P. v. Tucker
Filed 2/14/13 P. v. Tucker CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff
and Respondent,
v.
JOHN MATTHEWS TUCKER,
Defendant
and Appellant.
E053643
(Super.Ct.No.
FVA1001836)
OPINION
APPEAL
from the Superior Court
of
County. Ingrid Adamson
Uhler, Judge. Affirmed.
Eric
Cioffi, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Lilia E. Garcia and
Stacy Tyler, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant
John Matthews Tucker argues that the evidence at trial was insufficient to
support his convictions for commercial
burglary and forgery. (Pen. Code, §§
459 & 470.)
title="">[1] He also claims that the trial court erred by
not dismissing his prior strike. We will
affirm.
and procedural history
On
November 29, 2010,
defendant entered a bank and tried to cash a check for $942.
earlier cashed a similar-looking check made out to someone with a similar name
and drawn on the same account. The
teller, who had been in her job for 15 years, became suspicious and consulted
her supervisor. Unable to confirm the
authenticity of the check, the supervisor called police. When it seemed to be taking a long time to
get the check approved, defendant told the teller he was in a hurry and asked
her to return his identification, but did not ask for the check. Officer Delacruz responded to the bank’s
call.
After talking to
the teller, Officer Delacruz interviewed defendant. The officer observed that defendant “appeared
nervous and kinda fidgety.†Defendant
said he had gotten the check from a lady for whom he had done some work and
that he didn’t know it was fraudulent.
He was unable to recall the lady’s name, address, telephone number, or
directions to her house; and he had no receipts or paperwork to document his
story.
In a felony
complaint filed December 1, 2010,
defendant was charged with commercial burglary (§ 459, count 1) and forgery (§
470, subd. (d), count 2). The complaint
further alleged that, in relationship to both counts, defendant had suffered a
prior conviction for a serious and violent felony, robbery (§§ 211, 1170.12,
subds. (a)-(d) & 667, subds. (b)-(i)); and two prison priors (§§ 667.5,
subds. (b)-(i) & 1170.12, subds. (a)-(d)).
At trial, the
owner of the business account on which the check was drawn testified that he
had not written it; nor had he written the similar-appearing one cashed earlier
that day for someone also named “Tucker.â€
Blank checks bearing the numbers of both were still in the owner’s
checkbook. The fraudulent check
defendant tried to cash had a different style, color, and pattern from the
owner’s checks.
The two checks
written to someone with the last name “Tucker†on the date of the incident were
admitted into evidence, as was a check written by the owner to another payee
about ten days earlier. The earlier
check had never been cashed and apparently had never been received by the
payee. The business owner had had to
write the payee a new check on a different account after his original account
was closed by the bank following this incident.
On April 13, 2011, a jury convicted
defendant of both charges. In a separate
proceeding, on April 20, 2011,
the court found true the allegations that defendant had suffered a prior
serious and violent conviction for robbery and that he had two prison
priors. Sentencing was set for May 18, 2011.
Defense counsel
filed a section 1385 motion on April
25, 2011, asking the court to dismiss defendant’s prior strike in
the interests of justice. Counsel argued
that his client fell outside the spirit of the three strikes law because his
current offense was not a serious or violent felony; his one serious and
violent felony was over 10 years old; and his participation in the old crime
had been minimal. The People filed an
opposition to defendant’s motion, arguing that he was a recidivist whose crimes
were continuing despite his having been given many chances to reform.
On May 18, 2011,
after listening to argument from counsel, the court denied the motion to
dismiss defendant’s “strike†prior, explaining that his criminal history showed
a long pattern of continuing criminal behavior, including numerous parole and
probation violations. Defendant had been
on parole when he committed the current crime, a fact that the court considered
“an aggravating circumstance in terms of my position in the Romero
decision.†In addition, despite the
overwhelming evidence against him and the jury’s verdict, defendant continued
to deny responsibility for the crime and had expressed no remorse for it.
released from prison for his current offense, out of consideration of the
strong love he had for his daughter, he would not break the law again.
The court
sentenced defendant to a total of six years in state prison: the midterm of two
years for count 1, doubled because of the strike prior; plus 2 years for count
2, also doubled because of the strike prior, but stayed pursuant to section
654; plus one consecutive year for each prison prior. This appeal followed.
Defendant
argues that (1) the evidence was insufficient to support a conclusion that he
had the requisite intent to defraud or to commit theft, and (2) that the court
abused its discretion by denying his section 1385 motion. The People disagree with both points.
Sufficiency
of the Evidence
Standard of
Review
When a defendant
challenges the sufficiency of the evidence to support the verdict, we review
the record in the light most favorable to the result below to determine whether
it discloses substantial evidence from which a reasonable trier of fact could
find the defendant guilty beyond a reasonable doubt. (People
v. Johnson (1980) 26 Cal.3d 557, 558.)
“That the evidence might lead to a different verdict does not warrant a
conclusion that the evidence supporting the verdict is insubstantial.†(People v. Holt (1997) 15 Cal.4th 619,
669 (Holt).)
Burglary
To
establish a burglary, the People must prove that defendant entered the premises
with the intent to commit a felony or theft.
