1

Filed 2/23/15 P. v. Fryson CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Placer)

THE PEOPLE,

Plaintiff and Respondent,

v.

YOLANDA PEREZ FRYSON,

Defendant and Appellant.

C067008

(Super. Ct. No. 62082316)

Defendant Yolanda Perez Fryson was convicted of multiple counts of passing 

checks with insufficient funds for payment of the checks (Pen. Code, § 476a),1 burglary 

(§ 459), and preparing false documentary evidence (§ 134). She was also convicted of 

one count each of attempted extortion (§ 664/524), accepting a bribe (§ 68), attempted 

grand theft by false pretense (§ 664/487, subd. (a)), receiving stolen property (§ 496, 

subd. (a)), offering false evidence (§ 132), and forgery (§ 470, subd. (a)). As to eight of 

the counts, the jury found true an allegation that the offense was committed while 

 

1

 References to an undesignated section are to the Penal Code.
2

defendant was released on bail or on own recognizance. Defendant was found guilty of 

16 counts in all.

The trial court sentenced defendant to an aggregate sentence of nine years four 

months. The court made the bribery count the principal term, for which it imposed the 

upper term of four years plus a two-year enhancement. The subordinate terms imposed 

were counts 5 (non-sufficient funds) and 16 (forgery), each of which carried an eightmonth sentence, which was one-third the midterm. A two-year enhancement was 

imposed as to count 16.

We shall reverse the convictions for bribery and forgery because we conclude 

defendant could not have had the requisite mental state for those offenses. However, the 

acts underlying those offenses were the bases for other convictions, and we shall affirm 

those convictions. The trial court imposed too many section 12022.1 enhancements, but 

because the enhancements were concurrent, defendant’s aggregate sentence will not 

change as a result of reversing all but two of the enhancements. We reject defendant’s 

remaining claims. We shall remand the matter for resentencing. 

FACTUAL AND PROCEDURAL BACKGROUND

I

Convictions for Burglary and Passing Checks with Insufficient Funds

Counts 1 through 7 relate to a check kiting scheme conducted by defendant. The 

first act occurred on April 13, 2008, when defendant went to the Lincoln branch of US 

Bank and presented check number 1148 in the amount of $2,000 drawn on her Bank of 

America account. There were insufficient funds in her Bank of America account to cover 

the check. Defendant deposited $1,500 into her US Bank account, and took back $500 in 

cash. Counts 1 (nonsufficient funds) and 2 (burglary) are based on the April 13 actions.

Counts 3 (nonsufficient funds) and 4 (burglary) are based on the occurrences of 

April 15, 2008. On that day, defendant entered the Yuba City branch of US Bank and 

presented check number 1149 in the amount of $2,000 drawn on her Bank of America 
3

account. There were insufficient funds in her Bank of America account to cover the 

check. Defendant deposited $1,000 into her US Bank account, and took back $1,000 in 

cash.

Counts 5 (nonsufficient funds), 6 (burglary), and 7 (burglary) are based on the 

occurrences of April 16, 2008. On that date defendant entered the Yuba City branch of 

US Bank at approximately 1:39 p.m. and presented check number 1150 in the amount of 

$4,000 drawn on her Bank of America account. She deposited $500 in her account at US 

Bank and took back $3,500 in cash. At approximately 5:44 p.m. the same day, defendant 

entered the Lincoln branch of US Bank and withdrew $1,100 from her account.

In May 2008, Kimberly Schrutt, a fraud investigator with US Bank, was assigned 

to investigate defendant’s transactions. Schrutt confirmed that the Bank of America 

checks were returned for nonsufficient funds, that defendant’s account with US Bank was 

in arrears several thousand dollars, and that defendant was the person who had made the 

deposits at US Bank. Schrutt called the telephone numbers US Bank had on file for 

defendant and left messages, but never received a call back.

Schrutt contacted Detective Jim Hudson of the Placer County Sheriff’s 

Department on May 30, 2008. Hudson proceeded to obtain copies of all the checks and 

videos and still pictures of the incidents where the checks were passed. By comparing 

the person depicted in the videos and pictures with defendant’s driver’s license photo, 

Hudson was able to confirm that defendant was the person who had passed the checks.

Hudson interviewed defendant on June 3, 2008, at her place of employment. 

Defendant maintained that there had been a “bank mess up” and that she would pay back 

the bank after she was paid.

II

Convictions for Preparing False Evidence and Forgery

Robin Edwards was a Bank of America branch manager in Rocklin. Defendant 

contacted her in early spring 2008. Defendant requested a letter from the bank with 
4

respect to some checks that had been returned. Defendant told Edwards that some checks 

had been returned in error and that she needed a letter to substantiate that fact. Edwards 

told defendant that the bank branches did not produce such letters and that she would 

need to go to a different department. Edwards initiated a phone call to the bank’s 

customer service department on defendant’s behalf so that defendant could discuss her 

request directly with them.

Defendant became upset with how long it would take to receive the letter, so 

Edwards asked the customer service representative if she could prepare the letter from a 

template sent to her by the customer service department. Edwards told defendant it 

would take about an hour for customer service to fax the template to her. Because 

defendant could not stay, she and Edwards agreed that Edwards would fax the letter to 

defendant at her work once it was finished. Edwards drafted the letter and faxed it to 

defendant. About a week later, defendant came by the bank to pick up the original letter 

from Edwards.

When Edwards testified, she recalled only one letter she had written for defendant. 

