P. v. Mohoff

Filed 11/26/07 P. v. Mohoff 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Appeal from a judgment of the Superior Court of Orange County, John Conley, Judge. Affirmed as modified.

H. Reed Webb, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Peter Quon, Jr., and Maxine Cutler, Deputy Attorneys General, for Plaintiff and Respondent.

James Lee Mohoff appeals from a judgment after a jury convicted him of nine counts of second degree commercial burglary and one count of passing a fictitious instrument. Mohoff argues the trial court erroneously denied his motion for acquittal, we should remand the matter to the trial court for it to consider summary probation, and pursuant to Penal Code section 654, the court erroneously sentenced him to concurrent sentences on counts 9 and 10 because they were part of a continuous course of conduct. We agree with his claim concerning concurrent sentences and stay his sentence on count 10. Neither of his other contentions have merit, and we affirm the judgment as modified.

FACTS

Mohoff and William Doyle were regular customers at Henrys Market (Henrys) in Costa Mesa during the latter half of 2004. Obed Martinez is a manager at Henrys. Henrys requires a manager or supervisor to override a rejected check by entering a password into the cash register to approve the check. A cash register may reject a check for numerous reasons, including a customer writing too many checks in one day, a customer requesting more than $25 in cash back, insufficient funds, or if the check is over $500.

Mohoff wrote the following checks to Henrys: June 21, 2004, check number 2579 for $412.14; July 18, 2004, check number 2652 for $446.03;

August 1, 2004, check number 2648 for $646.36; August 15, 2004, check number 2644 for $818.62; August 29, 2004, check number 2635 for $640.60; September 26, 2004, check number 2638 for $885.50; October 10, 2004, check number 2626 for $811.06; and October 15, 2004, check number 2629 for $910.47. Martinez overrode some of the checks with amounts over $500. Cashiers that accepted the checks described them as unfamiliar looking. Henrys representatives advised supervisor Lisa Streavel to notify a manager if Mohoff and Doyle entered the store and attempted to use a check similar to the checks they had previously used.

On November 5, 2004, Streavel saw Mohoff and Doyle in the store, and she told Martinez. Martinez notified the stores loss prevention manager and called the police. Mohoff and Doyle proceeded to the cash register with one shopping cart brimming with items. After the cashier totaled the items, Mohoff presented the cashier with check number 2657 in the amount of $1,171.50. Streavel described the check as a blue, government treasury check that she had seen Mohoff use before. Martinez gave officers, who were waiting outside, a signal and they came inside the store and stopped Mohoff and Doyle.

Officer Eugene Kim, who was outside and saw Mohoff write a check, entered the store with two other officers on Martinezs signal. Mohoffs hands were shaking, and he appeared . . . nervous as [Kim] was [walking] towards him. Streavel provided Kim with check number 2657.[1] In Henrys loss prevention office, Mohoff consented to be searched. Kim found a checkbook in Mohoffs right, rear pocket. The checkbook contained additional loose checks that were similar to

check number 2657they were sequentially numbered and the same blue color, and had the same printing with Mohoffs name, drivers license, and social security number. Officers arrested Mohoff and Doyle.

An information charged Mohoff (and Doyle) with nine counts of second degree commercial burglary (Pen. Code, 459, 460, subd. (b))[2] (counts 1 to 9), dating from June 21, 2004, to November 5, 2004. The information also charged him with one count of fictitious instruments ( 476) (count 10), on November 5, 2004.

The district attorney offered the testimony of James Chitty, a senior forensic document examiner in the Questioned Documents Branch of the United States Department of Treasury. He worked for the department for 30 years examining documents to determine whether they were genuine or forged. After detailing his training and experience, Chitty stated he was qualified to opine whether a document purporting to be a United States Treasury document was counterfeit or genuine. He explained there were counterfeit checks (a check that looks similar to a United States Treasury check), and fictitious checks (a check that does not look anything like a United States Treasury check). Chitty said he examined the nine checks that were the subject of this case to determine whether the United States Department of Treasury issued them. He explained the checks stated, Treasury Prepaid Tax Exemption, which indicates it is a United States Treasury check. He said the checks do not include any information regarding a financial institution. Based on his training, experience, and examination of the documents, he opined the checks were not United States Treasury issued documents. Chitty explained that based on the size, shape, color, symbols, and security features the checks were not similar to United States Treasury checks and they were fictitious checks. He said a genuine United States Treasury check does not include U.C.C. Contract Trust Account, Authorized by U.C.C., Authorized Representative-Without Recourse, Money Order, a nine digit number, or a four digit number.

