage payments. Appellant suggested that, because the mortgage was going to be late, maybe they wanted the two months.

Appellant came to Caballeros house and Caballero gave her $850 for the mortgage. Appellant told Caballero that she would come back and give her a check in return, but she never did. Caballero called appellant and asked for her money, but never got it.

Defense

Appellant testified that Caballero came to her in March of 2002 to ask if she could help pay her mortgage, which she had done before. Appellant agreed to help and gave Caballero a check, made out to the mortgage company, written on appellants daughters account. Appellant testified that she had her daughters permission to do so, and appellant believed there were sufficient funds in the account to cover the check. Caballero gave appellant part of the mortgage payment at the time of the check, and later reimbursed her for the remaining amount. According to appellant, Caballero never told her the check had been returned for nonsufficient funds.

The following month, appellant again helped Caballero by writing a check for the amount of the mortgage and giving Caballero the check. Appellant believed there were sufficient funds in the account to cover the check. Caballero did not give appellant money at the time, but reimbursed her $200 of the $854 in May of 2002. Caballero never told appellant that the second check she had given her had been returned for nonsufficient funds.

(9) Counts 54 (Residential Burglary), and 55 (Grand Theft): Maricella Quinones

Maricella Quinones testified that appellant represented her when she bought her home in 2001. In April of 2002, Quinones had difficulty making her monthly mortgage payment. Appellant came to her house and Quinones gave her $770 for the mortgage payment. Appellant gave her a check in the same amount, made payable to the mortgage company and signed in appellants daughters name. Quinones testified that the check was never received by the bank.

In May 2002, appellant came to Quinoness house to discuss refinancing, something they had talked about previously. Quinones gave appellant two moneygrams, one for $500 and another for $142.95. Appellant wrote house payment on both. According to Quinones, appellant said she would send the payment to the mortgage company. Later, the payee of the moneygrams was changed to appellants name. Quinones never got her house refinanced and never received her money back from appellant.

Defense

Appellant testified that title to the Quinones property was taken in other peoples names, and that, at some point, Quinones asked appellant to help her get her name and Alfred Jimenezs name on the title, which appellant did. Later, Quinones asked that appellant help her remove Jimenezs name from the title. Appellant testified that she did not charge for her help in changing the names of title.

Appellant testified that, in April 2002, Quinones gave her a money order for less than half the months mortgage, and appellant wrote a check to the mortgage company for the full amount. Appellant wrote the check on her daughters account, for which she had permission, and there were sufficient funds in the account to do so. Appellant testified that she gave Quinones the check to mail to the mortgage company.

Appellant testified that, before Quinones went to Mexico, she left a message asking that appellant contact Jimenez about paying Mays mortgage. When appellant went to Jimenezs house, he told her he did not want his name removed from the title.

A couple of days later, appellant informed Jimenez that he needed to pay Mays mortgage in Quinoness absence, but he said he did not have enough money. Appellant agreed to write the check, and she did so on her daughters account for $770, payable to the mortgage company. Appellant testified that she had her daughters permission to do so. Appellant gave the check to Jimenez to send to the mortgage company. Jimenez reimbursed appellant in the middle of the month. Appellant claimed she was not told that the checks she had written were returned for nonsufficient funds.

Appellant testified that she did not recall receiving a $500 or $142 moneygram from Quinones. Appellant claimed not to know how her name was added as payee on both moneygrams or how her signature appeared on the back. Appellant testified that the moneygrams presented by the prosecutor were copies.

DISCUSSION

I. Is there sufficient evidence to support a conviction for burglary in counts 3, 24, 38, 46, and 54?

Appellant contends first that there is insufficient evidence to uphold five of her six first degree burglary convictions. Specifically, she claims there is insufficient evidence of her intent to enter Padillas home to commit theft (count 3); that she entered Goularts home, or if she did, that the entry was related to the cash transaction (count 24); or that she had the necessary criminal intent prior to entering the homes of Padilla, Goulart, Luna, Caballero, and Quinones (counts 3, 24, 38, 46 and 54). We disagree.

In order to prove that a defendant committed residential burglary, it must be shown that he or she entered a dwelling with the specific intent to commit a felony or theft. ( 459; People v. Montoya (1994) 7 Cal.4th 1027, 1041.) The intent to commit a felony or theft must exist at the time of the entry. (People v. Holt (1997) 15 Cal.4th 619, 669.) [A] person who enters for a felonious purpose may be found guilty of burglary even if he enters with the owners or occupants consent. (People v. Frye (1998) 18 Cal.4th 894, 954.)

