NOT TO BE PUBLISHED IN OFFICIAL REPORTS
San Francisco County Super. Ct. No. 176944
Haerle, Acting P.J.
Defendant Vilma Peraza-Williams appeals from a conviction of one count of forgery (Pen. Code, § 470, subd. (a) ) and one count of perjury (§ 118, subd. (a)). She contends that substantial evidence does not support her forgery conviction. She also challenges her perjury conviction, arguing that it is invalid because the jury acquitted her of another, similar, perjury charge. We disagree and affirm the judgment.
All further statutory references are to the Penal Code, unless otherwise noted.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. Defendant’s Relationship with Frederick Williams
This case arises out of a relationship defendant had with an elderly man, Frederick Williams. Defendant met Williams sometime in 1993, when she worked as a bank teller at Bayview Bank, where Williams was a customer.
At the end of 1994, defendant began working for Williams. Her job was to “clean the house . . . wash his clothes, go with him to the store . . . that was the most important thing that he need me to do . . . .”
According to defendant, their relationship became romantic in May 1995. In the end of July 1995, she and Williams opened a joint bank account at Eureka Bank. At some point, defendant withdrew $20,000 from that account. Of the money withdrawn, defendant used $7,000 as a down payment on a car she testified Williams asked her to buy to use to drive him to the store. She financed the rest of this purchase on a five-year loan. She “left some money on the side” for “any emergency.”
Toward the end of August 1995, defendant was contacted by Williams’s niece, Laura Sampson, who was concerned about this transfer of money.
Sampson lived in Georgia, where Williams often called her. During 1995, Williams asked Sampson on more than one occasion to come out to San Francisco and help him out. Sampson was unable to do so but in late August 1995, she flew to San Francisco for a week-long visit.
At Williams’s request, Sampson looked at his accounts with Eureka Bank and Bay View Bank. Sampson discovered that Williams had withdrawn $20,000 from his account at Eureka Bank. Williams told Sampson he didn’t know anything about this withdrawal. She noticed that the signature on the signature card for his account at Eureka Bank was not his signature. Williams was upset about the signature card and told her he had not signed it.
Sampson got in touch with a lawyer, Marc Weissman. Weissman drew up a will and a durable power of attorney, with Sampson as executor and agent for the power of attorney. The will Weissman drew up left Williams’s entire estate to Sampson and her two brothers. Williams did not want to leave anything to defendant.
Defendant came to Williams’s house, at Sampson’s request, during Sampson’s August 1995 visit to San Francisco. Sampson told defendant she wanted her to return the $20,000 defendant had withdrawn from the Williams’s Eureka Bank account. According to Sampson, although defendant said Williams had given her the money, Williams denied doing so. Sampson and defendant got into a fight about this, and Sampson asked defendant to leave. Williams left San Francisco shortly after Sampson’s visit and spent about six weeks with Sampson in Georgia before he returned to San Francisco.
In October 1995, Williams called defendant and asked her to bring him lunch. They began their relationship again.
On December 5, 1995, defendant married Williams. Sampson tried to contact Williams, but had some difficulty doing so because defendant disconnected Williams’s phone and refused to give Sampson the new phone number. Defendant did, on several occasions, let Sampson talk to Williams, and Williams also sent money requested by Sampson for things like travel expenses to attend her father’s funeral, money for her college-aged son and money to repair Sampson’s car.
A social worker for the Kaiser Home Health Program visited Williams at his home in 1997 and testified that Williams appeared to be incapable of caring for himself. In September 1997, Williams was placed at the Sunset Gardens board and care facility. While he was there, defendant visited Williams almost every day, bringing him food, toiletries and gifts.
After Williams died on September 25, 1998, defendant filed a petition for probate of a will signed by Williams in February 1995. In this will, Williams left most of his estate to defendant. A probate trial was held in 1999.
B. Facts Related to Forgery Conviction
After Williams’s wife Leticia died, Williams received a check from Republic Insurance Group. The check was payable to “Williams, Frederick W and Leticia NHW/JT.” Defendant deposited this check into a joint account at CalFed she shared with Williams.
