People v. Mitich
| Decision Date | 11 October 2017 |
| Docket Number | D070882 |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. STOJAN CHARLES MITICH et al., Defendants and Appellants. |
| Court | California Court of Appeals Court of Appeals |
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEALS from judgments of the Superior Court of San Diego County, Robert F. O'Neill, Judge. Affirmed in part, reversed in part, and remanded with directions.
Theresa Osterman Stevenson, under appointment by the Court of Appeal, for Defendant and Appellant Stojan Charles Mitich.
Cynthia M. Jones, under appointment by the Court of Appeal, for Defendant and Appellant Robert Lewis Stevenson.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Kristine A. Gutierrez and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.
Defendants Robert Lewis Stevenson and Stojan Charles Mitich were part of a conspiracy to deposit a fraudulent check into Mitich's bank account and then withdraw most of that money within a few days. Stevenson appeals a judgment following jury verdicts convicting him of conspiracy to commit grand theft (count 1, Pen. Code,1 § 182, subd. (a)), unlawful use of personal identifying information of another (count 2, § 530.5, subd. (a)), second degree burglary (counts 3, 5-13, § 459), and grand theft of personal property valued in excess of $950 (count 4, § 487, subd. (a)). In his appeal, Stevenson contends: (1) there is insufficient evidence to support his convictions on counts 3, 4, and 5; (2) his sentences on either count 1 or counts 9, 12, and 13 must be stayed pursuant to section 654; (3) counts 3 through 13 must be consolidated into one offense pursuant to the Bailey2 doctrine; (4) several of the probation conditions imposed by the trial court are overbroad and should be stricken; and (5) the court erred by ordering him to make victim restitution payments through the County of San Diego (County) subject to its 15 percent collection fee.
Mitich appeals a judgment following jury verdicts convicting him of conspiracy to commit grand theft (count 1, § 182, subd. (a)) and second degree burglary (counts 9-13, § 459). In his appeal, Mitich contends: (1) the court erred by excluding evidence of hissettlement agreement with the bank; (2) there is insufficient evidence to support his convictions on counts 1 and 9 through 13; (3) execution of his sentence on either count 1 or counts 9, 12, and 13 must be stayed pursuant to section 654; (4) counts 9 through 13 must be consolidated into one offense pursuant to the Bailey doctrine; (5) several of the probation conditions imposed by the court are overbroad and should be stricken; and (6) the court erred by ordering him to make victim restitution payments through County subject to its 15 percent collection fee.
Based on our reasoning below, we affirm the judgments in part, reverse them in part, and remand the matters with directions for resentencing.
Counts 2 and 3. In July 2014, Mitich had an account with California Bank and Trust (Bank) in the name of his business, SCM Companies, Inc. (SCM). At about 6:00 p.m. on Friday, July 18, Mitich entered Bank's Hillcrest branch shortly before it closed. He told Juan Gonzalez, the branch's customer service manager, that he was waiting for someone to bring him something that he had to deposit into his account. At about 6:02 p.m., Stevenson entered the branch and handed Mitich an envelope. Mitich ripped open the envelope, removed a check, and handed the check to the teller for deposit into his account. The check, No. 57144, purportedly was in the amount of $75,143.41, drawn on the account of the Ability Center, and made payable to SCM. The check was not legitimate and had been made by cutting and pasting together portions of two checksthe Ability Center had written to its vendors in the amounts of $43.41 and $163.25.3 The fraudulent check appeared to be legitimate to an untrained eye. The day before Mitich's deposit of that check, SCM's account balance was $104.66. Because both the Ability Center and SCM had accounts with Bank, Bank processed the check immediately. When Mitich asked Gonzalez when the funds would be available, he replied the funds would be available the next day (i.e., Saturday, July 19).
Count 4. On Saturday, July 19, Mitich drove to Bank's Escondido branch and, using its drive-through window, placed a $9,900 check drawn on his SCM account into the branch's tube system and asked the teller to cash it. In the check's memo section, Mitich had written, "For loan paid back." Because of the check's amount, the teller first obtained her supervisor's approval and then cashed the check, placing the cash into a tube that transported it to Mitich, who was alone in his car.
