People v. Mathers

Opinion

NICHOLSON, Acting P. J.

A jury convicted defendant Robert Jay Mathers of possession of a forged completed check (Pen. Code, § 475, subd. (c)—count l),

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possession, passing, or attempting to pass a fictitious check (§ 476—count 2), second degree burglary (§ 459—count 3), writing a check with insufficient funds (§ 476a, subd. (a)—count 4), and resisting a

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peace officer (§ 148, subd. (a)(1)—count 5). In a trial by court, defendant was found to have a prior strike conviction and to have served a prior prison term.

Sentenced to state prison for nine years four months, defendant appeals, contending (1) the evidence is insufficient to support the fictitious check conviction (count 2); (2) the court’s instruction on prior uncharged conduct was prejudicial error; (3) the convictions for counts 1, 2, 3, and 4 must be reversed because the court failed to give a unanimity instruction; (4) cumulative instructional error resulted in prejudice; (5) the consecutive sentence imposed on count 2 should have been stayed pursuant to section 654; and (6) the consecutive sentence imposed for count 2 must be reversed because the facts relied upon by the court were not submitted to a jury and found true beyond a reasonable doubt. We agree with defendant that the evidence is insufficient to support his conviction for count 2, a conclusion which renders his fifth and sixth contentions moot. We reject his remaining contentions.

FACTS

In November 2007, defendant opened a business account with North Valley Bank (NVB) in the name of Mathers Remodel and Maintenance. The initial deposit was $50 and no further deposits were made. In December 2007, the account was closed for insufficient funds. In January 2008, five checks, totaling over $1,800 and dated either January 11 or 18 and payable to various individuals, were drawn on the closed account. Pursuant to bank policy, notices were sent to the account holders that the checks were not being honored because of insufficient funds.

On or about April 26, 2008, by means of a computer program, defendant created three checks for his closed NVB account. Each check was numbered 1078. Two of the checks were payroll checks made payable to defendant and the third check was blank.