People v. Chung, H029551 (Cal. App. 5/18/2007)
| Decision Date | 18 May 2007 |
| Docket Number | H029551 |
| Court | California Court of Appeals Court of Appeals |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. BOBBY WILLIAM CHUNG, Defendant and Appellant. |
Appeal from the Santa Clara County Super. Ct. No. EE403788.
A jury convicted defendant Bobby William Chung of three counts of second degree burglary, three counts of writing checks with insufficient funds, one count of second degree robbery, one count of assault, and possession of a hypodermic syringe and a pipe for smoking controlled substances. (Pen. Code, §§ 459-460, subd. (b), 476a, 211-212.5, subd. (c), 245, subd. (a)(1)1; Bus, & Prof. Code, § 4140; Health & Saf. Code, § 11364.) Thereafter, defendant admitted having a strike felony conviction and having previously served six prison terms. (§§ 667, 667.5, subd. (b).) Under the "Three-Strikes" law, the court imposed a six-year term for the robbery, consecutive 16-month terms for two burglaries, and a five-year term for the prior conviction. The court dismissed five of the prison priors, and stayed the term for the sixth as well as the terms imposed on the remaining counts.
On appeal from the judgment, defendant claims the court erred in refusing to sever the drug-related charges from the others, denying his motion for self-representation, and amending the information after trial. He claims there is insufficient evidence to support the burglary and robbery convictions. He claims the prosecutor was guilty of misconduct. And last, he claims the abstract of judgment must be corrected.
We conclude that the court erred in denying defendant's motion to sever and reverse the judgment.
The burglary, bad check, theft, robbery, and assault charges arose from three visits that defendant made to the Weirdstuff Warehouse (Weirdstuff) in Sunnyvale, during which he purchased merchandise using checks written on bank accounts that were closed. The drug-related charges are based on evidence seized at the time of defendant's arrest several weeks after the last purchase.
Kyle Jackson, an analyst for Wells Fargo Bank, testified that on February 18, 2004, the bank opened a business checking account number 2010798726 with a $100 deposit for defendant and Egbert Hignio, doing business as Janitorial Bureau of Investigation at 2011 Little Orchard Street in San Jose. From February 18 to March 3, 2004, $1,164.95 was deposited into the account and $1,190.15 was withdrawn, rendering the account overdrawn. Jackson explained that when accounts are overdrawn, the bank issues letters to the account holders, giving them 60 days to cover the negative balance. In this case, the overdraft was never covered, and the account was closed on May 20, 2004.
Jackson testified that on March 3, 2004, someone deposited an empty envelope purporting to contain $400 in an ATM. He further testified that a defense exhibit (Exhibit B) was a copy of a "credit ticket" from a "back shop"—i.e., a Wells Fargo unit that handles deposits and withdrawals but does not have direct contact with customers. The ticket purported to reflect a deposit of $400 into defendant's account on March 1, 2004. He could not tell from the ticket whether the money was ever put into the account. However, he opined that whatever took placed occurred before the account was closed on May 20, 2004.
Roderick Wada, manager of the Stevens Creek Bank of the West, testified that on March 18, 2004, defendant opened a business checking/savings account number 015017004 with a $100 deposit for Janitorial Bureau of Investigation at 505 South 10th Street in San Jose. The account was active during April. On May 7, 2004, the account was restricted because on May 4, 2004, defendant deposited a $1,000 check from a different Bank of the West personal checking account and then stopped payment.2 Wada checked that other personal account and found that there had been only $150 in the account when defendant wrote the $ 1,000 check. Wada explained that when the $1,000 was "reversed out" of the business account, there was a negative balance of $846.74. According to Wada, that account never again had a positive balance, and on May 17, 2004, the account was closed. The bank phoned defendant and sent notices to 130 Roundtable in San Jose, where defendant's statements previously had been sent. On May 19, 2004, the bank charged off the account as a loss.
Wada testified that later in June, he spoke to defendant. Defendant said he wanted to deposit funds and "reopen" his account. Sometime later, defendant handed Wada an ATM deposit envelope personally addressed to Wada that had "$21" written on it.3 However, defendant's account remained closed.
