People v. Gbadebo-Soda
| Citation | 38 Cal.App.4th 160,45 Cal.Rptr.2d 40 |
| Decision Date | 11 September 1995 |
| Docket Number | GBADEBO-SOD,F023009,Nos. F022018,O,D,s. F022018 |
| Court | California Court of Appeals |
| Parties | , 95 Cal. Daily Op. Serv. 7210, 95 Daily Journal D.A.R. 12,272 The PEOPLE, Plaintiff and Respondent, v. Adamsonefendant and Appellant. In re Adamsonn Habeas Corpus. |
Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Robert R. Anderson, Assistant Attorney General, W. Scott Thorpe and Kelly A. Elam, Deputy Attorneys General, for plaintiff and respondent.
Adamson Gbadebo-Soda appeals from the judgment entered on a jury verdict finding him guilty of burglary of Bank of America under PENAL CODE SECTION 4591 (count II) and grand theft of Union Bank in violation of section 487 (count V). Appellant does not appeal the jury convictions of receiving stolen property under section 496 (count I), burglary under section 459 (count III), nor grand theft under section 487 (count IV). Appellant contends the evidence was insufficient to sustain the burglary conviction in count II because he lacked the intent to commit theft against the Bank of America when he attempted to withdraw $500 from an account in which he had deposited $600 in cash and $600 in stolen money orders. Appellant also contends that venue was improper and that his vicinage right was violated under count V, grand theft of Union Bank, because no deposits, withdrawals, or preparatory acts were conducted in Stanislaus County, the location of the trial. In both the appeal and in a separate writ of habeas corpus, appellant contends his trial attorney's failure to object to venue and vicinage constitute ineffective assistance of counsel. For efficiency purposes, we have consolidated the appeal and writ proceedings.
On January 13, 1994, appellant opened a savings account with Bank of America in Bakersfield by depositing $100 in cash. Appellant used a false driver's license and Social Security card under the name Jackson Tim to open the account. On January 18, 1994, appellant deposited an additional $500 in cash and two $300 Travelers Express money orders in a Bank of America branch in Stockton. The money orders deposited were stolen from a liquor store in Oakland on December 28, 1993.
On January 20, 1994, appellant entered a Modesto branch of the Bank of America. When waited upon, he attempted to withdraw $500 from the account in which the cash and money orders had been deposited. The bank's operations manager, Sherry Egger, suspected appellant's identification was false and refused to process appellant's request. Ms. Egger then dialed 9-1-1 to notify the police.
Officer David Hawn responded to Ms. Egger's call and stopped appellant in his car in the bank's parking lot. Two more officers joined Officer Hawn and searched appellant's car. The officers found various bank cards, Social Security cards, and driver's licenses with appellant's photograph under the names Adamson Gbadebo-Soda, Robert Cole, Shawn Golden, Hacket Maurice, and Jackson Tim. Appellant admitted to Officer Siville that all but the Adamson Gbadebo-Soda documents were false.
On December 4, 1993, appellant opened a checking account and a money-market account at Union Bank in Visalia. Appellant opened the accounts with a $4,800 Aetna Insurance check made payable to Shawn Golden, the name under which appellant opened the accounts. Appellant subsequently conducted the following 29 deposits and withdrawals on the checking account:
Date Amount Type Location
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12/13/93 - $100 ATM (Automatic Teller Machine) Visalia
12/13/93 - $300 ATM Oakland
12/13/93 - $300 ATM Oakland
12/14/93 - $1,000 Check Oakland
12/15/93 - $280 ATM Visalia
1/11/94 k $350 Invalid Money Order Stockton
1/12/94 k $1,100 Invalid Money Order Fresno
1/12/94 - $80 ATM Visalia
1/12/94 - $100 ATM Visalia
1/12/94 - $100 ATM Stockton
1/13/94 k $660 Invalid Money Order Visalia
1/13/94 - $100 ATM Fresno
1/13/94 - $200 ATM Fresno
1/14/94 k $620 Invalid Money Order Fresno
1/14/94 k $700 Invalid Money Order Fresno
1/14/94 k $700 Invalid Money Order Visalia
1/14/94 k $300 ATM Fresno
1/14/94 - $200 Withdrawal Visalia
1/14/94 - $500 Withdrawal Visalia
1/18/94 k $640 Invalid Money Order Stockton
1/18/94 k $650 Invalid Money Order Fresno
1/18/94 - $300 ATM Stockton
1/18/94 - $800 Check Stockton
1/18/94 - $300 ATM Stockton
1/18/94 - $300 ATM Stockton
1/18/94 - $500 Check Stockton
1/18/94 - $300 ATM Stockton
1/19/94 - $300 ATM Stockton
1/19/94 - $950 Check Stockton
None of the money orders deposited in Union Bank were valid. As a result of appellant's actions, the bank lost $4,445 before discovering stop payments had been placed on the money orders.
