Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. BB516010.
RUSHING, P.J.
Introduction
After trial, a jury convicted defendant Jose Monteverde of three counts of forging or uttering three forged checks, a $400.00 check dated March 5, 2004, another check for $400.00 dated June 30, 2004, and a $300.00 check dated July 21, 2004 (counts 2, 3, 4, respectively; Pen. Code, § 470, subd. (d)) and one count of taking property worth more than $400 from Margaret Garlock, a person 65 or older, by forgery, fraud, or theft. (Count 1; § 368, subd. (d).) The court suspended imposition of sentence and placed defendant on probation for three years, on conditions, among others, that he serve six months in jail and not work for elderly or disabled persons.
Unspecified section references are to the Penal Code.
The original count two was dismissed after the defense rested.
On appeal, defendant essentially asserts that he was convicted under the wrong subdivisions, that the prosecution really proved violations of section 368, subdivision (e), not (d), and of section 470, subdivision (a), not (d). He also claims that he was prejudiced by the introduction of numerous ATM withdrawals by the victim and that the theft conviction should be stayed under section 654. For the reasons stated below, we will find no prejudicial error and will affirm the judgment. By separate order filed concurrently with this opinion, we will dispose of defendant’s petition for writ of habeas corpus asserting that both his trial attorneys were incompetent.
Trial Evidence
The essence of the prosecution was proving that defendant, with intent to defraud, had either made three checks out to himself in Margaret Garlock’s name or had uttered the three checks knowing of their falsity. The three checks were number 558 for $400.00, dated March 5, 2004 (count 2), number 674 for $400.00, dated June 30, 2004 (count 3), and number 691 for $300.00, dated July 21, 2004 (count 4). The essence of the prosecution evidence at trial was the testimony by Margaret, born in 1921, that she had not authorized defendant to sign her name on her checks, and the expert testimony by John Bourke, a criminalist with the Santa Clara County Crime Laboratory, that Margaret was not the person who had signed her name to these three checks. At trial there was additional evidence about defendant and Margaret and their relationship and additional expert testimony about these checks and others.
Since Margaret and her sons Gregory and William were witnesses, we will refer to them by the forenames to avoid confusion over their common surname, intending no disrespect.
A. The Relationship Between Defendant and Margaret
At trial in December 2006, Margaret admitted, “Mentally I’m not so good.” “My mind is not the same as it was. I’ve lost it.” She remembered defendant as someone who used to work with her and take care of her, but she could not remember how long she had known him. He drove her places. They went out to eat. She paid for the meals. She could not remember him accompanying her to Las Vegas, despite photographic evidence that he had. She did not remember paying him.
According to Margaret’s son Gregory, after her husband died in 1999, she sold her house in Hollister and moved to Palo Alto to be closer to her sons. Due to her failing vision, in 2002 her sons talked her into giving up her driver’s license, saying they would hire someone to give her rides. Near the end of 2002, she had a serious fall, so they moved her to the Sharon Heights Convalescent Center for a few months, which is where she met defendant, who was a nurse-caregiver there.
Gregory was added to her checking account when she moved into the Center. Records from the Bank of America, as summarized by Heather Prescott, a paralegal with the district attorney’s office, showed Gregory signing a check to “Sharon Heights Care” in June 2003. Sometime in 2003, Margaret moved from the Center to Palo Alto Commons, an assisted living facility.
Margaret enjoyed going out to lunch and dinner, having a glass of wine at dinner and a nightcap, and playing quarter poker slot machines in Las Vegas every month or two. Her sons Gregory and William hired a group called Seniors at Home to drive her around to appointments and to lunch. Gregory believed that Margaret had hired defendant in the same capacity, but William testified that he had hired defendant, because his mother liked him and defendant said he would help her after she left the convalescent center. Defendant was paid $25 a day to take her to dinner. Gregory said she appeared to trust him.
According to Gregory, Margaret liked to pay cash for her lunches and dinners. When he reviewed the bank statements, he became concerned about how frequently she was withdrawing $500 amounts from an ATM. According to the bank records, from June 23 through July 1, 2003, she made four withdrawals totaling $1,600.00. From July 28 through 30, 2003, she made three withdrawals totaling $1,500.00. From August 4 through 28, 2003, she made 11 withdrawals totaling $5,001.50. Altogether, between May 21 and November 25, 2003, there were 82 ATM withdrawals, mostly of $500, totaling $26,529.00
In examining Gregory, the prosecutor incorrectly asserted that the total was about $40,000.
