People v. Rodriguez ( 2021 )

Filed 11/18/21
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B305512
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA465793)
v.
WILFREDRO RODRIGUEZ et al.,
Defendants and Appellants.
APPEAL from judgments of the Superior Court of Los
Angeles County. Lisa B. Lench, Judge. Affirmed.
Yacoubian & Powell and Stewart J. Powell, for Defendant
and Appellant Wilfredo Rodriguez.
Seki, Nishimura, & Watase, Bill H. Seki and Kari C.
Kadomatsu for Appellant Ruben Gutierrez.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Steven D. Matthews and Michael J.
Wise, Deputy Attorneys General, for Plaintiff and Respondent.
__________________________
Defendants Wilfredo Rodriguez and Ruben Gutierrez were
convicted of forgery, identity theft, grand theft, and petty theft in
connection with the unlawful use of their employer’s engineering
seal and signature to submit building plans and engineering
reports on behalf of their own clients in a moonlighting scheme.
They contend on appeal the charges against them are time-
barred. They also argue the trial court’s evidentiary error
impermissibly resulted in multiple charges against them.
Lastly, they contend they may not be convicted of both forgery
and identity theft based on the same engineering document.
We affirm the judgments.
FACTS
Defendants worked together at Palos Verdes Engineering
(PVE), which provides engineering services for residential and
commercial building projects. During the relevant time period,
PVE was owned by Ricky Morales and John Schuricht. In 2015,
Morales became sole owner of PVE. Morales is a licensed civil
engineer who provides structural design and drafting for
buildings as well as structural inspections and observations for
distressed structures or buildings under construction. Schuricht,
a licensed structural engineer, provides similar services but is
allowed to design essential facilities such as libraries, public
schools, and buildings over five stories tall.
Licensed engineers who have passed the professional
engineering tests receive an engineering seal which they use to
stamp building plans or other documents requiring an engineer’s
services. The seal identifies the engineer by name and license
number, and it specifies the type of engineer he or she is.
An engineer uses his seal to stamp building plan sets and
engineering reports that are submitted to a city for approval.
2
Plan sets are comprised of pages showing the design of the
building and structural calculations for the project. The design
portion of a plan set shows the layout of the building, elevation,
and other aesthetic components. The plan sets are stamped by a
licensed engineer to indicate the calculations and designs were
reviewed by him or her and meet code requirements. If all or a
portion of a building plan needs to be changed, the page
containing the revision replaces the old page and the plan set is
resubmitted. Only complete plan sets, with every page in the
proper order, are accepted.
In addition to building plans, an engineering seal may be
required for other engineering reports, including structural
observation reports. Structural observation reports contain a
licensed engineer’s observation that a building is being built
according to the approved plans. The engineer conducts an on-
site assessment, prepares the structural observation report, and
stamps it with his seal for submission to the city.
Gutierrez worked as an architectural designer for PVE
from 2000 to 2008. Gutierrez was responsible for the design
portion of a proposed building project, essentially working as an
unlicensed architect to draw building layouts and other aesthetic
components.
Rodriguez worked as an engineering draftsman at PVE
from February 1995 until March 17, 2014. Rodriguez has a civil
engineering degree from USC but never passed the professional
engineering tests to become a licensed engineer with his own
seal. As an engineering draftsman, he provided structural
calculations and plans for buildings but a licensed engineer was
required to oversee his work. Rodriguez became proficient
enough at his job to earn the title “Project Engineer” and was
3
allowed to bring in his own clients, and train draftsmen and
others who worked at PVE.
A. Discovery of Gutierrez’s and Rodriguez’s
Moonlighting
On December 21, 2007, Morales found a folder on
Gutierrez’s desk containing approximately 10 invoices for
Gutierrez’s own company, R.G. Designs. The documents
contained a set of structural calculations and drawings on PVE
letterhead with Morales’s seal and signature. When Morales and
Schuricht confronted Gutierrez about the documents, Gutierrez
admitted to moonlighting for his own company and to using
PVE’s company logo and name on the structural calculations.
Gutierrez told Morales he was working alone and Morales
believed him. At this time, Morales did not suspect Rodriguez in
the moonlighting scheme even though he knew Rodriguez and
Gutierrez were friends. Gutierrez was terminated from PVE on
January 2, 2008.
On March 12, 2014, Morales received a phone call from a
prospective PVE client who reported Rodriguez offered him a
discount if he paid in cash. Morales and Schuricht audited
Rodriguez’s computer because they were concerned about his
activities. They discovered engineering documents for five
projects with Morales’s seal and signature that did not relate to
known PVE projects. When confronted, Rodriguez apologized
and admitted he worked on 10 non-PVE projects using PVE’s
logo, stationary, and Morales’s seal and signature. Rodriguez was
terminated.
