Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Bernardino County No. FSB052235, Rodney A. Cortez, Judge.
NARES, J.
This real estate fraud case involves defendant Oralia Hidalgo's attempt to fraudulently acquire, and then sell, real property located at 1329 Mount Vernon Avenue in the City of Colton (the property), in San Bernardino County, by means of forgery, counterfeiting, and other criminal acts. As discussed more fully in the factual background section of this opinion, Hidalgo recorded on the same day two grant deeds containing a total of four forged signatures and two counterfeited notary public seals. The first grant deed (instrument No. 2003-0549141, hereafter referred to as Grant Deed A) purported to convey the property, without the knowledge of the lawful owners, as a gift to a real estate agent with whom Hidalgo was doing business. The second grant deed (instrument No. 2003-0549142, hereafter referred to as Grant Deed B) purported to convey the property from that real estate agent to Hidalgo. Hidalgo forged three signatures on Grant Deed A: the signatures of the owner of the property, her deceased husband, and a notary public. On Grant Deed B, Hidalgo forged a fourth signature, that of the notary public. On both Grant Deed A and Grant Deed B, she also counterfeited the seal of the notary public.
A jury found Hidalgo guilty of committing nine offenses. In addition to finding her guilty of one count of grand theft in connection with her sale of the property (count 9: Pen. Code, § 487, subd. (a), hereafter referred to as section 487(a)), the jury found her guilty of eight other counts (counts 1-8) that involved the following three types of crimes pertaining to each of the two grant deeds: (1) offering for recording a deed she knew was forged; (2) forging the deed; and (3) counterfeiting the notary public seal on the deed. Specifically, the jury convicted Hidalgo of the following nine counts: two counts of offering for recording a deed she knew was forged (count 1 (Grant Deed A) & count 2 (Grant Deed B)) in violation of section 115, subdivision (a) (hereafter referred to as section 115(a)); three counts of forgery involving Grant Deed A (counts 3, 4, & 5: § 470, subd. (d), hereafter referred to as section 470(d)); one count of forgery involving Grant Deed B (count 7: § 470(d)); two counts of counterfeiting a notary public seal (count 6 (Grant Deed A) & count 8 (Grant Deed B)) in violation of section 472; and one count of grand theft (count 9: § 487(a)). The jury also found true a sentence enhancement allegation under section 12022.6, subdivision (a)(1), that Hidalgo stole property valued in excess of $65,000. The court sentenced Hidalgo to a total prison term of five years.
All further statutory references are to the Penal Code.
Count 4 in both the felony complaint and the information charged Hidalgo with forging a signature on Grant Deed A (i.e., instrument No. 2003-0549141). As we shall discuss, post, the count 4 verdict form contains a typographical error that incorrectly indicates Hidalgo forged a signature on Grant Deed B (i.e., instrument No. 2003-0549142).
Count 7 of the felony complaint charged Hidalgo with forging the signature of the notary public on Grant Deed B (i.e., instrument No. 2003-0549142). Through a typographical error, count 7 of the information incorrectly charged her with an act of forgery in relation to Grant Deed A (i.e., instrument No. 2003-0549141). As we shall discuss, post, the count 7 verdict form corrected that typographical error to indicate that Hidalgo was guilty of an act of forgery in relation to Grant Deed B (i.e., instrument No. 2003-0549142), which is consistent with the count 7 charge alleged in the felony complaint. By any standard, the count 4 verdict form (see fn. 2, ante) and count 7 of the information should have been more carefully drafted and reviewed.
Hidalgo appeals, contending (1) she was improperly convicted of four counts of forgery (counts 3, 4, 5, and 7) based upon a single forged instrument (Grant Deed A), and thus three of those four convictions (counts 4, 5, and 7) must be vacated; (2) her convictions of counts 4 (forgery involving Grant Deed A) and 7 (forgery involving what the record shows is Grant Deed B) are invalid and should be vacated "due to denial of due process and fair notice" because the court "allowed convictions and imposed punishment for offenses the prosecution did not allege"; and (3) the court erred by failing to stay under section 654 the sentences it imposed as to counts 2 through 8 because she committed the subject acts─recording Grant Deed B (count 2), forging a total of four signatures (Grant Deed A: counts 3, 4, & 5; Grant Deed B: count 7), and counterfeiting the notary public seals on both grant deeds (counts 6 & 8)─"with the same intent and toward the same end: to gain title to and possession of [the] property."
