P. v. Keating
Filed 6/12/13 P. v. Keating CA2/7
Opinion following remand from Supreme Court
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
SEVEN
THE PEOPLE,
Plaintiff and Respondent,
v.
NORMAN KENNETH KEATING,
Defendant and Appellant.
B210240
(Los Angeles
County
Super. Ct.
No. PA056847)
APPEAL from a judgment
of the Superior Court of
County. Alice C. Hill,
Judge. Affirmed.
Stephen M. Hinkle, by
appointment of the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney
General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters,
Senior Assistant Attorney General, Scott A. Taryle and E. Carlos Dominguez,
Deputy Attorneys General, for Plaintiff and Respondent.
___________________________________
Norman
Kenneth Keating appeals his multiple convictions of
commercial burglary and theft and his sentence. As to his convictions, appellant claimed that
his convictions were not supported by sufficient evidence. Specifically he asserted that the prosecution
failed to present evidence that he had the specific intent to commit any of the
charged crimes and that there was little evidence linking him to the commission
of the crimes. In a prior opinion, we
affirmed appellant’s convictions concluding that appellant failed to
demonstrate that his convictions were not supported by sufficient evidence and
that circumstantial evidence presented during the trial supported appellant’s
convictions on all charges. Our
conclusion as to the sufficiency of the evidence is unchanged here.
As to
appellant’s sentence, we previously concluded that appellant was entitled to
the benefit of 2009 amendments to Penal Code section 4019 which increased the
good conduct credits available to a defendant for presentence custody in a
local detention facility. The amended
statute became effective after appellant was sentenced and while the prior
appeal was pending. Appellant argued the
amendments to Penal Code section 4019 must be applied retroactively to all
sentences not yet final on appeal. In our prior opinion we concluded that the
amendments were retroactive and that appellant was accordingly entitled to
recalculation of his presentence custody credits. Therefore, we modified appellant’s sentence
accordingly and directed the abstract of judgment to be amended to correctly
reflect the credits to which appellant is entitled.
The California Supreme Court granted
review in this case. On May 15, 2013, the Supreme Court transferred this matter back to
this Court with directions to vacate our prior decision and reconsider the
cause in light of People v. Brown (2012)
54 Cal.4th 314. Upon remand the parties
were granted the opportunity to file supplemental briefs as to the impact of
so. Because the Supreme Court in
to Penal Code section 4019 did not apply retroactively to a defendant who
committed his offenses prior to the provision’s effective date, we now affirm
both the judgment and the original sentence.
FACTUAL AND PROCEDURAL BACKGROUND
Appellant
and James Anderson met in late 2006. At
the time, Anderson owned a small
printing business, Xpressprint located in Valencia
(“XPrintâ€). Anderson and appellant
developed a business plan for a new business called Xpresstoonmaps
(“XMapsâ€). The business plan envisioned
that XMaps would develop a “cartoon-like†map of Santa Clarita. XMaps would design and produce the map and
would sell advertising spaces on the map to local businesses.
Anderson
and appellant had equal ownership shares in XMaps and they incorporated the
company together in late March 2007.
XMaps and XPrint shared office space and Anderson and appellant also
shared a condominium. Under the XMaps
business plan, Anderson and appellant agreed to divide up the responsibility
for XMaps. Initially, it was agreed that
appellant would sell advertising spaces on the map and manage the sales force
while Anderson would oversee the graphic design and manage the company funds,
including writing checks and paying vendors and payroll.
account for his company XPrint at Telesis Credit Union (“Telesisâ€). Anderson opened a checking account for XMaps
at Telesis. The two accounts were
linked, allowing funds to be transferred back and forth between the two
businesses. Anderson had Internet access
to the accounts, which were password protected with Anderson having sole access
to the passwords. Anderson was also the
signatory on both checking accounts.
Anderson testified that while appellant was never authorized to sign
checks on behalf of XPrint, he did authorize appellant to sign on his behalf on
the XMaps account under certain circumstances, if he, Anderson was sick or
unavailable.
title="">[2] Although Anderson received the account
statements for both Telesis accounts, he testified that he consulted appellant
concerning management of the business and the company expenditures.
