P. v. Reynolds

Filed 11/20/07 P. v. Reynolds CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEAL from a judgment of the Superior Court of Los Angeles County,

Bruce F. Marrs, Judge. Affirmed.

Catherine Campbell, under appointment by the Court of Appeal, for

Defendant and Appellant.

No appearance for Plaintiff and Respondent.

Joseph Howard Reynolds (Reynolds) appeals from the judgment entered following a jury trial which resulted in his conviction of second degree burglary (Pen. Code,  459)^[1]and forgery ( 470, subd. (d)), and the trial courts finding he previously had been convicted of two serious or violent felonies within the meaning of the Three Strikes law ( 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and had served seven prior prison terms ( 667.5, subdivision (b)). The trial court sentenced Reynolds to 13 years in prison.

We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

1. Facts.

Viewed in accordance with the usual rules of appellate review (People v. Rodriguez (1999) 20 Cal.4th 1, 11; People v. Johnston (2003) 113 Cal.App.4th 1299, 1303-1304), the evidence established that on June 27, 2006, Maria Sanchez (Sanchez) was working as a teller at the California Bank and Trust in the city of Pomona. Sanchez had worked as a teller at the bank for the past 26 years.

At approximately 9:30 a.m., Reynolds approached Sanchez, presented a check, told Sanchez that the check had gotten wet and asked if it was okay for him to cash it or should he get another check. Sanchez looked at the check and determined that it had been altered; it looked like someone had erased [the name of the payee] and put pink highlight on it and wrote somebody elses name on it, [a] different payee. In addition, there was a hole in the check in the area which had been erased. Sanchez took Reynoldss identification card, the name on which matched the name of the payee on the check, then told Sanchez to have a seat while she telephoned the maker to verify that the check had been issued to Reynolds.

Sanchez determined the payor was a company called Market Specialties and she obtained a copy of the payors signature card. Sanchez then telephoned one of the listed signatories, Cay Tanooka (Tanooka). After speaking with Tanooka, Sanchez telephoned police, then went into the bank managers office to explain the situation to him. As she was speaking with the manager, Reynolds approached the office and told Sanchez that, if there was any problem, he would like to have the check and his identification back so that he could leave. Sanchez told Reynolds that everything was okay [and] that [they] were still trying to verify issuance of the check.

Pomona police officer Leonard Heiselt (Heiselt) responded to the call from the California Bank and Trust regarding the allegedly forged check. After Sanchez showed the officer the suspect check, Heiselt spoke with Reynolds. Reynolds told the officer that he had received the check from a friend named Steve. After the officer conducted some additional investigation, he placed Reynolds under arrest and transported him to the police station. Reynolds waived his Miranda rights, then told the officer that he had received the check from an unnamed [homeless] female who was living in the mountains of Azusa and who, Reynolds believed, had previously been convicted of forgery. Reynolds indicated that, if he was able to cash the check, the woman was going to give him $100. Reynolds stated that the unnamed homeless woman had written his name on the check because Reynolds could neither read nor write. He could only write his name, with the exception of his middle name.

Counsel stipulated that Tanooka was called and duly sworn to testify, and testified that he is the secretary for Market Specialties, Inc. . . . [] [Tanooka] further testified that [the check in question] was made payable to City Wide Sheet Metal, it was not payable to Joseph Reynolds; Joseph Reynolds was [neither] an employee nor a vendor for Market Specialties, Inc.; and the only alteration to the check was the name of the payee[.]

Counsel further stipulated that Russell Bradford (Bradford) had been deemed to have been called, qualified as an expert in document examinations and handwriting comparison and to have testified that the following documents were examined: [Market Specialties, Inc.] personalized check drawn on California Bank Trust . . . and a handwriting exemplar produced by Joseph Reynolds, dated 9/19/06 and witnessed by Bradford. From his examination and comparison of the two documents, it was Bradfords opinion that it was highly probable that the payee line on [the check in question] was not written by the person that filled out the handwriting exemplar in the name of Joseph Reynolds[.]

