P. v. Dunbar
Filed 8/13/12 P. v. Dunbar CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Appellant,
v.
RUSSELL EUGENE DUNBAR,
Defendant and Respondent.
G046209
(Super. Ct. No. 11CF2660)
O P I N I O N
Appeal
from an order of the Superior Court of Orange
County, Richard
F. Toohey, Judge.
Reversed.
Tony
Rackauckas, District Attorney, and Matthew Lockhart, Deputy District Attorney
for Plaintiff and Appellant.
Gerald
Miller, under appointment by the Court of Appeal, for Defendant and Respondent.
Although
Penal Code section 471 broadly and unambiguously makes it a crime to forge an
entry in “any book of records,” the trial court construed the statute as
applying only to the forgery of public
records. Therefore, it dismissed 24
felony counts that were filed against defendant for allegedly falsifying
entries into the records of a private
business. We agree with the People that
the statute encompasses defendant’s alleged conduct, and therefore we reverse
the order dismissing those counts.
FACTS
Defendant Russell Eugene
Dunbar was the office manager and controller at Fields Pianos (Fields) from
2001 to 2005. During that time, his
responsibilities included depositing customers’ checks into the company’s bank
account. He was supposed to deposit the
full amount of the check into the company’s account, but an audit conducted
after he left the company indicated he did not always do that. In fact, auditors discovered defendant
shorted the company over $6.8 million between 2003 and 2005.
Defendant’s modus
operandi was fairly simple – indeed, too simple.[1] When a Fields
customer made a purchase by check, defendant would deposit the check into his
own bank account, instead of Fields’.
Then he would write a check from his account for a lesser amount of
money and deposit that check into Fields’ account. To cover up the scam, he would then alter the
bank’s deposit slip so it looked like he had deposited the full amount of the
customer’s check into Fields’ account.
That way, when the amount reflected on the altered deposit slip was
entered into Fields’ financial records – by Dunbar
– it would appear as though everything was on the level.
When
the scheme was discovered, defendant was charged with 48 counts of
forgery. (Pen. Code, §§ 470, subd. (d),
471.)[2] Half of the
counts alleged a violation of section 470, subdivision (d) based on the
alteration of the deposit slips, and half alleged a violation of section 471
based on the falsification of Fields’ financial records. Following the preliminary hearing, defendant
moved to dismiss the latter counts on the basis section 471 does not apply to
the forgery of private records.
(§ 995.) The trial court
granted the motion, prompting this appeal.
DISCUSSION
The People contend the
trial court erred in construing section 471 as applying only to the forgery of
a public book of records. We agree.
Section 471 provides, “Every person who, with intent to defraud another, makes,
forges, or alters any entry in any book of records, or any instrument
purporting to be any record or return specified in Section 470, is guilty of
forgery.” The statute does not limit the
term “book of records” in any fashion; rather, it broadly refers to “any” such
book. However, relying on extrinsic
evidence, defendant contends the term is ambiguous and should be interpreted as
applying only to public records. We
decline defendant’s invitation to rewrite section 471 to include a limitation
that does not appear in the text of the statute.
“When
interpreting statutes, we begin with the plain, commonsense meaning of the
language used by the Legislature.
[Citation.] If the language is
unambiguous, the plain meaning controls.
[Citation.]” (
Control Bd. (2011) 52 Cal.4th 499, 519; see also People v. King (2006) 38 Cal.4th 617, 622.) “[C]ourts will not ‘interpret away clear
language in favor of an ambiguity that does not exist.’ [Citation.]”
(Hartford Fire Ins. Co. v. Macri
(1992) 4 Cal.4th 318, 326.) Nor will
they countenance efforts to create an
ambiguity by reference to extrinsic evidence; outside sources simply do not
come into play when the language of a statute is clear and unambiguous. (Monette-Shaw
v. San Francisco Bd. of Supervisors (2006) 139 Cal.App.4th 1210, 1219;
Utilities Com. (2000) 85 Cal.App.4th 86, 92.)