There were, however, three letters bearing what appeared to be Edwards’s signature. One 

was dated April 29, 2008, and explained that three checks (check nos. 1148, 1149, & 

1150) had been returned in error. When Edwards testified for the prosecution’s case-inchief in 2010, she believed this had been the letter she prepared for defendant. She 

testified that when she drafted the letter she had not known whether the checks had in fact 

been returned in error, and had assumed the customer service department had made that 

determination.

By the time Edwards testified in the prosecution’s rebuttal case, she realized that 

she had not written the April 29, 2008 letter, even though it appeared to contain her 

signature. The April 29 letter described three checks (check nos.1148, 1149, & 1150) 

that had been returned in error. The letter Edwards actually wrote was dated February 

25, 2008, and described only one check that had been returned in error—a check that had 
5

nothing to do with this case. Only this letter was entered into evidence as an original. 

The other two letters admitted into evidence were copies. Defendant’s own handwriting 

expert testified that the signature on the April 29, 2008 letter was an exact copy of the 

February 25, 2008 letter, meaning one of them was not genuine. The April 29, 2008 

letter purportedly written by Edwards was the basis of count 9, preparing false 

documentary evidence.

The third letter was dated March 25, 2008, and purported to set forth a bank policy 

by which “Premier” clients could write checks up to $10,000 even if they did not have 

sufficient funds to cover the checks, and the bank would cover the checks for them. 

Edwards testified she had not written the letter, that the bank had no such policy, and that 

the signature, while similar to hers, was not hers. The March 25, 2008 letter was the 

basis of counts 14 (preparing false documentary evidence), 15 (offering false evidence), 

and 16 (forgery).

Justin Dargen was employed by Bank of America in the spring of 2008 at the 

Sunrise branch as a small business specialist. He knew defendant from when he had 

worked at the Roseville branch, where he had opened accounts for her and helped her 

with problems with her accounts and with moving money around. He also had a friend, 

Frank Marshall, who was dating defendant’s daughter.

On June 6, 2008, defendant came to see him at the Sunrise branch around 3:00 

p.m. Dargen was with another client, so he did not meet with defendant until almost 5:00 

p.m., when the bank closed. Dargen was under the impression defendant was in law 

enforcement, because he had seen her badge a few times when she was opening accounts. 

He noticed the badge and asked her if she was in law enforcement, to which she 

responded, “Yeah.”

When defendant finally was able to talk to Dargen, she told him she needed a 

letter from him because some checks had bounced due to bank error, because one of her 

deposits had not been correctly credited. She said the fees had already been erased, and 
6

when he checked her account he saw that some fees had been erased, so her story 

sounded correct. He tried to call the branch that had handled the transaction, but because 

it was so close to closing no one answered. Because of his past dealings with defendant 

and the fact that she was in law enforcement, he found her story credible. He wrote the 

letter for her, even though he was unable to verify her story at that time.

The letter, addressed “To Whom It May Concern,” stated: “Yolanda Fryson is a 

mutual client between your place of business and Bank of America; In the months of 

March, and April checks were returned due to a Bank Error. If this issue has caused any 

issues between your business and Ms. Fryson please correct them as the error was not 

cause[d] by her. The account numbers affected were . . . and . . . and the returned check 

numbers were 1148, 1149, and 1150.”

Later, when a detective came in to ask Dargen about the letter, he made some 

phone calls and learned there had been no bank error. Count 8 (preparing false 

documentary evidence) is based on the Dargen letter.

On June 11, 2008, a few days after defendant’s arrest, her attorney at the time, 

Christine Galves, wrote a letter to the Placer County District Attorney in an attempt to 

convince the district attorney that defendant was not guilty of committing any crime. The 

letter indicated that defendant was a “deputy” in “Yolo” County, that the overdrawn 

account was caused by a bank error, as evidenced by the enclosed Dargen letter, and that 

defendant had paid US Bank the amount of the overdraft in Galves’s presence.2 The 

letter enclosed copies of defendant’s badge as an employee of Yuba County Health and 

Human Services Department, the Dargen letter, a bank statement showing an overdraft 

charge in the amount of $7,118.50, and a Bank of America cashier’s check payable to US 

Bank in the amount of $7,118.50.

 

2

 Defendant was actually employed by Yuba County.
7

III

Convictions for Attempted Extortion, Bribery, and Attempted Grand Theft

Counts 10, 11, and 12 were based on the following circumstances. On June 5, 

2008, defendant was placed on paid administrative leave from her job as a social worker 

for Yuba County Child Protective Services (CPS) due to the pending criminal 

investigation for passing bad checks. In her capacity as a CPS social worker, she was 

familiar with how a child abuse complaint is processed. She was on paid administrative 

leave, but she had no access to the CPS building, and she had to relinquish her

identification and her badge.

Christopher Lindsay was acquainted with defendant through a friend, Beverly 

Avery. Lindsay’s girlfriend at the time, Wendy Leveron, was a friend of Avery’s, as was 

defendant. Prior to October 21, 2008, Lindsay had met defendant twice, but had never 

had a conversation with her. On October 21, as Lindsay was leaving his office, he 

received a phone call from defendant. Defendant told Lindsay that she was a CPS 

officer, and that some allegations involving Lindsay had come across her desk. She told 

Lindsay that even though she did not really know him, she knew the allegations could not 

be true.

Defendant told Lindsay that when the file came across her desk, she noticed 

Wendy Leveron’s name, Leveron’s son’s name, and Lindsay’s company name. 

Defendant “kind of beat around the bush,” but finally told Lindsay he had been accused 

of having sex with a 17-year-old girl, molesting his girlfriend’s son, and molesting the 

girlfriend’s son’s girlfriend. Defendant told Lindsay that she did not believe the 

allegations were true, but that she had seen many men get into trouble over false 

allegations.