Morales and Schuricht notified the police about the fraud
approximately one month later when they discovered additional
non-PVE projects on Rodriguez’s computer. In total, they
4
identified 20 projects which they believed were non-PVE projects
and which form the basis for the criminal complaint against
defendants.
B. Trial
A criminal complaint was filed against defendants in
February 2018. In an information filed on August 7, 2018,
defendants were charged with a total of 392 felony counts of
forgery in violation of Penal Code section 470, subdivision (b),
identity theft in violation of section 530.5, subdivision (a), and
grand theft in violation of section 487, subdivision (a).1 The
information alleged all of the charged criminal conduct occurred
at different times between 2009 and 2014. It was further alleged
as to all counts that defendants took property with a value
exceeding $65,000 within the meaning of section 12022.6,
subdivision (a)(1)2 and that the crimes were not discovered until
March 12, 2014, when the prospective client informed Morales of
Rodriguez’s offer of a cash discount.
Each count of forgery and identity theft corresponded to
one page of a plan set or a structural observation report that was
stamped and initialed using Morales’s seal and signature. Each
count of grand theft alleged defendants defrauded clients who
paid for their services in connection with the non-PVE projects.
Counts 10 to 270 were alleged against both defendants and were
associated with the 20 non-PVE projects at issue. The remaining
1 All further section references are to the Penal Code unless
otherwise specified.
2 The trial court later set aside the section 12022.6,
subdivision (a)(1) allegation. The trial court also granted the
People’s request to change count 75 from attempted grand theft
to grand theft.
5
counts for forgery and identity theft—counts 1 to 9 and 271 to
392—were charged to Rodriguez alone in connection with other
projects in which he used Morales’s seal and initials.3
Defendants waived a trial by jury. At the bench trial, the
People presented testimony from the investigating officer, the
individuals who hired defendants for their building projects,
Morales, Schuricht, and others. Morales testified he never gave
defendants permission to use his engineering seal or to sign his
name or initials to engineering reports or building plan sets.
The People presented testimony about the moonlighting
scheme. Clients, such as homeowners or contractors, would hire
Gutierrez to provide design and structural engineering services
on their building projects in most cases. Gutierrez, in turn, used
Rodriguez for the structural calculations. Defendants worked
together to submit building plan sets and structural observation
reports on PVE letterhead with Morales’s seal and initials to
cities in connection with their clients’ projects.
Rodriguez testified Morales often allowed him to stamp
documents with his engineering seal, and he was asked to
conduct structural observations for PVE. A former PVE
employee and an architect who worked with PVE testified they
observed Rodriguez and others at PVE, including a secretary,
using Morales’s and Schuricht’s engineering seals. The architect
also testified Rodriguez often conducted structural observations
on the projects she had with PVE. Rodriguez explained a PVE
job number was assigned to each project referred by Gutierrez to
3 Due to the number of counts and because the issues
presented in this appeal do not require us to do so, we do not set
forth with any further specificity which counts relate to which
defendant, crimes, or specific building projects.
6
him but he attempted to obscure the source because he knew
PVE would not otherwise allow him to take the project.
Defendants further presented testimony PVE received and kept
money that was paid on the non-PVE projects.
Rodriguez was convicted of 238 counts of forgery and
identity theft, eight counts of grand theft, and six misdemeanor
counts of petty theft. The trial court found Rodriguez not guilty
on counts 1, 41, 164, 165, 193, 231, 232, and counts 270 through
392. It sentenced Rodriguez to five years of formal probation on
246 felony counts, and one year of summary probation on six of
the grand theft counts, counts 25, 110, 124, 140, 157, and 237. It
also sentenced Rodriguez to serve 365 days in the county jail and
to complete 150 days of community labor.
Gutierrez was convicted of 193 counts of forgery and
identity theft, six counts of grand theft, and six misdemeanor
counts of petty theft. The trial court also sentenced him to formal
probation for five years, and one year of summary probation for
the same six grand theft counts as Rodriguez. Gutierrez was
sentenced to serve 365 days in the county jail and to complete
100 days of community labor. Both defendants were ordered to
pay court operations assessments, court facilities assessments,
and restitution fines.
Defendants timely appealed.
DISCUSSION
I. The Charges Against Defendants Are Not Time-
Barred
Defendants contend their convictions are subject to reversal
because they were not timely prosecuted. According to
defendants, PVE’s controller and its owners had actual
knowledge of discrepancies in PVE’s records by 2013, at the
7
latest, which would have prompted a reasonable person to
investigate and discover the fraud. Thus, the People’s February
2018 complaint4 was untimely under the applicable four-year
statute of limitations. The trial court found otherwise and
substantial evidence supports its finding.
