People v. Ryan

• Decision Date: 05 April 2006
• Docket Number: No. F047368.,F047368.
• Citation: 41 Cal.Rptr.3d 277,138 Cal.App.4th 360
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Teresa Lynn RYAN, Defendant and Appellant.

41 Cal.Rptr.3d 277

138 Cal.App.4th 360

The PEOPLE, Plaintiff and Respondent, v. Teresa Lynn RYAN, Defendant and Appellant.

No. F047368.

Court of Appeal, Fifth District.

April 5, 2006.

Certified for Partial Publication.^*

Valerie G. Wass, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Lloyd G. Carter and Brian Alvarez, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

ARDAIZ, P.J.

Appellant Teresa Lynn Ryan stands convicted, following a jury trial, of burglary (Pen.Code,¹ § 459; counts I-III); receiving stolen property (§ 496, subd. (a); count IV); forgery by signing another's name (§ 470, subd. (a); counts V-VI); forgery by making or passing a forged check (id., subd. (d); counts VII-VIII); forgery by possessing a blank or unfinished check (§ 475, subd. (b); count IX); unauthorized use of personal identifying information (§ 530.5, subd. (a); count XI); and fraudulent use of an access card (§ 484g, subd. (a); count XII), a misdemeanor. In addition, she admitted having served four prior prison terms (§ 667.5, subd. (b)). Sentenced to a total unstayed term of 12 years 4 months in prison and ordered to pay various fines and penalty assessments, she now appeals. For the reasons that follow, we will vacate the convictions on counts V and VI and remand the matter for modification of portions of the sentence.

FACTS

On September 21, 2004, appellant and Moriah Valencia entered three antique stores in Jamestown and stole purses and other items belonging to store personnel.² Generally speaking, appellant distracted the victim by asking to see something in the store, while Valencia absconded with the loot. Appellant then used or attempted to use some of the stolen checks, debit cards, credit cards, and identifications. Goods purchased with these items, together with other purloined belongings, were found in a vehicle associated with the two women. In defense, appellant admitted entering stores and asking about items that interested her, but claimed she was uninvolved in, and unaware of, Valencia's theft-related activities.

DISCUSSION

I^**

II LESSER INCLUDED OFFENSES

In counts V and VI, appellant was convicted of forgery in violation of subdivision (a) of section 470. In counts VII and VIII, she was convicted of forgery in violation of subdivision (d) of that statute. Counts V and VII were based on her conduct of signing Cynthia Carter's name to a check and using it to make a purchase at Staples, while counts VI and VIII were based on her conduct of signing Carter's name to a check and attempting to use it to make a purchase at Gypsy Rose Antiques. Appellant now says she could not properly be convicted of counts V and VI because forgery in violation of section 470, subdivision (a) is a lesser included offense of forgery in violation of section 470, subdivision (d). We reach the result urged by appellant, but by way of different reasoning.

It has long been settled in this state that multiple convictions may not be based on necessarily included offenses. (People v. Ortega (1998) 19 Cal.4th 686, 692, 80 Cal.Rptr.2d 489, 968 P.2d 48.) "`The test ... of a necessarily included offense is simply that where an offense cannot be committed without necessarily committing another offense, the latter is a necessarily included offense.' [Citations.]" (People v. Pearson (1986) 42 Cal.3d 351, 355, 228 Cal.Rptr. 509, 721 P.2d 595.)

In our view, the various subdivisions of section 470 do not set out greater and lesser included offenses, but different ways of committing a single offense, i.e., forgery. As originally enacted, section 470 contained no subdivisions. Even from 1990 to 1998, when the statute was divided into subdivisions (a) and (b), the various acts that constituted forgery were amassed in an undifferentiated, confusing recitation.⁵

Former section 470 was repealed in 1998, and a new section 470 was enacted wherein the various acts constituting forgery were set out, to a certain degree, in different subdivisions. (Stats.1998, ch. 468, §§ 1-2, pp. 2704-2705.)⁶ Thus, as enacted in 1998 and as it existed when appellant committed the offenses at issue here, section 470 provided:

"(a) Every person who, with the intent to defraud, knowing that he or she has no authority to do so, signs the name of another person or of a fictitious person to any of the items listed in subdivision (d) is guilty of forgery.

"(b) Every person who, with the intent to defraud, counterfeits or forges the seal or handwriting of another is guilty of forgery.