We conclude that, as the Attorney General concedes, Hidalgo's convictions of counts 4 and 5, and thus the two concurrent two-year sentences imposed for those convictions, must be reversed. In all other respects the judgment is affirmed.
FACTUAL BACKGROUND
Around 1995 Sheila McKell (McKell), who was once married to Charles Doss and used the name Sheila Doss during the marriage, inherited the property in Colton from her great aunt.
The felony complaint in this matter alleged McKell's married name was Sheila E. McKell Doss.
In 2002 Hidalgo attempted to acquire the property, which was located right next door to her business. She contacted Manuel Torres, a real estate agent, who obtained a property profile for the property and discovered the name of the owner. When Hidalgo expressed interest in adversely possessing the property, Torres explained to her the concept of adverse possession and referred her to a real estate attorney, and together they met with the attorney. Later, Hidalgo again met with Torres and told him that in order for her to obtain the property by adverse possession, she needed color of title, and she wanted some document she could record.
In late 2002 Torres appeared before a notary public and, at Hidalgo's request, signed a quitclaim deed that was recorded on October 16, 2002, and purported to "quitclaimdeed" the property to Hidalgo. Although the quitclaim deed did not list the address of the property, it listed the assessor's parcel number as "0161-124-14, " which corresponded to the property. Torres, who stated at trial that he never represented to Hidalgo that he had an interest in the property, testified that he did this because he wanted to help Hidalgo get the property so that she would refer real estate clients to him.
The Attorney General notes that this quitclaim deed "was not the basis for any of the charged counts against [Hidalgo]" in this case.
McKell contacted the county tax collector because she owed taxes on the property. When she attempted to pay the back taxes, the tax collector informed her that someone else had paid all of the back taxes. This prompted McKell to investigate the matter. McKell, who had not sold the property, received paperwork indicating that the property had a new owner. As a result of the investigation, McKell learned that in February 2003 Hidalgo had written a check to the San Bernardino tax collector's office to pay the back taxes on the property.
In 2003 McKell visited the property and found that the gate she had left locked had been broken open and removed and improvements had been made to the property. While locking up the property with a new chain, McKell encountered Hidalgo and informed her that she (McKell) was the owner and no one else was allowed on the property until she found out what had happened. Hidalgo told McKell that she had purchased the property from Torres and gave McKell Torres's business card. McKell tried to contact Torres but was unable to reach him.
About a month later, McKell again met with Hidalgo to show her documents indicating that McKell still owned the property. Although Hidalgo had already represented that she had purchased the property, Hidalgo asked whether McKell was interested in selling the property. McKell testified that this struck her as "very odd."
Janice Vinci, in-house claims counsel for a company affiliated with Chicago Title, investigated a title claim submitted by Hidalgo regarding the property. Vinci testified about Grant Deed A (People's exhibit No. 4: "Individual Grant Deed" No. 2003-0549141), which was recorded on July 28, 2003, and purported to convey the property from Charles L. Doss, Sr. (Charles Doss) and Sheila E. Doss to Torres as a "bonafide gift." It bore signatures purporting to be those of Charles Doss, "Shiela [sic] E. McKell Doss, " and Bertha M. Maloncon, a notary public.
Grant Deed A is the basis for the offenses charged in counts 1, 3, 4, 5, and 6 of the information.
Vinci stated that, during her investigation in late October 2003, she spoke with Sheila Doss (i.e., McKell), who indicated there was fraud because she did not sign any grant deed recorded on July 28, 2003, and her husband Charles Doss, whose name someone had signed on Grant Deed A, had been dead for about one-and-a-half years at the time of that conveyance.
Regarding Grant Deed B (People's exhibit No. 5: "Individual Grant Deed" No. 2003-0549142), Vinci testified that it was also recorded on July 28, 2003 and it purported to convey the property from Torres to Hidalgo.
According to the Attorney General, Grant Deed B was the basis for the offenses charged in counts 2, 7, and 8 of the information.
