Filed 2/4/14 P. v. Rubin CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B242846
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. SA080530)
v.
EDWARD RUBIN,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County. James
Dabney, Judge. Affirmed in part, reversed in part and remanded with direction.
Melissa J. Kim, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Shawn McGahey Webb and
Taylor Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.
__________________________
Defendant Edward Rubin appeals from his conviction of second degree burglary
and forgery. He contends the trial court prejudicially erred in admitting evidence of an
uncharged act. The People contend the trial court erred in modifying the sentencing
minute order nunc pro tunc to purportedly strike a prior conviction found true pursuant to
the Three Strikes law.1 We affirm the judgment, but reverse the nunc pro tunc order and
remand for the trial court to state its reasons for striking the Three Strikes prior
conviction.
FACTS
Viewed in accordance with the usual rules on appeal (People v. Zamudio (2008)
43 Cal.4th 327, 357-358), the evidence established that in 2011, Dr. Louis Manzi owned
the Orange Coast Eye Center. In April of that year, Manzi’s briefcase containing, among
other things, a copy of a check written on Orange Coast Eye Center’s Citibank account
was stolen. Manzi closed the account about a month later, after the legitimate
outstanding checks had cleared. Manzi did not know defendant and never issued a check
to him.
On October 13, 2011, defendant opened accounts at the Citibank in Covina,
depositing $100 deposit into checking and $5 into savings. The bank forms defendant
filled out indicate he lived in South Los Angeles and was unemployed. As was standard
practice, the account was blocked the next day when defendant could not be contacted.
On October 18, 2011, the account was debited $105 (a blocked account does not prevent
the account holder from withdrawing his or her own funds). A Citibank fraud
investigator testified that opening an account so far from his residence when he was
unemployed was a “red flag.” Opening an account with a minimum deposit and
withdrawing the money very soon thereafter is a practice consistent with check fraud. It
is also common that fraudulent checks are written in an amount less than $5,000, because
1 See Penal Code section 1170.12, subdivisions (a) through (d), and section 667,
subdivisions (b) through (i) (the Three Strikes law). All future undesignated statutory
references are to the Penal Code.
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checks of $5,000 or more are subject to additional scrutiny. Because the usual 30-day
delay on access to funds in a new account does not apply when a Citibank check from
one account is deposited into another Citibank account, another common practice for
opening fraudulent accounts is to deposit Citibank checks into Citibank accounts within
the first 30 days of opening an account. Detective Sean Williams of the Los Angeles
Police Department, the investigating officer in this case, confirmed that these were
common practices in check fraud cases.
Citibank teller Sonia Alvarado testified that she was working at the Rancho Park
Citibank when defendant approached her window at about 4:45 p.m. on October 25,
2011, and asked to deposit a $4,800 check, purportedly written on Orange Coast Eye
Center’s Citibank account. Defendant said it was his paycheck. Alvarado noticed that
two different addresses were printed on the front of the check – something that Citibank
would never do. Using the bank’s computer system to verify the account on which the
check was written, Alvarado saw that the check and the electronic signature on it did not
match the check image or signature on file for Orange Coast Eye Center. Upon further
research, Alvarado discovered that the account had been closed “due to fraud.” Realizing
something was amiss, Alvarado told defendant she needed to have the check verified.
Alvarado gave the check to assistant bank manager Andres Quiros. After contacting Dr.
Manzi, who confirmed that the check was not authorized, Quiros gave the check to bank
manager Diana Hammond, who called the police.
Manzi testified that the $4,800 check defendant tried to deposit looked like a poor
counterfeit of a check from the business account Manzi had closed after his briefcase was
stolen.
Los Angeles Police Officer Roberto Sanchez and his partner, Robert Giminez,
arrested defendant at the bank and transported him to the police station in the back of
their patrol car. Before placing defendant in the back seat, Sanchez confirmed that there
was nothing on the seat. When Sanchez removed defendant from the car upon arrival at
the police station, Sanchez found an “Elite” debit card in defendant’s name on the back
seat. In addition, Sanchez found two credit cards, a California driver’s license and a
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Social Security card, all in the name of Kevin I., on the back seat. Sanchez booked the
cards into evidence. The cards were not related to defendant’s efforts to cash the
fraudulent check at Citibank that afternoon and Sanchez did not know if the cards had
been used in the commission of any crimes.
