Opinion
A122971 A124943
11-12-2009
THE PEOPLE, Plaintiff and Respondent, v. BRYON J. MARSHALL, Defendant and Appellant. In re BRYON J. MARSHALL, on Habeas Corpus.
Not to be Published in Official Reports
Bryon J. Marshall (appellant) was convicted, following a jury trial, of two counts each of forgery and possession of a forged instrument, as well as one count each of receiving stolen property and commercial burglary. On appeal, appellant contends the trial court erroneously instructed the jury that forgery is a general intent crime. In an accompanying petition for writ of habeas corpus, he contends defense counsels failure to engage a handwriting expert constituted ineffective assistance. We shall affirm the judgment and deny the petition for writ of habeas corpus.
PROCEDURAL BACKGROUND
Appellant was charged by information filed in Contra Costa County Superior Court, case No. 05-061551-8, with forgery (Pen. Code § 470, subd. (a)), and possession of a forged instrument (§ 475, subd. (a)). The information alleged three prior prison term commitments (§ 667.5, subd. (b)). Appellant was also charged by information filed in Contra Costa County Superior Court, case No. 05-070027-8, with forgery (§ 470, subd. (a)); possession of a forged instrument (§ 475, subd. (a)); receiving stolen property (§ 496, subd. (a)); and commercial burglary (§§ 459, 460, subd. (b)). The information alleged three prior prison term commitments (§ 667.5, subd. (b)). At the request of the prosecutor, the cases were consolidated.
All further statutory references are to the Penal Code unless otherwise indicated.
Following a jury trial, the jury found appellant guilty as charged. Following a court trial, the trial court found two of the three prior prison term commitments to be proved.
On May 9, 2008, the trial court sentenced appellant to four years eight months in state prison. On July 3, 2008, the trial court reconfigured the sentence to take into account negotiated dispositions in other pending cases. The trial court ultimately imposed a total term of four years eight months in state prison, which included concurrent terms on charges unrelated to this case.
On July 9, 2008, appellant filed a notice of appeal.
FACTUAL BACKGROUND
On August 11, 2006, Ali Shahrokhimanesh was a supervisory employee at California Check Cashing in Martinez. On that date, appellant came in and presented a check. Shahrokhimanesh recognized him from three or four previous encounters. Appellant signed his check and, because he did not have his identification with him, Shahrokhimanesh verified his identity using the companys system. The check was drawn on the account of Ray Pierce and was made out to appellant for $235. Shahrokhimanesh believed appellants endorsement on the check was consistent with the signature card on file, so he "proceeded on."
The next day, August 12, 2006, appellant again came into the store and presented a check to teller Connie Whitson. Because the amount was over Whitsons "teller limit," Shahrokhimanesh faxed a copy of the check to the support center for California Check Cashing, and subsequently received approval to cash it.
On August 12, 2006, Connie Whitson was an employee at California Check Cashing in Martinez. On that date, appellant came in and presented a check for $634.96, issued by the business account of Solano Beacon and made out to appellant, which he wanted to cash. At Whitsons request, appellant showed her his drivers license and she observed him endorse the back of the check. Whitson found a completed signature card for appellant on file and then attempted to call Solano Beacon, to make sure the check was legitimate. She called three times and the person on the other end of the line hung up on her each time. After the person hung up on her supervisor, they faxed the check and a form to California Check Cashings corporate office, which ultimately approved cashing the check. The entire transaction took about 20 minutes. Subsequently, a bank returned the check as stolen, and Whitson reported the incident to police.
Raymond Pierce testified that on about August 7, 2006, a checkbook was stolen from his car. He reported the theft to police and the bank closed his checking account. Pierce did not write the check identified as Peoples exhibit No. 4, did not know appellant, and did not give appellant permission to the sign the check.
Ziazaki Hakimzada, manager of a Solano Beacon gas station in Concord, testified that, in August 2006, business checks were stolen from his car. Hakimzada did not write the check identified as Peoples exhibit No. 1, did not know appellant, and did not give appellant permission to sign a Solano Beacon check.