McKell testified she did not sign Grant Deed A. She stated that her first name is "Sheila" and indicated that the person who signed her name on Grant Deed A misspelled her first name as "Shiela." McKell also indicated that her husband, Charles Doss, did not sign Grant Deed A, which was signed in 2003, and he could not have signed it because he died in 2001. McKell also testified that she never appeared before Maloncon.
The trial evidence showed that a signature purporting to be that of Maloncon, as well as a seal purporting to be hers, appeared on both Grant Deed A and Grant Deed B. Maloncon testified she did not sign or notarize Grant Deed A or Grant Deed B, and the signatures purporting to be hers were forgeries.
In July 2004 Hidalgo sold the property to Marino Morales of Giro Investments, Inc. for $125,000. Hidalgo received in excess of $40,000 from the sale.
The record shows, and the parties agree, that this sale transaction was the basis for the grand theft charged in count 9 of the information.
DISCUSSION
I
CLAIM THAT ALL FOUR FORGERY CONVICTIONS (COUNTS 3-5 & 7) INVOLVED GRANT DEED A AND THUS THREE MUST BE VACATED
Hidalgo first contends she was improperly convicted of four counts of forgery (counts 3, 4, 5, & 7) based upon a single forged instrument, Grant Deed A, and thus three of those four convictions (counts 4, 5, & 7) must be vacated. The Attorney General acknowledges that two of those convictions (counts 4 & 5) must be stricken because they, like Hidalgo's conviction of count 3, are based on signatures that she forged on Grant Deed A, and she can only be convicted of one count of forgery for each forged instrument even if she forged more than one signature on that instrument. We conclude Hidalgo's convictions for the acts of forgery charged in counts 4 and 5 must be reversed, but we affirm her count 7 forgery conviction.
A. Background
1. Felony complaint (forgery counts 3-5 & 7)
In the felony complaint, Hidalgo was charged with three counts of forgery (counts 3-5: § 470(d)) involving Grant Deed A. Specifically, with respect to that instrument, the complaint charged Hidalgo in count 3 with forging the signature of Charles Doss; in count 4 with forging the signature of Sheila E. McKell Doss; and in count 5 with forging the signature of Maloncon, the notary public.
Count 7 of the complaint charged Hidalgo with a fourth count of forgery (§ 470(d)) involving a separate instrument, Grant Deed B. Specifically, with respect to that instrument, count 7 of the complaint charged Hidalgo with forging the signature of Maloncon, the same notary public whose signature Hidalgo allegedly forged on Grant Deed A.
2. Typographical error in count 7 of the information
After Hidalgo was bound over for trial following the preliminary hearing on the complaint, she was again charged, in the information, with three counts of forgery involving Grant Deed A (counts 3-5: § 470(d)). However, although count 7 of the information (like count 7 of the complaint) accused Hidalgo of committing a fourth forgery offense, through an apparent typographical error it alleged that this additional act of forgery involved instrument No. 2003-0549141 (Grant Deed A), not instrument No. 2003-0549142 (Grant Deed B) as specified in count 7 of the complaint.
3. Count 7 verdict form that corrected the typographical error in the information
The foregoing typographical error in count 7 of the information─which incorrectly indicated that the act of forgery charged in that count involved instrument No. 2003-0549141 (Grant Deed A), rather than instrument No. 2003-0549142 (Grant Deed B) as alleged in count 7 of the original complaint─was corrected in the count 7 verdict form that the jury used in convicting Hidalgo of this fourth forgery offense. Specifically, the count 7 verdict form stated: "We, the jury..., find [Hidalgo] guilty of the offense of FORGERY involving a Grant Deed recorded on July 28, 2003 with the San Bernardino County Recorder's Office as instrument [No.] 2003-0549142 [(i.e., Grant Deed B)], in violation of... section 470(d), a felony, as charged in Count 7 of the Information."
Although count 7 of the complaint had specifically charged Hidalgo with forging the signature of Maloncon, the notary public, on Grant Deed B, neither count 7 of the information nor the count 7 verdict form, in charging Hidalgo with a fourth act of forgery, specifically alleged that she forged Maloncon's signature.
B. Analysis
The forgery statute, section 470(d), provides that "[e]very 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 [specified] items, knowing the same to be false, altered, forged, or counterfeited, is guilty of forgery[.]"