(§ 459; Holt, supra,
15 Cal.4th at p. 669.) Intent is
rarely susceptible of direct proof and therefore may be inferred from all the
facts and circumstances disclosed by the evidence. (People v. Sanghera (2006) 139
Cal.App.4th 1567, 1574.)
Here,
defendant’s intent to commit a felony when he entered the bank could readily be
inferred from the facts and circumstances disclosed by the evidence at
trial. Firstly, he went into a bank
where he was not a customer, and presented a check almost identical in
appearance and amount to one cashed earlier the same day by someone with the
same last name, making an experienced teller suspicious about the check’s
authenticity.
title="">[4] When there was a delay in cashing the check,
defendant told the teller he was in a hurry and asked for his ID back—but not
his check for $942, which, if valid, would have been valuable property. From these facts, the jury might well have
inferred that defendant knew the check was forged when he entered the bank and
presented it to the teller. Once bank
employees began to question it, the check became worthless and defendant had no
further interest in it. He was simply
anxious to leave the bank as quickly as possible.
Secondly, during
an investigation by the responding police officer, defendant appeared nervous
and fidgety and was unable to answer simple questions about the check and how
he had come by it. He was unable to
provide any paper documentation of work allegedly done for the person who had
written him the check. He did not know
her name, address, or phone number and he could not give directions to the
location where the work was done. Again,
both from his nervousness and apparent ignorance about the check’s origins, the
jury might reasonably have inferred that the check was fraudulent and that
defendant knew it.
Finally, there was
extensive evidence from the owner of the account on which the check was drawn
that neither he nor his wife had written the check, or any check to a person
with the last name “Tucker.†The owner
did not know defendant and did not recognize the check as one of his, although
he admitted that the signature looked like his wife’s. The color and pattern on the check was not
the same as that on the owner’s checks.
Most significantly, the genuine check with the same number as the
fraudulent check was still in the owner’s checkbook, unused.
Together these
facts and circumstances supported the jury’s conclusion that defendant knew
when he entered the bank that the check he was attempting to negotiate was
forged and that he intended to defraud the bank and/or the account owner.
Denial
of a Section 1385 Motion to Dismiss a Prior Strike
A
trial court has discretion to dismiss a prior strike conviction under section
1385 in the interests of justice, but only if it finds, “in light of the nature
and circumstances of his present felonies and prior serious and/or violent
felony convictions, and the particulars of his background, character, and
prospects, the defendant may be deemed outside the scheme’s spirit, in whole or
in part, and hence should be treated as though he had not previously been
convicted of one or more serious and/or violent felonies.†(People
v. Williams (1998) 17 Cal.4th 148, 161 (Williams);
People v. Superior Court (
530.) We review the court’s decision for
abuse of discretion. The disposition
issue is whether the decision is so irrational or arbitrary as to fall outside
the bounds of reason. (
376-377 (Carmony);
The party objecting to the sentence has the burden of proof. (Carmony,
at p. 377.) In this case, defendant
failed to carry that burden.
One
of defendant’s primary arguments here, as it was below, is that his prior
strike was ten years old. Despite that
fact, however, it was clear that defendant had not given up his life of
crime. According to the record in the
probation officer’s presentence investigation report, which the court indicated
it had reviewed and considered, defendant had been in and out of prison since
1991 (20 years) for a variety of offenses.
These included battery, robbery, drug dealing (marijuana, cocaine), and
driving without a license (three convictions).
In the years since his prior strike, he had committed more crimes and
had repeatedly failed to successfully complete probation or parole, and at the
time of his current offense, he was again on parole. As the court explained, this last factor
played a large part in its decision regarding a Romero motion. On appeal,
defendant characterizes his past crimes as “low level de minimus drug
possession charges.†But as the trial
court emphasized, they were possession for sales of cocaine and marijuana, not
simple possession, and he had received significant prison sentences for them.
A second point
defendant made below and repeats here is that his most recent crime was not a
serious or violent felony. The trial
court rejected this argument in part because, after listening to the evidence,
it concluded that the current crime demonstrated a significant degree of
planning and sophistication. We
agree. Defendant had in his possession a
high-grade forged check with a signature so like a genuine signature that even
the owner of the account admitted that it looked like his wife’s. It is not unreasonable to conclude that such
a forgery was likely obtained by sophisticated means—either with the aid of an
expert forger, if defendant was not one himself—or via sophisticated use of a
computer or internet copying device.
Defendant attempts
to rely, as he did in his motion and in argument to the trial court, on
1245. The trial court distinguished
defendant’s case by pointing out that defendant will be much younger when he is
released than the Bishop defendant
would have been had his strikes not been dismissed, and that defendant’s
sentence will not amount to a life sentence as would have been the case in
We cannot see that the court abused its discretion in so reasoning.
The
judgment is affirmed.
NOT TO BE
PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J.
We concur:
HOLLENHORST
Acting
P. J.
McKINSTER
J.
name="_ftn1" title=""> [1] All further statutory references are to the
Penal Code unless otherwise indicated.
name="_ftn2" title=""> [2]
amount, incidentally, which is just $8.00 below the threshold for grand
theft. (§ 487, subd. (a).)