Behrooz Mostofi, owner of the Solano Beacon gas station in Concord, testified that, after a checkbook of business checks were stolen from his manager, he closed the relevant bank account and opened a new one. Mostofi did not write the check identified as Peoples exhibit No. 1, did not know appellant, and did not give him permission to sign a Solano Beacon check.
California Check Cashing employee Dorothy ODwyer testified that, on August 23, 2006, she received a phone call from appellant in which he said "that we needed to quit calling his mother and that we needed to leave her alone." ODwyer told him a check had come back as stolen, but appellant said that the call was costing him 20 cents a minute so he did not have time to talk. When she repeated that the check he had cashed came back as stolen, he hung up on her.
On September 6, 2006, Martinez Police Officer Daniel Lynch investigated a report from California Check Cashing and identified appellant as a suspect in this matter. Lynch showed Connie Whitson a photo lineup that included a photograph of appellant; she was unable to make a positive identification. He then showed the lineup up to Ali Shahrokhimanesh, who identified appellants photograph.
DISCUSSION
I. Direct Appeal: Trial Courts Forgery Instructions
Appellant contends the trial court erroneously instructed the jury that forgery is a general intent crime.
A. Trial Court Background
The trial court instructed the jury on forgery with CALCRIM No. 1900, as follows: "The defendant is charged in Counts 1 and 3 with forgery committed by signing a false signature in violation of Penal Code section 470(a). To prove that the defendant is guilty of this crime, the People must prove that; one, the defendant signed someone elses name or a fake name to a check; two, the defendant did not have authority to sign that name; three, the defendant knew that he did not have that authority; and four, when the defendant signed the document he intended to defraud.
"Someone intends to defraud if he or she intends to [deceive] another persons [sic] either to cause a loss of money or to cause a loss—or to cause damage to a legal, financial, or property right. For the purposes of this instruction, a person includes a business. It is not necessary that anyone actually be defrauded or actually suffer from financial, legal, or property loss as a result of the defendants act.
"The People allege that the defendant forged the following documents: A check from the account of Solano Beacon, thats Count 1; and the check from the account of Raymond Pierce, thats Count 2. You may not find the defendant guilty on either Count 1 or—Im sorry—Count 3. Ill read that again. The People allege the defendant forged the following documents: A check from the account of Solano Beacon, Count 1; and a check from the account of Raymond Pierce, Count 3.
"You may not find the defendant guilty on either Count 1 or Count 3 unless all of you agree that the People have proved that the defendant forged the documents allegedly forged in that count."
The court subsequently instructed the jury with CALCRIM No. 252, as follows: "The crimes charged in Count[s] 1 through 6 require proof of the union or joint operation of acts and wrongful intent. The following crimes require general criminal intent: Forgery as charged in Counts 1 and 3 and receiving stolen property [as] charged in Count 5. For you to find a person guilty of those crimes, that person must not only commit the act but must do so with a wrongful intent. A person acts with wrongful intent when he or she intentionally does a prohibited act on purpose. However, it is not required that he or she intends to break the law. The act required is explained in the instructions for each crime."
B. Legal Analysis
As a preliminary matter, respondent argues that appellants failure to object to the giving of CALCRIM No. 252 forfeits the claim on appeal. Appellants claim, however, is that the instruction was incorrect in law and impermissibly lessened the prosecutions burden of proof. Giving appellant the benefit of the doubt, we will address the issue on the merits. (See People v. Kelly (2007) 42 Cal.4th 763, 791 [where non-objecting defendant claimed an instruction improperly omitted an element of offense, our Supreme Court found that the claim was cognizable on appeal since, "[i]f he were correct, the error would affect his substantial rights"].)