Section 470(d) "is violated each time a person makes and/or passes a forged item, no matter how many forged signatures are on the item." (People v. Martinez (2008) 161 Cal.App.4th 754, 762 [holding that two forged signatures on one document constituted only one count of forgery], original italics, fn. omitted.)
Here, Hidalgo contends, and the Attorney General acknowledges, that her convictions of the forgery offenses charged in counts 4 and 5 must be stricken because they, like Hidalgo's conviction of count 3 (which involved the forged signature of Charles Doss), are based on signatures she forged on a single instrument, Grant Deed A. We conclude Hidalgo's convictions of the acts of forgery charged in counts 4 and 5, which the record shows are based on her acts of forging the signatures of Sheila Doss (McKell) and Maloncon, respectively, must be reversed because they are based on the same forged instrument, Grant Deed A. (People v. Martinez, supra, 161 Cal.App.4th at p. 762.)
We reject, however, Hidalgo's additional claim that her fourth conviction of forgery as charged in count 7 must also be reversed. Hidalgo's claim is based on the false premise that count 7 charged her with forging the same instrument─Grant Deed A─that was involved in the other three forgery counts (counts 3, 4, and 5). She relies on the fact that, although the count 7 verdict form shows the jury convicted her in that count of an act of forgery involving Grant Deed B, count 7 of the information charged her with an act of forgery involving Grant Deed A.
However, as already discussed, count 7 of the felony complaint put Hidalgo on notice that she was charged in that count with forging Maloncon's signature on Grant Deed B. Following the preliminary hearing on the complaint, Hidalgo was bound over for trial on count 7. Based on the foregoing record, we reject Hidalgo's suggestion that the typographical error in count 7 of the information represents a charging "election" that is binding on the prosecution.
II
CLAIM OF LACK OF FAIR NOTICE (COUNTS 4 & 7)
Hidalgo next contends her convictions of counts 4 and 7 are invalid and should be vacated "due to denial of due process and fair notice" because the court "allowed convictions and imposed punishments for offenses the prosecution did not allege." In essence, Hidalgo claims that, although the information charged her with four counts of forgery involving Grant Deed A (counts 3-5 & 7), the verdict forms show the jury convicted her of two counts of forgery (counts 3 & 5) involving Grant Deed A─the grant deed that purported to convey the property from the Dosses to Torres─and two counts of forgery (counts 4 & 7) involving Grant Deed B─the grant deed that purported to convey the property from Torres to Hidalgo. More specifically, she contends her convictions of counts 4 and 7, and the two two-year concurrent sentences she received as a result of those two forgery convictions, must be reversed because, in those counts, the information charged her with acts of forgery involving instrument No. 2003-0549141 (Grant Deed A), but the count 4 and count 7 verdict forms both indicate the jury convicted her of forgery involving a different document, instrument No. 2003-0549142 (Grant Deed B), that was "not mentioned in the information"; and "this discrepancy caused [her] to be convicted of four counts of forgery where only one was properly charged." These contentions are unavailing.
A. Forfeiture
As a preliminary matter we note that, because we have already concluded that Hidalgo's conviction of count 4 must be reversed, we need only reach here her claim that her count 7 conviction must be reversed on the ground it is "invalid for lack of notice."
We first conclude that Hidalgo has forfeited this claim by failing to raise it at the trial level. A defendant "forfeit[s her] right to object to an alleged variance between the pleading and the proof by failing to raise the objection in the trial court." (People v. Maury (2003) 30 Cal.4th 342, 427 (Maury).) The Court of Appeal explained long ago that "[a] defendant may not be permitted to submit to a trial on the merits without objection, taking [her] chances of obtaining a favorable verdict, and reserve, in the event of an adverse judgment, any objection which [s]he may have to mere irregularities in the form of indictment or pleading, for an attack in the appellate court for the first time." (People v. Meraviglia (1925) 73 Cal.App. 402, 407.)
Here, Hidalgo concedes she did not raise this claim in the trial court. Specifically, she acknowledges that her "[c]ounsel did not object when the jury was instructed on [counts 4 and 7], when the prosecutor argued that counts [4] and [7] pertained to People's Exhibit [No. 5] [(i.e., Grant Deed B)], when the verdict forms differed from the information, nor when the court imposed sentence for counts [4] and [7]." By failing to raise in the trial court her claim that her conviction of count 7 was invalid for lack of notice, Hidalgo has forfeited that claim. (Maury, supra, 30 Cal.4th at p. 427; People v. Meraviglia, supra, 73 Cal.App. at p. 407.)
