P. v. Alexander
Filed 12/9/13 P. v. Alexander CA4/2
NOT
TO BE PUBLISHED IN OFFICIAL REPORTS
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IN
THE COURT OF APPEAL OF THE STATE OF
FOURTH
APPELLATE DISTRICT
DIVISION
TWO
THE
PEOPLE,
Plaintiff and Respondent,
v.
LINDA
ALEXANDER,
Defendant and Appellant.
E055128
(Super.Ct.Nos. RIF10000212 &
RIF10000102)
OPINION
APPEAL from the Superior Court of
County. Richard J. Hanscom, Judge. (Retired judge of the San Diego
Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal.
Const.) Affirmed; remanded for
resentencing with directions.
Robert E. Boyce, 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,
Barry Carlton and James H. Flaherty III, Deputy Attorneys General, for
Plaintiff and Respondent.
Defendant
Linda Alexander appeals her conviction on three counts of
conviction. We do conclude, however,
that remand for resentencing is required.
PROCEDURAL
HISTORY
An amended information charged defendant with forgery
(counts 1, 3, 4; Pen. Code,
name="_ftnref1" title="">[1]
§ 470, subd. (d)); burglary (count 2; Pen. Code, § 459); possession of cocaine
base (count 5; Health & Saf. Code, § 11350, subd. (a)); possession of
hydrocodone (count 6; Health & Saf. Code, § 11377, subd. (a));
possession of stolen property (count 7; Pen. Code, § 496, subd. (a)); and
misdemeanor possession of paraphernalia for injecting and smoking a controlled
substance (count 8; Health & Saf. Code, § 11364). The amended information also alleged four
prior prison terms, within the meaning of Penal Code section 667.5, subdivision
(b) and three strike priors within the meaning of Penal Code sections 667,
subdivisions (c) and (e)(2)(A) and 1170.12, subdivision (c)(2)(A).
A jury convicted defendant on all counts except count 6. In a bifurcated proceeding, the court found
all of the prior conviction and prior prison term allegations true.
The court sentenced defendant to consecutive terms of 25
years to life on all six felony counts and to a six-month concurrent term on
count 8. The court struck the prior
prison term enhancement. Defendant filed
a timely notice of appeal.
FACTS
Count
1
On November 27, 2009, Robert Dillard
learned that funds were missing from his checking account. At the bank, he was shown checks 1036 and
1037 drawn on his account. Check 1037 was
made payable to defendant. Dillard had
not written a check to defendant and he did not authorize anyone to use that
check.
Dillard
had met defendant a few weeks earlier, when defendant was panhandling in front
of the senior citizen complex where Dillard lived. Dillard offered to give her seven or eight
dollars in change. He went into his apartment
to get the money, then realized that she was right behind him when he got to
his door. He invited her inside and went
into the bedroom to get the change. He
had been paying bills, and his checkbook was on the dining room table. Defendant was standing by the table when
Dillard went into the bedroom, and she was still standing there when he came
out. He gave her the change, and she
thanked him and left. When he learned
that check 1037 had been paid to defendant, he told police about the
panhandling incident.
In
December 2009, Dillard saw defendant again near a Carl’s Jr. restaurant in his
neighborhood. She admitted that she had
taken his check and cashed it. She
apologized to him and said she would return his money.
A
questioned document examiner testified that Dillard probably did not sign the
checks and that his checks could have been written and/or endorsed by
defendant.
Count 2
On November 5, 2009, defendant entered Continental Currency
Services and cashed Dillard’s check 1037 for $100.
Counts 3 through 8
In
August 2009, Soledad Castro Fernandez
was the owner of Hard Stone Granite and Marble.
She was the only authorized signer on the business checking account. On August 27, 2009, she learned that three
checks drawn on her account had been cashed, leaving her with insufficient
funds to cover a check she had written. Her checks 1553 and 1558 had been written to
Linda Alexander and were signed by John Stone.