When Gregory questioned Margaret, she said she had not given her ATM card to anyone. She initially denied spending that much, but after she saw the bank statement, she said she would cut back. She never claimed that she had not made the withdrawals.
Gregory testified that he made a notation on one statement about a $700 cash withdrawal that was refunded after they disputed that his mother had made it. The only $700 withdrawal reflected in the prosecution’s summary of the bank statements was dated May 22, 2003, two weeks before the first $500 ATM withdrawal.
Gregory contacted the bank to see if they could provide him a video of who was using her ATM card. The bank told him he would need to go through the police. He contacted the Palo Alto Police Department and learned that it would be too difficult to obtain or monitor the ATM videos.
Gregory did not pay for Margaret’s trips to Las Vegas. He assumed that some of the cash she withdrew was for those trips. William testified, “I used to give her about $3,000 every time she went to Vegas” in cash.
On November 19, 2003, William’s name was added to her account. He and his office staff took over management of her account because she was going through a lot of money, and he had more time than Gregory did. William took away her ATM card in November 2003. William paid defendant by check and in cash.
In 2004, William questioned some of the signatures on his mother’s checks and brought them to the Palo Alto Police Department.
Defendant did not testify at trial, but he did prepare a typed document dated November 18, 2005, addressed to the “HONORABLE JUDGE” in his case, that was admitted into evidence. The document contained his explanation of 38 checks payable to him. He said he worked for Margaret as a driver. “Ms. Garlock didn’t pay me like a caregiver, nor was I her caregiver.” She paid him $25.00 per day to take her to restaurants, travel, shopping, and appointments. Twenty-eight of the checks represented his salary. The rest correlated with three trips to Las Vegas, on October 27, 2003, March 25, 2004, and June 16, 2004.
According to this document, check 558 for $400.00, dated March 5, 2004, was part of his salary for December 2003. Check 681 for $300.00, dated July 21, 2004, was another part of his salary for December 2003. Check 674 for $400.00, dated June 30, 2004, was partial reimbursement for the Las Vegas trip on March 25, 2004. Defendant wrote that, while he encouraged Margaret to pay on time, her payments were usually late.
Defendant described nine other checks as reimbursement for three Las Vegas trips as follows: for the October 27, 2003 trip, number 350 for $790.00 dated October 8, 2003, number 661 for $400.00 dated May 4, 2004, number 683 for $175.00 dated July 9, 2004, and another check number illegible in the record; for the March 25, 2004 trip, number 656 for $160.00 dated May 21, 2004, and number 353 for $175.00 dated June 11, 2004; and for the June 16, 2004 trip, number 563 for $519.00 dated February 25, 2004, number 564 for $590.00 dated February 25, 2004, and number 663 for $400.00 dated May 11, 2004.
On March 8, 2006, defendant, his stepdaughter, and his attorney at the time, Mike Paez, attended a meeting with Heather Prescott, Deputy District Attorney Tiyen Lin, and a Spanish interpreter. Defendant described Margaret as a woman of 75 to 80 years old. He said she paid him by cash and check. She paid for their meals, usually in cash. He said he saw her sign every check and that he did not sign any check.
A travel agent, Helen Almada, testified for the defense that defendant booked three trips to Las Vegas for himself and Margaret. On each occasion, he gave the agent cash, and she used her own credit card to purchase the tickets and rooms.
B. The Experts’ Testimony
Regarding the three checks in issue, numbers 558, 674, and 691, all depicted in 13 x 19 enlargements, Bourke testified as follows. The payee name “JOSE MONTEVERDE” on each check was written in defendant’s hand.
Check number 558 was probably not signed by Margaret. The first “r” in “Margaret” showed better writing skills than evident in known samples of Margaret’s handwriting. Also, it looks like the writer stopped and started between the “r” and the “g.”