B. Merits
Were it necessary for this court to reach the merits of Hidalgo's lack-of-fair-notice claim regarding count 7, we would conclude it is unavailing. As discussed, ante, the record shows that, although count 7 of the information (like count 7 of the complaint) accused Hidalgo of committing a forgery offense, through an apparent typographical error it (count 7 of the information) alleged that the act of forgery involved instrument No. 2003-0549141 (Grant Deed A), not instrument No. 2003-0549142 (Grant Deed B) as charged in count 7 of the complaint, This typographical error was corrected in the count 7 verdict form, which stated: "We, the jury..., find [Hidalgo] guilty of the offense of FORGERY involving a Grant Deed recorded on July 28, 2003 with the San Bernardino County Recorder's Office as instrument [No.] 2003-0549142, in violation of... section 470(d), a felony, as charged in Count 7 of the Information." (Italics added.)
Even if Hidalgo had objected in the trial court, the variance at issue here did not deprive her of fair notice regarding the forgery charge she faced in count 7. At the preliminary hearing, Hidalgo's counsel acknowledged that Hidalgo was charged in this matter with forging both Grant Deed A and Grant Deed B, not (as she now claims on appeal) with forging only Grant Deed A. The reporter's transcript of the preliminary hearing shows that defense counsel stated that People's exhibit No. 4 (i.e., Grant Deed A), "the document ending in 141, which purports to transfer [the property] from McKell-Doss to Torres... forms the basis for Counts [1, 3, 4, 5, and 6 of the complaint]." Hidalgo's counsel also explicitly acknowledged during the preliminary hearing that People's Exhibit No. 5 (Grant Deed B) "relates to [counts] [2], [7], and [8]." At the conclusion of the preliminary hearing, Hidalgo was ordered to stand trial on the various counts charging her with forging both Grant Deed A and Grant Deed B.
The foregoing record thus shows the defense clearly understood Hidalgo was required to answer at trial the charges that she had forged both Grant Deed A and Grant Deed B, including the count 7 charge that she committed an act of forgery involving Grant Deed B.
We reject Hidalgo's suggestion that the charges alleged in the felony complaint and the evidence presented at her preliminary hearing are not relevant to the issue of whether she received fair notice she would be charged with forging Grant Deed B. "'The test of the materiality of variance in an information is whether the pleading so fully and correctly informs a defendant of the offense with which he is charged that, taking into account the proof which is introduced against him, he is not misled in making his defense.'" (Maury, supra, 30 Cal.4th at p. 427, quoting People v. Guerrero (1943) 22 Cal.2d 183, 187, italics added.) In Maury, the California Supreme Court considered the preliminary hearing evidence presented against the defendant in determining that the variance in the information in that case was not material and that the defendant had failed to show he was prejudiced by the variance. (Maury, supra, at p. 427.)
Here, the trial record shows the prosecution presented the testimony of Maloncon, the notary public, who indicated that the "Bertha M. Maloncon" signatures on both Grant Deed A (People's Exhibit No. 4) and Grant Deed B (People's Exhibit No. 5) were not hers. The prosecutor then specifically asked her whether it would "be safe to say that the signature on both documents, [People's exhibit] Numbers 4 and 5, were forgeries." (Italics added.) Maloncon replied, "I would say, yes...." During his closing argument, the prosecutor argued that Hidalgo was guilty of forging both People's Exhibit No. 4 (Grant Deed A) and People's Exhibit No. 5 (Grant Deed B). As already noted, count 7 of the complaint, as to which Hidalgo was ordered to stand trial, clearly charged her with forging the signature of Maloncon on Grant Deed B.
For all of the foregoing reasons, we conclude that Hidalgo's claim that her conviction of count 7 must be reversed because she was not given fair notice that she was being tried on charges that she forged both Grant Deed A and Grant Deed B is unpersuasive. Accordingly, we reject Hidalgo's additional contention that her trial counsel provided ineffective assistance by failing to raise below her count 7 lack-of-fair notice claim because she cannot demonstrate prejudice.
