P. v. Eusebio 6/18/10 CA2/4

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: B216149

Case Date: 09/23/2010

Preview:Filed 6/18/10

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FOUR

THE PEOPLE, Plaintiff and Respondent, v. GERALD JOHN EUSEBIO, Defendant and Appellant.

B216149 (Los Angeles County Super. Ct. No. VA107591)

APPEAL from a judgment of the Superior Court of Los Angeles County, John A. Torribio, Judge. Modified and affirmed. Charles R. Khoury, Jr., 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, Keith H. Borjon and Sharlene A. Honnaka, Deputy Attorneys General, for Plaintiff and Respondent.

___________________________________________________________________ *Pursuant to California Rules of Court, rule 8.1100 and 8.1110, this opinion is certified for partial publication with the exception of the factual and procedural summary and section 1 of the discussion.

In the published portion of this opinion, we decide that an amendment to Penal Code section 40191 concerning conduct credit for county jail inmates is not to be applied retroactively and that prospective application does not violate appellants right to equal protection under the California Constitution. In the unpublished portion of the opinion, we conclude that section 654 precludes punishment of appellant Gerald J. Eusebio for both passing a forged check and false personation where there was no temporal separation in the commission of the crimes and that the false personation offense was committed to facilitate the passing of the forged check under the instructions given the jury.

FACTUAL AND PROCEDURAL SUMMARY Appellant Gerald J. Eusebio was charged with multiple offenses arising from forging or altering checks and then cashing them at commercial banks. Since his only challenge is to the sentence imposed on count 6, false personation, we confine our factual summary to the circumstances of that charge and the related charge in count 7. In 2008, Nicholas Weber made out check No. 995 on his checking account with Washington Mutual Bank (Exh. 5). It was payable to the ACLU in the amount of $10. He placed the check in the mailbox just outside his house. When shown the check at trial, Weber said the check was his, but that the amount and the "person on here" was not. The payee had been altered to "Ariel Francisco" and the amount raised to $400. Weber did not give appellant permission to cash that check. Ariel Francisco testified that he lived with appellant for some months in the first quarter of 2008. Early that year his California drivers license and other cards were stolen. He identified his name on exhibit 5, but said he had never received a check from Nicholas Weber, whom he did not know. He denied cashing the check on April 19, 2008. He did not give appellant permission to use his identity or to impersonate him.

1

All statutory references are to the Penal Code. 2

Norine Jarrett, a fraud investigator for Washington Mutual Bank, identified exhibit 5 as a check she pulled from bank records, which indicated it was cashed on April 19, 2008 in Los Angeles County. Dominique Enriquez, a fingerprint expert for the Los Angeles County Sheriffs Department, compared a fingerprint on exhibit 5 with appellants fingerprint and concluded that they matched. Appellant told Detective Brett Zour that he had used Ariel Franciscos identification to cash a check, but could not remember the details. Based on the alteration and cashing of exhibit 5, appellant was charged and convicted of one count of forgery (count 6,

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