Check number 674 was probably not signed by Margaret. The “k” in “Garlock” had an added stroke that did not appear in her signatures. The amount of the check was written as “tree hundred.” No known writing samples of Margaret misspelled “three,” while several known writing samples by defendant misspelled “three” in this way.
Check number 691 was a simulation. A simulation is when one person tries to duplicate another’s signature. Evidence supporting that conclusion was that the first “r” in “Margaret” was double-looped, unlike in any of her known signatures. Again, the “k” in “Garlock” had an added stroke that did not appear in her signatures.
Between October 8, 2003 and July 21, 2004, there were 56 checks totaling $12,544.00 to defendant with the signature of “Margaret L. Garlock.” Bourke examined 36 of these checks and prepared a written report concluding that she probably did not sign 21 of them. At trial he explained why he concluded that seven other checks (numbered 558, 658, 661, 664, 668, 672, and 685) were probably not written by her. For example, number 685 contained the same misspelling of “three” as number 674. Numbers 658 and 672 spelled “forty” as “fourty.” It was misspelled the same way in known samples of defendant’s handwriting, but not Margaret’s.
Bourke gave specific reasons in his testimony for why he believed that Margaret probably did not write ten of the checks, including the three checks in issue. Although he stated that there were another 11 that she probably did not write, he did not elaborate on why he reached that conclusion as to those checks or what his opinions were about the other 15 checks he examined. These opinions were stated in his seven-page typed report, which was in evidence.
Nancy Cole, a questioned documents examiner, testified for the defense as follows. On the questioned checks, defendant wrote his own name, and sometimes wrote the numerical amount, and sometimes even spelled out the number. But it is highly probable that Margaret signed all the checks. The variations and irregularities in her signatures are explained by her age, her failing eyesight, her tremor, fatigue, her medications, and drinking wine. The final “k” in her name is sometimes distorted, as on check numbers 666, 674, and 691, because people get tired of their signatures by the end of their names. There are variations in her “r’s”, as on check number 558. If the signatures were simulations, there would be more evidence of starting and stopping in the middle of the signature. People sometimes correct their own signatures.
It appeared to Cole to be Margaret’s style of writing on numbers 558, 674, and 691. It was at least highly probable that she signed those checks and also wrote and spelled out the payment amounts. It is conceivable she would misspell “three” based on what was affecting her.
Forgery
On appeal, defendant contends that the prosecution argued two alternative theories of forgery, one of which was legally erroneous.
The prosecutor’s opening argument stated: “So there are two ways to commit forgery. One is to actually make it, you forge the check, that’s one way, or you take a check that’s been forged, and you know that it’s forged, and you pass it and you publish it.” The prosecutor reiterated, “one way to prove forgery” was to show that defendant “falsely made and forged any check.” “The second way to prove forgery is to utter or pass a check. That’s not in dispute. Each of these checks were [sic] uttered. It was passed, given to someone at the bank and money and funds were taken out. That’s not in dispute.” The defense responded that defendant did not forge Margaret’s signature on the checks, according to their expert. There was nothing wrong with defendant writing his own name on the checks as payee and the payable amount, so long as he did not do it with an intent to defraud. It would make no sense for a forger to sign the victim’s name in different ways.
The prosecutor’s argument was based on the instructions given to the jury. Notwithstanding the promulgation of CALCRIM instructions effective January 1, 2006 (Cal. Rules of Court, rule 2.1050), the jury in December 2006 was instructed in terms of CALJIC that defendant was charged in counts 2, 3, and 4 with violating “470(d)” in two different ways, either by falsely making or forging a check (CALJIC No. 15.00; see now CALCRIM No. 1904) or by uttering, publishing or passing as genuine what he knew to be a false or forged check, both involving the specific intent to defraud (CALJIC No. 15.01; see now CALCRIM No. 1905). The jury was further instructed that defendant was accused of both forging and uttering the same check. “The defendant may be convicted of forgery by proof of either the forging or uttering the forged documents or instruments or both, forging and uttering.” (CALJIC No. 15.02; see now CALCRIM No. 1906.) Defense counsel approved the instructions as to form and content.