A. Statute of Limitations
The parties agree the statute of limitations applicable to
defendants’ crimes is four years “after discovery of the
commission of the offense . . .” (§§ 801.5, 803, subd. (c);5 People v.
Price (2007) 155 Cal.App.4th 987, 995.) The People have the
burden to prove by a preponderance of the evidence that the
charges against defendants were timely filed. (People v. Zamora
(1976) 18 Cal.3d 538, 571–572 (Zamora).) Under the discovery
rule, the prosecution can overcome the statute of limitations by
pleading and proving each of the following: “(1) when and how
the facts concerning the fraud became known to [the victim];
(2) lack of knowledge prior to that time; (3) that he had no means
of knowledge or notice which followed by inquiry would have
shown at an earlier date the circumstances upon which the cause
4 Section 804 provides that for purposes of the statute of
limitations, “prosecution for an offense is commenced when any of
the following occurs: [¶] . . . [¶] (c) The defendant is arraigned on
a complaint that charges the defendant with a felony.”
5 Section 801.5 provides that prosecution of fraud-based
offenses, including grand theft and forgery, “shall be commenced
within four years after discovery of the commission of the
offense . . . .” Section 803, subdivision (c), provides that the four-
year statute of limitations “does not commence to run until the
discovery of [the] offense. . . .”
8
of action is founded. [Citation.]” (Zamora, supra, 18 Cal.3d at
p. 562.)
The limitations period is triggered when either the victim
or a responsible law enforcement official learns of facts which, if
investigated with reasonable diligence, would make that person
aware a crime had occurred. (People v. Moore (2009) 176
Cal.App.4th 687, 692 (Moore).) “[A] ‘victim’ does not include a
person with a ‘special relationship’ to the actual victim of the
defendant’s crime, nor does a ‘victim’ include a person with a
‘special interest’ in the subject matter of the crime. (See, e.g.,
[People v.] Kronemyer [(1987)] 189 Cal.App.3d [314,] 330–335
[discovery of facts by close friend and neighbor of conservatee-
victim, and/or by residual beneficiary of conservatee-victim’s
estate, did not trigger the statute of limitation].) In short, the
criminal discovery statutes ‘extend no further than those persons
who are direct victims [of a crime] . . . and those persons who are
clothed with a status imposed by law [such as a victim’s]
guardian, conservator or equivalent . . . .’ [Citation.]” (Moore,
supra, at pp. 692–693.)
“[L]ack of actual knowledge is not required to bring the
‘discovery’ provision . . . into play. The crucial determination is
whether law enforcement authorities or the victim had actual
notice of circumstances sufficient to make them suspicious of
fraud thereby leading them to make inquiries which might have
revealed the fraud.” (Zamora, supra, 18 Cal.3d at pp. 571–572,
italics omitted; People v. Petronella (2013) 218 Cal.App.4th 945,
956.) Thus, discovery of a loss by the victim alone is insufficient
to trigger the limitations period. (People v. Soni (2005) 134
Cal.App.4th 1510, 1518.) “The question is whether there is
9
sufficient knowledge that a crime has been committed.” (People
v. Crossman (1989) 210 Cal.App.3d 476, 481 (Crossman).)
The issue of when the fraud was discovered or could have
been discovered through the exercise of reasonable diligence
presents questions for the trier of fact to decide. (People v.
Swinney (1975) 46 Cal.App.3d 332, 345, disapproved on another
point in Zamora, supra, 18 Cal.3d at pp. 564–565, fn. 26.) “When
an issue involving the statute of limitations has been tried, we
review the record to determine whether substantial evidence
supports the findings of the trier of fact. [Citations.]” (People v.
Castillo (2008) 168 Cal.App.4th 364, 369.)
B. Proceedings Below
Prior to closing arguments, defendants moved to dismiss
the information on the ground the charges were time-barred.
Defendants presented evidence that beginning on April 30, 2009,
PVE created 77 different records in connection with the non-PVE
projects at issue and received 28 payments for these non-PVE
projects. There were monthly aging reports and weekly staff
meetings that discussed the projects each employee was assigned
to and invoices showing what had been done on the projects.
Additionally, Morales or his partner regularly met with PVE’s
controller to review PVE’s books.
Defendants asserted these events and records should have
led Morales to inquire into these non-PVE projects, particularly
when payment was outstanding, when a non-invoiced payment
was received, or some other discrepancy occurred. The invoices
for these non-PVE projects should also have alerted him to
instances when Rodriguez was conducting site inspections or
structural observations when he was not licensed to do so. In
particular, Schuricht testified the invoices for one project in June
10
2013 created an account receivable that was never paid.
Defendants argued Morales was on notice to inquire as to that
project and why the invoice was not paid. According to
Defendants’ calculation, the statute of limitations began to run in
June 2013 and any prosecution should have begun by June 2017.6
The criminal complaint, filed February 2018, was seven months
too late.