A trial court has a sua sponte duty to instruct on the principles of law that are relevant to and govern the case, including instruction on all of the elements of the charged offense. (People v. Cummings (1993) 4 Cal.4th 1233, 1311; People v. Ellis (1999) 69 Cal.App.4th 1334, 1339.) Errors or omissions of proper jury instructions are violations of federal due process because they "[preclude] the jury from making a finding on the actual element of the offense." (Neder v. United States (1999) 527 U.S. 1, 10.) Federal due process errors such as erroneous jury instructions are classified as trial errors and are subject to harmless error analysis. (Ibid.; People v. Magee (2003) 107 Cal.App.4th 188, 193; Ho v. Carey (9th Cir. 2003) 332 F.3d 587, 592 (Ho).) Claims of instructional error are generally reviewed de novo. (People v. Manriquez (2005) 37 Cal.4th 547, 581, 584.)
We agree with appellant that the courts instruction on general intent, which was not specifically qualified by the specific intent instruction, was error. (See People v. Hill (1967) 67 Cal.2d 105, 119.) Respondent does not dispute that the trial court erred in this case when it stated that forgery is a general intent crime. Rather, it argues that, in context, the error was harmless.
Appellant disagrees, and asserts that we should follow the reasoning of the majority in Ho, 332 F.3d 587, in which the Ninth Circuit Court of Appeals held that an instructional error similar to the one that occurred here required reversal. In Ho, after an angry verbal and physical confrontation, the defendant shot the victim three times. The defendant claimed he fired his gun because he thought the victim was reaching for a gun. (Id. at pp. 590-591.) The trial court instructed the jury: "The crime of murder in the second degree—in the crime charged, murder in the second degree based on implied malice, this instruction applies.
"There must exist a union or joint operation of act or conduct and general criminal intent. To constitute general criminal intent, it is not necessary that there should exist an intent to violate the law. When a person intentionally does that which the law declares to be a crime, he or she is acting with general criminal intent even though he or she may not know his act or conduct is unlawful.
"That applies only to murder in the second degree based on the theory of implied malice, and Ill write that down in the form for you." (Ho, supra, 332 F.3d at p. 591, italics omitted.)
The next day, after the prosecutor told the court it had erred by instructing the jury that murder was a general intent crime, the court essentially repeated the same instruction to the jury, linking it this time only to involuntary manslaughter: "Lastly, this instruction only applies to involuntary manslaughter. In the crime of involuntary manslaughter, [section] 192(b) of the Penal Code, there must exist a union or joint operation of act or conduct and general criminal intent. To constitute general criminal intent, it is not necessary that there should exist an intent to violate the law. When a person intentionally does that which the law declares to be a crime, he or she is acting with general criminal intent even though he may not know that his act or conduct is unlawful." (Ho, supra, 332 F.3d at p. 591.) The trial court in Ho also fully instructed the jury on the elements of murder and the required mental state. (Id. at p. 594.)
After the defendant was convicted of second degree murder, he appealed. His appeal was affirmed by the California Court of Appeal. After his petition for a writ of habeas corpus was rejected by the California courts, the defendant brought a petition for writ of habeas corpus in the federal court. (Ho, supra, 332 F.3d at p. 590.)
The Ninth Circuit Court of Appeals granted the habeas petition after a majority found that the trial courts error was prejudicial. In the context of the overall charge, the majority had "a grave doubt regarding whether the fact that the jury instructions contained correct and incorrect elements of the crime cured the courts erroneous instruction on general intent in view of the fact that the court did not confess or correct its error." (Ho, supra, 332 F.3d at p. 593.) The court concluded it was "reasonably likely that the jury convicted [the defendant] of second-degree murder based on implied malice, after finding that he had the general intent to fire his weapon at [the victim], notwithstanding the evidence he presented that he acted in self-defense." (Ho, at p. 595.)
The court observed "that the trial court did not, at any time, advise the jury that its instruction that general intent is an element of second-degree murder based on implied malice was erroneous and must be disregarded." (Ho, supra, 332 F.3d at p. 593.)