On cross-examination, Chitty admitted the checks did not say United States Treasury and a government check would not include a persons name. He also said states and corporations had treasuries.

The trial court denied Mohoffs motion for acquittal. Mohoff rested on the state of the evidence.

The jury convicted Mohoff on all counts.[3] The trial court sentenced Mohoff to the low term of 16 months in state prison on count 1 and concurrent low terms of 16 months on the remaining counts.

DISCUSSION

I. Section 1118.1-Motion for Acquittal

A. Motion for Acquittal

Mohoff argues the trial court erroneously denied his motion for acquittal because the district attorney did not prove the checks were otherwise invalid, the checks were not honored, or Henrys suffered a loss. None of his contentions have merit.

Section 1118.1 provides in relevant part: In a case tried before a jury, the court on motion of the defendant . . . , at the close of the evidence on either side and before the case is submitted to the jury for decision, shall order the entry of a judgment of acquittal of one or more of the offenses charged in the accusatory pleading if the evidence then before the court is insufficient to sustain a conviction of such offense or offenses on appeal.

In ruling on a motion for judgment of acquittal pursuant to section 1118.1, a trial court applies the same standard an appellate court applies in reviewing the sufficiency of the evidence to support a conviction, that is, whether from the evidence, including all reasonable inferences to be drawn therefrom, there is any substantial evidence of the existence of each element of the offense charged. [Citations.] [Citation.] Where the section 1118.1 motion is made at the close of the prosecutions case-in-chief, the sufficiency of the evidence is tested as it stood at that point. [Citations.] [] . . . [] We review independently a trial courts ruling under section 1118.1 that the evidence is sufficient to support a conviction. [Citations.] (People v. Cole (2004) 33 Cal.4th 1158, 1212-1213.)

The crime of burglary consists of an actunlawful entryaccompanied by the intent to commit grand or petit larceny or any felony. [Citation.] One may by liable for burglary upon entry with the requisite intent to commit a felony or a theft (whether felony or misdemeanor), regardless of whether the felony or theft committed is different from that contemplated at the time of entry, or whether any felony or theft actually is committed. [Citations.] (People v. Montoya (1994) 7 Cal.4th 1027,

1041-1042 (Montoya), fn. omitted.) The crime of passing a fictitious instrument is committed by a person who with the intent to defraud passes a fictitious check for payment of property. ( 476.)

Here, there was sufficient evidence for the jury to conclude Mohoff committed second degree commercial burglary and passing a fictitious instrument. Mohoff entered Henrys, a commercial dwelling, filled a shopping cart with groceries, and paid for the groceries with checks the trial court described as purport[ing] to be government checks. Although the checks make reference to a private money order, it also states U.C.C.-1, Treasury Prepaid Tax Exemption Item, Public Law 73-10,

House Joint Resolution 192, and US. This was sufficient evidence for the jury to conclude the checks purported to be United States Treasury checks. Chitty testified he examined the checks and they were not United States Treasury checks based on the size, shape, color, and lack of security features. Chitty opined the checks were fictitious instruments because they purported to be United States Treasury checks, but were not. And, the district attorney was not required to prove Henrys suffered any loss to secure convictions for second degree burglary. (Montoya, supra, 7 Cal.4th at pp. 1041-1042.) Finally, Mohoffs contention the district attorney failed to prove the checks were not otherwise negotiable, i.e., a private money order or an I.O.U. is unpersuasive. Mohoffs defense counsel argued this theory and the jury rejected itwe do not reweigh the evidence. Based on all the evidence, the jury could conclude Mohoff committed nine counts of second degree burglary and passing a fictitious instrument.

B. Evidentiary Issues

Subsumed within his argument concerning the denial of his motion for acquittal, without any separate heading as required by court rules (Cal. Rules of Court, rule 8.204(a)(1)(B)), Mohoff claims the trial court erroneously admitted Chittys testimony the checks were fictitious instruments and they were not backed by a financial institution. We disagree.

As to his claim the trial court erroneously admitted Chittys testimony the checks were fictitious instruments, the district attorney asked Chitty his opinion whether the checks were United States Treasury checks. When the district attorney asked what that opinion was based on, Chitty provided a long, detailed response using an exhibit of one of the checks to help him explain. When explaining the security features he did not find on the checks, Chitty stated, The size, the color, the shape, theres nothing really even closely resembling a U.S. Treasury check. Thats what made the distinction of whether this was counterfeit or fictitious. If this was counterfeit, you would think of something looking something reasonably like the U.S. Treasury check. And this does not, but it does say Treasury Prepaid, so its a fictitious document. (Italics added.)