The People opposed, arguing Morales had neither actual
nor constructive knowledge of the criminal activity in 2007, when
he discovered Gutierrez’s moonlighting, or from 2009 to 2014,
when the contracts, reports, meetings, or invoices may have
revealed discrepancies. Indeed, Morales testified PVE’s
controller did not advise him of any such discrepancies in PVE’s
books. Alternatively, Morales was not required to proactively put
a system in place to detect fraud or criminality.
As to the controller, the People argued he was not a legal
“discoverer” for purposes of the discovery statutes because only a
responsible law enforcement official or the victim of the crime—
that is, the owner of the property or the person directly injured by
the criminal acts—may trigger the limitations period. (Moore,
supra, 176 Cal.App.4th at p. 692.)
6 On appeal, Defendants move the discovery date from June
2013, the date they set forth in their motion to dismiss, to
February 2013, the purported date of their last non-PVE project.
By defendants’ new calculation, the People were required to
prosecute them by February 2017, and the February 2018
criminal complaint was one year overdue. The People do not take
issue with defendants’ new discovery date and neither do we
because it does not change our analysis of the issue or our
conclusion.
11
The trial court denied the motion to dismiss, concluding
“the People’s position is a better position.” It later expressly
found “the People proved the allegation filed under Penal Code
section 803(c).” Thus, the trial court found true the allegation in
the information that discovery of the criminal activity did not
occur until March 12, 2014, when PVE’s prospective client called
Morales and informed him that Rodriguez had offered to provide
a cash discount. This phone call led Morales to conduct a search
of Rodriguez’s work station and company computer, revealing
fraudulent contracts, unauthorized use of company letterhead,
forged signatures and unauthorized use of Morales’s seal. The
trial court further found true the allegation “that no victim of
said criminal activity had actual and constructive knowledge of
said criminal activity prior [to] March 12, 2014 because
defendants Ruben Gutierrez and Wilfredo Rodriguez had
concealed their actions within the meaning of Penal Code section
803(c).”
C. Substantial Evidence Supports the Trial Court’s
Finding the Limitations Period Was Not Triggered
Until 2014
Substantial evidence supports the trial court’s finding that
defendants’ criminal activity was not discovered until March 12,
2014, when PVE’s prospective client advised Morales that
Rodriguez offered him a cash discount. The record shows
Rodriguez was a trusted employee who had worked at PVE for 19
years. He was given a great deal of responsibility, including
training new employees and bringing in his own clients. Morales
testified he did not suspect Rodriguez in 2008 when he fired
Gutierrez for moonlighting. Indeed, Morales and Schuricht
believed they had resolved the issue by terminating Gutierrez.
12
Substantial evidence also supports the trial court’s finding
that the criminal activity was not discovered prior to March 12,
2014, because defendants concealed their actions. The record
shows each of the non-PVE projects held a PVE number listing
Rodriguez as the project engineer and obscuring Gutierrez as the
source of the job. As a result, Rodriguez would be alerted to any
issues or questions that arose in connection with that project. If,
for example, a non-PVE client called with a question, the call
would be directed to Rodriguez. The People argued more
questions would have been raised if a PVE job number had not
been assigned.
We are not persuaded by defendants’ argument that
diligent inquiry would have revealed their fraud before March 12,
2014. First, defendants charge the controller with knowledge
sufficient to trigger the limitations period. They argue the
controller’s knowledge of the discrepancies in the financial
records from 2009 to 2013 should be imputed to PVE, the “victim”
of defendants’ fraud. Defendants’ contention is meritless because
PVE is not the victim of defendants’ crimes; Morales and
defendants’ clients are. As to the forgery and identity theft
charges, defendants were convicted of fraudulently using
Morales’s seal and his signature. There is no evidence or
contention that PVE owns Morales’s engineering seal, much less
his signature. As to the grand and petty theft convictions,
defendants were charged with and found guilty of “knowingly
and designedly, by a false and fraudulent representation and
pretense, obtain[ing] money, labor and real and personal property
by fraud” from their clients.7 PVE is simply not a victim of any of
7 The elements of the offense of grand theft by means of false
pretenses are: (1) a defendant made a false representation,
13
the criminal offenses of which defendants were convicted. Thus,
its controller’s actual or constructive knowledge could not trigger
the limitations period. (Moore, supra, 176 Cal.App.4th at p. 692.)
Defendants next argue Morales and Schuricht were put on
inquiry notice of their fraud during the weekly meetings to
discuss ongoing projects and when they met with PVE’s controller
every month from 2009 to 2013 to discuss PVE’s finances.