The present case is similar to Ho in that the trial court here correctly instructed the jury on the specific intent required to prove that appellant committed forgery, but also incorrectly instructed the jury that general criminal intent applied to the forgery counts. Significantly, however, in this case the general intent instruction also told the jury that the prohibited "act required [for the defendant to be found guilty of the charged crime] is explained in the instructions for each crime." (Italics added.) Thus, the jury was directed to the forgery instruction for an explanation of what act would constitute that offense. The forgery instruction expressly stated that the fourth element needed to prove that appellant was guilty of forgery was that, "when the defendant signed the document he intended to defraud." The instruction further explained that "[s]omeone intends to defraud if he or she intends . . . either to cause a loss of money or to cause a loss—or to cause damage to a legal, financial, or property right." Finally, the instruction informed the jury: "You may not find the defendant guilty on either Count 1 or Count 3 [the forgery counts] unless all of you agree that the People have proved that the defendant forged the documents allegedly forged in that count."
In light of the rule that "[w]e do not view a single instruction in isolation, `but in the context of the overall charge" (Ho, supra, 332 F.3d at p. 593), we conclude that, on the particular facts of this case, the error was harmless. Although the jury was erroneously informed that general intent applied to the two counts of forgery, it also was directed back to CALCRIM No. 1900 for an explanation of what constituted the act of forgery, which included a correct description of the specific intent required for conviction. We find it highly unlikely that the jury ignored the courts directive to look to the specific explanation in the forgery instruction and convicted appellant of forgery based on general criminal intent. Accordingly, even under the more rigorous federal standard, appellant was not prejudiced by the courts error because we can say, beyond a reasonable doubt, that the error did not contribute to the verdict. (See Chapman v. California (1967) 386 U.S. 18, 24; but see People v. Hill, supra, 67 Cal.2d at p. 119 , citing People v. Watson (1956) 46 Cal.2d 818, 836.)
II. Habeas Petition: Ineffective Assistance of Counsel Claim
Appellant contends defense counsels failure to engage a handwriting expert constituted ineffective assistance.
A. Factual Background
On direct examination, supervisory teller Ali Shahrokhimanesh testified that during his three years as an employee at California Check Cashing, he had participated in approximately 15,000 to 20,000 check-cashing transactions. He had been through a three-day training on the detection of forged documents, which included training on detecting similarities in different signatures. He personally had seen about 20 to 25 counterfeit checks.
He was the teller who had cashed the Raymond Pierce check. When the prosecutor asked whether, based on his training and experience, Shahrokhimanesh was able to form an opinion as to whether the person who wrote on the paid-to-the order line of the check and the line below it, and the person who signed on the back of that check was the same person, Shahrokhimanesh responded, "I felt it was a different person." With respect to the signature in the lower right-hand corner of the check and the signature on the back of the check, Shahrokhimanesh again opined, "It looks to be a different signature." With respect to whether he believed the signature on the signature card and the signature on the lower right portion of the check were written by the same person, Shahrokhimanesh opined, "No, sir. I felt the signatures were different."
During his closing argument, the prosecutor first acknowledged Shahrokhimaneshs opinion, but then reminded the jurors that they would be analyzing the handwriting in question during deliberations, since "[t]he law allows for a regular person not an expert to look at handwriting and determine whether or not they believe it matches one signature to another or one writing to another writing. That is what youre empowered to do and thats what youre obligated to do." The prosecutor then pointed out to the jury various similarities he saw between the writing on the front of the checks and the signatures on the back.
Then, during her closing argument, defense counsel first commented that the prosecution had chosen not to bring in a handwriting expert, before stating, "I bet [the prosecutor] was quite surprised when Mr. Shahrokhimanesh testified based on his experience, based on his training that the checks were not written by [appellant] . . . ." Defense counsel later said, "For you to form that opinion [that appellant forged the checks] based on these minor comparisons based on what [the prosecutor] said, youre actually doing his job for him when he could have presented it and he didnt—well, he did. He did present evidence that the checks were not forged. You heard it from the one reliable, credible witness, Mr. Shahrokhimanesh, who said no the writing is not similar."