Check 1556 was written to Alejandra Ramirez and was signed by John
Stone. Castro had not written any of
these checks and did not know Linda Alexander, Alejandra Ramirez or John
Stone. Castro reported the check fraud
to her bank. After making the report,
she tried to find her checkbook. She
realized that the last time she had seen it, it was in her boyfriend’s truck,
which she had been using. The truck had
a broken window, allowing access from outside.
A
questioned document examiner testified that Castro’s forged checks could have
been written and/or endorsed by defendant.
On
September 26, 2009, Castro’s missing checkbook was found in a motel room
occupied by defendant and Erick Barrera.
Police had been dispatched to the motel room in response to a report
concerning violence and illegal drug
activity going on in their room.
Defendant allowed police to enter the room and to search it. In a dresser drawer which contained women’s
clothing,
title="">[3]
police found the Hard Stone Granite and Marble checkbook containing duplicates
of checks 1553 and 1558, a California driver’s license in the name of Gloria
Ramirez, and a Golden State Advantage (EBT) card in the name of Juana
Zavala. Two purses were also found in
the room. Inside one of the purses, police
found a cigarette box containing some pills later determined to be hydrocodone.
Under the mattress, police found
Barrera’s pants, an ashtray containing what was later determined to be
approximately 0.08 grams of cocaine base and a glass pipe commonly used for
smoking cocaine. A second glass pipe was
found between the bed and the wall. Both
pipes were coated with a white substance and contained pieces of Brillo pads,
which are commonly used to keep cocaine in place while it is smoked.
DISCUSSION
1.
DEFENDANT
WAS NOT CONVICTED OF STEALING AND POSSESSING
THE
SAME ITEMS
Defendant
contends that her conviction for possession of stolen property in count 7
must be reversed because she was also convicted of forging the Hard Stone
Granite and Marble checks which, she contends, were the only items proven to be
stolen property which were in her possession.
Defendant is correct that a person may not
be convicted both of stealing property and being in possession of the same
stolen property. (§ 496, subd. (a);
752, 759.) She contends that because
forgery is a theft offense, she cannot be convicted both of forging the Hard
Stone Granite and Marble checks and possessing them. The Attorney General responds that forgery is
not a theft offense. We need not decide
this issue, however, because count 7 is not based on defendant’s possession of
the checks she forged. The forged checks
were not in defendant’s possession on September 26, 2009; they had been cashed
in August 2009, and were in possession of Castro’s bank. Only carbon copies of those checks were in
the checkbook. The information alleged
in count 7 that on September 26, 2009, defendant possessed “a purse, drivers
license and checks†obtained by theft. Castro’s
checkbook was found in defendant’s possession.
We presume that it contained unused checks along with the carbon copies
of the forged checks. The evidence
supports the inference that the checkbook had been stolen from Castro’s
boyfriend’s vehicle and that checks from that checkbook were forged by
defendant. This evidence supports the
further inference that defendant possessed Castro’s checkbook knowing it was
stolen. (§ 496, subd. (a).) Accordingly, defendant’s contention fails.
2.
SECTION 654
Defendant contends that section 654 precludes imposition of
unstayed sentences on counts 2 and 7.
Section
654, subdivision (a), provides, in pertinent part: “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.â€
“The
test for determining whether section 654 prohibits multiple punishment has long
been established: ‘Whether a course of criminal
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.’†(People
v. Britt (2004) 32 Cal.4th 944, 951-952.) “It is defendant’s intent and objective, not
the temporal proximity of his offenses, which determine whether the transaction
is indivisible. [Citations.] We have traditionally observed that if all of
the offenses were merely incidental to, or were the means of accomplishing or
facilitating one objective, defendant may be found to have harbored a single
intent and therefore may be punished only once.
[Citation.] [¶] If, on the other hand, defendant harbored ‘multiple
criminal objectives,’ which were independent of and not merely incidental to
each other, he may be punished for each statutory violation committed in
pursuit of each objective, ‘even though the violations shared common acts or
were parts of an otherwise indivisible course of conduct.’ [Citation.]†(People
v. Harrison (1989) 48 Cal.3d 321, 335.)