Defendants contend Morales and Schuricht were negligent
because “[i]f they had examined the financial documents with
reasonable care, PVE would have discovered that its employees
were involved in the alleged moonlight scheme.” Indeed, “the
testimony by Morales, [the controller] and Schuricht regarding
the operations of PVE, the purpose of the monthly meetings and
accounting reports and their own responsibility for the business
demonstrate that PVE and its owners were aware of facts and
circumstances to, at least, become suspicious of the possibility for
a moonlighting scheme and prompt inquiry.”
By defendants’ own reasoning, an investigation into the
financial and record-keeping discrepancies would have led to the
discovery of the moonlighting scheme. Moonlighting is not a
criminal offense. “[I]t is the discovery of the crime, and not just a
(2) the representation was made with intent to defraud the owner
of the property, and (3) the owner was in fact defrauded in that
he or she parted with the property in reliance on the defendant’s
representation. (People v. Wooten (1996) 44 Cal.App.4th 1834,
1842; People v. Britz (1971) 17 Cal.App.3d 743; see also
CALCRIM Nos. 1801, 1804.) The elements of the crimes of theft
remain the same except that the distinction between grand and
petty theft is in the type of articles stolen, whether the articles
were taken from the person of another, and in the value thereof.
(Gomez v. Superior Court (1958) 50 Cal.2d 640, 328.)
14
loss, that triggers the running of the statute.” (People v. Lopez
(1997) 52 Cal.App.4th 233, 246, fn. 4; see also Crossman, supra,
210 Cal.App.3d at p. 481 [an offense is not constructively
discovered if the facts “ ‘would have only created a suspicion of
wrongdoing.’ ”].)
A reasonable inference can be made that an investigation
into the financial discrepancies would have led to a suspicion of
wrongdoing but not necessarily the discovery of a crime. This
inference is borne out by the fact Morales and Schuricht
discovered Gutierrez’s moonlighting in 2007 but did not discover
any crimes at that time. Defendants ask this court to consider
the evidence and make a different inference about the outcome of
an investigation by Morales and Schuricht. This we cannot do.
(See People v. Brown (1984) 150 Cal.App.3d 968, 970 [“When a
jury’s verdict is attacked on the ground that there is no
substantial evidence to sustain it, the power of an appellate court
begins and ends with the determination as to whether, on the
entire record, there is any substantial evidence, contradicted or
uncontradicted, which will support it, and when two or more
inferences can reasonably be deduced from the facts, a reviewing
court is without power to substitute its deductions for those of the
jury. It is of no consequence that the jury believing other
evidence, or drawing different inferences, might have reached a
contrary conclusion.”]
II. The Trial Court Did Not Err When It Struck
Morales’s Testimony Regarding What Comprises a
Document and Allowed Convictions Based on Each
Page of a Plan Set
Defendants next contend the trial court erred when it
precluded testimony from Morales regarding the definition of a
15
“document.” According to defendants, “[h]ad the Court allowed
counsel to question Morales as to the definition of a ‘document’ in
the context of this case, it would have received evidence that
conclusively establishes that plan sets, and structural calculation
sets, albeit comprised of multiple pages, are a single document
which is presented to the relevant city at one time—in one act—
to obtain city approval. As such, charging each individual page
separately is inappropriate and violates Penal Code section 954
and relevant case precedent.” In short, defendants assert they
may only be convicted of one count of forgery or identity theft for
each plan set rather than one count each of forgery and identity
theft for each page of a plan set.
Defendants’ challenge to the trial court’s evidentiary ruling
raises two issues:
1) Were multiple charges permissibly based on treating
each page of a plan set as an individual document?
2) Did the trial court abuse its discretion when it struck
Morales’s testimony regarding what constitutes a
document?
We conclude the answer to the first question is yes and the
answer to the second question is no.
A. Proceedings Below
After the preliminary hearing, defendants moved to dismiss
“duplicative” charges that were based on treating each plan set
page as a different and independent document. Defendants,
relying on section 954 and case authority, argued each completed
plan set may only support one count of identity theft and one
count of forgery for each project at issue. The trial court rejected
defendants’ primary contention that individual pages do not each
constitute a document for purposes of multiple charges. For
16
reasons not specified in the record, it partially granted
defendants’ section 954 motion and set aside identity theft counts
11, 26, 43, 44, 56, 87, 111, 141, 173, 182, and 292.
At trial, Morales testified, without objection, that the only
way to get a plan set approved by a city is to have a complete set,
that is all the pages are together and in the proper order.
Defense counsel asked Morales if, “in [his] view, [ ] one plan set
all together in proper order is a ‘document’.” Morales replied,
“Yes.” The trial court granted the prosecutor’s motion to strike
Morales’s answer on relevance grounds.