PROCEDURAL BACKGROUND
Defendant was charged with second degree commercial burglary (§ 459) and
forgery (§ 470, subd. (d)). Two Three Strikes priors were alleged based on defendant’s
convictions in case No. TA035202 of felony lewd conduct (§ 288, subd. (b)); and rape in
concert (§ 264.1). In addition, two section 667.5, subdivision (b) enhancements were
based on prison terms defendant served in: (1) case No. TA037202 and (2) case
No. NA082233. Defendant was convicted on both counts following a jury trial at which
he appeared in pro per. In a bifurcated proceeding, the trial court found true the
allegations that defendant suffered two strike priors and served two prior prison terms
within the meaning of section 667.5, subdivision (b). Defendant waived time for
sentencing. There followed this colloquy:
THE COURT: All right. Let’s hear first from the People. What’s your
position? What are you requesting?
[THE PROSECUTOR]: Your Honor, the People are requesting, at the
minimum, mid-term times two plus the two years for the prison prior.
THE COURT: So you’re requesting six years?
[THE PROSECUTOR]: Yes, Your Honor.”
Asked what information he wanted the trial court to consider in deciding the appropriate
sentence, defendant did not ask that the trial court strike either of the two Three Strikes
priors found true. Instead, he focused on his innocence of the underlying offenses. In
response to the prosecutor’s comment that she had the facts of the underlying cases, the
trial court stated: “No. I’m not considering striking the strikes so I don’t need to. I
understand I have the ability and discretion to, but I don’t think under these
circumstances that I will.” Although it declined to strike the two strike priors, without
explanation the trial court sentenced defendant as if he had just one qualifying strike (i.e.
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by doubling the 16 month low term): “The court believes that in imposing the strike prior
and the two prison priors –there are no aggravating circumstances left given the nature of
these particular charges. So the court’s going to select the low term of 32 months. [¶] In
addition, that’s calculated pursuant to [the Three Strikes law], plus an additional two
years for the 667.5(b) priors. That’s a total of 56 months.” Sentence on the forgery count
was stayed pursuant to section 654. The People did not alert the trial court to the fact that
the sentence was inconsistent with the true finding on the two alleged strike priors.
The sentencing minute order entered the next day accurately reflects what
occurred at the sentencing hearing: the trial court found true the two alleged strike priors,
but sentenced defendant as if he had just one qualifying strike. The minute order does
not state that the trial court struck one of the Three Strikes priors pursuant to
section 1385. To the extent doing so is implicit in the sentence imposed, the trial court’s
reasons are not set forth in the minute order, as required by the statute. Defendant timely
appealed.
Although the People did not appeal the sentence, more than a year after judgment
was entered, while defendant’s appeal was pending, the trial court purported to amend the
sentencing minute order with a nunc pro tunc order dated September 20, 2013. The nunc
pro tunc order:
Added the sentence: “The People proceed as to one strike prior;”
Deleted the true finding on two strike priors; and
Substituted a true finding on one Three Strikes law prior.
We gave the People permission to file a letter brief challenging the nunc pro tunc order as
in excess of the trial court’s authority to correct a clerical error in the original judgment,
and gave defendant five days to respond. Defendant has not filed a response to the
People’s letter brief.
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DISCUSSION
A. Evidence of Uncharged Act Was Properly Admitted
Defendant contends the trial court erred in admitting evidence that defendant was
in possession of credit cards, a driver’s license and a social security card belonging to
Kevin I., and that he discarded those items in the back of the police car. He argues that
the evidence did not tend to logically, naturally and by reasonable inference prove the
element of intent to defraud in this case. We disagree.
Based on the counterfeit check he tried to deposit at Citibank, defendant was
charged with forgery, in violation of Penal Code section 470, subdivision (d), which
makes it a crime to pass or attempt to knowingly pass a counterfeit check with the intent
to defraud. He was not charged with any crime relating to his possession of credit cards
and identification belonging to another. (See, e.g., Pen. Code, § 484e, subd. (c) [“Every
person who, with the intent to defraud, acquires or retains possession of an access card
without the cardholder’s or issuer’s consent, with intent to use, sell, or transfer it to a
person other than the cardholder or issuer is guilty of petty theft.”].) Evidence that a
person engaged in uncharged criminal conduct is admissible to prove intent of the
charged offense, among other things. (Evid. Code, § 1101, subd. (b).) In order to be
admissible for that purpose, the uncharged conduct must be sufficiently similar to the
charged conduct to support the inference that the defendant probably harbored the same
intent in each instance. (People v. Soper (2009) 45 Cal.4th 759, 775, internal quotations
and citations omitted.)