"(c) Every person who, with the intent to defraud, alters, corrupts, or falsifies any record of any will, codicil, conveyance, or other instrument, the record of which is by law evidence, or any record of any judgment of a court or the return of any officer to any process of any court, is guilty of forgery.

"(d) Every person who, with the intent to defraud, falsely makes, alters, forges, or counterfeits, utters, publishes, passes or attempts or offers to pass, as true and genuine, any of the following items, knowing the same to be false, altered, forged, or counterfeited, is guilty of forgery: any check, bond, bank bill, or note, cashier's check, traveler's check, money order, post note, draft, any controller's warrant for the payment of money at the treasury, county order or warrant, or request for the payment of money, receipt for money or goods, bill of exchange, promissory note, order, or any assignment of any bond, writing obligatory, or other contract for money or other property, contract, due bill for payment of money or property, receipt for money or property, passage ticket, lottery ticket or share purporting to be issued under the California State Lottery Act of 1984, trading stamp, power of attorney, certificate of ownership or other document evidencing ownership of a vehicle or undocumented vessel, or any certificate of any share, right, or interest in the stock of any corporation or association, or the delivery of goods or chattels of any kind, or for the delivery of any instrument of writing, or acquaintance, release or discharge of any debt, account, suit, action, demand, or any other thing, real or personal, or any transfer or assurance of money, certificate of shares of stock, goods, chattels, or other property whatever, or any letter of attorney, or other power to receive money, or to receive or transfer certificates of shares of stock or annuities, or to let, lease, dispose of, alien, or convey any goods, chattels, lands, or tenements, or other estate, real or personal; or any matter described in subdivision (b).

"(e) Upon a trial for forging any bill or note purporting to be the bill or note of an incorporated company or bank, or for passing, or attempting to pass, or having in possession with intent to pass, any forged bill or note, it is not necessary to prove the incorporation of the bank or company by the charter or act of incorporation, but it may be proved by general reputation; and persons of skill are competent witnesses to prove that the bill or note is forged or counterfeited."⁷

The overhaul of section 470 and related provisions was intended to "`make [the] laws governing financial crimes more "user friendly"'" and "`to clarify and streamline existing law with regard to forgery and credit card fraud.'" It was not intended to "change the meaning or legal significance of the law," but "`merely [to] organize[] the relevant code sections into a cohesive and succinct set of laws that can be readily referred to and understood.'" (Assem. Com. on Public Safety, Analysis of Assem. Bill No. 2008 (1997-1998 Reg. Sess.) as introduced Feb. 18, 1998, p. 2)

In construing former section 470, courts consistently held that there was but one crime of forgery, and that the various acts proscribed by the statute were simply different means of committing that offense. For instance, in People v. Frank (1865) 28 Cal. 507, 513, the California Supreme Court stated: "Where, in defining an offense, a statute enumerates a series of acts, either of which separately, or all together, may constitute the offense, all such acts may be charged in a single count, for the reason that notwithstanding each act may by itself constitute the offense, all of them together do no more, and likewise constitute but one and the same offense. To illustrate our meaning, take the statute against forgery, ... where we find several acts enumerated, all of which are declared to be forgery. Thus `the falsely making,' `altering,' `forging,' `counterfeiting,' `uttering,' `publishing,' `passing,' `attempting to pass' any of the instruments or things therein mentioned, with the intent specified, is declared to be forgery. Now, each of those acts singly, or all together, if committed with reference to the same instrument, constitute but one offense. Whoever is guilty of either one of these acts is guilty of forgery; but if he is guilty of all of them, in reference to the same instrument, he is not therefore guilty of as many forgeries as there are acts, but of one forgery only. Hence an indictment which charges all of the acts enumerated in the statute, with reference to the same instrument, charges but one offense, and the pleader may therefore at his option charge them all in the same count, or each in separate counts ...." (Accord, People v. Leyshon (1895) 108 Cal. 440, 442-443, 41 P. 480; People v. Harrold (1890) 84 Cal. 567, 568-569, 24 P. 106; People v. Luizzi (1960) 187 Cal.App.2d 639, 644, 9 Cal.Rptr. 842; People v. Keene (1954) 128 Cal. App.2d 520, 526-527, 275 P.2d 804.) In People v. McKenna (1938) 11 Cal.2d 327, 332, 79 P.2d 1065, the high court stated: "The crime of forgery consists either in the false making or alteration of a document without authority or the uttering (making use) of such a document with the intent to defraud. [Citation...