Relying on the above italicized language, Mohoff contends the trial court erroneously admitted Chittys testimony because it was a forbidden legal opinion that was for the jury to make. Not so.

Evidence Code section 805 provides that [t]estimony in the form of an opinion that is otherwise admissible is not objectionable because it embraces the ultimate issue to be decided by the trier of fact. Nevertheless, an expert opinion is inadmissible if it invades the province of the jury to decide a case. [Citation.] Such evidence is wholly without value to the trier of fact. [Citation.] The determination whether an expert witnesss opinion bears upon or decides an ultimate issue in the case is sometimes a difficult decision, and a large element of judicial discretion [is] involved. [Citation.] (People v. Frederick (2006) 142 Cal.App.4th 400, 412.)

Here, Chittys testimony did embrace an ultimate issue to be decided by the jury. However, his testimony the check was a fictitious instrument did not invade the province of the jury. Chitty explained he was qualified to opine whether a check purporting to be a United States Treasury check was counterfeit or fictitious. He explained the difference between counterfeit and fictitious checks, and based on his training, experience, and examination of the documents, he opined the checks were not United States Treasury issued documentsthey were fictitious United States Treasury checks. He did not invade the province of the jury by expressing an opinion on how the case should be decided. The jury was free to disregard Chittys testimony if it was found to be unbelievable. The trial court properly admitted this testimony.

With respect to his claim the trial court erroneously admitted Chittys testimony the checks were not backed by a financial institution, the following colloquy occurred:

[District attorney]: Now, looking at this document on its face and its face alone, in your opinion, does the document purport to be a Treasury document?

[Chitty]: At the top in the center of this it does say Treasury Prepaid Tax Exemption, which would indicate to me that its indicating its a Treasury check.

[District attorney]: Is there anywhere on the check that indicates a financial institution or a bank that someone would be able to take this document to and get paid?

[Chitty]: No, theres not.

[District attorney]: So the only thing then that indicates any possible method of payment is Treasury Prepaid?

[Chitty]: Correct.

[Defense counsel]: Objection. And I would -- foundation.

An expert may offer opinion testimony if the subject is sufficiently beyond common experience that it would assist the trier of fact. (Evid. Code, 801, subd. (a).) The opinion must be based on matter perceived by, or personally known, or made known to the witness at or before the hearing that is of the type that reasonably may be relied on in forming an opinion on the subject which the testimony relates. (Id., 801, subd. (b).)

Here, whether the check included a name of a financial institution or bank that Henrys could seek payment from was apparent from the face of the check and, therefore, no foundation for Chittys testimony was necessary. This was not a matter sufficiently beyond common experience that Chittys testimony would assist the trier of fact. The trial court properly admitted this testimony.

II. Probation

Mohoff contends the matter should be remanded to the trial court for a new sentencing hearing because the court mistakenly believed the only sentencing options were state prison or formal probation, and the court should have considered other sentencing options, including summary probation. We disagree.

Section 1203.1 authorizes the court to impose any reasonable conditions, as it may determine are fitting and proper to the end that justice may be done . . . for the reformation and rehabilitation of the probationer . . . . ( 1203.01, subd. (j).) If the defendant considers the conditions of probation more harsh than the sentence the court would otherwise impose, he has the right to refuse probation and undergo the sentence. [Citations.] [Citations.] (People v. Bravo (1987) 43 Cal.3d 600, 608-609.)

A denial or a grant of probation generally rests within the broad discretion of the trial court and will not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary or capricious manner. [Citation.] A court abuses its discretion whenever the court exceeds the bounds of reason, all of the circumstances being considered. [Citation.] We will not interfere with the trial courts exercise of discretion when it has considered all facts bearing on the offense and the defendant to be sentenced. [Citation.] (People v. Downey (2000) 82 Cal.App.4th 899, 909-910.)

Here, the trial court stated that it had read and considered the probation report. The probation report said Mohoff declined to be interviewed, was uncooperative and extremely reluctant, and did not want a contract with probation. Based on his unwillingness to cooperate with probation, the report stated Mohoff was not a suitable candidate for probation and state prison appears to be the only viable option. The court explained that based on the fact this was Mohoffs first offense, he would normally grant probation. The court asked Mohoff if you would comply with probation terms, and Mohoff replied he had been threatened and coerced during the entire process. He asked to submit paperwork to be made a part of the trial court record, and then began reading the paper work. Mohoffs defense counsel stated, Your honor, it is . . . Mohoffs position that he would not accept the terms and conditions imposed by the court if it were to grant probation, and ask that the court dismiss these proceedings and dismiss the case and the charges against him. That is . . . Mohoffs request. After denying the motion to dismiss, the court explained Mohoff had a legal right to refuse probation, and the court sentenced him to the low term of 16 months on count 1 with 16-month concurrent terms on the remaining counts.