Evidence of intent is usually circumstantial and must support a reasonable inference of the requisite state of mind in order to support a conviction of burglary. (People v. Holt, supra, 15 Cal.4th at p. 669.) Evidence such as the theft of property from a dwelling may create a reasonable inference that there was intent to commit theft at the time of entry. (Id. at p. 670.) The intent required for burglary is usually inferred from all the facts and circumstances surrounding the crime. (People v. Lewis (2001) 25 Cal.4th 610, 643.) Intent may also be inferred from evidence of a common scheme. (People v. Gbadebo-Soda (1995) 38 Cal.App.4th 160, 169.)

When reviewing a criminal conviction for sufficiency of the evidence, the court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidencethat is, evidence which is reasonable, credible, and of solid valuesuch that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578.) The standard of review is unchanged when the prosecution relies upon circumstantial evidence. (People v. Stanley (1995) 10 Cal.4th 764, 792.) Even if we find that the circumstantial evidence could reasonably be reconciled with a different verdict, we do not reverse so long as the circumstances reasonably justify the outcome reached by the jury. (People v. Rodriguez (1999) 20 Cal.4th 1, 11.)

We will address each count separately.

A. Count 3

Appellant was charged in count 3 with first degree burglary of Padillas home occurring between November 1 and November 30, 2001. Padilla testified that, by August of 2001, she was behind on her mortgage payments and appellant offered to help, which resulted in appellant coming to her house each month to collect the mortgage payment in cash. Padilla received a copy of each check from appellant in return. Padilla testified that she gave appellant $796 in cash for the mortgage payment on November 1, 2001. Appellant gave Padilla a copy of the check appellant had written out to the mortgage company. Padilla later received notice that her mortgage was delinquent and she eventually lost her house because her loan was in default. Appellant never returned Padillas money to her.

Appellant contends that there is a complete lack of evidence that she entered Padillas home in November 2001. As argued by appellant, At no time did Padilla testify appellant was in her home at the time the November check was written . We disagree. Although Padilla did not testify specifically that appellant entered her home on November 1, 2001, there is circumstantial evidence to adequately support this inference. Padilla testified that in October 2001, appellant came inside the house to collect the cash for the mortgage and wrote and signed a check, which she gave Padilla a copy of. She then verified a copy of a check written on November 1, 2001, by appellant to the mortgage company as one given Padilla in exchange for the cash she gave appellant on that date to cover the mortgage. Padilla testified that appellant came to the house every month, including November, to collect the payment. From this evidence, the jury could reasonably infer that appellant went inside Padillas home during the November transaction.

Appellant also contends that there was insufficient evidence to find that she formed the necessary specific criminal intent to steal at the time she entered Padillas home in November of 2001. Appellant claims that she was frequently at Padillas home, and Padilla contacting appellant and asking her to come to the house would not have triggered a belief on appellants part she could steal from Padilla. Again, we disagree.

As noted above, appellant went to Padillas home in October 2001, collected $859 in cash from Padilla, gave her a copy of a check made out for the mortgage payment, and promised to make the payments for Padilla. She repeated this same procedure in November 2001. Padillas loan eventually went into default because appellant did not send in the mortgage payments. It is reasonable to infer from appellants actions that, since she did not make the mortgage payment in October, she went to Padillas in November 2001 with the intent to steal.

B. Count 24

Appellant was charged in count 24 with first degree burglary of Goularts home occurring between March 15 and April 15, 2002. Goulart testified that she spoke with appellant in late 2001 about buying rental property. Goulart then testified that a few months went by and one day she show over to our house. When asked if she remembered the month and year, Goulart stated, April, the beginning of April of 2002. When appellant came to the house, Mrs. Goulart was not home, but appellant told Mr. Goulart that she had a house she wanted them to see, that it was going to be auctioned, and she needed $5,000 in advance in cash for the auction. Thereafter, Goulart withdrew $5,000 in cash from the bank and purchased money orders which she gave to appellant on April 19, 2002. Goulart left blank the payee line on the money orders, but at trial, the money orders showed appellants name as payee. Goulart testified that, on the same day that she gave appellant the $5,000, appellant gave her and her husband a piece of paper to sign which said that they were giving appellant $5,000 to purchase a home. The Goularts signed the paper and appellant signed her name under theirs. Goulart testified that they signed the paper inside their home. Appellant took the paper with her when she left and promised them a copy, but they never received one.