Lindsay repeatedly asked defendant who had made the allegations, but she told 

him she would be breaking her code of ethics as a CPS officer to disclose that 

information. Defendant said she had 10 days to do something with the file, and that she 
8

could either make it go away, or give it to her boss. She said she had kids to feed. She 

left Lindsay her cell phone number.

Lindsay called her back to try to get more information and to ask to see the file. 

He met with her at a restaurant, along with Leveron and Avery. Defendant said she had 

been to her office to get the file, and that she had the file with her, but she never produced 

the file. Lindsay asked defendant what his options were, and she told him that once she 

sent the file to her superior, he could be arrested at any time.

Defendant told Lindsay that a friend of hers was caught “helping” someone out in 

a similar fashion and had been fired. Defendant stated she could lose her job because 

what she was doing was unethical, and that she was worried about “feeding her kids.” 

Defendant said she did not want to see anything happen to Lindsay, and that she could 

“make the file go away.” By the end of the meeting, defendant had not yet decided 

whether to help Lindsay, because it could mean losing her job and she had to make 

money somehow for her mortgage and her kids. She told Lindsay to call her the next day 

after she had time to think about what to do.

The next morning, defendant called Lindsay and told him she had some 

information for him. She did not really have any new information, but kept telling him 

that she was having a hard time with what she was doing because it was unethical and she 

was afraid to lose her job. As defendant was talking about all of her bills, Lindsay 

believed she was asking for money, and that if he gave her money she would give him the 

file. Defendant had not made a decision about what to do by the end of the conversation.

Lindsay began to feel that something was “fishy.” He spoke with an attorney. He 

then called Yuba County and asked to speak to defendant’s supervisor. Lindsay learned 

from defendant’s supervisor that there were no allegations against him, and that 

defendant had been on administrative leave for a number of months.

Yuba County had Lindsay talk to Detective Hudson. Detective Hudson had 

Lindsay place a call to defendant. Lindsay offered defendant $10,000 to make the file go 
9

away. Defendant was hesitant, and fretted again about losing her job. Defendant told 

Lindsay she would have to think about his offer.

Lindsay finally made arrangements to meet with defendant to give her $10,000 in 

order to “make everything go away.” Lindsay wore a wire to the meeting and Detective 

Hudson gave him an envelope of money to exchange with defendant for the file she 

claimed to have on Lindsay. Lindsay gave defendant the money, then gave the verbal 

cue that prompted the officers to move in.

IV

Convictions for Receiving Stolen Property

Count 13, receiving stolen property, was based on defendant’s possession of a 

CPS badge. Defendant was issued her first CPS badge in 2002. When she was issued the 

badge, she signed a document entitled “Children’s Services Badge Policy” stating the 

badge could not be used for any personal reason, and that upon resignation, termination, 

or transfer, the badge would be returned. The badge number issued to defendant in 2002 

was 49. In August 2005 defendant reported she had lost her badge. She was issued 

another badge.

On June 5, 2008, when defendant was placed on administrative leave, she 

relinquished her badge, which was badge number 1. After defendant was arrested for the 

incident involving Lindsay, her residence was searched, and officers found a CPS badge, 

which was badge number 49--the badge defendant had lost several years before. A CPS 

officer is required to report and return any previously lost badge that is found. Defendant 

never reported that she had found her lost badge.

DISCUSSION

I

Insufficient Evidence of Intent to Accept Bribe

Section 68 provides, in pertinent part, as follows:

“Every . . . employee, . . . of the State of California, [or] a county . . . 

therein, . . . who asks, receives, or agrees to receive, any bribe, upon any 
10

agreement or understanding that his or her . . . action upon any matter then 

pending, or that may be brought before him or her in his or her official 

capacity, shall be influenced thereby, is punishable by imprisonment in the 

state prison for two, three, or four years . . . .”

The elements of the offense, as relevant here, are that: (1) the defendant was a 

county employee; (2) the defendant requested, took, or agreed to take a bribe; (3) the 

defendant made an express or implied representation that the bribe would unlawfully 

influence her official act; and (4) the defendant acted with the corrupt intent that her 

official duty would be unlawfully influenced. (CALCRIM No. 2603.) This last element 

of the offense, the requisite mental state, is the element defendant claims was not, and 

could not have been proven given the circumstances. 

The required mental element is that the request to receive the bribe be “coupled 

with a corrupt intent to be influenced in one’s official action . . . .” (People v. Gliksman

(1978) 78 Cal.App.3d 343, 352.) The mental element is thus comprised of: (1) a corrupt 

intent, and (2) and an intent to be influenced in one’s official duties. A corrupt intent is 

an intent to wrongfully gain a financial or other advantage for oneself or someone else. 

(CALCRIM No. 2603; § 7, subd. 3.) Defendant’s intent was corrupt, but she could not 

have had an intent to be influenced in her duties as an employee of the county. 

The reasons defendant could not have had such an intent in this case are that she 

was on administrative leave at the time she contacted Lindsay and therefore had no 

ability to perform her duties as a county employee, and that the file she proposed to 

“lose” was nonexistent, thus there was no official action on her part that a bribe could 

have influenced. While it is clear defendant committed some offense (she was also 

convicted of attempted extortion and grand theft on these facts) she did not commit the 

offense of taking a bribe because she lacked the required mental element. 