Appellant
had the only debit card linked to the XMaps account at Telesis. Appellant used the debit card to pay for
numerous business and personal purchases from March through August 2007. Appellant stated that he sold 90-95 percent
of the sold spaces on the Santa Clarita map during the March through August
2007 time period and knew of the dollar amount of sales that came into the
XMaps during that time.
Although
Anderson and appellant had agreed to divide the responsibilities for the XMaps,
ultimately appellant handled some of the financial transactions, including
making deposits for both businesses. In
addition, as the evidence presented at trial showed, appellant also dealt
almost exclusively with certain XMap vendors, opened a bank account for XMaps
at the Mission Valley Bank, and handled a few print orders for XPrint.
Express Personnel Services.
In March 2007, appellant and
Anderson met with the owners of Express Personnel Services (“EPSâ€), Ray and
Mary Flores. EPS provided personnel to
businesses on a contract basis.
Appellant signed the staffing agreement and credit application on behalf
of XMaps with EPS to provide office staff for XMaps. EPS supplied a total of six staff people to
XMaps from March 2007 to middle of July 2007.
Under the staffing agreement, EPS would pay each of its contract
employees and then send an invoice to XMaps for payment.
that Anderson was in charge of accounts payable for XMaps, the Floreses
testified that they dealt exclusively with appellant on the account, and that
they did not discuss account balances or invoices with Anderson. Anderson confirmed that appellant handled all
of the dealings with EPS and that he had little interaction with EPS. The Floreses stated that they spoke to
appellant weekly when they stopped by to distribute weekly paychecks to EPS
staff working at XMaps.
Mr. Flores
testified that by mid-April 2007 he began to have a number of conversations
with appellant about unpaid invoices that EPS had sent to XMaps.
Flores that he would look into the matter or that he would “take care of
it.†On a number of occasions, appellant
told Mr. Flores that checks to pay the invoices been “cut†and put in the mail.
On June 27,
2007, the Floreses met with appellant to discuss the unpaid invoices. Appellant told them he was unaware the
invoices had been unpaid. Appellant
later faxed copies of two unsigned checks made out to EPS dated June 22, 2007,
one in the amount of $8,171.64 and another for $3,079.30. Appellant claimed that these checks had been
mailed out the week before to EPS’ out of state corporate headquarters. The checks, however, were never received by
EPS. Appellant also told the Flores that
checks to EPS totaling $22,000 would be sent to the corporate office the week
of July 4, 2007.
After none
of the promised payments arrived at the EPS corporate office, the Floreses met
in person with appellant on July 12, 2007.
During the meeting, appellant stated that he would obtain a check with
“guaranteed funds†and would drop it off at EPS offices the next evening.
Appellant
also stated that he wanted to pay $39,000 of XMaps’ outstanding balance on his
credit card. The Floreses sent appellant
a credit card authorization form via e-mail.
The completed form, bearing appellant’s signature and his “debit†card
number was faxed back to EPS on the morning of July 13. The credit authorization indicated that
appellant’s “Mastercard†would expire in March 2008;
separate transactions in the amount of $9,999 on five separate dates a few days
apart. Later on July 13, 2007, the
Floreses were informed by their corporate headquarters that a $2,500 check
(dated May 5, 2007) from XMaps had been returned for a second time for
insufficient funds; the Floreses decided to remove their personnel from the
XMaps’ office. Both Floreses testified
that until July 13, they had intended to continue the business relationship
with XMaps and wanted to work something out with appellant.
On the
following Monday, July 16, Mary Flores received an e-mail from appellant in
which he advised her that on advice of his legal counsel, he had cancelled his
“credit†card.
title="">[7]
(Counts 12-15): Mission Valley Bank
Check Transactions.
On July 19,
2007, appellant opened a corporate checking account at Mission Valley Bank in
the name of XMaps. He deposited $100
cash into the account when he opened it.
The next day he deposited $1,691.70 into the account. Appellant signed the signature card to open
the account, and although Anderson’s name was listed as a co-owner of the
business and was also on the signature card, Anderson never signed the
card. At trial, Anderson said that he
had no interaction or dealings with Mission Valley Bank and testified that
appellant never told him that they needed to deposit any funds into any account
for XMaps at Mission Valley Bank.