Defense counsel argued Morales’s opinion as an
engineering expert was relevant to “what is a document for
engineering purposes” and “how the case is charged, how plans
are processed.” The trial court disagreed that an engineer’s
definition was relevant to the legal definition of what is a
document. The court questioned whether, instead, “[t]he issue is
the use of a stamp, correct?” It ultimately declined to revise its
ruling and Morales’s reply remained stricken.
B. The Convictions Based on Each Page of a Plan Set
Were Proper
We first consider whether, as defendants contend, there
can only be one count of forgery or identity theft per plan set.
In support of this argument, defendants rely on section 954 and
caselaw that holds there cannot be multiple forgery convictions
where only one document is involved.8 We are not persuaded.
8 Defendants provide no authority for the proposition that
the general rule applicable to forgery of one count per instrument
also applies to the crime of identity theft. We decline to extend
the reasoning behind the forgery cases to identity theft.
However, we discuss below whether defendants may be convicted
17
1. Applicable Law
Section 954 provides, in pertinent part, that “[a]n
accusatory pleading may charge two or more different offenses
connected together in their commission, or different statements of
the same offense . . . under separate counts . . . . The prosecution
is not required to elect between the different offenses or counts
set forth in the accusatory pleading, but the defendant may be
convicted of any number of the offenses charged . . . .” The
California Supreme Court has “repeatedly held that the same act
can support multiple charges and multiple convictions. ‘Unless
one offense is necessarily included in the other [citation], multiple
convictions can be based upon a single criminal act or an
indivisible course of criminal conduct (§ 954).’ [Citation.]”
(People v. Gonzalez (2014) 60 Cal.4th 533, 537 (Gonzalez).)
Likewise, section 954 “ ‘does not permit multiple convictions for a
different statement of the same offense when it is based on the
same act or course of conduct.’ ” (People v. Vidana (2016) 1
Cal.5th 632, 650 (Vidana).) We review de novo the issue of
whether multiple convictions are proper under section 954.
(People v. Villegas (2012) 205 Cal.App.4th 642, 646.)
In relation to forgery, courts have held “there cannot be
multiple convictions based on any subdivision of Penal Code
section 470 where only one document is involved.” (People v.
Kenefick (2009) 170 Cal.App.4th 114, 124 (Kenefick). “The rule of
one count of forgery per instrument is in accord with the essence
of forgery, which is making or passing a false document.” (Id. at
p. 123.) In Kenefick, the court found “[m]ultiple forged signatures
on a single document constitute but one count of forgery.” (Id. at
of both identity theft and forgery based on the same page of a
plan set.
18
p. 116; People v. Martinez (2008) 161 Cal.App.4th 754, 756
(Martinez) [“falsification of two signatures on a single trust deed
constituted only one count of forgery.”].)
2. Analysis
Defendants argue it was impermissible to separate out
each individual page as a “document” for purposes of the forgery
counts because each plan set was prepared with one intent or
objective in mind, and its submission to a city constituted one act.
The law and the record refute defendants’ claims.
The People’s treatment of each page of a plan set as a
separate document is supported by the Legislature’s
differentiation between plan sets and other engineering reports.
Business and Professions Code section 6735 provides: “If civil
engineering plans are required to be signed and sealed or
stamped and have multiple sheets, the signature, seal or stamp,
and date of signing and sealing or stamping shall appear on each
sheet of the plans. If civil engineering specifications,
calculations, and reports are required to be signed and sealed or
stamped and have multiple pages, the signature, seal or stamp,
and date of signing and sealing or stamping shall appear at a
minimum on the title sheet, cover sheet, or signature sheet.”
(Bus. & Prof. Code, § 6735.) It is reasonable to infer the
Legislature considers each sheet of a plan set a separate
document because it requires a signature and stamp on each
sheet of a plan set but does not have the same requirement for
any other engineering report.
The evidence elicited at trial further supports treating each
page of a plan set as an individual document. The record shows
that each plan page has unique characteristics and serves
different purposes. Although they all relate to a common project,
19
they are separate documents that may be created or submitted on
different dates and show different aspects of the construction
project.
For example, People’s exhibit 101, admitted into evidence
on October 1, 2019, is a plan set for three new two-story detached
single-family dwellings, each with an attached one-car garage.
It is comprised of six pages: the cover page, sheets S1, S2, SD1,
SD2, and SN1. Aside from the cover page, each page is stamped
with Morales’s engineering seal and contains his initials. The
parties stipulated Morales did not stamp or initial those pages for
exhibit 101. Nor did he give permission for anyone else to do so.
Sheet S1 shows the structural plans for units “A” and “B” while
sheet S2 shows the structural plans for unit “C.” Sheets SD1 and
SD2 show different structural details, including the roof, floor,
stair, and footing details. Further, it appears revisions were
submitted by Rodriguez for sheets S1 and S2 on April 14, 2012,
while no revisions were made to the cover page, sheets SD1, SD2,
and SN1, which each bear the date of January 20, 2012. Given
the statutory requirements and the record in this case,
defendants’ multiple counts for forgery based on individual pages
of plan sets was appropriate.