Respondent cites several cases which it claims have held that defendant’s conduct 

in accepting the money from Lindsay is within the purview of section 68. Respondent’s 

reading of these cases is too broad. 
11

The first is People v. Megladdery (1940) 40 Cal.App.2d 748 (Megladdery), 

overruled on other grounds in People v. Simon (2001) 25 Cal.4th 1082. Megladdery was 

the private secretary to the governor, and was found guilty by a jury of asking for a bribe 

with the intent of influencing the governor’s decision with respect to a pardon. 

(Megladdery, at pp. 753-754.) Megladdery argued there was insufficient evidence to 

convict him of bribery because he had not been responsible for advising the governor on 

pardons, since that duty had been the responsibility of another secretary. (Id. at p. 783) 

The court rejected this argument, reasoning that the official duty of assisting the governor 

with pardons was imposed on the department of which Megladdery had been a member, 

and that if requested, he could have performed the work of the secretary assigned to that 

duty. (Ibid.)

Pertinent to the issue here, Megladdery stated that the People must charge and 

prove “that the subject matter upon which the bribe was to operate existed and could be 

brought before the public officer in his official capacity.” (Megladdery, supra, 40 

Cal.App.2d at p. 782.) Here, the subject matter upon which the bribe was to operate did 

not exist because defendant made it up out of whole cloth. Moreover, had the matter 

been true, defendant could not have acted on it in her official capacity because she was 

on administrative leave.

Respondent also cites People v. Gaio (2000) 81 Cal.App.4th 919. There, the issue 

was whether the requisite intent was to influence a specific, particular official act, rather 

than any matter that could conceivably come before the official. The court held: “it is 

sufficient that the evidence reflect that there existed subjects of potential action by the 

recipient, and that the bribe was given or received with the intent that some such action 

be influenced.” (Id. at p. 929.) There is no similar issue here, and contrary to the 

statement in Gaio, no subject of potential action existed which defendant could have 

harbored an intent to influence. 
12

Finally, respondent cites a quote from a concurring opinion in a case by the 

Supreme Court of Alabama, which stated: “The offence [of bribery] consists, in 

contemplation of the statute, in poisoning and corrupting the source and fountain of 

justice, and although the particular deleterious consequence designed to be effected by 

the parties has not ensued, the State nevertheless has an officer corrupted, and society has 

lost all protection for its rights, so far as the administration of the law by him is 

concerned.” (Barefield v. State (1848) 14 Ala. 603, 607, conc. opn. of Chilton, J. 

(Barefield).) Respondent argues the fact that defendant was on administrative leave 

when she requested a bribe to make a file disappear that did not even exist “does not 

change the fact that her actions ‘ “poison[ed] and corrupt[ed] the fountain of justice” ’ 

[citation] . . . .”

Barefield involved an attempt to bribe a judge. Because no suit had been brought 

before the judge at the time the offer was made, and no suit was afterward commenced, 

the majority held the evidence was insufficient to make out a crime. (Barefield, supra, 14 

Ala. at p. 605.) The concurrence, which Respondent cites, agreed with the outcome of 

the majority opinion because it believed the indictment was fatally defective because it 

had not alleged that the case that was the subject of the bribe was within the judge’s 

jurisdiction. (Id. at p. 606, conc. opn. of Chilton, J.) The concurrence differed with the 

majority opinion to the extent it held that the case must actually be brought before the 

judge after the offer of the bribe. (Ibid.) It was in this context that the concurrence stated 

that the law “abhors the least tendency to corruption,” and that the offense of bribery 

consisted “in poisoning and corrupting the source and fountain of justice.” (Id. at 

pp. 606-607.) 

Nevertheless, the concurrence stated that the offense of bribery required that “the 

subject matter upon which the bribe was to operate existed, and could legally be brought 

before the officer in his official capacity.” (Barefield, supra, 14 Ala. at p. 607.) These 

elements are absent here. The subject matter upon which the bribe was to operate did not 
13

exist because there never was a file naming Lindsay as a child molester. Moreover, such 

a file could not have legally been brought before defendant in her official capacity at the 

time she asked for the bribe because she was on administrative leave.

Another critical point set forth in the concurrence is the nature of the harm the 

offense of bribery is intended to address. The harm is “in poisoning and corrupting the 

source and fountain of justice,” and in the loss of protection to the state in its rights to the 

administration of the law. (Barefield, supra, 14 Ala. at p. 607.) In other words, bribery 

requires harm to the government itself, not just to the parties involved in the bribe. Harm 

to the government is absent in the present case, because there was no sabotage of the 

government’s enforcement efforts, making defendant’s actions more properly the subject 

of the offense of extortion. 

II

Attempted Extortion Instructions

The trial court’s instructions on the charge of attempted extortion were a train 

wreck. Nevertheless, we have repaired the train by demonstrating that the instructions 

were not incorrect, and were not so confusing as to mislead the jury.

Defendant was convicted of attempted extortion in violation of section 524. The 

section provides: “Every person who attempts, by means of any threat, such as is 

specified in Section 519 of this code, to extort money or other property from another is 

punishable by imprisonment in the county jail not longer than one year or in the state 

prison or by fine not exceeding ten thousand dollars ($10,000), or by both such fine and 

imprisonment.” As is relevant, section 519 refers to threats to accuse an individual of a 

crime, or to impute to him a disgrace or crime, or expose a secret affecting him.

During a hearing regarding jury instructions, the prosecutor informed the court 

that attempted extortion was its own crime as set forth in section 524, but that there was 

no standard instruction for it. The prosecutor proposed that the instruction given by the 

court consist of the standard instruction on attempt plus the separate standard instruction 
14

on the substantive crime, to which the trial court agreed. The trial court directed the 

prosecutor to craft an instruction for attempted extortion. The trial court began giving the 

instructions prior to closing arguments, but admitted they were “not perfect even at this 

point, but they are close enough that I can go ahead and give them.”