Here,
the statutory language in question could hardly be clearer. By its terms, section 471 targets the forgery
of “any book of records.” (§ 471, italics added.) As our Supreme Court has stated, “[t]he word
‘any’ means without limit and no matter what kind.” (Delaney
v. Superior Court (1990) 50 Cal.3d 785, 798.) “From the earliest days of statehood [the
court has] interpreted ‘any’ to be broad, general and all embracing.” (
State
Auto. Inter-Ins. Bureau v. Warwick (1976) 17 Cal.3d 190, 195, citing Davidson v. Dallas (1857) 8 Cal. 227, 239; accord
Superior Court (2008) 158 Cal.App.4th 726, 736 [use of “the word ‘any’ . .
. in a statute unambiguously reflects a legislative
intent for that statute to have a broad application.”]
Because
“[t]he word ‘any’ is not ambiguous” (Brandon
S. v. State of California
ex rel. Foster Family Home etc. Ins. Fund (2009) 174 Cal.App.4th 815, 825), we need not look beyond
the language of section 471 to ascertain the meaning of the statute. Use of the word “any” to describe the type of
records covered by the statute plainly shows it was intended to apply to the
forgery of both public and private books of record. Therefore, that meaning controls, without
regard to what extrinsic sources may suggest.[3]
Even
if section 471 were ambiguous as to whether it applied to public or private
records, we would not be inclined to accept the trial court’s narrow
construction of the statute. Defendant
points out that in the early case of People
v. O’Brien (1892) 96 Cal. 171, the Supreme Court referred to
section 471 as relating to “false entries in public records.” (Id.
at p. 174.) However, the court did not
say the statute only pertained to
public records. In fact, the court was
not called on to interpret the statute at all, since the defendant was not
charged with violating it in that particular case. (Id.
at pp. 173-174 [the defendant was charged with violating sections 113 and 114
for forging a deed].) Since the court
merely mentioned section 471 in passing, and did not offer any substantive
analysis the statute, the O’Brien
case has no precedential value to us here.
(Silverbrand v. County of Los
Angeles (2009) 46 Cal.4th 106, 127 [cases are not authority for issues they
did not consider or decide].)
Defendant
also draws our attention to “the annotated code from 1889,” which describes
section 471 as generally pertaining to “[p]ublic record and documents.” Defendant claims the annotation is indicative
of the Legislature’s intent in passing section 471, but as the Attorney General
correctly notes, annotations are not legislative history. Rather, they are simply designed to give
readers an overview of the law and provide references to additional sources of
information. (See generally
Kennard, J.) [distinguishing annotations “from a statute,
constitutional provision, or appellate decision having precedential value”].)
Defendant
contends Civil Code section 1207 and a congeries of cases older than the panel
compel the conclusion the phrase “book of record” is a term of art applicable
only to records in public offices. But
Civil Code section 1207 and the cases he relies upon refer to the recording of
instruments “affecting the title to real property.” Such instruments would, of course, have to be
filed in public records to accomplish the notice they are designed to
provide. But that neither compels nor
suggests the conclusion the Legislature’s use of the phrase “any book of
records” – a phrase distinguishable from the one he quotes both by addition of
the term “any” and the inclusion of an “s” not found in Civil Code section 1207
– was meant to limit the crime described in section 471 to public records.
Lastly,
defendant maintains that unless section 471 is interpreted to apply only to
public records, it would be redundant of section 470, subdivision (d).[4] However, the two statutes encompass two
different types of forgery. Whereas
section 470 subdivision (d) makes it a crime to forge the specific items listed
therein, section 471 covers the situation where the forgery leads to the
corruption of financial records. In this
case, the evidence reveals both types of forgery. Defendant not only forged bank deposit slip
receipts, justifying the charges under section 470, subdivision (d), he also
used those forged receipts to cause false entries to be made into Fields’
financial records, thereby justifying the additional charges under section
471. Because both statutes are apt in
this case, the trial court erred in granting defendant’s motion to
dismiss.
DISPOSITION
The
trial court’s order granting defendant’s motion to dismiss the 24 counts
alleging a violation of section 471 is reversed.
BEDSWORTH,
ACTING P. J.
WE CONCUR:
FYBEL, J.
THOMPSON, J.
[1] It was discovered as soon as a
new controller took over Dunbar’s duties.
[2] All further statutory references are to the Penal Code
unless otherwise indicated.
