P. v. Chambers
Filed 2/25/13 P. v. Chambers CA4/3
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
JOANNA CHAMBERS,
Defendant and Appellant.
G046095
(Super. Ct. No. 07HF0829)
O P I N I O N
Appeal
from a judgment of the Superior Court of
County, Lance Jensen, Judge.
Affirmed.
Richard
Jay Moller, 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, William M. Wood and A.
Natasha Cortina, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant
Joanna Chambers was accused of embezzling money from and, as the prosecutor
alleged in closing argument, “cooking
the books†of a construction company she worked for. She was convicted by jury of one count of
grand theft and 67 counts of violating Penal Code section 471, which makes it a
crime to make a fraudulent entry in any book of records.
the trial court did not properly instruct the jury on the elements of section
471, but we disagree and affirm the judgment.
FACTS
Appellant worked for the
Bogart Construction Company from 1994 to 2004.
During that time, she held a number of different positions with the
company, including bookkeeper and office manager. She was heavily involved in the day-to-day
operations of the company and had ready access to its digital financial
records. She also had access to the
signature stamp of company president Brad Bogart.
In June 2004, the
company controller Kim Krick noticed there was a check missing from the
company’s check registry. Krick
contacted the bank and learned the check was written to appellant in the amount
of $2,450 and cashed by her on June 7, 2004. In the wake of this discovery, Krick audited the company’s
financial records and discovered numerous discrepancies in the company’s bank
accounts. She also discovered that
several canceled checks were missing from the filing cabinet where such checks
were kept when they came back from the bank.
Krick
obtained copies of the missing checks from the bank and noticed they were made
out to appellant and either cashed by her or deposited into her personal bank
account. However, the company’s check
ledger did not list appellant as the payee of the missing checks. Rather, the ledger listed other employees or
company vendors as the payee.
The check ledger was the
heart of the prosecution’s case. The
prosecution argued appellant falsified the ledger entries and destroyed the
canceled checks when they came back from the bank so no one would know she was
taking the money.
Appellant
did not testify at trial. However, in
closing argument, her attorney claimed the money appellant took was rightfully
hers. Defense counsel also pointed out
lots of people had access to the company books, including its president Brad
Bogart. Counsel theorized Bogart knew
all about the subject checks and was content with appellant using them for
salary advances or loans. However, after
Krick’s audit revealed questionable discrepancies in the company’s books,
Bogart turned on appellant to protect himself and accused her of embezzlement.
In the end, the jury
convicted appellant of one count of grand theft and 67 counts of forgery under
section 471. It also found the loss from
the theft was over $100,000, there was property damage exceeding $150,000 and
appellant’s fraudulent conduct involved the taking of more than $100,000. After dismissing four of the forgery counts
due to pleading error, the court sentenced appellant to six years in
prison.
I
Appellant contends the
court erred in failing to instruct the jury that section 471 applies only to
the forgery of a public book of records. We
disagree.
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.†Recently, in
114, we held that section 471 applies to the forgery of both public and private
books of record. Appellant makes no
attempt to distinguish Dunbar.
He simply reasserts all of the very same arguments we found unpersuasive
in that case. For the reasons explained
in Dunbar, we reject appellant’s interpretation of
section 471. The trial court did not err
in failing to instruct the jury the statute applies only to the forgery of a
public book of records.
II
Appellant
also faults the trial court for failing to instruct the jury that section 471
requires the making of a false entry
into a book of records. Since it is not
reasonably likely the jury failed to find that appellant’s alleged entries were
false, we uphold its verdict.
On review, jury instructions “‘should be interpreted,
if possible, so as to support the judgment rather than defeat it if they are
reasonably susceptible to such interpretation.’
[Citation.]†(People v. Martin
(2000) 78 Cal.App.4th 1107, 1111-1112.)
In determining whether instructional error has occurred, we consider the
record as a whole, including the specific language challenged and the arguments
of counsel. (People v. Cain (1995)
10 Cal.4th 1, 36-37; People v. McPeters
(1992) 2 Cal.4th 1148, 1191.) Unless
there is a reasonable likelihood the jury misunderstood the challenged
instruction in a manner that violated defendant’s rights, we must uphold the
court’s charge to the jury. (
In
this case, the trial court instructed the jury in language that tracks the
wording of section 471. In relevant
part, the court stated that to prove appellant was guilty of violating section
471, the People had to prove she “made, forged or altered an entry in a book of
records†and that she did so “with the specific intent to defraud another.†Since the statute does not expressly require
the alleged entry to be false, we are hard pressed to fault the trial court for
failing to include this requirement in its instructions to the jury. (People
v. Solis (2001) 90 Cal.App.4th 1002, 1014 [the
the jury on its elements].)
In
any event, given the way the case played out, it is not reasonably likely
appellant was convicted of making entries that were not false. The evidence plainly showed the company’s check
ledger was made to appear as though the subject checks were used for legitimate
business expenses, when in fact they were issued to appellant. There may have been an issue as to
ledger, but there was no dispute that the ledger was falsified.
Moreover,
during closing argument, the prosecutor emphasized over and over again that
this case was about appellant’s actions in making false entries in the company books with the intent to defraud. Even though the falsity of the entries was
not disputed, the prosecutor took pains to explain that appellant’s actions in
falsifying the company records were the means by which she was able to get away
with her scheme for so long. The falsification
of the records was a key aspect of the prosecution’s case and one that could
not have been lost on the jury given everything they were told.
For all these reasons, we uphold the trial
court’s charge to the jury. It is not
reasonably likely that the jury construed the trial court’s instructions in a
manner that violated appellant’s rights by convicting her of making entries in
the company books that were not false.
We therefore uphold her convictions for violating section 471.
The judgment is
affirmed.
BEDSWORTH,
ACTING P. J.
WE CONCUR:
FYBEL, J.
THOMPSON, J.
name="_ftn1" title=""> [1] All further statutory references
are to the Penal Code.