On July 23,
2007, appellant entered the Sun Valley branch of the Mission Valley Bank and
deposited a check (#6036) in the account of XMaps for $5,618. The check was drawn on the XPrint’s Telesis
account. According to appellant,
Anderson printed, signed and gave him the check and told him to put it in
XMaps’ account at the Mission Valley Bank.
Mission Valley Bank had a policy to give a customer immediate credit for
any amount they deposited without first verifying that the check had sufficient
funds. Immediately after appellant
deposited check #6036, he obtained a cashier’s check drawn on XMaps’ Mission
Valley Bank account for $6,022 payable to Delta Printing Solutions, which was
XMaps’ landlord in Valencia.
Also on
July 23, 2007, appellant entered a different branch of the Mission Valley Bank
and deposited another check (#6035) in the account of XMaps for $4,368 drawn on
the XPrint Telesis account. Appellant
testified that Anderson gave him the check and told him to deposit it in XMaps’
account in the Mission Valley Bank.
Appellant immediately obtained a cashier’s check in the amount of $3,011
payable to Delta Printing Solutions.
Both checks
#6035 and #6036 were returned marked “NSF.â€
Although
when initially interviewed by police Anderson said that the signatures on both
checks looked like his signature or could be his signature, he also stated that
he had no recollection of signing the checks or printing them. At trial, Anderson stated that the checks did
not contain his signature. Anderson
denied he printed or signed either check.
He also stated that he did not authorize appellant to sign the
checks. He further testified that given
the size of the business and the large amount of the checks--nearly $10,000 in
one day--if he had signed them he would remember the transaction.
Bank Credit Card Charges.
In 2007,
Carrie Burrell was marketing director for Mission Valley Bank in the Sun Valley
Branch. In 2007, she placed two orders
for pens with XPrint--one order for 6,000 pens at a cost of $2,500 and a second
order for 500 pens costing $600. She
placed the order with appellant and authorized him to charge Mission Valley
Bank’s credit card for the purchases.
Burrell testified although she spoke with others working at XPrint about
the order, she believed that she gave appellant the credit card number and that
appellant called her on the telephone and instructed her to pay for the orders
“up-front.†The Mission Valley Bank
credit card was charged for both orders in June 2007. Burrell received the larger order of pens,
but never received the other order.
On August
7, 2007, XPrint charged the Mission Valley Bank credit card for $2,508.32 and
on August 22, XPrint charged the Mission Valley Bank credit card for $1,650. Neither charge was authorized by Mission
Valley Bank. Burrell testified that when
she received the August statement for the Mission Valley Bank credit card and
saw the unauthorized charges she called appellant. He apologized and blamed it on a “bookkeepingâ€
error. He told her that the card would
receive a credit for both charges. At
the end of the month the credit card had not been credited notwithstanding
appellant’s assurances. Thereafter, on
September 11, 2007, XPrint charged the Mission Valley Bank credit card in the
amount of $1,059; this charge was also not authorized by the bank. When Burrell discovered the September charge,
she called appellant again. He apologized
and blamed it on a “personnel error.â€
Burrell cancelled the card and submitted a fraud claim concerning the
charges. She testified that she never
made any credit card transactions on her own and was unaware that the charges
were not authorized.
Anderson
testified that he was not involved with the Mission Valley Bank pen orders, and
that appellant had handled the Mission Valley Bank orders on behalf of
XPrint. He testified that appellant had
access to the XPrint credit card machine and that both XMaps and XPrint used
the same credit card terminal. Anderson
said that he knew nothing about the credit card charges for the Mission Valley
Bank pen orders at the time. Anderson
did recall later discussing the September 11 charge with appellant. Anderson testified that appellant told him
the September 11 charge on the Mission Valley Bank card was for
“advertising.â€
At trial
appellant conceded that he handled the Mission Valley Bank pen order in
2007. He denied, however, that Burrell
gave him the Mission Valley Bank credit card numbers. He stated that the card number was “on-file.†He further testified that if he did direct
Diaz to charge the card in August, it was only because he did not realize the
bank had already paid for the order. He
denied that he directed Diaz to charge Mission Valley Bank credit card on
August 22 or September 11.