We review the trial court’s Evidence Code section 1101, subdivision (b) rulings
for abuse of discretion. (People v. Carter (2005) 36 Cal.4th 1114, 1147.) Any error in
admitting evidence of uncharged criminal conduct is subject to harmless error analysis
under the standard announced in People v. Watson (1956) 46 Cal.2d 818, 836. (People v.
Thomas (2011) 52 Cal.4th 336, 356.)
Here, defendant objected that discovery of the access cards in the back of the
police car was not relevant to the charged crimes. The People countered that, although
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the police had been unable locate Kevin I., defendant had not explained why he was in
possession of his identification and credit cards; defendant’s intent to commit forgery
could be inferred from defendant’s possession and attempt to discard the cards before
booking. The trial court concluded:
“I think the fact that the items were left in the police vehicle is enough for the
People to argue that – that those items were possessed illegally and with the intent
to defraud [] under [Evidence Code section] 1101 here, even though we’re talking
about checks as opposed to credit cards. [¶] . . . So I’m [going to] overrule your
motion and allow those items to come in for the sole purpose of establishing
intent.”
In its final charge to the jury, the trial court instructed that, although defendant had not
been charged with violation of section 484e, subdivision (c), if the jury found by a
preponderance of the evidence that defendant had committed that crime, it could consider
such evidence “for the limited purpose of deciding whether or not the defendant acted
with the intent to defraud in this case. Do not consider that evidence for any other
purpose. [¶] If you conclude the defendant committed the uncharged offense, that
conclusion is only – only one factor to consider along with all the other evidence. It is
not sufficient by itself to prove that the defendant is guilty of burglary and forgery. . . . ”
In closing, the prosecutor argued:
“So I just want to make clear he’s not being charged with [possessing Kevin I.’s
access cards] okay? It’s just that he had cards on him, and that is a crime. [¶] But
what I’m trying to use this evidence for and what it was allowed to do with this
evidence is that it’s another piece of the puzzle. It’s another piece that proves that
the defendant knew what he was doing in this case, that he knew that the check
was counterfeit, and that he intended to defraud either the bank or Dr. Manzi. [¶]
. . . [¶] And why is this so important to his intent? Because I.D. theft, fraud,
forgery [and] having someone else’s information, this valuable information on it,
is part and parcel of the same type of crime, right? [¶] This is all part of the same
type of crime here, using someone’s true information in a criminal way. And so
that’s why this evidence was presented. And the defendant actually had it on him
on the day that he was committing the check fraud.”
We find no abuse of discretion in the trial court’s admission of the challenged
evidence on the issue of intent. First, there was substantial evidence from which the jury
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could find by a preponderance of the evidence that defendant’s possession of Kevin I.’s
access cards was a violation of section 484e, subdivision (c): defendant’s possession of
the cards can be reasonably inferred from the fact that the items were not there before
defendant was placed in the back seat of the patrol car; the elements of intent to defraud
and Kevin’s lack of consent can be reasonably inferred from defendant’s effort to discard
the items so they would not be found in his possession. Second, both the charged offense
(forgery) and uncharged offense (unlawful possession of access cards) are financial
crimes which include the element of intent to defraud. For these reasons, we find the
uncharged offense was similar enough to the charged offense to make evidence of the
uncharged offense admissible under Evidence Code section 1101, subdivision (b) to
prove intent.
B. The Trial Court Exceeded Its Authority In Issuing A Nunc Pro Tunc Order to
Correct the Sentencing Minute Order
The People contend that the trial court exceeded its authority by issuing a nunc pro
tunc order which attempts to correct a judicial error, not a clerical error. They argue that
the statement in the nunc pro tunc order that the People elected to proceed as to one
Three Strikes prior and the trial court found true just one Three Strikes prior, is contrary
to the facts. We agree with the People that further limited sentencing proceedings are in
order.
Courts “have inherent authority to correct clerical errors in a sentence at any time.
‘It is not open to question that a court has the inherent power to correct clerical errors in
its records so as to make these records reflect the true facts. [Citations.] . . . The power
is unaffected by the pendency of an appeal or a habeas corpus proceeding. [Citation.]