The instructions and the prosecutor’s argument reflect the two methods of forgery identified in People v. Luizzi (1960) 187 Cal.App.2d 639 at page 644. “The crime of forgery as denounced by statute (Pen. Code, § 470) consists of either of two distinct acts—the fraudulent making of an instrument, such as a false writing thereof, or the uttering of a spurious instrument by passing the same as genuine with knowledge of its falsity (People v. Lucas [(1924)] 67 Cal.App. 452 . . .); and although both acts may be alleged in the conjunctive in the same count in the language of the statute, the offense does not require the commission of both—it is complete when one either falsely makes a document without authority or passes such a document with intent to defraud (People v. Pounds [(1959)] 168 Cal.App.2d 756 . . .; People v. McKenna [(1938)] 11 Cal.2d 327 . . .; People v. Morgan [(1956)] 140 Cal.App.2d 796 . . .; People v. Murrie [(1959)] 168 Cal.App.2d 770 . . .), and the performance of one or both of these acts with reference to the same instrument constitutes but a single offense of forgery. (People v. Frank [(1865)] 28 Cal. 507.)”
Defendant argues that the prosecutor relied on the legally erroneous theory that defendant “made a false check by signing someone else’s name . . . .” (Emphasis in original.) According to defendant, “signing someone else’s name on an instrument does not constitute ‘making a check.’ ” Defendant essentially reasons that section 470, subdivision (d) does not prohibit a false signature on a check, because that is prohibited by section 470, subdivision (a).
This argument arises from a 1998 revision of section 470. Prior to this revision of section 470, subdivision (a) prohibited signing another person’s name to a check knowing he has no authority to do, falsely making or forging a check, and uttering, publishing, or passing as genuine a check he knows to be false or forged. (Stats.1989, ch. 897, § 20.) It was established under the former statute that forging and uttering are two different legal theories on which a jury need not agree to convict a defendant of forgery (People v. Sutherland (1993) 17 Cal.App.4th 602, 618), as the jury was here instructed.
As amended, subdivision (a) of section 470 now provides: “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.” Subdivision (d) now describes a number of methods of forgery. “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” or over 30 other kinds of documents.
As explained by People v. Ryan (2006) 138 Cal.App.4th 360 at page 366: “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.)”
Defendant asserts without citation of authority that a person “makes” a check by creating or manufacturing it. We have found no California forgery opinion distinguishing between the false signing and making of a check. People v. Mitchell (1891) 92 Cal. 590 explained long ago on page 592: “The Century Dictionary thus defines the verb ‘forge:’ ‘To fabricate by false imitation; specifically, in law, to make a false instrument, in similitude of an instrument, by which one person could be obligated to another, for the purpose of fraud and deceit.’ The words ‘forge,’ ‘forger,’ and ‘forgery,’ when used in law, have no honest meaning, but imply fraudulent deceit; and to say that ‘the defendant forged a check’ would imply the false making fully to the same extent as if it was said ‘he falsely forged a check.’ ” “Making” seems to mean no more than “writing,” not pressing the paper from wood fibers.
To the extent that subdivisions (a) and (d) of section 470 create a distinction between signing a person’s name without authority and falsely making or forging a check, the prosecutor’s theory was not limited to proving that defendant forged Margaret’s name on the three checks in issue. There was evidence that on at least one of the checks he also spelled out the amount payable. Such filling out of a check is more than a false signature. It involves the false making of a check, which is prohibited under subdivision (d).
We conclude that the prosecutor’s opening argument and the instructions accurately presented two methods of violating subdivision (d). The jury was not given an erroneous legal theory of forgery. There was no error requiring an amendment of the information to conform to proof of a violation of subdivision (a) of section 470. (People v. Ford (1980) 110 Cal.App.3d 986, 987 [defendant not prejudiced by amendment at conclusion of prosecution’s case changing “ ‘possession for sale’ ” to “ ‘sale’ ” when it did not affect her defense]; cf. People v. Greenberg (1980) 111 Cal.App.3d 181, 188.) Since there was no error, there was no structural error or deprivation of due process.
Elder Theft
As above, defendant asserts essentially that he was convicted of theft from an elder under the wrong subdivision of section 368.