Appellant was arrested in
November 2007. He was charged in Count 9
with grand theft of labor of EPS in violation of Penal Code section
theft in violation of section 484g, subdivision (a); in counts 12 and 14 of
forgery in violation of section 475, subdivision (c); in counts 13 and 15
second degree commercial burglary of Mission Valley Bank in violation of
section 459; and in counts 16, 17 and 18 of theft in violation of section 484e,
subdivision (d).
title="">[9]
The case
proceeded to a bench trial. Appellant testified. He denied all wrongdoing and pointed out that
Anderson made numerous transfers of funds from XMaps’ Telesis bank account to
the XPrint account. Appellant testified
that if Anderson had not made the transfers that XMaps would have had
sufficient funds to pay its share of the business expenses. Appellant testified that he had no knowledge
of various account balances and believed that XMaps had enough funds to pay its
bills based on the amount of sales he brought into the company. He testified that XPrint never brought in
enough money to cover its expenses.
Appellant argued that Anderson was responsible for paying the bills and
monitoring all of the accounts.
Appellant testified that he had no access to the accounts and did not
benefit from these crimes. Appellant
argued that Anderson was a poor manager of funds and spent funds from both
companies on personal items. Appellant
admitted that between 1996 to 2006 he had suffered four prior felony
convictions in the state of Florida for grand theft and for checks returned for
insufficient funds.
Opinion.
The court
found appellant guilty on all counts. On
July 23, 2008, the court sentenced him to a total of five years in
restitution. At the time of sentencing
the trial court determined appellant’s presentence credits to be 253 days of
actual custody credit and 126 days of conduct credit, for a total of 379 days.
Appellant
filed an appeal of his convictions on August 15, 2008.
On February
5, 2010, while the appeal was pending in this court, Keating filed a motion in
the trial court seeking a modification of the judgment and a recalculation of
his presentence conduct credits.
Appellant claimed that he was entitled to additional conduct credits in
light of an amendment to Penal Code section 4019, pursuant to which the formula
for calculating pre-sentence conduct credits was changed from two days for
every four days of actual custody to two days for every two days of time
served. The lower court denied appellant’s motion.
On March
15, 2010, this court filed its opinion affirming the judgment on appellant’s
convictions. The same day, appellant
filed a petition for rehearing, seeking the benefit of 2009 amendments to
section 4019, which took effect in January 2010. Those amendments, with certain
exceptions not applicable here, increase the good conduct credits a defendant
can receive for presentence custody.
Appellant contends that the amendments, which became effective in
January 2010, must be retroactively applied to his case. We granted the petition for rehearing,
vacated our previously-filed opinion, and ordered supplemental briefing.
In our
prior opinion filed in 2010, we concluded that the amendments were retroactive
and that appellant was accordingly entitled to recalculation of his presentence
custody credits. Therefore, we modified
appellant’s sentence accordingly and directed the abstract of judgment to be
amended to correctly reflect the credits to which appellant is entitled. The Supreme Court granted review of this
case.
On May 15, 2013, the California
Supreme Court subsequently transferred this matter back to this Court with
directions to vacate our prior decision and reconsider the cause in light of
opportunity to file supplemental briefs as to the impact of
so.
DISCUSSION
Before this
court appellant challenges the evidence supporting his convictions. He further also claims that he is entitled to
additional conduct credits in view of the 2009 amendment to Penal Code Section
4019, which he argues should be retroactively applied. We turn our attention first to appellant’s
convictions.
I. Appellant’s Challenge to the Sufficiency
of the Evidence Supporting his Convictions.
Appellant
claims that the sufficiency of the evidence presented at trial did not support
his convictions. He argues that the
prosecution failed to present any evidence linking him to the crimes or prove
that he had the specific intent to commit the crimes charged. He claims that if any crimes were committed,
Anderson committed them.
“It is the
prosecution's burden in a criminal case to prove every element of a crime
beyond a reasonable doubt.
