People v. Mondragon

• Decision Date: 15 June 2018
• Docket Number: E067008
• Parties: THE PEOPLE, Plaintiff and Respondent, v. JOSE LOPEZ MONDRAGON, Defendant and Appellant.
• Court: California Court of Appeals

THE PEOPLE, Plaintiff and Respondent, v. JOSE LOPEZ MONDRAGON, Defendant and Appellant.

E067008

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO

June 15, 2018

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super.Ct.No. FVI1503016)

OPINION

APPEAL from the Superior Court of San Bernardino County. John M. Tomberlin, Judge. Affirmed.

Jason L. Jones, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Andrew Mestman, Deputy Attorneys General, for Plaintiff and Respondent.

I

INTRODUCTION

Defendant and appellant, Jose Lopez Mondragon, appeals from the judgment entered following a jury conviction for forgery relating to a state warrant (check) exceeding $950. (Pen. Code, §§ 476, 473, subd. (a).)¹ The jury also found true that defendant had a prior strike conviction (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and a prior prison term (§ 667.5, subd. (b)). The trial court sentenced defendant to seven years in state prison.

Defendant contends there was insufficient evidence to support his forgery conviction; the trial court erred in instructing the jury on the valuation element of felony forgery; the trial court erred in instructing on defendant's mistake-of-fact defense; the court erred in excluding his out-of-court statements that he believed the check was valid and he was going to sue Walmart and the police; the prosecutor improperly shifted the burden of proof during closing argument; and as a result of cumulative error, defendant was deprived of a fair trial.

We conclude that although the trial court committed instructional error and the prosecutor made improper statements regarding the burden of proof, these errors were not prejudicial, individually or cumulatively. We reject the remainder of defendant's objections and affirm the judgment.

II

FACTS

On May 27, 2015, a Walmart customer service manager received a check that raised "some red flags." The customer service manager took the check to a Walmart loss prevention officer, along with defendant's valid identification. The loss prevention officer also observed the "red flags" or irregularities on the check. Walmart trains its employees to notice signs or characteristics indicating a check might be fraudulent.

The loss prevention officer testified that the irregularities on the check included font irregularities, erasures, and use of a bolder font for defendant's name, "Mondragon," and the word, "Trucking." The payee name on the check was "JL Mondragon Trucking." The loss prevention officer further testified that he saw the person who brought the check into the Walmart store. The customer service manager told the loss prevention officer who the individual was. The loss prevention officer identified defendant at trial as that person.

The loss prevention officer contacted law enforcement regarding the suspicious check. Defendant remained at the store until Deputy Bibeau arrived. The check was not cashed. Deputy Bibeau testified he received the check from the loss prevention officer, along with the identification collected with the check. Deputy Bibeau observed the mismatched printing in the payee area of the check, which Deputy Bibeau testified "stuck out like a sore thumb." Deputy Bibeau contacted an operational manager at the California State Controller's office (SCO employee), to verify whether the check wasgenuine or fraudulent. The SCO employee testified that she determined that the check, in the amount of $5,216.71, was a valid check, with the exception of the payee name, JL Mondragon Trucking, and address, which were in a different font. The SCO employee also determined that the payee written on the check was not the correct payee. Therefore, the check was not a valid check.

III

SUBSTANTIAL EVIDENCE OF FORGERY

Defendant contends there was insufficient evidence to support his forgery conviction because there was no evidence defendant actually attempted to pass the altered check at Walmart.

A. Substantial Evidence Standard of Review

"In reviewing a sufficiency of evidence challenge, we view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt." (People v. Gonzalez (2012) 54 Cal.4th 643, 653.) "In deciding the sufficiency of the evidence, a reviewing court resolves neither credibility issues nor evidentiary conflicts." (People v. Young (2005) 34 Cal.4th 1149, 1181.) Even if a contrary finding can be reconciled with the evidence, this court is bound to accept the jury's finding if supported by the evidence. (People v. Escobar (1992) 3 Cal.4th 740, 750.) In applying the same standard to a conviction based primarily on circumstantial evidence, we uphold the jury's verdict if reasonably justified by the circumstances, even if a contrary finding might alsoreasonably be reconciled with the circumstances. (People v. Ceja (1993) 4 Cal.4th 1134, 1138; People v. Bean (1988) 46 Cal.3d 919, 932.)