The
defendant’s intent and objective are factual questions for the trial
court. (People v. Cleveland (2001) 87 Cal.App.4th 263, 268.) When a trial court sentences a defendant for
two crimes, without suspending execution of sentence, the court implicitly
finds the acts involved more than one objective. (People
v. Osband (1996) 13 Cal.4th 622, 730.)
The court’s findings, express or implied, are subject to the substantial
evidence standard of review. The
appellate court reviews the trial court’s determination in the light most
favorable to the judgment and presumes the existence of every fact the trial
court could reasonably deduce from the evidence. (People
v. Jones (2002) 103 Cal.App.4th 1139, 1143.)
Count 2
The forgery of Robert Dillard’s check is the subject of
count 1. In count 2, defendant was
convicted of the burglary of Continental Currency Services, based on the
evidence that she entered the establishment with the intent of cashing Dillard’s
forged check.
name="_ftnref5" title="">[5] Defendant contends that section 654 precludes
imposition of sentence on both counts 1 and 2 because the two crimes were the
means of accomplishing the single objective of obtaining money by passing the
forged check.
People v. Curtin
(1994) 22 Cal.App.4th 528 (Curtin)
presented a forged check and false identification, and cashed the check. (Id.
at p. 530.) The defendant was convicted
of forgery, grand theft, and burglary “all arising out of a single incident in
which he cashed a check at a bank by misrepresenting himself as one of the
bank’s depositors and using a forged signature.†(Ibid.) The defendant was sentenced to two years for
burglary, a two-year concurrent term for forgery, and two years for theft. The trial court stayed only the theft
sentence under section 654. (
forgery sentence should also be stayed, leaving punishment only for the
burglary. The appellate court found it
was appropriate to stay the defendant’s conviction for forgery under section
654, because in that case the forgery and burglary were “part of the same
indivisible transaction†and were “committed for a single criminal objective, to
cash the check.†(Curtin, at p. 532.)
This
analysis applies under both of the two possible bases for the conviction in
count 1. Pursuant to section 470,
subdivision (d), both “falsely mak[ing]†a check and uttering or passing a
forged check constitute forgery.
theories, i.e., that defendant forged the check by signing Dillard’s name on it
and that she passed or attempted to use the forged check. The jury was also instructed that all jurors
must agree that defendant committed forgery under at least one theory, but that
they did not have to agree on the same theory.
Consequently, it is possible that some jurors concluded that the crime
in count 1 was signing the check as opposed to passing it. Under that scenario, too, section 654 bars
imposition of sentence on both count 1 and count 2, because, although there was
perhaps some lapse of time between the act of forging the check and the
burglary, both offenses were merely incidental to or the means of accomplishing
one objective, i.e., obtaining money with the forged check. (People
v. Harrison, supra, 48 Cal.3d at
p. 335.)
Defendant
also contends that section 654 bars imposition of an unstayed sentence on count
7, for receiving stolen property. She
states that the conviction in count 7 is based on her possession of the carbon
copies of Hard Stone Granite and Marble checks 1553 and 1558, which were the
subjects of counts 3 and 4, for forgery. As we discussed above, the evidence showed
that defendant possessed the entire checkbook which contained the carbon copies
of checks 1553 and 1558. Her possession
of the entire checkbook is substantial evidence which supports the implied
finding that defendant intended to commit additional acts of forgery. Because each act of forgery has a separate
criminal objective (see People v. Neder
(1971) 16 Cal.App.3d 846, 853-854), section 654 does not preclude a separate
sentence for possession of the stolen checkbook.
3.
RESENTENCING IS REQUIRED
Defendant filed a motion prior to sentencing, asking the
court to exercise its discretion pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 and strike her
strike priors. The court denied the
motion, finding that because of defendant’s extensive record and failure to
seek help for her long-term drug addiction, she could not be deemed “outside
the . . . spirit of the [three strikes law].â€
(See People v. Williams (1998)
17 Cal.4th 148, 161.) Defendant now
contends that we must vacate her sentence and remand the cause for resentencing
because the court did not understand that it had the discretion to strike her
prior convictions as to some counts while refusing to strike them as to other
counts. Defendant did not ask the trial
court to exercise its discretion in that manner, however, and we decline to
find that it was an abuse of discretion for the court not to do something it
was not asked to do and which it had no legal obligation to do in the absence
of a request. For the same reason, we
reject defendant’s contention that the court should have reduced some of her
felony convictions to misdemeanors, pursuant to section 17, subdivision (b).