2. Procedural history.

At a hearing held on September 25, 2006, a second amended information was filed charging Reynolds with second degree burglary in violation of section 459 and forgery in violation of section 470, subdivision (d). It was further alleged Reynolds had suffered two prior serious or violent felony convictions pursuant to the Three Strikes law ( 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and had served seven prior prison terms ( 667.5, subd. (b)). Reynolds waived arraignment. His motion to bifurcate his trial on the substantive offenses from that on the prior convictions and prison terms was granted. At proceedings held on October 25, 2006, the trial court found true the allegations Reynolds had suffered two Three Strikes prior convictions and had served seven prior prison terms.

Reynoldss motion to strike one of his two Three Strikes prior convictions pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 was granted, without objection by the People, at a hearing held on January 31, 2007. At the same proceedings, the trial court sentenced Reynolds to the upper term of three years, doubled pursuant to the Three Strikes law to six years in prison, for his conviction of second degree burglary. For his conviction of forgery, the trial court imposed a concurrent, middle term of two years, doubled to four years pursuant to the Three Strikes law. The trial court then imposed seven, consecutive one-year terms for Reynoldss prior prison terms. In total, the trial court sentenced Reynolds to 13 years in prison.

Reynolds filed a timely notice of appeal on February 1, 2007.

This court appointed counsel to represent Reynolds on appeal on April 24, 2007.

CONTENTIONS

In a letter brief dated September 13, 2007, and addressed to the trial court, appointed appellate counsel asserted that, at sentencing proceedings, the trial court had indicated it believed sentencing on Reynoldss forgery conviction was subject to treatment under section 654.^[2] Counsel enclosed with her motion a copy of the transcript indicating the trial courts intent to sentence pursuant to section 654 and a copy of the abstract of judgment indicating Reynolds had been sentenced to a concurrent term, rather than a section 654 stay of sentence, for his conviction of forgery. In response, at proceedings held on October 4, 2007, the trial court ordered that the state prison sentence, imposed on 01/31/07, be modified to reflect that the sentence of 4 years imposed in count 2 is stayed pursuant to Penal Code section 654 rather than to run concurrent with [the sentence imposed for] count 1. The court indicated that [i]n all other aspects, the state prison sentence [was] to remain in full force and effect. The trial court then ordered the judgment clerk . . . to forward an amended abstract of judgment to the Department of Corrections forthwith and the appeal clerk to forward a certified copy of [its] minute order to [the] Court of Appeal forthwith.

On September 26, 2007, counsel filed in this court an opening brief which raised no issues and requested this court to conduct an independent review of the record.

By notice filed September 26, 2007, the clerk of this court advised Reynolds to submit within 30 days any contentions, grounds of appeal or arguments he wished this court to consider. On October 25, 2007, Reynolds filed a supplemental brief in which he asserted: (1) the allegation he committed forgery as charged in count two of the information should be dismissed because the document experts testimony . . . clearly proves that [his] handwriting does not match the handwriting on the stolen check; (2) the allegation he committed burglary should be vacated and the information amended to charge the crime of receiving stolen property in violation of 496, subdivision (a) because there was no theft committed . . . [and he] only attempted to cash the check, not knowing that the check was stolen; and (3) this court should strike either the three year double on [his] sentence, or the seven one year priors. Reynolds further contends that the interest of justice would be better served by the above being done, and ordering [him] to enter and complete a one to two year life skills and drug rehabilita[tion] program . . . . Finally, Reynolds requests that his present appellate counsel be relieved and new counsel be appointed.

DISCUSSION

1. Reynoldss conviction of forgery was proper.

Reynolds contends he could not have legitimately been convicted of forgery because the handwriting experts testimony clearly prove[d] that [his] handwriting d[id] not match the handwriting on the stolen check.