[Citation.] To determine whether
the prosecution has introduced sufficient evidence to meet this burden, courts
apply the ‘substantial evidence’ test.â€
Under this standard, this court “must review the whole record in the
light most favorable to the judgment below to determine whether it discloses
substantial evidence-that is, evidence which is reasonable, credible, and of
solid value-such that a reasonable trier of fact could find the defendant
guilty beyond a reasonable doubt.†(
260; People v. Johnson (1980) 26
Cal.3d 557, 578.)
“‘[T]he
critical inquiry on review of the sufficiency of the evidence to support a
criminal conviction . . . [is] to determine whether the record evidence could
reasonably support a finding of guilt beyond a reasonable doubt.’ [Citation.]
Explaining this standard the [United States Supreme Court has] said that
‘this inquiry does not require a court to ask itself whether it believes that
the evidence at the trial established guilt beyond a reasonable doubt.’ [Citation.]
Instead the relevant question is whether, after viewing the evidence in
the light most favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a reasonable
doubt.’†(People v. Johnson, supra,
26 Cal.3d at p. 576, quoting Jackson v.
Virginia (1979) 443 U.S. 307, 318-319.)
“The
standard of review is the same in cases in which the prosecution relies mainly
on circumstantial evidence. [Citation.] ‘“Although it is the duty of the jury to
acquit a defendant if it finds that circumstantial evidence is susceptible of
two interpretations, one of which suggests guilt and the other innocence
[citations], it is the jury, not the appellate court[,] which must be convinced
of the defendant's guilt beyond a reasonable doubt.â€â€™â€ (People
v. Rodriguez (1999) 20 Cal.4th 1, 11.)
A single
witness’s testimony is sufficient to support a conviction, unless it is
physically impossible or inherently improbable.
(People v. Young (2005) 34
Cal.4th 1149, 1181; People v. Scott
(1978) 21 Cal.3d 284, 296; Evid. Code, § 411.)
“Even when there is a significant amount of countervailing evidence, the
testimony of a single witness that satisfies the [substantial evidence] standard
is sufficient to uphold the finding.†(
1038, 1052.) “Conflicts and even
testimony which is subject to justifiable suspicion do not justify the reversal
of a judgment, for it is the exclusive province of the . . . jury to determine
the credibility of a witness and the truth or falsity of the facts upon which a
determination depends. [Citation.] We resolve neither credibility issues nor evidentiary
conflicts; we look for substantial evidence.â€
(People v. Maury (2003) 30
Cal.4th 342, 403.) With this standard in
mind we turn appellant’s claims.
Theft of Express Personnel Services.
Count 9. Appellant
was convicted of grand theft of labor in violation of section 487, subdivision (a) which provides: “Grand theft is theft committed in . . . (a) When the money, labor, or real or
personal property taken is of a value exceeding four hundred dollars ($400) . .
. .†“Theft†is defined in section 484
subdivision (a) as: “(a) Every person who shall feloniously steal, take, carry,
lead, or drive away the personal property of another, or who shall fraudulently
appropriate property which has been entrusted to him or her, or who shall
knowingly and designedly, by any false or fraudulent representation or
pretense, defraud any other person of money, labor or real or personal
property, or who causes or procures others to report falsely of his or her
wealth or mercantile character and by thus imposing upon any person, obtains
credit and thereby fraudulently gets or obtains possession of money, or
property or obtains the labor or service of another, is guilty of theft.†(§ 484, subd. (a).)
Before this court, appellant
argues that his conviction cannot stand.
He argues although EPS was not paid for the personnel services it
provided to XMaps, there was no evidence that he had the specific “intent†to
steal labor from EPS. (
681, 686 [specific intent crime “not only specifies a proscribed act but also
refers to an ‘intent to . . . achieve some additional consequence’â€].)
“Intent is inherently difficult to
prove by direct evidence. Therefore, the
act itself together with its surrounding circumstances must generally form the
basis from which the intent of the actor may legitimately be inferred.†(People
v. Smith (1998) 64 Cal.App.4th 1458, 1469 [attempt to make purchase with
counterfeit credit card substantial evidence of intent to defraud]; see also
Cal.App.4th 1489, 1493-1494 [possession of counterfeit resident alien card
bearing defendant's photograph substantial evidence of intent to defraud];
148, 159 [possession of multiple stolen or forged instruments for the payment
of money and a driver's license in another's name substantial evidence of
fraudulent intent].)
