THE PEOPLE v. CHARLOTTE KATHRYN ELBERTS (2010)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Sarah A. Stockwell, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lance E. Winters and Thomas C. Hsieh, Deputy Attorneys General, for Plaintiff and Respondent.

A jury convicted Charlotte Kathryn Elberts on one count of forgery.   Elberts appeals, arguing that (1) her presentence custody credits should be recalculated because certain amendments to the governing statute apply retroactively and (2) her conviction should be reversed because evidence of her prior crimes was erroneously admitted at trial.   We agree with the first contention but not the second.   We accordingly vacate the award of presentence custody credits and remand for the credits to be recalculated, but we otherwise affirm the judgment.

BACKGROUND

The information charged Elberts with one count of forgery in violation of Penal Code section 470, subdivision (d).¹  It further alleged that she had served two prior prison terms within the meaning of section 667.5, subdivision (b), and that she had suffered two prior felony convictions within the meaning of section 1203, subdivision (e)(4).

Elberts pleaded not guilty and denied the allegations.   The trial court bifurcated trial of the prior conviction and prison term allegations.   The forgery count was tried to a jury.   While the jury was deliberating, Elberts admitted the prior prison term allegations, and the court determined that only one of the two prior prison terms could be used for sentencing.   The jury then returned a verdict of guilty.

The court sentenced Elberts to 3 years in state prison, calculated as follows:  the mid term of 2 years for the forgery count, plus 1 year for the prior prison term.   The court also imposed various statutory fines and fees and credited Elberts with 14 days of presentence custody (10 days actual time plus 4 days good time/work time).

The evidence introduced at trial showed the following facts:  On March 17, 2009, at a teller window at a Bank of America, Elberts attempted to cash what appeared to be a Bank of America cashier's check.   The teller discovered that the check was “bad,” asked Elberts for two forms of identification, and referred the matter to the bank manager.   When the teller asked Elberts for the two forms of identification, Elberts said “I hope he didn't send me a bad check.”   Five minutes later, the manager informed the teller that the check was fraudulent, and the manager called the police.   The manager asked Elberts where she had gotten the check, and Elberts said that “she sold something”;  “[t]here was a transaction for this check.”   When the manager told Elberts the check was fraudulent and the police were on their way, Elberts “said she wanted to wait for them to arrive so she [could] make her own complaint.”   When the police arrived at the bank, Elberts told them “that she had received the check via mail in a plain white envelope with no note or anything indicating why she had received it, and she wanted to attempt to see if it was valid”;  “[s]he said she didn't know where it came from.”   Elberts gave the police “a white envelope which she stated was where the check was sent to her in.”   Later, at the police station and after having been advised of her rights, Elberts wrote and signed the following statement:  “Went to verify cashier check at Bank of America.   The check was sent to me with no paperwork.   I did not sign the check.   I just wanted to see if the check was good.”

DISCUSSION

I. Retroactive Application of Amended Section 4019

Elberts was sentenced, and her presentence custody credits were calculated, on September 17, 2009.   Effective January 25, 2010, section 4019 was amended in a manner that allows custody credits to accrue more rapidly.   Elberts argues that amended section 4019 should apply retroactively and that we should reverse and direct the trial court on remand to recalculate her custody credits accordingly.   We agree.

In a case that is presently under review before the Supreme Court, we previously held that amended section 4019 does apply retroactively.  (People v. House, review granted June 23, 2010, S182813.)   Several other cases are in accord with our now-depublished decision (see, e.g., People v. Keating (2010) 185 Cal.App.4th 364, 382-391;  People v. Bacon (2010) 186 Cal.App.4th 333, 335-336), but there is a split of authority on the issue, which the Supreme Court has not yet resolved.   In the meantime, we continue to agree with Keating, Bacon, and other cases holding that amended section 4019 applies retroactively.   We therefore vacate the award of presentence custody credits to Elberts and remand for recalculation of her credits under amended section 4019.

II. Admission of Evidence of Prior Crimes

Over Elberts' objection, the trial court allowed Robert Miller, a former employer, to testify concerning a 1994 incident.   Elberts “did payables, receivables,” “brought the bills from the various vendors ․ to make sure that they were correct,” and “wrote checks out for [Miller and his partner] to sign to pay the vendors”;  Elberts did not have authority to sign the checks but rather “could only fill out the date, the person to be paid, and the amount.”   On or about November 29, 1994, Miller received a phone call from the primary bank that he used to conduct his business, informing him that Elberts “was attempting to cash a check for $10,000” drawn on Miller's business' account;  the bank “wanted to verify that that was valid.”   Neither Miller nor his partner had written such a check to Elberts or authorized her to write one to herself.   Miller later received a letter from Elberts admitting that she wrote the $10,000 check to herself and also a previous check for $7,000.   She claimed she needed the money because she was trying to refinance her house, and she said, “I know I should have asked and I don't know why I did not.”

Elberts argues that the trial court prejudicially abused its discretion by admitting the evidence that she forged checks to herself from Miller's business.   She contends that the evidence of the prior forgeries was inadmissible character evidence and that it probably swayed the jury because the remaining evidence was “equivocal.”   For example, Elberts points out that “[i]nstead of fleeing when she was informed the police had been called, she remained to make her own report, indicating she was owed this money, and handed the police the envelope the check came in, suggesting she played no part in the fraud.”

Assuming for the sake of argument that the evidence of the prior forgeries was erroneously admitted, we conclude that the error was not prejudicial under People v. Watson (1956) 46 Cal.2d 818, 836).   Elberts stipulated that the check she tried to cash on March 17, 2009, was a forgery.   Her only defense was that she did not know it was a forgery and thus lacked the requisite intent.   But Elberts' own conflicting statements about the source of the check overwhelmingly tended to prove her guilt.   Elberts initially told the bank manger that she had obtained the check in a transaction in which she had sold something.   But Elberts then told the police that “she had received the check via mail in a plain white envelope with no note or anything indicating why she had received it, and she wanted to attempt to see if it was valid”;  she told the police “she didn't know where it came from.”   Elberts' signed statement was largely to the same effect:  “Went to verify cashier check at Bank of America.   The check was sent to me with no paperwork.   I did not sign the check.   I just wanted to see if the check was good.”   It is not reasonably probable that, even without the evidence of the prior forgeries, the jury would have believed that some unknown person would send Elberts a forged check in a plain envelope with no note or other explanation unless Elberts herself was part of the illegal scheme.

DISPOSITION

NOT TO BE PUBLISHED.

We concur:

FOOTNOTES

FN1. All subsequent statutory references are to the Penal Code..  FN1. All subsequent statutory references are to the Penal Code.

MALLANO, P.J. CHANEY, J.