The statute provides in relevant part: “(d) Any person who is not a caretaker who violates any provision of law proscribing theft, embezzlement, forgery, or fraud, or who violates Section 530.5 proscribing identity theft, with respect to the property or personal identifying information of an elder or a dependent adult, and who knows or reasonably should know that the victim is an elder or a dependent adult, is punishable by imprisonment in a county jail not exceeding one year, or in the state prison for two, three, or four years, when the moneys, labor, goods, services, or real or personal property taken or obtained is of a value exceeding four hundred dollars ($400); and by a fine not exceeding one thousand dollars ($1,000), by imprisonment in a county jail not exceeding one year, or by both that fine and imprisonment, when the moneys, labor, goods, services, or real or personal property taken or obtained is of a value not exceeding four hundred dollars ($400).
Section 368, subdivision (d) provides a special punishment for the crimes of “theft, embezzlement, forgery, or fraud” against an elder person (defined as 65 years or older) by a person “who is not a caretaker.” Subdivision (e) provides the same punishment for the same crimes by “[a]ny caretaker of an elder or a dependent adult.” A violation of subdivision (d), but not (e), requires that the defendant knew or should have known the victim was 65 or older. Subdivision (i) provides: “As used in this section, ‘caretaker’ means any person who has the care, custody, or control of, or who stands in a position of trust with, an elder or a dependent adult.”
In this case, the jury was not instructed to decide whether defendant was or was not a caretaker. It was asked to decide if there was a theft of property worth over $400 from a person that defendant reasonably should have known was 65 or older. As already noted, defense counsel approved the form and content of the instructions.
Until a 1998 revision, this statute protected the elderly against theft or embezzlement only by a caretaker. (Stats. 1997, ch. 698, § 1.) The scope of protection against these crimes was expanded by 1998 legislation to reach perpetrators who are not caretakers. (Stats. 1998, ch. 934, § 1, ch. 935, § 2, ch. 936, § 7, ch. 936, § 7.5.) We take judicial notice that the intent of this legislation was to “target criminals who victimize elders by means of fraud” even though they do not fit the statutory definition of a “caretaker.” (Assem. Com. on Public Safety, Rep. on Assem. Bill No. 880 (1997-1998 Reg. Sess.) as amended Jan. 12, 1998, p. 2.)
It is clear from both the amendment of section 368 and the legislative history that this change expanded the statute’s scope to eliminate the element that the perpetrator must be a caretaker. The amendment was not intended to create a caretaker defense and shelter from criminal liability thieving and embezzling caretakers. We understand the amendment, though awkwardly phrased, as relieving prosecutors from having to prove that the perpetrator was a caretaker, so long as the prosecutor proves instead that the perpetrator should have known the victim was elderly. This amendment, which expanded the scope of protection by replacing one element (caretaker status) with another (reasonable knowledge that the victim is elderly), was not intended to inhibit prosecution by adding another element (the perpetrator’s non-caretaker status) to the prosecutor’s burden of proof. The enactment of subdivision (d) simply gives prosecutors an option in prosecuting someone whose caretaker status is in doubt. We are obliged to avoid a construction giving this amendment an unintended and silly consequence. (People v. Mendoza (2000) 23 Cal.4th 896, 908, 911.) We conclude that “A person who is not a caretaker” really means “a person, whether or not a caretaker.” We are not reading this phrase out of the statute, although we invite the Legislature to do so.
A similar contention was rejected in People v. Cheaves (2003) 113 Cal.App.4th 445, where the defendant was tried and convicted of making false bomb threats under section 148.1, subdivision (c). Subdivision (c) is a catchall provision for bomb threats that are not made to the types of persons identified in subdivisions (a) and (b). The defendant argued on appeal that since the 911 operator and the security guard he threatened qualified under subdivisions (a) and (b), it violated due process to convict him under subdivision (c). The appellate court reasoned that, because there was some doubt whether the victims qualified under subdivisions (a) and (b), the prosecutor was free to charge the defendant under the more general category of bomb threats. (People v. Cheaves, supra, 113 Cal.App.4th at pp. 452-453.) The court observed that the prosecutor had undertaken proof of an additional element of malicious communication under subdivision (c) and that the defendant did not assert that he had any defense to charges under the other subdivisions. (Id. at p. 453.)