III
SECTION 654 (COUNTS 2-8)
Last, Hidalgo contends the court erred by failing to stay under section 654 the punishments it imposed for each of her seven convictions of counts 2 through 8 because she committed the various criminal acts─offering Grant Deed B for recording knowing it was forged (count 2), forging a total of four signatures on the two grant deeds (Grant Deed A: counts 3, 4, & 5; Grant Deed B: count 7), and counterfeiting the notary public seals on both grant deeds (Grant Deed A: count 6; Grant Deed B: 8)─"with the same intent and toward the same end: to gain title to and possession of [the property]." This contention is unavailing.
A. Section 654
Section 654, subdivision (a) provides in part: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision."
Section 654 "precludes multiple punishment for a single act or omission, or an indivisible course of conduct" (People v. Deloza (1998) 18 Cal.4th 585, 591); and ensures the defendant's punishment will be commensurate with his or her criminal culpability (People v. Kramer (2002) 29 Cal.4th 720, 723 (Kramer); People v. Perez (1970) 23 Cal.3d 545, 550-551 (Perez)). Although section 654 does not bar multiple convictions based on a single act or a course of conduct, it does bar concurrent sentences for such convictions. (People v. Pearson (1986) 42 Cal.3d 351, 359-360.)
Whether a course of conduct is indivisible for purposes of section 654 depends on the intent and objective of the defendant, not the temporal proximity of the offenses. (People v. Hicks (1993) 6 Cal.4th 784, 789.) If all the criminal acts were incident to one objective, then punishment may be imposed only as to one of the offenses committed. (People v. Rodriguez (2009) 47 Cal.4th 501, 507.)
The question of whether a defendant harbored multiple criminal objectives is generally a question of fact for the trial court to decide. (People v. Coleman (1989) 48 Cal.3d 112, 162.)
If a defendant suffers two convictions, and punishment for one is barred by section 654, that section requires that the sentence for one conviction be imposed and the other be imposed and then stayed. (People v. Deloza, supra, 18 Cal.4th at pp. 591-592.)
B. Analysis
Because Hidalgo challenges the seven punishments the court imposed as to counts 2 through 8, but we have concluded her convictions of counts 4 and 5 must be reversed, we need only address the issue of whether the court should have stayed under section 654 the following five punishments imposed for her convictions of counts 2, 3, 6, 7, and 8: (1) the concurrent two-year prison term imposed for her conviction of count 2 (offering Grant Deed B for recording knowing it was forged); (2) the consecutive eight-month term imposed for count 3 (forgery, Grant Deed A); (3) the consecutive eight-month term imposed for count 6 (counterfeiting the notary public's seal on Grant Deed A); (4) the concurrent two-year term for count 7 (forgery, Grant Deed B); and (5) the concurrent two-year term for count 8 (counterfeiting the notary public's seal on Grant Deed B). We conclude the section 654 bar against multiple punishment does not apply to any of the five challenged punishments, and thus the court did not commit sentencing error as to counts 2, 3, 6, 7, or 8.
1. Count 2
As to count 2, the jury convicted Hidalgo of violating section 115(a) by offering Grant Deed B for recording knowing it was forged, and the court imposed a concurrent two-year prison term as punishment for that offense. Although the court also imposed the principal prison term of two years for Hidalgo's count 1 conviction for violating section 115(a) (offering Grant Deed A for recording knowing it was forged), the court did not err by imposing the concurrent two-year term for her count 2 conviction because each of these two violations of section 115 is separately punishable notwithstanding the section 654 bar against multiple punishments.
Section 115, subdivision (d) provides: "For purposes of prosecution under this section, each act of procurement or of offering a false or forged instrument to be filed, registered, or recorded shall be considered a separately punishable offense." (Italics added.)
The plain, foregoing language of section 115, subdivision (d), "demonstrates an express legislative intent to exclude section 115 from the penalty limitations of section 654. Thus, the Legislature has unmistakably authorized the imposition of separate penalties for each prohibited act even though they may be part of a continuous course of conduct and have the same objective." (People v. Gangemi (1993) 13 Cal.App.4th 1790, 1800 (Gangemi).) We conclude that because Hidalgo's convictions of counts 1 and 2 under section 115 are both punishable notwithstanding the section 654 bar against multiple punishments, the court properly imposed the concurrent two-year term for her count 2 conviction.