Goulart testified that appellant informed them a few days later that the house was no longer available. The Goularts were still interested in looking at other houses, but rejected appellants request for an additional $5,000. The three then agreed, at appellants suggestion, that they form a partnership to purchase and resell older homes. Nothing came of this plan, and appellant never returned the Goularts money.

Appellant contends there is a complete absence of evidence of entry into Goularts home in March or April of 2002[.] We disagree. Goularts testimony was that appellant came to the house at the beginning of April of 2002 to discuss the possible purchase of a rental property, which would cost them $5,000, and also that she specifically entered the house on April 19, 2002, when she had them sign a piece of paper in connection with the $5,000 she took from them. From this evidence, the jury could reasonably find that appellant entered the Goularts home in April of 2002.

Appellant also contends that, should we conclude appellant did enter the Goulart home, there is insufficient evidence to support a conclusion that appellant intended to commit a felony upon entering. Again, we disagree.

At the time appellant told the Goularts about a possible rental property to buy, she was no longer a real estate agent with Century 21/Jordan Link. Since her real estate license was no longer with a broker, she could not show clients property or perform real estate functions. But appellant, who had known the Goularts since the mid-1980s, went to the Goularts home, told them about the property, showed them the house, took $5,000 of their money, and told them she would use the money to buy the house at auction. The Goularts never got the house, and appellant never returned their money. From this evidence, the jury could reasonably infer that appellant entered the Goularts home in April of 2002 with the intent to steal.

C. Count 38

Appellant was charged in count 38 with first degree burglary of Lunas home occurring between April 1 and April 30, 2002. Luna testified that she had contact with appellant when she purchased her home in February of 2001 and thereafter when she told appellant about necessary repairs to her pool. Appellant promised to help Luna get reimbursed from the insurance company, which did not happen. Luna testified that sometime later, in April of 2002, appellant came to her house and offered to help her meet her mortgage payments. Luna testified that when appellant came to her house, Luna wrote her a check for $550. Appellant asked that Luna leave blank the payee line on the check. Appellant told Luna she would pay the $200 difference between the $550 given her by Luna and the regular $750 payment. Luna testified that appellant did the same the following month. Eventually, Luna was told by the bank that her loan was in default and the April payment was never received. Lunas checks were cashed, but she never got her money back.

Appellant contends that, since she and Luna remained friends after appellant helped her buy her house, the evidence supports the conclusion that appellant went to Lunas house on a social basis, and there was no reason for appellant to have formed any criminal intent on that occasion as compared to any other occasion they had been together socially. Appellant contends she went to Lunas house to discuss the details of Lunas pool problems, they talked about insurance, and only after that did appellant propose to help Luna with her mortgage payments. We disagree.

Appellant specifically approached Luna with the idea to help her with her mortgage payments sometime after the two had discussed the pool repairs and insurance. Appellant went to Lunas house in April of 2002, she asked that Luna write her a check with the payee line left blank, and she promised to make up the difference in the payment amount and send it to the mortgage company. From this evidence, the jury could reasonably infer that appellant entered Lunas home with the intent to steal.

D. Count 46

Appellant was charged in count 46 with first degree burglary of Caballeros home occurring between March 1 and March 31, 2002. Caballero testified that, when she fell behind in her $821 monthly mortgage payments in March 2002, appellant came to her house and offered to make up the difference. Caballero testified that appellant had gone with my sister, and it was Caballeros sister who told appellant Caballero was late with her payments. Caballero testified that, when appellant was at the house, she gave her $600 in cash and, in return, appellant gave her a check for $854.70, made payable to the mortgage company. A week later, Caballero gave appellant the remaining $250. The check was returned for nonsufficient funds, and Caballero did not get her money back.

Appellant contends that it was Caballero who contacted appellant and asked her to come to the house, not appellant who approached Caballero. Further, appellant contends, it was only after she arrived that Caballero told her she was having problems with her mortgage payment and needed assistance. From this, appellant contends there is insufficient evidence to support a finding that appellant had formed any criminal intent prior to going to Caballeros house. We disagree.

The evidence is not that Caballero approached appellant, but that appellant discovered, through contact with Caballeros sister, that Caballero was late with her mortgage payments. Appellant then contacted Caballero and offered to help her. From the evidence, the jury could reasonably infer that appellant entered Caballeros house with the intent to commit theft o