The
circumstances of appellant’s interactions with EPS, and the Floreses provide
substantial evidence of his criminal intent.
Notwithstanding the fact that appellant and Anderson initially agreed
that Anderson would handle accounts payable and monitor the vendors, it was
appellant who signed the contract with EPS on behalf of XMaps. Appellant exclusively monitored the business
relationship with the Floreses from March 2007 through the end of the relationship
in July 2007. On more than one occasion
appellant told EPS that he would investigate the unpaid invoices and make sure
they were paid. On June 27, 2007,
appellant faxed EPS copies of two unsigned checks and represented to the
Floreses that these checks had been issued, signed and sent to EPS headquarters
the week before. Appellant also promised
to provide a check for guaranteed funds on the evening of July 13, 2007, and
appellant further told the Floreses that he would pay a portion of the balance
on his credit card. Thereafter a credit
card authorization was sent to EPS offices containing appellant’s card
information and requesting certain charge arrangements over a period of time. Appellant’s testimony at trial that he had no
intent to defraud EPS is belied by the fact that appellant failed to follow
through on his promises of payment and that appellant attempted to pay part of
the outstanding balance with a debit card that had expired in March 2007 from
an account that had been closed in 2005.
As a matter of common sense, the court as the trier of fact could have
concluded that the most likely if not the only purpose for which appellant had
undertaken such actions and made so many unfulfilled promises to pay was for
the commission of theft. (See
865, 870 [defendant’s possession of forged checks and an identification card
bearing defendant's photo and one of the names from the checks “leaves no doubt
about his fraudulent intentâ€].)
At trial and before this court,
appellant has argued, however, he was not culpable because Anderson testified
that he intended for EPS to be paid and also that he had a concern that EPS had
overcharged XMaps. But it is also clear
that Anderson was not involved in XMaps’ relationship with EPS, had no
information about the various transactions and that any dispute over the
invoices in no way motivated appellant’s
conduct with respect to the EPS bills.
Appellant continually reassured EPS of payment and never disputed any
invoice, and yet, appellant never followed through with payments. Instead, as the evidence demonstrated,
appellant provided EPS with information he knew to be false in an apparent
effort to prolong XMaps’ business relationship with EPS. Appellant’s conviction is supported by
substantial evidence.
Count 11. Appellant was convicted on Count 11 of a
violation of section 484g which provides: “Every person who, with the intent to
defraud, (a) uses, for the purpose of obtaining money, goods, services, or
anything else of value, an access card or access card account information that
has been altered, obtained, or retained in violation of Section 484e or 484f,
or an access card which he or she knows is forged, expired, or revoked, or (b)
obtains money, goods, services, or anything else of value by representing
without the consent of the cardholder that he or she is the holder of an access
card and the card has not in fact been issued, is guilty of theft. If the value
of all money, goods, services, and other things of value obtained in violation
of this section exceeds four hundred dollars ($400) in any consecutive
six-month period, then the same shall constitute grand theft.â€
This count centers on the evidence that appellant provided EPS with the
credit authorization containing his expired debit card number, containing a
representation that the card had not yet expired and a request that EPS charge
the card to pay XMaps’ unpaid invoices.
This count was supported by the testimony of Mary and Ray Flores who
stated that appellant told them he wanted to pay $39,000 of XMaps’ outstanding
balance using his credit card.
Thereafter, Mary Flores received the completed credit card authorization
form from appellant’s office that contained appellant’s signature and a
“MasterCard†number and an authorization to make five separate charges on the
card. She stated that she discussed the
charges with appellant and that after EPS removed their employees from XMaps’
worksite, appellant sent her an e-mail in which he referred to the credit card
and told her that on advice of legal counsel he had “cancelled†the card. Even though at trial appellant denied that he
had completed the credit authorization form or otherwise authorized the use of
the card, the evidence was undisputed that the debit card number provided on
the form belonged to appellant and that the card had expired in March 2007.