The cases cited by defendants—Vidana, supra, 1 Cal.5th
632, People v. Harrison (1989) 48 Cal.3d 321, Wilkoff v. Superior
Court (1985) 38 Cal.3d 345, and People v. Shiga (2019) 34
Cal.App.5th 466—do not support the contention that multiple
counts of forgery are impermissible under the circumstances of
this matter. None of the cited cases involve forgery, much less
discuss the rule articulated in Kenefick and Martinez that one
forged document may result in only one count of forgery. Indeed,
Vidana affirms the general rule that “ ‘the same act can support
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multiple charges and multiple convictions.’ ” (Vidana, supra, 1
Cal.5th at p. 637.)
B. The Trial Court Did Not Err When It Excluded
Morales’s Opinion Testimony
We now address whether the trial court abused its
discretion when it struck Morales’s testimony regarding what
constitutes a document for purposes of the forgery counts.9 We
conclude there was no abuse of discretion.
The rules regarding our review of a trial court’s evidentiary
decisions are not controversial: Only relevant evidence is
admissible. (Evid. Code, § 350.) A trial court’s admission or
exclusion of evidence is reviewable for abuse of discretion.
(People v. Alvarez (1996) 14 Cal.4th 155, 201.) Evidentiary error,
if any, is harmless if it is not reasonably probable that a result
more favorable to the appealing party would have been reached
in the absence of the error. (People v. Marks (2003) 31 Cal.4th
197, 227; People v. Watson (1956) 46 Cal.2d 818, 836.)
The determination of whether multiple forgery counts is
permissible is a question of law to be determined by the trial
court. (See Martinez, supra, 161 Cal.App.4th at p. 762; see also
In re Carleisha P. (2006) 144 Cal.App.4th 912, 918–923; People v.
Shabtay (2006) 138 Cal.App.4th 1184, 1190.) To make this
determination, the court must decide whether the multiple
forgery counts are appropriately based on multiple documents or
impermissibly based on a single document. (Martinez, supra, 161
Cal.App.4th at p. 762.)
Given this, Morales’s testimony regarding his “view” of
what constitutes a document for purposes of multiple forgery
9 We reject the People’s argument Gutierrez forfeited this
issue for failure to raise it below.
21
counts is irrelevant, whether presented as lay or expert
testimony. “ ‘[I]t is thoroughly established that experts may not
give opinions on matters which are essentially within the
province of the court to decide.’ [Citations.]” (Sheldon Appel Co.
v. Albert & Oliker (1989) 47 Cal.3d 863, 884.) Thus, the trial
court did not abuse its discretion when it struck that portion of
Morales’s testimony.
Even if it was error to strike Morales’s testimony as to
what constitutes a document, we conclude it was harmless.
Morales’s testimony regarding plan sets was properly admitted;
he testified that only a complete plan set, with all of the pages
together and in order, will be accepted by a city for submission.
This evidence underlays defendants’ argument that only a
complete plan set is a document, not each individual page.
Thus, it is not reasonably probable that defendants would have
achieved a more favorable result without the error given that we
presume the trial court in a bench trial considered this
admissible evidence. (Mike Davidov Co. v. Issod (2000) 78
Cal.App.4th 597, 606.)
III. Defendants Were Properly Convicted of Both
Forgery and Identity Theft Based on the Same
Document
Defendants next argue they could not be convicted of both
identity theft and forgery based on the same document because
they constitute multiple convictions for a different statement of
the same offense, which is prohibited under section 954. We are
not persuaded that identity theft and forgery are different
statements of the same offense.
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A. Legal Principles10
Recent Supreme Court decisions which explain when
multiple convictions for a different statement of the same offense
are prohibited by section 954 are instructive here. In Gonzalez,
the high court held oral copulation of an unconscious person
under subdivision (f) of former section 288a and oral copulation of
an intoxicated person under subdivision (i) of the same section
constituted two separate offenses for purposes of section 954 and
were not different statements of the same offense. (Gonzalez,
supra, 60 Cal.4th at p. 535.) The court began by examining the
wording and structure of former section 288a. It noted the
subdivisions “differ in their necessary elements” and “neither
offense is included within the other.” (Id. at p. 539.)
Additionally, each subdivision prescribes specific punishments.
(Ibid.)
In Vidana, the Supreme Court held that larceny under
section 484, subdivision (a) and embezzlement under section 503
describe the same offense such that the defendant could not be
convicted of both under section 954. (Vidana, supra, 1 Cal.5th at
pp. 647–648.) The court explained that although “[l]arceny and
embezzlement have different elements and neither is a lesser
included offense of the other,” these factors “do not definitely
resolve whether larceny and embezzlement are a single offense.”