Count 5. At about 1:00 p.m. on Saturday, July 19, Mitich entered Bank's La Mesa branch and, using funds in SCM's account, purchased three cashier's checks. The cashier's checks, each in the amount of $8,500, were made payable to Tina Stevenson (Stevenson's wife), Jennifer Carter, and Vickie Aponte.
Counts 6 and 7. At about 12:30 p.m. on Monday, July 21, Carter and Aponte entered Bank's Rancho Cucamonga branch. Carter gave the teller her $8,500 cashier's check and received $8,500 in cash. Aponte gave the teller her $8,500 cashier's check and received $8,500 in cash.
Count 8. On July 21, Mitich entered a Wells Fargo Bank branch and deposited the $8,500 cashier's check in Tina Stevenson's name into her account with the bank.
Count 9. At about 11:00 a.m. on July 21, Mitich entered Bank's Escondido branch and requested and received a cashier's check for $11,000 payable to Aponte and a cashier's check for $10,000 payable to Carter. He then told the teller he wanted $9,000 in cash. The teller informed him that because Saturday (July 19) and Monday (July 21) were considered the same business day and he would be receiving a total of more than $10,000 in cash in that business day, he would be required to fill out a currency transaction report that Bank would file with the IRS. Mitich then made a telephone call. When he got off the phone, he appeared nervous and was sweaty and fidgeting. Instead of cash, Mitich then requested and received cashier's checks for $9,900 and $9,320 payable to himself.
Count 10. On July 21, Carter and Aponte entered Bank's Mission Gorge branch. Carter cashed the $10,000 cashier's check in her name and received $10,000 in cash.
Count 11. On July 21, Carter and Aponte entered Bank's Kearny Mesa branch. Aponte cashed the $11,000 cashier's check in her name and received $11,000 in cash.
Count 12. On July 22, Mitich entered Bank's San Marcos branch and attempted to cash the $9,900 cashier's check in his name. However, because the branch did not have sufficient cash, he was given $3,000 in cash and a cashier's check for $6,900 for the remainder.
Count 13. On July 22, Mitich entered Bank's Emerald Plaza branch and cashed the $6,900 cashier's check in his name and received $6,900 in cash.
On July 28, Mitich went to Bank's Hillcrest branch at the request of Gonzalez, its customer service manager. Gonzalez told him the Ability Center check was bad and asked him what happened to the money. Mitich explained the check was for a business transaction. At Gonzalez's request, Mitich wrote a handwritten explanation, stating: He continued: Mitich told Gonzalez he purchased all of the cashier's checks because he had to pay people off.
On July 30, Denette Stewart, Bank's Escondido branch manager, spoke with Mitich by telephone. She asked him where he got the Ability Center check. Mitich replied that a friend, Chris Williams, whom he was helping out, gave the check to him. He explained he met two men, Williams's friends, in Bank's parking lot and they handed the check to him. Mitich stated that after depositing the check, he withdrew the money and gave it to Williams. When Stewart stated his story did not make sense, Mitich replied he was trying to help a friend he had known a long time. Mitich told her Williams was a mortgage broker in Escondido. Mitich stated he told him to write, "For loan pay back," in the memo section of the cashier's checks. When she asked for Williams's contact information, Mitich replied he did not know how to reach him. However, two days earlier, Mitich had provided Williams's telephone number to Bank's fraud investigator and it had been given to police who were investigating the matter.Mitich told Stewart he did not want any problems with Bank, which she interpreted as meaning he wanted to get the overdraft resolved. Stewart testified he did not, however, get the overdraft resolved.
On August 5, Mitich met with Stewart and handed her a Bank deposit envelope and told her that his friend, Williams, had given it to him. On the outside of the envelope, there was handwriting with instructions regarding the cashier's checks he should obtain (i.e., $8,500 and $11,000 checks payable to Aponte and $8,500 and $10,000 checks payable to Carter). Mitich did not know either woman.
During the police investigation of the matter, there was an analysis of telephone records for Mitich, Williams, Stevenson, and an unknown person's...
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