B. Law Applicable to Forgery

Section 476 criminalizes the conduct of anyone "[1] who makes, passes, utters, or publishes, with intent to defraud any other person, or [2] who, with the like intent, attempts to pass, utter, or publish, or [3] who has in his or her possession, with like intent to utter, pass, or publish," any document the statute enumerates, which includes checks. Section 473 provides that under most circumstances forgery is a misdemeanor if the value of the check does not exceed $950. Otherwise, it is a felony. (§ 473.)

The trial court instructed the jury on forgery with modified CALCRIM No. 1935, as follows: "The defendant is charged with attempting to pass or use a false or altered check or other legal writing for the payment of money. [¶] To prove that the defendant is guilty of this crime, the People must prove that: [¶] "1. The defendant attempted to pass or use a false or altered check or other legal writing for the payment of money; [¶] 2. The defendant knew that the document was false or altered; [¶] AND [¶] 3. When the defendant attempted to pass or use the document, he intended to defraud." The court further instructed the jury on the element of intent as follows: "Someone intends to defraud if he or she intends to deceive another person either to cause a loss of money or to cause damage to a legal, financial or property right."

The attempt to pass or use an altered check occurs when the defendant puts it into circulation or offers to do so. (People v. Harris (1974) 39 Cal.App.3d 965, 970.)Possession of a forged instrument is evidence of forgery against the possessor. (People v. Ruiz (1951) 103 Cal.App.2d 146, 149 ["Merely presenting a forged check for payment constitutes an uttering."].)

C. Discussion

Defendant argues there was no evidence that he offered the check to anyone at Walmart. There was only testimony that a Walmart customer service manager brought the check to the attention of the loss prevention officer noting that the check raised some red flags. The customer service manager also stated who brought the check into the store. Defendant maintains there was no evidence as to how the customer service manager obtained the check or that defendant presented the check to a Walmart employee. Defendant also argues there was no evidence defendant attempted to cash the check at Walmart or attempted to purchase anything with the check. Defendant therefore concludes that it would have been improper for the jury to speculate that defendant presented the check to the customer service manager.

We conclude there was ample evidence to support the jury's findings that defendant brought the check into the Walmart store and handed it to the customer service manager with the intent of passing it. Such evidence included the loss prevention officer's testimony that when the customer service manager noticed irregularities in the check she showed the loss prevention officer the check along with defendant's identification collected with the check. The loss prevention officer also testified he was told defendant had brought the check into the store. The jury thus could reasonably inferfrom this evidence that defendant brought the altered check into the store and presented the check, along with his identification, to the customer service manager, with the intent to pass or use the altered check at Walmart.

As to the evidence the check was fraudulent, the loss prevention officer, the customer service manager, and the investigating officer all noticed obvious irregularities in the check, which they believed indicated the check was fraudulent. In addition, the SCO employee verified the check was invalid because the name of the payee had been altered.

Viewing the evidence in a manner most favorable to the judgment, we conclude the evidence was sufficient to support an inference that defendant took the check into the Walmart store and presented it to a Walmart employee, with the intent to pass or use the altered check for the payment of money. Such inference amounted to more than mere speculation. (People v. Raley (1992) 2 Cal.4th 870, 891.)

IV

FAILURE TO INSTRUCT ON THE VALUE OF THE CHECK

Defendant contends the trial court committed reversible error by not instructing the jury that a felony forgery conviction requires a finding that the check's fair market value exceeds $950. We agree there was error but conclude it was harmless.

The crime of forgery is defined in section 476. The punishment for forgery is stated in section 473, which differentiates between...