Under
the same caption, defendant argues that remand for resentencing is also
required because the trial court appeared to believe that the terms on all
counts must be imposed consecutively. Defendant
is correct that trial courts retain the discretion, under the three strikes
law, to impose concurrent terms for crimes committed on the same occasion or
arising from the same set of operative facts (where § 654 does not mandate
staying the sentence on one or more of such offenses). (People
v. Deloza (1998) 18 Cal.4th 585, 590-591, 595; People v. Lawrence (2000) 24 Cal.4th 219, 229-230, 233.) Here, the court stated that the sentence on
count 2 was required to be consecutive to the sentence on count 1, and “[s]ame
for Count 3†and “[s]ame for Count 4.â€
We will remand for resentencing to allow the court to determine whether
the sentences on some counts should be made concurrent.
In
a supplemental brief, defendant also
contends that she is entitled to be sentenced as a second striker, pursuant to
the Three Strikes Reform Act of 2012.
(§§ 667, subd. (e)(2)(C), 1170.12, subd. (c)(2)(C), 1170.126.)
The
Three Strikes Reform Act of 2012 (hereafter the Reform Act) was enacted by the
electorate on November 6, 2012, and became effective November 7, 2012. (People
v. Lester (2013) 220 Cal.App.4th 291, 300 [Fourth Dist., Div. Two].) Under the three strikes law as it existed
before the passage of the Reform Act, all defendants with two or more strike
priors received a sentence of 25 years to life upon conviction of any new
felony. (Former § 667(e)(2)(A).)
As
amended, section 667 provides that a defendant who has two or more strike
priors is to be sentenced pursuant to paragraph 1 of section 667(e)—i.e., as
though the defendant had only one strike prior—if the current offense is not a
serious or violent felony as defined in section 667.5(c) or section 1192.7(c),
unless certain disqualifying factors are pleaded and proven.
(§§ 667(d)(1), (e)(2)(C).)
The
intermediate courts have disagreed as to whether the mandatory second-strike
sentencing provisions of the Reform Act apply to all qualifying third-strike
convictions which were not yet final on November 7, 2012. Some courts, including a panel of this court
in People v. Lester,
that section 1170.126 reflects the intent of the electorate to apply the
mandatory second-strike sentencing provisions of section 667(e) prospectively
only. Section 1170.126 provides that any
inmate who is currently serving an indeterminate life term under the three
strikes law is entitled to apply to the sentencing court for recall of his or
her sentence and for a sentence reduction.
Under section 1170.126, reduction of the inmate’s sentence is
discretionary. Section 1170.126 states,
“The resentencing provisions under this section and related statutes are
intended to apply exclusively to persons presently serving an indeterminate
term of imprisonment pursuant to paragraph (2) of subdivision (e) of Section
667 . . . whose sentences under this act would not have been an indeterminate
life sentence.†In Lester, the court held that this language is the functional
equivalent of a savings clause, reflecting the intent that the mandatory
sentencing provisions apply only to those defendants who are convicted after
the effective date of the Three Strikes Reform Act. (People
v. Lester, at pp. 300-304.)
The
issue is currently on review in People v.
Lewis (2013) 216 Cal.App.4th 468 (Fourth Dist., Div. Two) (review granted
Aug. 14, 2013, S211494) and other cases.
For purposes of this case, we adopt the reasoning and holding of
DISPOSITION
The
cause is remanded to the trial court for further sentencing proceedings. The trial court is directed to stay imposition
of sentence on count 2, pursuant to Penal Code section 654, and to
exercise its discretion to determine whether each remaining felony term is to
run consecutive to the principal term or concurrent with it. The judgment is otherwise affirmed.
NOT
TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting
P. J.
We concur:
RICHLI
J.
MILLER
J.
Code unless another code is specified.
by the name Castro.