As to this count appellant claims
that there was no evidence he “used†the credit card in violation of the Penal
Code because he informed EPS that the card was cancelled before EPS attempted
to charge the card and because he did not attempt to obtain anything of value
since XMaps had already received the labor before he gave them the card
number. Appellant’s argument is without
merit. Section 484g criminalizes the use
of the card that a person knows is expired.
Here there was evidence not only that the card had expired, but also
that appellant was aware that it was expired well prior to July 2007. (See People
v. Love (2008) 166 Cal.App.4th 1292, 1297-98 [fraudulent use of a credit
card was a completed offense even though the unauthorized transaction was
cancelled and never completed.]) Also,
it is clear that all parties intended to continue the business relationship if
XMaps paid the invoices and that even though appellant’s debit card was being
used to pay an overdue invoice, the business relationship was ongoing at the
time appellant offered to make the payment using his card.
In our view, the trial court could reasonably infer based on this
evidence that appellant intended to defraud EPS. The evidence is sufficient to support his
conviction on Count 11.
C. Forgery and Commercial Burglary in connection with Mission Valley
Bank Check Deposit Transactions.
In counts 12 through 15 appellant
was charged with forgery in violation of section 475, subdivision (c)
section 459
title="">[12] in connection with appellant’s July 23, 2007
deposit into XMaps’ account at the Mission Valley Bank, checks #6035 and #6036
drawn on XPrint’s Telesis checking account.
Both checks were returned for insufficient funds.
At trial the People prosecuted
these crimes based on the theory that appellant forged Anderson’s signature on
the XPrint checks, brought them into Mission Valley Bank and deposited them into
XMaps’ account. In the alternative, the
People attempted to show that appellant deposited the XPrint checks into XMaps’
Mission Valley Bank account knowing that the XPrint checks would be returned
for insufficient funds.
In our view, sufficient evidence
presented at trial supported the forgery theory. Appellant admitted that he deposited the two
checks in the XMaps’ account at the Mission Valley Bank. But appellant testified that Anderson had
signed and given appellant the checks to make the deposit.
Though Anderson admitted that when
he was first interviewed by police he told them that it could be his signature
on the checks, Anderson did not equivocate at trial. Instead Anderson stated that the checks did
not contain his signature. Anderson denied
he printed or signed either check. He
also stated that he did not authorize appellant to sign the checks. He further testified that given the size of
the business and the large amount of the checks--nearly $10,000 in one day--if
he had signed them, he would remember the transactions. The testimonies of appellant and Anderson are
odds. The duty to resolve this conflict
and the credibility assessments it presents belong to the trier of fact--here
the trial court. (People v. Maury, supra,
30 Cal.4th at p. 403 [“[I]t is the exclusive province of the trial judge or
jury to determine the credibility of a witness and the truth or falsity of the
facts upon which a determination depends.â€].)
The trial court’s judgment on these
counts suggests it adopted Anderson’s version.
Appellant has not demonstrated to this court that Anderson’s testimony
was physically impossible or inherently improbable or unreasonable. Thus, we conclude the evidence in the record
could reasonably support the trial court’s judgment on these charges.
D.
Mission
Valley Bank Credit Card Theft Charges.
In counts 16 through 18 appellant
was convicted of three counts of theft in violation of section 484e
and September 11, 2007, of Mission Valley Bank’s credit card. Sufficient evidence supports appellant’s
convictions on these counts.
The evidence presented at trial
showed that appellant arranged for the Mission Valley Bank pen orders and that
appellant asked the bank to pay for the orders at the time the orders were
placed in June 2007. According to the
Mission Valley Bank marketing director, Carrie Burrell, she worked with
appellant on the order; she provided him with the credit card number and
authorized the charges, which were incurred and paid in June 2007. Burrell also contacted appellant after she
discovered the unauthorized charges in August and September. Each time appellant assured her the charges
were a mistake and that the problem would be corrected. However, the bank never received any
credit. Ms. Diaz, who worked for XMaps
and XPrint, testified that, although several people had access to XPrint’s
credit card terminal, she would have charged the credit card only if directed
to do so by appellant. She further
testified that appellant never directed her to “credit†the bank’s charge
card. Similarly Anderson testified that
he was unaware of the unauthorized charges and had no involvement in the pen
orders from Mission Valley Bank. He did,
however, recall discussing the September 11 charge with appellant, but
according to Anderson, appellant told him the charge was for “advertisingâ€
expenses.