Thereafter, the trial court gave its first effort at instructing the jury on the offense 

of attempted extortion. The court first gave the standard instruction for attempt. The first 

instruction on the offense of attempted extortion was as follows: 

“The defendant is charged in Count 10 with attempted extortion by 

threat in violation of Penal Code Section 524. To prove that the defendant 

is guilty of the crime of extortion, the People must prove that, one, the 

defendant threatened to accuse another person of a crime, two, when 

making the threat the defendant intended to use that fear to obtain the other 

person’s consent to give the defendant money or property. 

“Now, then it goes four. Is that just a typo or is there a third element 

in there? Take a look.

“[Defense Counsel]: You said element number four?

“The Court: No. Look. It goes from two to four, so I want to make 

sure we are not missing something or is it just a typo and it should be three?

“Like I said, these are a little incomplete. I thought it was good 

enough though to not keep you waiting any longer.

“Anyway, check that out. I’m going to read it as it is. I may have to 

modify it later. It’s listed as element four. I’m going to assume that that’s 

a type[o] and it’s three.

“As a result of the threat, the other person then gave the defendant 

money or property. 

“The term consent has special meaning here. Consent for extortion 

can be coerced or unwilling as long as it is given as a result of the wrongful 

use of force or fear. The threat must be controlling -- must be the 

controlling reason that the other person consented. If the person consented 

because of some other controlling reason, the defendant is not guilty of 

extortion.”
15

The written version of this instruction apparently was not included in the 

instructions sent to the jury room.

After the round of instructions that included the above instruction on attempted 

extortion, counsel gave their closing argument. Before the completion of closing 

arguments, the prosecutor told the trial court outside the jury’s presence, that the parties 

had agreed to a jury instruction on attempted extortion that was taken from section 524, 

rather than trying to fashion an instruction from CALCRIM No. 1830. Defense counsel 

agreed, and noted that the attempt instruction would still be given.

After the completion of closing argument, the trial court read the new attempted 

extortion instruction as follows: 

“The defendant is charged in Count 10 with attempted extortion. In order 

to find the defendant guilty of this crime, the evidence must prove beyond a 

reasonable doubt that, one, the defendant attempted; two, by the means of 

threat to either accuse an individual, threatened -- I didn’t write this, folks. 

“Accuse the individual threatened of a crime; or (B), expose or to 

impute him any deformity, disgrace, or crime, three, to extort money or 

property from another -- I will rephrase that, but that’s it in essence what 

we need.”

The written instruction sent to the jury room read:

“Defendant is charged in Count Ten with attempted extortion.

“In order to find defendant guilty of this crime, the evidence must 

prove beyond a reasonable doubt that:

“1) Defendant attempted;

“2) By means of any threat to either:

“a. accuse the individual threatened of a crime; or

“b. expose or to impute to him any deformity, disgrace, or 

crime

“3) to extort money or other property from another.”
16

The trial court admitted it had some fine tuning to do on the instructions, but that it 

would get them to the jury. After the jury had begun deliberations, the court met with 

both attorneys to go over the instructions. The court asked if CALCRIM No. 1830 (the 

extortion instruction) had been given, and the prosecutor replied that they were replacing 

it with the section 524 instruction. The parties agreed that the section 524 instruction had 

been read to the jury and that both had agreed to the instruction.

In the afternoon of the first day of jury deliberations, the jury sent a written 

question to the court asking, inter alia, for a definition of extortion. During a discussion 

with the attorneys, the trial court stated that the section 524 instruction on attempted 

extortion mentioned the word extortion but did not define it. The court stated that it 

needed to give a definition of extortion. It was agreed that CALCRIM No. 1830 was the 

standard instruction on extortion, that it had originally been in the instructions, then had 

been removed because it was not needed.

The trial court then proposed to give the jury the definition of extortion contained 

in CALCRIM No. 1830, refer the jury to the attempt instruction (CALCRIM No. 460), 

and tell them that a person can be guilty of an attempt even though the crime was 

completed. The attorneys agreed.

The court then called the jury back into the courtroom, told the jury that they did 

not yet have answers to their questions, and told them he would give answers to the 

questions on Monday morning. The jury was excused for the weekend. After that, the 

court and attorneys agreed that in answer to the jury’s question, the court would refer the 

jury to CALCRIM No. 1830, the section 524 instruction on attempted extortion, and 

CALCRIM No. 460. The court proposed to tell the jury that the instruction they had been 

given for attempted extortion contained the word “attempt” and the word “extort,” and 

that attempt is described in CALCRIM No. 1830, and extort is described in CALCRIM 

No. 460. The parties agreed.
17

The court then said it would read its answer to the jury questions out loud “just to 

be absolutely safe.” The written answer the court intended to read to the jury stated: 

“Answer to Definition of extortion. I will read to you [CALCRIM 

No.] 1830 and in conjunction with the special instruction [section] 524 

attempted extortion and [CALCRIM No.] 460 attempt and the interplay 

between those 3 instructions. In other words [section] 524 describes 

attempted extortion. In [section] 524 there is the word attempt and that is 

described in [CALCRIM No.] 460 and also the word extort and that is 

described in [CALCRIM No.] 1830 and I will read [CALCRIM No.] 1830 

now and you will get a copy just like the other instructions.”