The court may correct such errors on its own motion or upon the application of the
parties.’ [Citation.] This nunc pro tunc authority, however, is limited to true clerical
errors.” (People v. Kim (2012) 212 Cal.App.4th 117, 123-124.) It does not authorize the
court to substantially modify the original judgment. “ ‘The distinction between clerical
error and judicial error is “whether the error was made in rendering the judgment, or in
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recording the judgment rendered.” ’ [Citation.]” (Ibid.) A nunc pro tunc order cannot
“declare that something was done which was not done.” (Ibid., citing People v. Borja
(2002) 95 Cal.App.4th 481, 485 [365 day jail sentence as condition of probation cannot
be changed to a 365 day sentence by nunc pro tunc order].)
Here, the nunc pro tunc order sought to correct the inconsistency between the trial
court’s true finding on two Three Strikes priors, and the imposing of a sentence as if there
was just one qualifying strike. The Three Strikes law requires enhanced sentencing
unless the trial court dismisses the prior conviction in the interests of justice pursuant to
section 1385. (People v. Morales (2003) 106 Cal.App.4th 445, 456.) Under the Three
Strikes law, if the defendant has two qualifying strikes, sentence on the current felony
conviction must be an indeterminate life term, with the minimum to be calculated as the
greater of three alternatives (§ 1170.12, subd. (c)(2)); if the defendant has one qualifying
strike, sentence on the current felony conviction must be doubled (§ 1170.12,
subd. (c)(1)). Conviction of multiple counts in one case may result in multiple strikes.
(People v. Fuhrman (1997) 16 Cal.4th 930, 937.) Although section 1385 gives the trial
court discretion to strike a Three Strikes prior on its own motion (§ 1170.12,
subd. (d)(2)), the trial court must set forth in writing its reasons for doing so. (See People
v. Bonnetta (2009) 46 Cal.4th 143.)
Here, the original minute order accurately reflected what transpired at the
sentencing hearing: the trial court found true two Three Strikes priors but sentenced
defendant as if he had just one prior. Although it is implicit in the sentence imposed that
the trial court struck one of the strike priors, its reasons for doing so were not set forth in
the minute order as required by section 1385. Instead of correcting that error, the nunc
pro tunc order purported to “declare something was done which was not done,”
specifically, that the People elected to proceed as though there was only one Three
Strikes prior and that the trial court found true only one prior. Because that order was in
excess of what the trial court could do nunc pro tunc, the order must be stricken.
Striking the nunc pro tunc order does not end our inquiry. This is because the trial
court’s failure to set forth its reasons for striking one of the strike priors in the original
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sentencing order results in an unlawful sentence. (Bonnetta, supra, 46 Cal.4th at p. 153.)
In Bonnetta, our Supreme Court concluded the trial court’s failure to set forth in writing
its reasons for striking the enhancements was error, which could not be waived by the
People’s failure to remind the trial court of the necessity of a written order at the time of
sentencing, or to object to the minute order. The Bonnetta court explained that, as a
practical matter, since “a minute order is entered by the court only after hearing, the
district attorney cannot easily ensure that it is entered or detect its absence.” (Id. at p. 152
[distinguishing People v. Scott (1994) 9 Cal.4th 331, which held that error in failing to
articulate reasons for sentencing choice is waived unless challenged at the time of
sentencing].) As matter of policy, “the failure to set forth the reasons for a dismissal in
an order entered upon the minutes is not a routine defect in sentencing. It is a violation of
a mandatory requirement put in place to benefit the public by assuring that a court
through neglect or abuse of discretion has not misused the ‘great power’ of dismissal.
[Citation.]” (Id. at pp. 152-153; see also People v. Superior Court (Romero) (1996)
13 Cal.4th 497, 531 [failure to state reasons for striking a Three Strikes prior requires
reversal].)
In its supplemental brief, respondent asks that we strike the nunc pro tunc order
and remand for “clarification of appellant’s sentence.” Respondent points out that it
“appears the court and the parties intended that appellant be sentenced as a second strike
offender.” We agree that the state of the record indicates the trial court intended to
sentence defendant by utilizing only one Three Strike prior to double the base term. The
trial court was within its discretion to impose such a sentence but it was required to state
in writing its reasons for doing so. (§ 1385, subd. (a).) We conclude the proper remedy
is to remand for the trial court to correct the defect in the original sentencing minute order
by setting forth its reasons for striking one of the strike priors in a written order entered
upon the minutes.
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DISPOSITION
The judgment of conviction is affirmed. The nunc pro tunc order dated
September 25, 2013 is stricken and the matter is reversed and remanded only to permit
the trial court to state its reasons for striking one of the Three Strikes priors in a written
order entered upon the minutes.
RUBIN, J.
WE CONCUR:
BIGELOW, P. J.
GRIMES, J.
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