Reynolds handwriting need not have matched the handwriting on the stolen check for him to have been guilty of forgery. As charged in this case, forgery in violation of section 470, subdivision (d), is committed when any person who, with the specific intent to defraud another, utters, publishes, passes, or attempts or offers to pass, as true and genuine, any false, altered, forged, or counterfeited check, knowing the same to be false, altered, forged, or counterfeited . . . . (CALJIC No. 15.01 (6th Ed. 2000.).) In order to prove this crime, each of the following elements must have been proven: 1. A person [uttered] [published] [passed] [or] [attempted to pass] a [false] [altered] [forged] [,or] [counterfeited] check; [] 2. That person knew that the [check] was false, altered, forged or counterfeited; [] 3. That person [uttered] [published] [passed] [or] [attempted to pass] the check with the specific intent to defraud another person or persons; and [] 4. That person [uttered] [published] [passed] [or] [attempted to pass] the check with the specific intent that it be accepted as a true and genuine instrument. (Ibid.) No writing on the part of Reynolds was required.

2. Reynolds was properly convicted of burglary.

Reynolds contends he could not properly have been convicted of burglary because there was no theft committed. The contention is without merit.

Penal Code section 459 provides in relevant part: Every person who enters any house, room, apartment, tenement, shop, warehouse, store, mill, barn, stable, outhouse or other building . . . with the intent to commit grand or petit larceny or any felony is guilty of burglary. . . . (Italics added.) No theft need be committed for a conviction of burglary; only entry with the intent to commit a felony is required. (See People v. Rehmeyer (1993) 19 Cal.App.4th 1758, 1765 [Entry with the intent to commit the felony of indecent exposure supported a conviction of burglary.].)

With regard to Reynoldss assertion he did not know the check was stolen, the question of Reynoldss knowledge and intent was for the jury to decide. A review of the record indicates substantial evidence supports the jurys finding Reynolds knew the check was stolen. (See People v. Bolin (1998) 18 Cal.4th 297, 331 [In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible and of solid value . . . .].)

3. Reynolds was properly sentenced for his conviction of burglary and the seven prior convictions and prison terms.

Reynoldss contention this court should strike either the three year double on [his] sentence [for burglary], or the seven one year priors and instead order that he enter and complete a one to two year life skills and drug rehabilita[tion] program is without merit. A review of the record indicates Reynolds was properly sentenced for the crimes committed.

Burglary in the second degree is punishable by imprisonment in the county jail not exceeding one year, or by imprisonment in state prison for 16 months, two years or three years. ( 461, subd. 2., 18.) Here, the trial court, based on the high number of Reynoldss prior convictions, properly determined the upper term of three years in prison, doubled pursuant to the Three Strikes law, was an appropriate sentence for Reynoldss conviction of burglary.

As to the one-year terms imposed for Reynoldss prior prison terms, section 667.5, subdivision (b) provides in relevant part: [W]here the new offense is any felony for which a prison sentence is imposed, in addition and consecutive to any other prison terms therefor, the court shall impose a one-year term for each prior separate prison term served for any felony; provided that no additional term shall be imposed under this subdivision for any prison term served prior to a period of five years in which the defendant remained free of both prison custody and the commission of an offense which results in a felony conviction. A review of the record indicates Reynolds committed a felony or failed to remain free of prison custody for a period of five years. Under these circumstances, the trial court properly imposed the seven, one-year prison terms pursuant to section 667.5, subdivision (b).

4. Reynolds is not entitled to the appointment of new appellate counsel.

Without giving a statement of reasons for his request, Reynolds simply states that he wishes his present counsel to be relieved and new counsel appointed. A defendant is entitled to have appointed counsel discharged upon a showing that counsel is not providing adequate representation or that counsel and defendant have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result. [Citation.] (People v. Panah (2005) 35 Cal.4th 395, 431.) In the present case, Reynolds has failed to show either that his counsels performance has been inadequate or that he and counsel have become embroiled in an irreconcilable conflict. (Ibid.) Accordingly, Reynolds is not entitled to the appointment of new counsel.

REVIEW ON APPEAL

We have examined the entire record and are satisfied Reynoldss counsel has complied fully with counsels responsibilities. (Smith v. Robbins (2000) 528 U.S. 259, 278-284 [145 L.Ed.2d 756]; People v. Wende (1979) 25 Cal.3d 436, 443.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KITCHING, J.

We concur:

KLEIN, P. J.

CROSKEY, J.

Publication courtesy of San Diego pro bono legal advice.

Analysis and review provided by Poway Property line attorney.

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

^[2] Section 654 provides in relevant part: (a) An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. . . .