If the clerk’s transcript is accurate, two written versions of CALCRIM No. 1830 

were given to the jury. One was an unamended version of CALCRIM No. 1830. The 

other was the official version with handwritten additions and deletions. The latter read as 

follows, with additions underlined and deletions interlineated:

“The defendant is charged [in Count 10] with attempted extortion by 

(threat/[or] force) [in violation of Penal Code section 518]. 524

“To prove that the defendant is guilty of this crime completed 

extortion, the People must prove that:

“<Alternative 1A -- threatened to injure or used force>

“[1. The defendant (threatened to unlawfully injure/ [or] used force 

against) (another person or a tird person/ [or] the property of another person 

or a third person),]

“<Alternative 1B -- threatened to accuse of crime>

“[1. The defendant threatened to accuse another person[, or that 

person’s relative or family member,] of a crime;]

“<Alternative 1C -- threatened to expose secret>

“[1. The defendant threatened to expose a secret about another 

person[, or that person’s relative or family member,] [or to expose or 

connect (him/her/any of them) with a (disgrace[,]/ [or] crime[,]/ [or] 

deformity)];] 
18

“2. When (making the threat/ [or] using force), the defendant 

intended to use that (fear/ [or] force) to obtain the other person’s consent (to 

give the defendant money [or property]/ [or] to do an official act); 

“3. As a result of the (threat/ [or] use of force), the other person 

consented (to give the defendant money [or property]/ [or] to do an official 

act); 

“AND

“4. As a result of the (threat/[or] use of force), the other person then 

(gave the defendant money [or property]/ [or] did an official act). 

“The term consent has a special meaning here. Consent for extortion 

can be coerced or unwilling, as long as it is given as a result of the 

wrongful use of force or fear.

“The (threat/use of force) must be the controlling reason that the 

other person consented. If the person consented because of some other 

controlling reason, the defendant is not guilty of extortion.

“[Threatening to do something that a person has a legal right to do is 

not a threat to commit an unlawful injury.]

“[The threat may involve harm to be inflicted by the defendant or by 

someone else.}

“[An official act is an act that a person does in his or her official 

capacity, using the authority of his or her public office.] 

“[A secret is a fact that:

“1. Is unknown to the general public or to someone who might be 

interested in knowing the fact; 

“AND

“2. Harms the threatened person’s reputation or other interest so 

greatly that he or she would be likely to (give the defendant money [or 

property]/ [or]do an official act) to prevent the fact from being revealed.]

On the afternoon of Monday, November 1, court convened with both counsel and 

defendant present. The following discussion occurred on the CALCRIM No. 1830 

instruction:
19

“THE COURT: . . . [¶] . . . So, I would read -- this is, essentially, 

what I read to them. I tried to get as close as I could without getting into 

anything controversial.

“So, okay. I would read all of Alternative 1-B, all of Alternative 

1-C, 4, and then, yeah, this is, essentially, what I read.

“[PROSECUTOR]: Two, three, and four?

“THE COURT: Right.”

Following this discussion, the court reconvened with the jury present and told 

them:

“. . . I want to read the corrected version, which actually is pretty close to 

what I read to you this morning. But this is the one that the attorneys have 

agreed on. So, we’re going to start with -- I’m going to start with 1830, 

extortion by threat or force. And you will get a copy of this, Penal Code 

Sections 518 and 519.

“The Defendant is charge[d] in Count Ten with attempted extortion 

by threat, in violation of Penal Code Section 524.

“To prove the Defendant is guilty of this extortion -- attempted 

extortion, should it not? [¶] . . . [¶] . . . [H]ow about if I put completed 

extortion? [¶] . . . [¶]

“. . . To find the Defendant is guilty of completed extortion, the 

People must prove -- if you remember this morning, I read the alternatives, 

that I thought applied. And I think I got it pretty well. 

“Alternative One did not apply, which had to do with threatened to 

injure someone, et cetera.

“Alternative One, that was 1-A.

“1-B, threatened to accuse of a crime.

“The Defendant threatened to accuse another person or that person’s 

relative or family member of a crime.

“Alternative C, threaten to expose secret.
20

“One. The Defendant threatened to expose a secret about another 

person or that person’s relative or family member or to expose or connect 

him or her or any of them with a disgrace or crime or deformity. 

“All right. We call it without deformity. I do think that applies. 

[¶] . . . [¶]

“. . . Two.

“When making the theft -- cross out using force. 

“We didn’t have any used force here? [¶] . . . [¶]

“. . . The Defendant intended to use that fear -- and I’ll cross out the 

word force -- to obtain the other person’s consent to give the Defendant 

money or property or do an official act. That’s one of the ones I was 

having trouble with. We don’t have an official act here. Or you want that 

left? [¶] . . . [¶]

“. . . So, I’ll cross out official act.

“Everybody would agree: [¶] . . . [¶]

“. . . As a result of the theft -- we don’t have any force here -- the 

other person consented to give the Defendant money or properties or do an 

official act -- well, I’m crossing out -- and for -- as a result of the threat the 

other person then gave the Defendant money or property -- and crossing out 

official act.

“The term consent has a special meaning here. Consent for extortion 

can be coerced or unwilling, as long as it’s given as a result of the wrongful 

use of fear. 

“The theft must be the controlling reason that the other person 

consented. If the person consented because of some other controlling 

reason, the Defendant is not guilty of extortion.

“Threatened. Threatening to do something and the person has a 

legal right to do is not a threat to commit an unlawful injury.

“Secret is defined as unknown -- by the way, folks. When I went 

into the jury with your consent earlier today with 1830, I did not have page 

two. So that the definition of secrets, et cetera, was not -- was not touched 

upon.
21

“A secret is a fact that; 

“One. Is unknown to the general public or to someone, who has a 

right to be interested in knowing the fact; and.