The trial court did not abuse its discretion in denying Mohoff probation. The court went to great pains to make Mohoff and his defense counsel aware this was a probation case based on Mohoffs lack of a criminal record. The court asked Mohoff if he would comply with probation terms, and he replied in a rambling, nonsensical manner. Defense counsel informed the court Mohoff would not comply with probation terms, similar to what Mohoff had previously told the probation officerhe did not want a contract with probation. Refusing probation was within his legal right, and it is disingenuous to now complain about failing to impose summary or informal probation. Had the trial court imposed summary probation conditions, we presume Mohoff would have rejected those as well. Mohoff believed the trial court should dismiss the charges against him because he did nothing wrong. Based on his lack of cooperation with the probation department and the trial judge, we conclude the court did not abuse its discretion in denying Mohoff probation and sentencing him to state prison.

III. Section 654

Relying in section 654s prohibition on dual punishment, Mohoff argues the trial court erroneously sentenced him on counts 9 and 10 because they arose from an indivisible course of conduct. We agree.

Section 654 prohibits multiple punishment for multiple crimes arising out of a single act or omission, or incidental to a single intent and objective. Whether a course of conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. [Citation.] If all of the offenses are incident to one objective, the court may punish the defendant for any one of the offenses, but not more than one. [Citation.] If, however, the defendant had multiple or simultaneous objectives, independent of and not merely incidental to each other, the defendant may be punished for each violation committed in pursuit of each objective even though the violations share common acts or were parts of an otherwise indivisible course of conduct. [Citation.] (People v. Cleveland (2001)

87 Cal.App.4th 263, 267-268 (Cleveland).)

The crime of burglary consists of an actunlawful entryaccompanied by the intent to commit grand or petit larceny or any felony. [Citation.] (Montoya, supra, 7 Cal.4th at pp. 1041-1042, fn. omitted; 459.)

The crime of passing a fictitious instrument is committed by a person who with the intent to defraud passes a fictitious check for payment of property. ( 476.)

Here, Mohoff entered Henrys, and committed the second degree commercial burglary with the intent to commit a felony, passing a fictitious check to obtain groceries. It appears clear on this record it was the intent to pass a fictitious check that formed the factual basis for the second degree burglary conviction in count 9. Therefore, the trial court should have stayed sentencing on either count 9 or 10. Because Mohoffs sentence will not be affected, we stay the sentence on count 10 in the interest of judicial economy. (People v. Smith (2001) 24 Cal.4th 849, 854.)

DISPOSITION

The 16-month concurrent sentence on count 10 is stayed. The trial court is directed to prepare a modified abstract of judgment staying the sentence on count 10, and to send a certified copy of the modified abstract of judgment to the Department of Corrections and Rehabilitation, Division of Adult Operations. In all other respects, the judgment is affirmed.

OLEARY, ACTING P. J.

WE CONCUR:

ARONSON, J.

IKOLA, J.

Publication courtesy of San Diego pro bono legal advice.

Analysis and review provided by Poway Property line attorney.

[1] The clerks transcript includes a check made payable to Home Depot that appears to be of the same type Mohoff used at Henrys. The top of the check states, This documents has a colored background and microprinting. The reverse side includes an artificial watermark. On the upper left of the check it states, James L. Mohoff

CDL #S0093294 expires 12-07-04 11278 Los Alamitos Blvd. #146 Los Alamitos, CA 90720. On the upper right of the check it states the check number and, UCC Contract Trust Account Treasury Pre-paid Tax Exemption Item/Private Money Order Pass-through for Set-Off and Adjustment Only Public Law 73-10 & Public Policy, House Joint Resolution 192, June 5, 1933 Void where prohibited by law. The center of the check has the standard date and payable to printing. On the lower left of the check it states, Memo _______________ Authorized by UCC-1 #0207060270 Registered # RR 543 574 305 US 572846544. On the lower right of the check it includes a signature line, and under the signature line it states, Authorized Representative Without Recourse.

[2] All further statutory references are to the Penal Code, unless otherwise indicated.

[3] The trial court dismissed counts 1 and 2 as to Doyle based on insufficient evidence. The jury acquitted him on counts 3 through 10.