In this case, defendant was on notice from the time the complaint was filed on August 18, 2005, that he was charged with “theft or embezzlement of more than $400 by a person not a caretaker from an elder or dependent adult, in violation of Penal Code section 368(d).” (Capitalization omitted.) The original information filed July 6, 2006 contained the same charge.
On November 18, 2005, defendant wrote, “Ms. Garlock didn’t pay me like a caregiver, nor was I her caregiver.” Now he argues “[t]he evidence at trial proved that the appellant was, in fact, a caretaker of Ms. Garlock” and that “[i]t is indisputable that appellant stood ‘in a position of trust’ with Ms. Garlock.” Defendant’s own written statement raised some question about his status. The evidence here was that defendant was hired to be Margaret’s frequent dinner and traveling companion. He provided her with transportation. She paid for their meals. He was not supposed to be managing her finances or signing her checks. At the time the checks were forged, she was living in an assisted living facility. While she seemed to trust him for a time, that did not necessarily establish beyond a reasonable doubt that he was entrusted with her care, custody, and control.
We conclude that the prosecutor was not required to prosecute defendant for violating subdivision (e) of section 368. The jury was properly instructed that defendant was charged with violating subdivision (d), not subdivision (e). The instructions did not omit an element of the crime described in subdivision (d). Since the prosecutor was not required to prove the nonexistence of a caretaker relationship, there was no failure of proof on an element of that crime. There was no need to amend the information after trial to conform to proof that defendant violated subdivision (e), not subdivision (d).
Evidence of ATM Activity
On appeal defendant argues simultaneously that the evidence of ATM withdrawals was irrelevant and prejudicial to him. It was irrelevant because it did not tend to prove whether or not he forged the three checks in question. It was prejudicial because it raised the inference that he was responsible for the withdrawals. To understand this contention, we review the arguments on the objection and the arguments to the jury.
Before trial defendant filed a motion in limine seeking to preclude evidence of ATM withdrawals from Margaret’s account. The court took the matter under submission. In proceedings at the bench, defendant renewed his objection during Gregory’s testimony. The prosecution sought to introduce records from the Bank of America covering the period from May 20, 2003, to July 21, 2004. Defendant asserted that the bank records for the calendar year 2003, in addition to showing checks, would show about $12,000 in ATM withdrawals. Although defendant was not charged with liability for those withdrawals, introducing the evidence would require him to explain them. The prosecutor responded: “I disagree that the ATM withdrawals are more prejudicial than probative. The financial picture is that payments show that she was paying cash for the most part and she had enough cash to cover everything, you know, to pay. And the records show checks also being paid to Seniors At Home, and a bunch of other bills. So things were in order until there was a spike in ATM withdrawals, and, frankly speaking, he’s right, I’m not going to argue to the jury that the ATM withdrawals were made by his client, but I am going to say there was enough money from all the withdrawals to cover her expenses and the checks beyond that.”
As explained above (p. 4 ), the total was actually twice that amount.
The court implicitly overruled the objection and allowed the prosecutor to present the ATM withdrawals. The prosecutor asserted for the record that he would argue to the jury that the charges were based on the checks. Defense counsel stated, “I’m satisfied. Thank you.” Once the bank records were admitted, Gregory testified that he became concerned about his mother’s finances when he noticed a spike in ATM withdrawals.
True to his word, the prosecutor did not mention the ATM withdrawals in opening or closing jury argument. Instead, he asserted in opening argument that the forgery charges, counts 2, 3, and 4, were based on check numbers 558, 674, and 691, respectively. “If Margaret did not give permission to Jose Monteverde to sign those checks, and Jose Monteverde did sign those checks in her name, then all of those charges, Counts 1, 2, 3, and 4 really fall into place . . . .”
Defense counsel emphasized to the jury, “in this case Mr. Monteverde is accused of forging checks. He’s not accused of stealing money out of her purse. He’s not accused of flimflamming Mrs. Garlock into giving him money. He’s not accused of taking funds from her in all the imaginable ways that one could take funds from somebody.” Nevertheless, defense counsel spent some time talking about the ATM withdrawals. He said he was initially concerned about all the ATM withdrawals in 2003. But it appeared that Margaret was a woman with expensive habits, like going out to eat and traveling to Las Vegas, and she liked to pay in cash. Ultimately, defense counsel concluded that while he tried to offer an explanation of the withdrawals, he did not “really have to because the bottom line here is Mr. Monteverde is not accused of taking the money or finagling her out of money or whatever, or getting her to give him money or whatever. He is accused of forging her checks. And if you don’t believe he forged her checks, he’s not guilty period.”