Defendant admitted in a deposition before the 1999 probate trial that she signed Leticia Williams’s name to the check issued by Republic Insurance Group. She explained that “My husband signed the check and he asked me to deposit the check. If you’re calling my mistake here, I ask the people at the bank, I have -- I ask when I went to put the money in the bank, I have to add Leticia as deceased, and I don’t know how to spell at that time and I have to put it there and that was my mistake not to put Leticia as deceased. And the check went directly to my husband in my account at the time I was working for him when I did this.”
A few months later, defendant removed $3,000 from the CalFed account and deposited the funds into her own account.
C. Facts Related to Perjury Counts
On January 21, 1997, defendant withdrew $160,000 from a joint account she held with Williams. Defendant deposited this money into an account she held at Pan American Bank and, a week later, transferred $150,000 of that money into an account in her name only at the Franklin Fund.
Before Williams’s death, defendant withdrew most of this money from the Franklin Fund account. She withdrew $6,343 on February 13, 1998; $4,000 on April 6, 1998; $3,000 on June 5, 1998; $50,000 on July 13, 1998; $50,000 on July 14, 1998; and $28,000 on July 15, 1998.
At the probate trial, defendant testified about the Franklin Fund account. Two statements she made, on two different days of trial, are at issue in this appeal.
The first statement was made on March 25, 1999, when defendant was questioned by her attorney, Malcolm Rainsford. The following colloquy occurred:
“Q. About $160,000 was withdrawn in January of 1997; is that right?
“A. That’s right, sir.
“Q. And that money went into your own personal account into the Franklin Income Fund; is that right?
“A. That’s right. I asked my husband, you know, if I can invest the money in mutual funds and the money went to the mutual funds.
“Q. But that account was not in his name and your name was it?
“A. It was under my name.
“Q. Under your name alone?
“A. It was beneficiary with my husband.
“Q. You mean he was the beneficiary if you should die?
“Q. But the name, it was in your name only?
“ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
“Q. . . . You put that $150,000 into what was it, Franklin Templeton Mutual Fund?
“THE COURT: Is it 150 now or 160?
“THE COURT: All right . . . .
“Q. And you placed since Mr. Williams did not want to be on title.
“Q. Wait a minute now, wait a minute now. You named him a beneficiary in case you died?
“Q. Is that correct? Now Mr. Williams died apparently September the 5th, 1998?
“Q. Now on that day, September 5, 1998, that money was still there in the account?
“A. Yes, sir.
“Q. Am I correct that you did not withdraw that money from the mutual funds until after his death?
“A. Yes, I just did some partial withdrawal to do some -- finish fixing the house.
“Q. Wait a minute. What I’m asking you is $150,000 was in mutual funds when he died?
“Q. Well, you did something with it afterwards, right?
“Q. You’ve answered the question, okay.”
The next day of the probate trial, defendant was asked again by her lawyer about the Franklin Fund account:
“Q. And when you transferred that -- put that money -- I covered this before I remember, on direct, but that when that 150,000 was used to purchase shares in Franklin something Mutual Fund, Mr. Williams agreed to it; is that correct?
“A. Everything that I did I always ask him and he was
“Q. Is your answer ‘yes’?
“Q. Okay. There was some conversation about the State getting that money, wasn’t there?
“Q. All right. Yes. All right. Tell us the conversation as far as you remember.
“A. Well, he say he was worry, you know, he go in long-term, he get very sick, you know. He doesn’t want, you know the State to get the money and get the house. That’s why, you know, I did the way I did things.
“Q. All right. Now, that money remained in Franklin Mutual until the time of his death; is that correct?
“A. Yes, sir.”
At her criminal trial, defendant explained her responses. With regard to the first statement, she explained that her lawyer had confused her with this question, because she had already given him the information about the Franklin Fund. She also said that she wanted to explain her initial answer about the balance in the account, but her lawyer cut her off before she could do so. Had she been permitted to explain further, she would have said the money was “with me” not in the Franklin Fund.
With regard to her testimony on the second day of trial, she stated that she was not interrupted in her answers. She also stated that the money was not in the Franklin Fund at the time of Williams’ death.
The jury convicted defendant of the perjury count involving her testimony on the second day of the probate trial. It acquitted her of the count involving her testimony of the first day of trial. The jury also convicted defendant of the forgery count related to the check from Republic Insurance Group. The jury found defendant not guilty of theft and grand theft from an elder person, and not guilty of one count of perjury. Defendant was sentenced to probation for one year on both counts. This timely appeal followed.