Appellant did not conduct any bank transactions involving Union Bank in Stanislaus County; however, police found the false identification under the name Shawn Golden which appellant used to open the Union Bank account in appellant's possession in Modesto, Stanislaus County. The parties concede neither vicinage nor venue were contested at trial. However, appellant filed a declaration with his writ of habeas corpus asserting he complained to his counsel at trial that he believed jurisdiction was improper in Stanislaus County.
1. Sufficient evidence of appellant's intent to commit theft supported the burglary conviction on count II even though he attempted to withdraw less than the cash he deposited in an account in which he had also deposited invalid money orders.
"Every person who enters any ... building ... with intent to commit grand or petit larceny or any felony is guilty of burglary...." (§ 459.) To commit burglary, the underlying felony need be neither committed nor attempted; only the intent to commit the felony is required. (§ 459; People v. Robles (1962) 207 Cal.App.2d 891, 894, 24 Cal.Rptr. 708, citing People v. Guarino (1955) 132 Cal.App.2d 554, 559, 282 P.2d 538.) The defendant's intent to commit the crime must exist at the time of entering the building. (People v. Henderson (1956) 138 Cal.App.2d 505, 509, 292 P.2d 267; People v. Robles, supra, at p. 894, 24 Cal.Rptr. 708; People v. Garrow (1955) 130 Cal.App.2d 75, 85, 278 P.2d 475.) Appellant contends insufficient evidence existed to convict him of burglary of Bank of America because he lacked the necessary intent to commit theft at the time he entered the bank, since theft entails the taking of "property of another" under section 484. 2 He points to the evidence showing that he attempted to withdraw only $500 from the account in which he had deposited $600 in cash.
The Attorney General contends the jury properly found appellant's felonious intent by examining appellant's entire scheme to defraud the bank. We agree with the Attorney General.
Neither party has cited, and we have been unable to find, any case directly considering the question here, i.e., when "good" funds and "bad" funds are commingled in a bank account, does an attempt to withdraw an amount not exceeding the "good" funds preclude a finding of intent to commit theft?
Appellant was not convicted of attempted theft, and it is not necessary to determine The evidence showed that approximately 156 blank money orders were stolen from a liquor store in Oakland on December 28, 1993. Between January 11 and 19, 1994, appellant deposited or attempted to deposit 37 of the stolen money orders in 4 separate accounts he had recently opened, including the Bank of America account. The other accounts were at Bank of the West in Tulare, First Deposit National Bank, 3 and a Union Bank branch in Visalia. Appellant opened each of the accounts in a separate false name and used false identification records for that purpose.
whether the attempted withdrawal was itself a crime. The crucial question is appellant's intent when he entered the bank. If there is substantial evidence that he then intended to commit theft, it does not matter whether he thereafter made any attempt to withdraw funds from the account. If appellant could be guilty of burglary absent an attempt to withdraw any funds, it logically follows that an attempt to withdraw some funds does not preclude conviction, again assuming substantial evidence of his intent at the time of entry. Thus, the fact appellant attempted to withdraw only $500 from an account in which he had deposited $600 in cash, while supporting a reasonable inference that he did not intend to steal money from the bank, must be viewed in the light of other evidence supporting the opposite inference.
Between January 11 and 20, 1994, appellant made or attempted over 40 separate transactions in the 4...
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