The only reference that the prosecutor made to Margaret’s habit of spending cash was in response to an argument about defendant’s written statement. Defense counsel said that the statement provided “some explanation of what the checks are for.” “He accounted in this way for or tried to account in this way for all the checks that in his mind were suspect,” the checks he was accused of forging. The jury should not speculate about why defendant did not account for the other checks written to him. Counsel questioned whether William really gave his mother $3,000 cash every time she went to Las Vegas. It is possible that she kept some of the cash, which was why the ATM withdrawals decreased.
Part of the prosecutor’s closing argument follows. The jury should look carefully at defendant’s written statement. Defendant claimed to have been reimbursed for an October 27, 2003 trip to Las Vegas by checks written on October 8, 2003, May 4, 2004, and June 26, 2004. Did that make sense, considering that they took other trips during that period for which defendant claimed to have been reimbursed? It looked like someone “who is looking back and trying to justify why he’s received money.” Regarding the trips, “the defense witness came in and said, yeah, she received payment for these trips, and the trips were always paid for by her company with a credit card after she received cash. Who of all the persons mentioned in this trial like to use cash, and, remember, Bill Garlock for every Las Vegas trip he gave his mom $3,000. Who would have the cash to pay for these kind [sic] of trips in cash?” According to defendant, the checks were written in random order.
As explained above (ante, fn. 6 ), defendant attributed four checks as reimbursement for this trip, dated October 8, 2003, May 4, 2004, and July 9, 2004. The prosecutor’s reference to the date of June 26, 2004 does not help us identify the illegible number of the fourth check, as there were two checks to defendant on that date, both for $175.00, neither of which was questioned by Bourke.
Elaborating on this last point, the Attorney General asserts that the evidence of the ATM withdrawals was properly admitted as relevant, because it tended to refute defendant’s written statement that several checks were written to reimburse him for paying for three Las Vegas trips. As Margaret liked to pay cash and seemed to keep plenty of cash on hand to pay her bills, it is more likely that the cash defendant used to pay for the Las Vegas trips came from her, rather than from him.
Defendant points out that this was not the prosecutor’s stated reason for introducing the evidence. We agree. While the prosecutor did assert that the ATM withdrawals showed that she had enough money to cover her expenses, he did not connect this general assertion with the expenses of the Las Vegas trips. Moreover, William testified that he provided the $3,000 cash for each of her trips.
However, as the Supreme Court reiterated in People v. Brown (2004) 33 Cal.4th 892, “If a judgment rests on admissible evidence it will not be reversed because the trial court admitted that evidence upon a different theory, a mistaken theory, or one not raised below.” (Id. at p. 901.) The novelty of this relevance argument is no reason to reject it.
Defendant argues further that there was no evidentiary basis for assuming that the cash he paid to the travel agent came from Margaret. This overlooks that both William and defendant stated that defendant was sometimes paid in cash. It is not unreasonable speculation but a reasonable inference that, if Margaret received cash from William or ATM withdrawals, she liked to pay cash, she liked to travel to Las Vegas, and defendant paid cash for three trips to Las Vegas, that the cash came from Margaret. We conclude that the evidence was properly admitted because it tended to refute defendant’s reimbursement explanation for 10 checks.
As to defendant’s implicit argument that this evidence prejudiced him by giving rise to an inference that defendant was responsible for the excessive ATM withdrawals, we conclude that this potential danger was not realized in this case. The prosecutor did not argue that the ATM withdrawals proved anything or that defendant was responsible for them, even in response to defendant’s argument that they were irrelevant. Gregory testified that his mother, when confronted about excessive withdrawals, never denied being responsible for them (except as to one disputed withdrawal at the very beginning of the relevant time period). Defense counsel effectively argued that the ATM withdrawals were irrelevant to the question whether defendant forged or uttered the three checks in issue. The prosecutor’s argument was focused on the forgery of the three checks.