“Two. Harms the Defendant’s harms the threatened person’s 

[reputation] or others so greatly, that he or she would be likely to give the 

Defendant money or property to prevent the fact from being revealed.”

After these and other additional instructions in answer to the jury’s questions, the 

jury returned to continue deliberations. The jury reached a verdict later that afternoon.

Defendant argues the instructions on attempted extortion were such “a mess” that 

the jury was not able to determine the correct instructions, and was not able to determine 

the elements of the offense. We disagree. 

To the extent defendant argues the extortion instruction was missing an element, it 

is true that the trial court gave an incomplete version of CALCRIM No. 1830 in the first 

instance. However, that written instruction was never given to the jury, and the trial court 

indicated that the instruction appeared to be missing an element. Thereafter, the trial 

court gave both an oral and written instruction on the crime of attempted extortion that 

was crafted from the language of section 524 and agreed to by both parties. There is no 

claim that the instruction based on section 524 is incorrect or inadequate. The trial court 

also read a modified version of CALCRIM No. 1830 in response to the jury’s request for 

a definition of extortion. This written instruction was given to the jury in both its 

modified and unmodified form. 

While the first oral instruction given was missing an element (the element 

requiring the defendant’s intent to use fear to obtain the victim’s consent) the written 

instructions were not missing this element. Where the oral instructions differ from the 

written instructions, the written instructions control. (People v. Mills (2010) 48 Cal.4th 

158, 201.) We presume on this record that the jurors followed the court’s written 

instructions, which contained all of the elements of extortion. (Ibid.) 
22

To the extent defendant argues the instructions were confusing because of the 

court’s comments, which interrupted the reading of the instructions, the written 

instructions suffered no such interruptions. As indicated above, the written instructions 

are controlling. Certainly it would have been far preferable for the court to have settled 

on the final version of the instructions before attempting to read them to the jury. 

Nevertheless, the verbal instructions given were not so confusing that they failed to 

inform the jury of the elements of the offense when considered together with the written 

instructions. 

As to defendant’s claim that the jury received conflicting written instructions, the 

only conflict was in the instruction defining extortion, CALCRIM No. 1830. Only one 

written instruction was given on the offense of attempted extortion, so there is no conflict 

as to the offense itself. The jury was told that it was being given CALCRIM No. 1830 in 

response to its request for a definition of extortion because CALCRIM No. 1830 

describes the word extort. The “conflicting” instructions consist of a modified and 

unmodified version of CALCRIM No. 1830, as shown above. The trial court told the 

jury that the modified version was the “corrected” version and the one on which the 

attorneys had agreed.

It is clear from these comments that the modified version of CALCRIM No. 1830 

was the one the court intended the jury to follow. Even if the jury believed the 

unmodified version was the version intended by the court, there was nothing wrong or 

even misleading about the instruction. Instead, it contained provisions that were not 

applicable to the facts before the jury. The court instructed the jury that they should not 

consider any part of an instruction that had been crossed out, and that they should only 

consider the final version of the instructions. The court also instructed the jury that some 

of the instructions might not apply, and that they should follow only the instructions that

applied to the facts of the case. We presume the jury followed these instructions. 

(People v. Mickey (1991) 54 Cal.3d 612, 689, fn. 17.)
23

This appears to be a case where the court gave instructions before the instructions 

had been fully vetted. Nevertheless, in the end there was no error because the jury 

received the correct instructions, and there is no real dispute as to which instructions were 

applicable or what those instructions contained.

III

Conviction for Accepting a Bribe and Attempted Extortion

Defendant argues she cannot be convicted of both accepting a bribe and attempted 

extortion if both offenses are based on the same transaction. Her authority for this 

position is People v. Powell (1920) 50 Cal.App. 436, which held a defendant could not be 

guilty of both receiving a bribe and extortion because if a bribe is actually received, the 

property or money is not obtained through coercion. (Id. at pp. 441-442.) However, 

Powell also held that the offense of bribery included asking for a bribe, and that the 

defendant could be convicted of asking for a bribe and extortion based on the same 

transaction. (Id. at p. 442.) 

In any event, the issue is not one we need decide, since we have concluded 

defendant’s conviction for bribery must be reversed.

IV

Requisite Intent for Forgery Conviction

Defendant argues the offense of forgery requires an intent to defraud, and that 

there was no evidence presented of the necessary intent. She argues the evidence may 

have been sufficient to demonstrate an intent to deceive, but not an intent to defraud.

The forgery count was based on the forged signature of Robin Edwards on the 

March 25, 2008 letter. That is the letter that was addressed to defendant, and stated that 

as a “Premier” client she could write checks against her account up to $10,000, whether 

or not the account contained the money, as long as she deposited the money to cover the 

checks into the account within 30 days.
24

Intent to defraud is a necessary element of forgery. (People v. Pugh (2002) 104 

Cal.App.4th 66, 72.) “An intent to defraud is an intent to deceive another person for the 

purpose of gaining a material advantage over that person or to induce that person to part 

with property or alter that person’s position by some false statement or false 

representation of fact, wrongful concealment or suppression of the truth or by any artifice 

or act designed to deceive.” (Ibid.) 

This court has explained that because the forgery statute requires an intent to 

defraud, not every harm flowing from the deceptive use of a false document constitutes a 

forgery. (Lewis v. Superior Court (1990) 217 Cal.App.3d 379 (Lewis).) We explained 

that the term “ ‘defraud’ ” was synonymous with the word “ ‘prejudice’ ” at common 

law, and that “[t]here is no reason to suppose that the inclusion of [defraud] in section 

470 broadens the ambit of the offense beyond that at common law.” (Id. at pp. 397-398.) 