A. The Forgery Conviction
Defendant was convicted of forgery, a violation of section 470, subdivision (a). Section 470, subdivision (a) provides that “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.” Defendant contends that substantial evidence does not support her forgery conviction. We disagree.
Checks are included among the items listed in section 470 subdivision (d).
We begin by noting the well-established rule that, on review, we will uphold defendant’s forgery conviction so long as there is substantial evidence to support it, that is, evidence that is “reasonable, credible and of solid value” such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Kraft (2000) 23 Cal.4th 978, 1053.) We “presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.” (Id. at p. 1053.)
Defendant admitted that she signed Leticia Williams’s name to the Republic Insurance Group check. Such an admission constitutes substantial evidence of an intent to defraud. (People v. Swope (1969) 269 Cal.App.2d 140, 144.) The record also contains substantial evidence that defendant was not authorized to sign Leticia Williams’ name. Leticia Williams had died before defendant began working for Williams, and well before defendant signed Leticia Williams’ name to this check. The jury could “reasonably deduce from” this evidence that Leticia Williams did not authorize defendant to sign her name on her behalf. Substantial evidence, therefore, supports the fraud conviction.
Defendant makes a number of contrary arguments, none of which we find convincing. First, defendant contends that, although Leticia Williams did not authorize her signature on the check, Williams himself did. In making this argument, defendant misreads her own testimony. Defendant testified that Williams told her that returning the check to the insurance company “was going to be too much trouble.” There is no evidence, however, that Williams gave defendant permission to sign his deceased wife’s name to the check. Rather, defendant testified that after her husband said that returning the check would be “trouble,” she simply “signed it for her.”
Even assuming that Williams had the authority to permit defendant to sign Leticia Williams’ name, the jury could infer from defendant’s testimony that Williams did not intend to grant defendant the authority to sign his wife’s name to this check, but was simply expressing frustration that the check was made out to both of them.
In fact, there is no evidence in the record that Williams had the authority to endorse checks made out to his deceased wife.
Moreover, the jury could reasonably have concluded that defendant was not being truthful in her account of her conversation with Williams. On another occasion, defendant claimed Williams gave her the authority to withdraw money from one of his accounts, in that case $20,000 for a new car. The record indicates that Williams told his niece that he did not authorize this withdrawal. Moreover, in September 1997, five months after the Republic check was deposited, a social worker who visited Williams found him in poor condition and hostile toward defendant. Around this same time Williams told the social worker that defendant was not his wife and that she was taking his money, evidence that further supports a reasonable inference that Williams would not have given defendant authority to sign his wife’s name to a check because he did not trust defendant.
Nor does defendant’s only other statement regarding her reason for signing Leticia Williams’s name establish that Williams authorized her to sign his wife’s name to the check. At her trial, defendant explained that “my husband signed the check and he asked me to deposit the check. If you’re calling my mistake here, I ask the people at the bank, I have -- I ask when I went to put the money in the bank, I have to add Leticia as deceased, and I don’t know how to spell at that time and I have to put it there and that was my mistake not to put Leticia as deceased. And the check went directly to my husband in my account at the time I was working for him when I did this.” At best, defendant testified that Williams signed the check and asked her to deposit it. She did not, however, testify that he authorized her to sign his wife’s name to the check. Instead, defendant suggested that “the people at the bank” might have told her to indicate that Leticia was deceased. This, however, does not constitute authority to sign the check on Leticia’s behalf.
The jury not unreasonably deduced from this evidence that Williams did not, in fact, give defendant the authority to sign Leticia Williams’s name to the check and, therefore, substantial evidence supports her conviction.
Defendant cites a number of cases in support of her contrary arguments. None of these cases is persuasive.
In People v. Ross (1961) 198 Cal.App.2d 723, 728, the court held that fraud cannot be shown until it is established “ ‘that the person who signed another’s name did so without authority.’ ” Here, of course, the jury had before it substantial evidence that defendant was not authorized to sign Leticia Williams’s name to the check. Defendant’s argument that her conversations with Williams about the check amounted to authorization to sign the check ignores the reasonable inference the jury could draw from this testimony, namely that Williams did no such thing.