Finally, during his rebuttal, the prosecutor told the jury he did not need to subpoena a handwriting expert because "[t]he law allows and states that everyday people are allowed to analyze handwriting . . . . And she also said that I want you to do my job. No, I dont. Its not my job to come up with the conclusion of whether or not those handwritings were similar. I believe [it] to be true. I wouldnt be here if it wasnt." At that point, defense counsel objected that the prosecutor was improperly arguing his personal belief and the court sustained the objection, stating, "Its irrelevant what an attorney believes." The prosecutor then said, "Its true. Basically its up to you. Thats your job to analyze the writings. Its not my job. So I dont need a handwriting expert. Its your job to go in there and look at it and take your time and make a determination."
Accompanying his writ petition, appellant submitted a Forensic Document Examination Report prepared by a forensic document examiner, Larry Liebscher, on February 23, 2009. Liebscher had examined the two checks in this matter, at the request of appellate counsel. In his report, he responded to the presenting question of whether appellant had written the information on the front of the two checks, stating that he could not reach a conclusion "due to significantly limiting factors," including lack of comparability between the writing on the checks and appellants known signatures, as well as an insufficient number of writing exemplars. In addition, Liebscher noted that if the writing on the checks had been disguised, "it may never be possible, even with more exemplars, to indentify the check writer(s)."
B. Legal Analysis
Appellant describes the defense theory of the case at trial as follows: "The defense did not dispute that the checks were, in fact, stolen and subsequently forged. The defense theory . . . was that they were stolen and forged by persons other than petitioner; that those persons made them out and gave them to petitioner; and that petitioner then cashed them with no knowledge that they were forged."
To prove ineffective assistance of counsel, a defendant must show that "counsels representation fell below an objective standard of reasonableness . . . under prevailing professional norms." (Strickland v. Washington (1984) 466U.S. 668, 688.) In addition, the defendant must affirmatively establish prejudice by showing "that there is a reasonable probability that, but for counsels unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Id. at p. 694.) "If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, . . . that course should be followed." (Id. at p. 697.)
Here, even assuming counsels failure to consult with a handwriting expert constituted inadequate representation, her ineffective assistance was not prejudicial because appellant has not established that "there is a reasonable probability that, but for counsels unprofessional errors, the result of the proceeding would have been different." (Strickland v. Washington, supra, 466 U.S. at p. 694.) First, the only evidence admitted regarding whether the writing on the front of either check and the signatures on the back were written by the same person was Ali Shahrokhimaneshs opinion testimony that the writing on the front and the signature on the back of the Ray Pierce check were written by different people.
Second, the trial court instructed the jury that the lawyers arguments were not evidence. When the prosecutor told the jury that he believed the handwriting on the front and back of the checks was similar, the court admonished the jury that what an attorney believes is "irrelevant," to which the prosecutor responded that the court was correct and that it was not his job, but instead was the jurys job, to analyze the handwriting on the checks. We presume the jury followed the courts instructions and admonitions. (See People v. Smith (2007) 40 Cal.4th 483, 517-518.)
Third, defense counsel also reminded the jury that the prosecutor had not brought in a handwriting expert to establish that appellant had written the fraudulent checks. She also noted that the only person who testified regarding whether the writing on both sides of one of the checks was written by the same person was prosecution witness Ali Shahrokhimanesh, who said it was not. Fourth, forensic handwriting expert, Larry Liebscher, was unable to reach a conclusion as to whether or not appellant had written the words on the front of the checks. Although defense counsel perhaps could have used such an opinion offered during trial to further undercut the prosecutors attempt to argue that the writing on both sides of the check was similar, defense counsel, the courts admonition, and the prosecutors own witness quite effectively countered that attempt.
Given all of the circumstances, including the evidence, arguments, and instructions relevant to the determination of whether appellant forged the two checks, we do not believe it is reasonably probable that, but for counsels failure to engage a handwriting expert, the result of the proceeding would have been different. (See Strickland v. Washington, supra, 466 U.S. at p. 694.)
DISPOSITION
The judgment is affirmed. The petition for writ of habeas corpus is denied.
We concur:
Haerle, J.
Lambden, J.