2. Counts 3 and 7
We next reject Hidalgo's claim that the court should have stayed under section 654 both the eight-month consecutive term imposed for her count 3 conviction of forging a signature on Grant Deed A, and the concurrent two-year term imposed for her count 7 conviction of forging a signature on Grant Deed B. We first observe that, because Hidalgo has demonstrated that both of her other forgery convictions (counts 4 & 5) and the related sentences must be reversed for reasons already discussed, ante, her claim that the court should have stayed under 654 the punishments imposed for her count 3 and count 7 forgery convictions is tantamount to a claim that she should not be punished at all for forging Grant Deeds A and B.
We conclude that, notwithstanding the punishments the court imposed for Hidalgo's convictions of counts 1 and 2 (§ 115(a)) and count 9 (§ 487(a): grand theft in selling the fraudulently acquired property), the court properly imposed separate punishments for her count 3 and count 7 forgery convictions because (1) in committing these two forgery offenses, Hidalgo harbored a divisible intent and objective separate from her intents and objectives in committing the count 1 and count 2 section 115(a) offenses and the count 9 grand theft offense; and (2) given the separate harm she inflicted by committing these forgery offenses, and her increased culpability in forging two grant deeds rather than one, the application of section 654 to bar punishment for these forgery crimes would violate the statute's purpose of ensuring that her punishment be commensurate with her criminal culpability.
a. Intent and objectives
With respect to the issue of Hidalgo's intent and objective in committing the two challenged forgery offenses (counts 3 & 7) involving the two grant deeds, we begin by noting that, as part of her defense at trial, Hidalgo argued to the jury that there was no reason for her to forge two grant deeds, and no need to involve Torres (the real estate agent) in those fraudulent conveyances. Specifically, defense counsel argued that, "[i]f [Hidalgo] intended to take Mrs. Doss'[s] [(McKell's)] property by forgery, there's no understanding why she would have involved [Torres] in all of this anyway. Why not just forge the thing directly from Mrs. Doss to [Hidalgo]?" In rebuttal, the prosecutor argued that Hidalgo used two deeds, with Torres as an intermediary "buffer, " in order to provide her with a scapegoat defense so that, "if it ever came back, which eventually it probably would, she would have somebody to point a finger at." The trial evidence established, and the jury found, that Hidalgo did forge, and did knowingly offer for filing and recording, two grant deeds: Grant Deed A, the fraudulent conveyance of color of title to the property from the Dosses to Torres; and Grant Deed B, the fraudulent conveyance of the property from the ostensible new owner, Torres, to Hidalgo.
Section 654 is not applicable where the defendant has entertained multiple criminal objectives that were independent of and not incidental to each other, even though the violations were parts of an otherwise indivisible course of conduct. (Perez, supra, 23 Cal.3d at pp. 551-552; Gangemi, supra, 13 Cal.App.4th at p. 1801.)
Here, in forging Grant Deed A and Grant Deed B in violation of section 470(d) (counts 3 & 7), Hidalgo intended to defraud and harm McKell, the owner of the property Hidalgo sought to fraudulently acquire; but in knowingly offering the two forged grant deeds for recording in violation of section 115(a) (counts 1 & 2), Hidalgo acted in a manner that harmed the integrity of public records (see Gangemi, supra, 13 Cal.App.4th at p. 1801) and was intended to defraud the public and undermine confidence in public records. In committing grand theft (count 9) by selling the property after fraudulently acquiring color of title, Hidalgo intended to defraud and harm the buyer, not McKell or the general public. We thus conclude section 654 is inapplicable to the separate punishments the court imposed for Hidalgo's count 3 and count 7 forgery convictions because, in committing these two offenses, she harbored a divisible intent and objective separate from her intents and objectives in committing the count 1 and count 2 section 115(a) offenses and the count 9 grand theft offense.