Defendant also discusses at length a statement made by the People during closing argument. The People told the jury that “we have a situation where there is nobody, not Mr. Williams, not the defendant, nobody can give anybody permission to sign her [Leticia’s] name to that check to that endorsement. And so the fraud is really on the part of Mr. Williams of course and on the Republic Insurance Group because they would have the right to decide what should happen with that money if in fact Leticia Williams is no longer alive.”
Defendant argues at length that this statement is erroneous and misleading. However, defendant did not object to this statement or reject an admonishment and therefore has waived any challenge to this purported misstatement of the law. (People v. Hinton (2006) 37 Cal.4th 839, 904-905.) Even if defendant had objected to this statement, defendant has not shown the requisite “reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner” (People v. Frye (1998) 18 Cal.4th 894, 970, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, ___, fn. 22), nor will we “ ‘lightly infer’ ” that the jury drew the most damaging meaning from the People’s comment. (People v. Frye, supra, 18 Cal.4th at p. 970.) The jury was properly instructed on the applicable law and we presume they followed these instructions.
Finally, defendant argues that there is no substantial evidence to support the jury’s conclusion that defendant acted with the intent to defraud. Citing People v. Crowder (1954) 126 Cal.App.2d 578, 580 (Crowder) and People v. Brown (1955) 137 Cal.App.2d 138 (Brown), defendant contends that there is no evidence that she used the money she deposited in the account for her own purposes. Rather, she argues, she deposited it in an account she held jointly with Williams and the money was, therefore, equally available to him.
Neither Crowder nor Brown is helpful. In Crowder, the defendant forged his wife’s signature on several checks. The court set aside his conviction, finding that “[t]here was no evidence that defendant used any of the money for himself, or squandered it, or used it for any purpose other than to meet the needs of the family.” (Crowder, supra, 126 Cal.App.2d at p. 584.) Here, however, the evidence showed that, several months after she deposited the Republic check in the CalFed account, defendant transferred $3,000 from that account into her sole account. This is substantial evidence to support the jury’s finding that defendant acted with the intent to defraud. Moreover, this case is quite similar to Brown, in which a live-in helper for an elderly woman was convicted of forgery after endorsing and cashing checks made payable to her employer. In Brown, the court held that defendant “used the proceeds for herself; she neither made an accounting to [her employer] nor spent the moneys for the lady’s benefit.” (Brown, supra, 137 Cal.App.2d at p. 142.) Similarly, here, there was evidence from which the jury could reasonably infer that defendant had used this money for herself, and therefore, substantial evidence of an intent to defraud.
B. The Perjury Conviction
Defendant was convicted of one count of perjury under section 118 for giving false testimony when she testified under oath at the 1999 probate trial and acquitted of another. Section 118 provides that “[e]very person who, having taken an oath that he or she will testify . . . truly before any competent tribunal . . ., willfully and contrary to the oath, states as true any material matter which he or she knows to be false . . . is guilty of perjury.”
Defendant makes two arguments with regard to her perjury conviction. First, she argues that the perjury counts were based on identical facts and, therefore, it was improper to charge her with two counts of perjury. Second, she contends that, because the jury acquitted her on count 6, she should have been acquitted on count 7, because the facts underlying both counts were identical.
We disagree with the basic premise of both arguments, namely that the two statements were identical. The first perjury count, which formed the basis of count 6, is based on a statement she made on March 25, 1999, at the probate trial during direct examination by her attorney. The second perjury count is based on a statement she made the next day to her attorney. Although the statements concerned the same subject -- defendant’s handling of $150,000 of Williams’s money that she transferred into a Franklin Fund account -- defendant’s answers to these questions were not the same.
On March 25, 1999, defendant was questioned by her attorney, about whether there was any money left in Williams’s account at the time of his death. Defendant said there was money left in the account. However, she also attempted to qualify her statement by explaining that she made some “partial withdrawals” from the account to do some repairs on Williams’s house. When attorney Rainsford asked her if she “did something” with the money after Williams died, she began to respond, but Rainsford told her she had already answered his question. Defendant later testified that Rainsford cut her off just as she was attempting to explain her response, and describe the withdrawals she had made. The jury’s acquittal on this count reflects the fact that her testimony on this day of the trial was equivocal and, therefore, a reasonable doubt existed as to whether she was untruthful in her response.