In any event, in view of the evidence and jury arguments, we see no indication that defendant was prejudiced by the evidence of ATM withdrawals even if we assume that it should have been excluded under the general rule that the financial condition of the victim in a forgery case is inadmissible. (People v. Lapique (1902) 136 Cal. 503, 506.) Given the lack of evidence that defendant caused the ATM withdrawals, the only way the jury could have inferred his responsibility was to first find him guilty of the charged crimes. We conclude there was no reasonable probability that the ATM evidence affected the jury’s verdict. As this evidence did not tend to prove defendant’s criminal liability, its admission did not rise to the level of a violation of the federal constitution. (Cf. People v. Chatman (2006) 38 Cal.4th 344, 370-371.)
Section 654Defendant argues that “[s]ince the elder theft conviction arose out of the same single, indivisible course of conduct as the forgery convictions, Penal Code section 654 applies to bar imposition of punishment for all four convictions.” Defendant recognizes that the court suspended imposition of sentence and granted him probation, but he argues that the court should have made an order staying any future punishment on the theft conviction under 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.”
So long as defendant is on probation, he has not been punished once, let alone twice. As this court recently reiterated, “it has long been accepted that probation is not punishment but is instead an ‘act of clemency in lieu of punishment’ that is ‘rehabilitative in nature.’ ” (People v. Superior Court (Kirby) (2003) 114 Cal.App.4th 102, 105-106.) The applicability of section 654 will not arise unless and until defendant is sentenced for his crimes. The contention is premature and we decline to issue an advisory opinion. (People v. Wittig (1984) 158 Cal.App.3d 124, 137; People v. Lofink (1988) 206 Cal.App.3d 161, 168.)
It is true that in People v. Pearson (1986) 42 Cal.3d 351 (Pearson), on which defendant relies (though citing 5 Cal.4th in his opening brief), the California Supreme Court elected to issue an advisory opinion on the “premature” issue whether a defendant could be subjected to an enhancement in a future criminal case based on a conviction for which the punishment was stayed under section 654. (Pearson, supra, 42 Cal.3d at pp. 358-363.) As this court stated some time ago: “We do not read Pearson as a mandate that appellate courts render advisory opinions in every instance where the matter has been fully briefed and argued. Indeed, as we have noted, it is well settled that matters which are not ripe for adjudication should ordinarily be left to a future forum. The fact that the Supreme Court made an exception in Pearson does not render the general rule invalid.” (People v. Ybarra (1988) 206 Cal.App.3d 546, 550.)
Disposition
The judgment is affirmed.
WE CONCUR: PREMO, J., ELIA, J.
Of the 10 checks that defendant described in his written statement (ante, fn. 6 ) as reimbursement for three Las Vegas trips, Bourke testified that Margaret probably did not write number 674, attributed to the March 25, 2004 trip. If the jurors reviewed Bourke’s written report to learn his opinions about the other nine checks, they would have learned that of the three known checks ascribed to the October 27, 2003 trip, Bourke believed that Margaret may have written the amount and signature on number 661, may not have written part of the amount on number 350, and probably did not write the amount or signature on number 683. Of the two other checks ascribed to the March 25, 2004 trip, Bourke believed that Margaret probably did not write the amount and signature on number 656 and may not have written those items on 353. Of the three checks ascribed to the June 16, 2004 trip, Margaret may have written the amounts and signatures on numbers 563 and 564, and probably did not write those items on number 663.
“(e) Any caretaker of an elder or a dependent adult who violates any provision of law proscribing theft, embezzlement, forgery, or fraud, or who violates Section 530.5 proscribing identity theft, with respect to the property or personal identifying information of that elder or dependent adult, is punishable by imprisonment in a county jail not exceeding one year, or in the state prison for two, three, or four years when the moneys, labor, goods, services, or real or personal property taken or obtained is of a value exceeding four hundred dollars ($400), and by a fine not exceeding one thousand dollars ($1,000), by imprisonment in a county jail not exceeding one year, or by both that fine and imprisonment, when the moneys, labor, goods, services, or real or personal property taken or obtained is of a value not exceeding four hundred dollars ($400).”