Based on all of the evidence, the
court could reasonably conclude that, notwithstanding appellant’s testimony to
the contrary, appellant was responsible
Bank’s card; his fraudulent intent could be inferred from his repeated
reassurances to Burrell followed by his failure to rectify the situation. “Even if the evidence could be reconciled
with a different finding, that does not justify a conclusion that the [trier of
fact’s] was not supported by the evidence, nor does it warrant a
reversal.†(People v. Romero (2008) 44 Cal.4th 386, 400.) For these reasons, we conclude that the
court’s judgment on counts 16 through 18 is based on sufficient evidence.
In
conclusion, we note that based on the evidence presented at trial it appears
that XMaps and XPrint were poorly managed businesses. Neither appellant nor Anderson regularly
monitored the finances of the companies.
Both men expended the businesses’ funds for personal use. Neither business generated sufficient revenue
to sustain their respective enterprises in the long term. Furthermore, whether Anderson played some
role in mismanagement of XMaps that ultimately resulted in the criminal charges
against appellant or whether Anderson engaged in uncharged misdeeds, is beside
the point and ultimately beyond our purview here. Irrespective of Anderson’s involvement, the
evidence presented at trial was sufficient to prove the specific charges
against appellant.
II. Conduct Credits Under Section 4019
Appellant
was sentenced August 18, 2008, to five years in state prison. At sentencing,
the trial court determined that appellant had spent 253 days in presentence
custody and that he was therefore entitled to 126 days of credit under the
then-current version of section 4019, which provided for two days of credit for
every four days of custody unless the inmate failed to perform assigned work or
abide by the facility's reasonable rules and regulations. (Former § 4019,
subds. (a)(4), (b), (c), (f), as amended by Stats.1982, ch. 1234, § 7.) Section 4019 was amended in 2009. Pursuant to the 2009 version of section 4019
in effect when this appeal was pending, a defendant would be entitled to up to
two days of credit for every two days of custody under the same conditions
(with exceptions not relevant here).
(Former § 4019, subds. (a)(4), (b)(1), (c)(1), (f).)
Appellant
had argued the 2009 amendments to section 4019 must be applied retroactively to
all sentences not yet final on appeal.
In our prior opinion, we agreed concluding that the 2009 amendments to
section 4019 were retroactive and that appellant was accordingly entitled to
recalculation of his presentence custody credits. Therefore, in our prior opinion we modified
appellant’s sentence to reflect that appellant had earned a total of 505 days
of presentence custody credit (consisting of 253 days of actual local credit
and 252 days of section 4019 conduct credit).
The California Supreme Court granted
review in this case and transferred this matter back to this Court with
directions to vacate our prior decision and reconsider the cause in light of
314. In Brown the Supreme Court concluded that the 2009 amendments to
section 4019 did not apply retroactively to a defendant, like Keating, who
committed his offenses prior to the provisions effective date. (Id. at
pp. 325-328.)
name="_ftnref15" title="">[15] In view of Brown, we vacate our prior decision awarding appellant additional
conduct credits under the 2009 version of section 4019.
DISPOSITION
The
judgment is affirmed.
WOODS,
J.
We concur:
PERLUSS,
P. J. ZELON,
J.
testified that though he was supposed to monitor the finances of XMaps he did
not monitor the bank accounts of either company very carefully. He testified that he was so busy managing the
personnel and work product of the both businesses that he would not regularly
review the account statements or reconcile account balances. He admitted that a number of checks for the
businesses were returned marked “NSF†for insufficient funds.
also testified that appellant developed a system where checks for accounts
payable would be printed and kept in a file, unsigned until the funds were
available at which point Anderson would sign them and a member of the office
staff would mail them out.