Defendant was not, however, equivocal in her responses to a similar question asked during the trial the next day, a response that formed the basis for the second perjury count (count 7). On this day, she was asked if the $150,000 she had deposited in the Franklin Fund account “remained in [the account] until the time of his death” and she replied, “Yes, sir.” In fact, because defendant withdrew most of the money in the Franklin Fund account before defendant’s death, her statement that the money was in the account at his death was false and the jury’s conviction of her on this account was supported by substantial evidence.
We thus reject defendant’s argument that she was improperly charged with two counts of perjury because counts 6 and 7 were indistinguishable. Moreover, the cases defendant cites in support of this argument are of no assistance to her. In People v. Dole (1898) 122 Cal. 486, 489-490, the defendant appealed a trial court’s decision denying his demurrer to an information charging a defendant with a single count of forgery. The court rejected his appeal, holding that, a “whole series of acts charged against defendant is alleged to have been done with the single intent to defraud the State Loan and Trust Company. But one offense, therefore, was charged, and the court did not err in overruling the demurrer.” (Ibid.) Here, however, defendant failed to challenge the People’s decision to charge her with two counts of perjury. (§ 1004.) The People correctly argue that defendant’s failure to do so waives any challenge she might bring to a pleading defect. (§ 1012.) However, even if she had preserved this claim on appeal, the two statements that form the basis of the perjury counts are distinct and, therefore, it was not erroneous to charge defendant with two counts of perjury.
People v. Frank (1865) 28 Cal. 507, 513 (Frank)is similarly unpersuasive. In Frank, the court considered a single forgery indictment that alleged a number of acts that, taken together, constituted a single offense. The court held that, “[t]he indictment is good, whether it be regarded as containing two counts or but one. Where, in defining an offense, a statute enumerates a series of acts, either of which separately, or all together, may constitute the offense, all such acts may be charged in a single count, for the reason that notwithstanding each act may by itself constitute the offense, all of them together do no more, and likewise constitute but one and the same offense. To illustrate our meaning, take the statute against forgery, under which the indictment in this case was found, where we find several acts enumerated, all of which are declared to be forgery. Thus ‘the falsely making,’ ‘altering,’ ‘forging,’ ‘counterfeiting,’ ‘uttering,’ ‘publishing,’ ‘passing,’ ‘attempting to pass’ any of the instruments or things therein mentioned, with the intent specified, is declared to be forgery. Now, each of those acts singly, or all together, if committed with reference to the same instrument, constitute but one offense. Whoever is guilty of either one of these acts is guilty of forgery; but if he is guilty of all of them, in reference to the same instrument, he is not therefore guilty of as many forgeries as there are acts, but of one forgery only. Hence an indictment which charges all the acts enumerated in the statute, with reference to the same instrument, charges but one offense, and the pleader may therefore at his option charge them all in the same count, or each in separate counts, and in either form the indictment will be good.” (Id. at p. 513.)
Here, in contrast, defendant was charged with two separate acts of perjury, arising out of two distinct statements. Although the statements shared some similarity, they were not identical and would not, therefore, constitute a single count of perjury.
Defendant also cites People v. Jimenez (1992) 11 Cal.App.4th 1611 (Jimenez), disapproved on other grounds in People v. Kobrin (1995) 11 Cal.4th 416, 419, a case that undermines her argument, rather than supports it. In Jimenez, the defendant was charged with two counts of perjury based on two statements he made at an earlier trial, both of which were untrue. (Jimenez at p. 1623.) The court held that “ ‘a charge of multiple counts of violating a statute is appropriate only where the actus reus prohibited by the statute -- the gravamen of the offense -- has been committed more than once.’ ” (Ibid.) In the case of perjury, the actus reus involves making “false statements.” (Id. at p. 1624.) The Jimenez court held that “[s]ince defendant made two separate false statements, he could properly be convicted of two counts of perjury.” (Ibid.) Here, as in Jimenez, defendant’s statements were not identical. The jury recognized this difference, acquitting defendant of perjury as to the first, equivocal statement, and convicting her of perjury for the second, unequivocal statement. The jury did not err in so doing.
Finally, defendant argues that, because the jury acquitted her on one count of perjury, it erred in convicting her on the other, apparently on a theory that, because the two counts were identical, the jury’s verdict was in error. As we have pointed out, defendant’s argument turns on her assertion that the two counts involve identical facts. They do not. Accordingly, we reject this argument.
The judgment is affirmed.
We concur: Lambden, J., Richman, J.