(Id. at p. 648.) In reaching its decision, the court relied on the
historical context and legislative history of the relevant statutory
amendments, emphasizing that the Legislature had sought to
eliminate the “ ‘arbitrary distinctions’ ” between larceny,
embezzlement, and obtaining property under false pretenses that
10 We set forth the general provisions of section 954 in the
previous discussion and need not repeat them here.
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made it difficult to determine which crime a defendant had
committed. (Id. at pp. 639, 648–649.) The court explained,
“California reduced its problems with pleading and proving”
these crimes by “ ‘consolidat[ing] . . . larceny, embezzlement and
obtaining property under false pretenses, into one crime,
designated as theft.’ ” (Id. at pp. 639, 648.)
In addition to this clear expression of legislative intent, the
Court reasoned that larceny and embezzlement were alternative
theories of liability for the same offense because a jury could
convict a defendant of theft without unanimously agreeing on the
method (larceny, embezzlement, or obtaining property under
false pretenses) by which the theft was committed. (Vidana,
supra, 1 Cal.5th at p. 643.) Finally, the court observed that the
identical punishments for larceny and embezzlement suggested
that the two statutes are different statements of the same
offense. (Id. at p. 648.)
B. Analysis
We apply the reasoning in Gonzalez to conclude defendants
may be convicted of both forgery and identity theft based upon a
single act or an indivisible course of conduct. As in Gonzalez, we
begin by examining the statutes’ words, giving them a plain and
commonsense meaning.
Section 470, subdivision (b) provides, “[e]very person who,
with the intent to defraud, counterfeits or forges the seal or
handwriting of another is guilty of forgery.” (§ 470, subd. (b).)
“Forgery is punishable by imprisonment in a county jail for not
more than one year, or by imprisonment pursuant to subdivision
(h) of Section 1170.” (§ 473, subd. (a).)
Section 530.5, describes the crime of identity theft and
provides, “every person who willfully obtains personal identifying
information, as defined in subdivision (b) of Section 530.55, of
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another person, and uses that information for any unlawful
purpose, including to obtain, or attempt to obtain, credit, goods,
services, real property, or medical information without the
consent of that person, is guilty of a public offense, and upon
conviction therefor, shall be punished by a fine, by imprisonment
in a county jail not to exceed one year, or by both a fine and
imprisonment, or by imprisonment pursuant to subdivision (h) of
Section 1170.” (§ 530.5, subd. (a).)
By their plain language, forgery and identity theft “differ in
their necessary elements,” “neither offense is included within the
other,” and each offense prescribes specific punishments.
(Gonzalez, supra, 60 Cal.4th at p. 539.) Under section 470,
subdivision (b), forgery is a specific intent crime, requiring the
intent to defraud. On the other hand, “subdivision (a) of section
530.5 does not require an intent to defraud.” (People v. Hagedorn
(2005) 127 Cal.App.4th 734, 744; see People v. Rathert (2000) 24
Cal.4th 200, 205 [discussing general and specific intent crimes].)
One may forge a document without using the personal identifying
information of another and may commit identity theft without
forging the seal or handwriting of another. (People v. Ortega
(1998) 19 Cal.4th 686, 692 [where an offense cannot be committed
without necessarily committing another offense, the latter is a
necessarily included offense of the former].) Additionally, the
punishment for identity theft may include a fine while the
punishment for forgery does not include any fine.
Defendants do not dispute forgery and identity theft are
not included offenses of the other. They instead rely on Vidana to
contend “[t]he proper question is whether the two offenses are
based on the act or course of conduct.”
Defendants misread Vidana. Vidana affirmed that the
Supreme Court has “repeatedly” held the same act can support
multiple convictions of separate offenses. (Vidana, supra,
25
1 Cal.5th at p. 637.) Vidana found the legislative history and
statutory scheme of the statutes in question supported a
conclusion that larceny and embezzlement were different
statements of the same offense within the meaning of section 954,
despite the fact that the offenses contained different elements
and neither was a lesser included offense of the other. (Id. at
p. 648.)
Defendants fail to present a similar legal analysis of
whether forgery and identity theft present different statements of
the same offense. They provide no legislative history or statutory
analysis to support such a conclusion. They only argue that
“defendants could not have committed forgery without identity
theft as each document contained both the stamp and initial
which were presented to the city simultaneously to obtain but one
objective.” This factual argument has no bearing on the legal
question of whether identity theft and forgery are different
statements of the same offense within the meaning of section 954.
DISPOSITION
The judgments are affirmed.
CERTIFIED FOR PUBLICATION
OHTA, J. *
We Concur:
GRIMES, Acting P. J. STRATTON, J.
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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