In support of their respective positions on appeal, both parties cite People v. Neder (1971) 16 Cal.App.3d 846 (Neder). In Neder, the defendant was convicted of three counts of forgery for using a stolen Sears credit card to charge purchases in three different departments in the same store and on the same day, and the court imposed punishment for each of the three offenses. (Id. at pp. 849-850.) Defendant claimed on appeal that he committed only one crime, and that punishment on all three counts was a violation of section 654 because the three acts of forgery were part of a single plan to take goods from Sears by forging the credit card slips. (Neder, at pp. 850, 851.) Noting that "it might be said that the offenses were incident to the fundamental objective of taking goods from Sears by use of the credit card and by forging the sales slips, " the Neder court rejected this objective as being "too broad to tie the separate acts into one transaction." (Id. at pp. 853-854.) The court reasoned that each forgery was not a means to accomplish any other; it was not a means to the immediate end of any of the others; and each forgery was committed for the taking of goods, separate and unrelated to the goods taken by the other forgeries. (Id. at p. 854.) The Court of Appeal also reasoned that section 654 should not "make it a matter of indifference whether [the defendant], on entering the Sears store with the intention to obtain goods fraudulently by means of forgery, carried out the intention one or three times." (Neder, at p. 854.)
Neder is factually distinguishable in that each of the three acts of forgery in that case was committed for the taking of goods that were separate from the goods taken by means of the other acts of forgery, whereas here the acts of forgery were incident to the overarching objective of acquiring title to McKell's real property. However, in light of Hidalgo's various intents and objectives in committing the numerous offenses of which she was convicted in this matter (discussed, ante), we are persuaded that this overarching objective, like the defendant's objective in Neder of taking goods through the use of a stolen credit card, is "too broad to tie the separate acts into one transaction" (Neder, supra, 16 Cal.App.3d at p. 854).
b. Criminal culpability
We also conclude that section 654 is inapplicable to the punishments imposed for Hidalgo's count 3 and count 7 forgery convictions because the barring of those punishments under that section would violate the statute's purpose of ensuring that her punishment is commensurate with her criminal culpability. (See Kramer, supra, 29 Cal.4th at p. 723; Perez, supra, 23 Cal.3d at pp. 550-551). Despite her own defense posture at trial that only one forged grant deed would have sufficed to fraudulently convey color of title from the Dosses to her, she forged two grant deeds in an effort to disguise her criminal culpability by tying Torres to her crimes. Thus, instead of committing three crimes (§§ 115(a), 470(d), 472) related to the forging of one grant deed, she committed six crimes related to the forging of two grant deeds (i.e., two violations each of §§ 115(a), 470(d), 472). Hidalgo's resulting heightened culpability warrants increased punishment and militates against application of the section 654 multiple punishment bar to the punishments the court imposed for her count 3 and count 7 forgery convictions.
Grant Deed A: counts 1 (§ 115(a)), 3 (§ 470(d)), & 6 (§ 472); Grant Deed B: counts 2 (§ 115(a)), 7 (§ 470(d)), & 8 (§ 472).
3. Counts 6 and 8
For similar reasons, we also reject Hidalgo's claim that the court should have stayed under section 654 both the consecutive eight-month term imposed for count 6 (§ 472: counterfeiting the notary public's seal on Grant Deed A), and the concurrent two-year term for count 8 (§ 472: counterfeiting the notary public's seal on Grant Deed B). In committing these two crimes, Hidalgo harmed Maloncon, a notary public, by acting with intent to usurp her identity in a manner that undermined the authenticity of her notary seal. Hidalgo's criminal culpability for these offenses, like her culpability for her forgery offenses, is heightened because she chose to counterfeit the notary public's seal on two grant deeds instead of one, thereby militating against application of the section 654 multiple punishment bar to the punishments the court imposed for her convictions of counts 6 and 8. (See Kramer, supra, 29 Cal.4th at p. 723; Perez, supra, 23 Cal.3d at pp. 550-551).
For all of the foregoing reasons, we conclude the section 654 bar against multiple punishment does not apply to any of the punishments the court imposed for Hidalgo's convictions of counts 2, 3, 6, 7, and 8.
DISPOSITION
Hidalgo's convictions of counts 4 and 5, and the sentences imposed as a result of those convictions, are reversed. In all other respects the judgment is affirmed.
WE CONCUR: HUFFMAN, Acting P. J., McINTYRE, J.