Linda Tai, the customer service manager at the Stevens Creek bank, testified that on May 7, 2004, defendant came to the bank and asked why his ATM card had been blocked. She told him that his account became overdrawn when he stopped payment on the $1,000 check he had deposited. She said that if he did not cover the negative balance, his account would be closed. She testified that she made an appointment for him to speak to Wada, but he did not show up. She also testified that defendant automatically would have been sent notices when his account became overdrawn.
On July 3, 2004, almost two months after both business accounts at Wells Fargo and Bank of the West had been closed, defendant bought a laptop computer at Weirdstuff, writing a check —number 1063—for $270.57 from the closed Bank of the West account.
On July 8, 2004, defendant returned to the store and bought another laptop and other merchandise from Nelson Pineda, a sale clerk, writing a check—number 1091—for $379.69 on the same Bank of the West account.
On July 17, 2004, defendant returned again and attempted to purchase another laptop and some wireless equipment from John Ryle, the sales clerk. He wrote check number 1009 from his closed Wells Fargo account. Ryle took the check, wrote identification information on it, entered information on the store computer, and ran the check through the store's check verifier. The computer alerted Ryle not to accept the check. At that time, Ryle remembered that the sales staff had been warned not to accept checks from defendant.
When Ryle was processing the transaction, defendant put the laptop into an empty laptop shoulder bag and started to leave without a sale receipt. Realizing that he could not accept the check or finalize the transaction, Ryle called defendant back to the counter, saying that defendant had forgotten the sales receipt. He asked defendant to wait, and then he went to consult with the sales manager Jim Van Cleef, who was also aware of defendant's prior bad checks. When Ryle left, defendant walked out the door and into the parking lot. Ryle alerted Roshan Patel, another clerk, and Van Cleef. Patel rushed out the door after defendant, followed by Van Cleef, followed by Ryle.4
Outside, defendant was on his motorcycle, with the laptop bag, hurriedly putting on his helmet. Patel, who was 10 feet away, called out loudly enough for him to hear. Defendant did not respond. Instead, he started his motorcycle and began to drive away. As he did, he turned a little toward Van Cleef, who reflexively put his hands out in front of him. Defendant continued toward Van Cleef and then ran into him, hitting his thigh and running over his foot, even though there was room on the road to avoid hitting him. Defendant swerved, as if he had lost his balance, and then continued out of the parking lot.
Carolyn Andrews, the store accountant, testified that the bank returned defendant's first check—number 1063—marked "account closed" after defendant had already come in and written the second check—number 1091. About a week later, the bank notified the store about the second check. At that time, Andrews called the phone number on the checks, but it had been disconnected. She also called a number on defendant's business card, which he had left after his first purchase. She left a message. On July 24, 2004, Andrews sent defendant letters about all three checks, two to the address on the Bank of the West checks and one to the address on the Wells Fargo check, but all of the letters came back marked "return to sender."
Andrews testified that she received three voice mail calls from someone identifying himself as defendant on July 19 and 20 and August 10, 2004, and one on December 3, 2004, from a woman identifying herself as Nancy Noval and claiming to be defendant's friend. In his calls, defendant expressed concern about his account and wanted to "make up for the hassle of having bounced a couple of checks . . . ." However, she never saw defendant, no payment was made, and the merchandise was not returned.
On September 5, 2004, Officer David Osborn of the Sunnyvale Police Department checked the license plate of a car parked at the Pacific Inn, a motel in Sunnyvale. He obtained defendant's name, which he checked for warrants, and learned that he was a suspect in a pending robbery investigation at Weirdstuff. Officer Osborn asked the motel clerk about the car and was told that the owner was registered in room 325 under the name Guillermo Umali. Officer Osborn left, obtained a photograph of defendant, and returned the next day. The clerk recognized defendant and directed Officer Osborn to room 125. Defendant was alone in the room.5 Inside, Officer Osborn found a syringe, a bent spoon, a cut straw, a nail file, and a bag containing a non-drug white powder. Officer Osborn also found a laptop, a carrying case, a receipt dated August 24, 2004, for a laptop and carrying case from the Bay Area Computerman, and several checkbooks. Officer Osborn arrested defendant and later interviewed him at the police station.
Defendant told Officer Osborn that he had registered in the name Guillermo Umali. He admitted that the drug paraphernalia was his...
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