Thus, “ ‘[w]hen the word “defraud” is used, it necessarily implies that advantage comes 

to the party defrauding, and corresponding damage to the party defrauded . . . .’ (United 

States v. Lee (N.D.N.Y. 1882) 12 Fed. 816, 819; also see, e.g., People v. Holtzman (1916) 

272 Ill. 447, 480 [112 N.E. 370, 371], ‘Defraud, within the meaning of . . . [a false 

representation] statute, means to deprive one of a property right by deception.’)” (Id. at 

p. 398.) Use of the word “ ‘defraud’ ” in the forgery statute requires that a consequence 

of the forgery “is the destruction of or imperilment of a right which is the subject of 

protection under the forgery statute, even if the property is not obtained by the forger and 

the right does not accrue to him.” (Ibid.) Lewis refused to accept the argument that 

detriment to the interests of the public would count as a defrauding within the meaning of 

the forgery statute. (Id. at pp. 400-401.) 

Lewis held that “[u]nless the consequential harm of the fabrication is a loss, 

damage, or prejudice of a legal right, generally a pecuniary or property right, there is no 

harm of the kind to which the statute is directed and hence no forgery.” (Lewis, supra, 

217 Cal.App.3d at pp. 383-384.) Pursuant to this reasoning, Lewis held that letters of 
25

endorsement containing the forged signature of the President that were mailed to the 

electorate to urge them to vote for party candidates did not prejudice a legal right 

protected by the forgery statute. (Id. at pp. 383-384) We reasoned that although the 

defendant may have been guilty of misconduct impinging “on the public’s interest in the 

integrity of its governmental institutions,” there was “no suggestion of fraud relating to 

money or property.” (Id. at p. 395.)

Respondent does not argue that the letter was written with the intent to obtain 

money, property, or some other right from either Bank of America or US Bank. As the 

forged letter makes clear, any checks written without sufficient funds by a “Premier” 

client would have to be repaid within 30 days. Moreover, as explained in section V, post, 

there is evidence that by the time the letter was written, defendant had reimbursed US 

Bank for the checks she had written without sufficient funds.

Respondent argues the legal right defendant intended to damage was the right of 

the People of the State of California, represented by the District Attorney of Placer 

County, to prosecute defendant for her fraudulent check activity without hindrance. Such 

a “right” of the public to prosecute a criminal without constraint is not the type of legal 

right which is the subject of protection under the forgery statute. Such an overbroad 

construction would make a “right” out of any number of interests that are not protected 

by the forgery statute, such as the “right” of the electorate to receive honest campaign 

literature, as in Lewis. Moreover, any such right is a right of the public at large, and 

Lewis rejected the “expansive view that any detriment to the interests of the public is a 

defrauding . . . .” (Lewis, supra, 217 Cal.App.3d at p. 400.) 

Lewis cited People v. Spann (1986) 187 Cal.App.3d 400 405-406, stating that “the 

categorization of offenses by their allocation to different statutory structures may reveal 

how certain types of conduct should be treated and controlled.” (Lewis, supra, 217 

Cal.App.3d at p. 401, citing Spann, supra, at pp. 405-406.) As in Lewis, there are other 

specific statutes that prescribe criminal penalties for defendant’s actions, i.e., acts that 
26

interfere with the process of a criminal prosecution. Defendant’s conduct is properly 

placed in this category, and, in fact, defendant was convicted of both preparing and 

offering false documentary evidence. These were the proper charges for forging the 

signature of Robin Edwards on the March 25, 2008 letter. 

V

Sentence Enhancements

The second amended consolidated information alleged a section 12022.13

enhancement as to counts 9 (preparing false documentary evidence of the April 29, 2008 

letter), 13 (receiving stolen property for withholding or concealing a CPS badge), and 16 

(forgery of the March 25, 2008 Edwards letter). The jury found defendant guilty of all 

the charges alleged, and found the section 12022.1 enhancement true as to counts 8 

through 11 and 13 through16, even though the second amended consolidated information 

alleged the section 12022.1 enhancement only as to counts 9, 13, and 16. The trial court 

imposed concurrent two-year terms for the enhancements associated with counts 8, 9, 10, 

13, 14, and 15. It stayed a two-year term for count 12, even though the jury did not 

return a true finding as to this count. It imposed consecutive two-year terms for the 

enhancements on counts 11 and 16. Defendant raises a number of arguments against the 

imposition of these enhancements.

A. Unpleaded Enhancements (Counts 8, 10, 11, 14, & 15)

Defendant first argues that the imposition of a section 12022.1 enhancement as to 

counts 8, 10, 11, 14, and 15 violated her due process right to be advised of the specific 

charges against her because the enhancement as to those counts was not pleaded in the 

information. We disagree.

 

3

 Subdivision (b) of section 12022.1 provides: “Any person arrested for a secondary 

offense that was alleged to have been committed while that person was released from 

custody on a primary offense shall be subject to a penalty enhancement of an additional 

two years, which shall be served consecutive to any other term imposed by the court.”
27

Due process is satisfied “as long as the information apprises the defendant of the 

potential for the enhanced penalty and alleges all facts necessary to establish its 

applicability.” (People v. Sok (2010) 181 Cal.App.4th 88, 96, fn. 8.) “[W]here the 

information puts the defendant on notice that a sentence enhancement will be sought, and 

further notifies him of the facts supporting the alleged enhancement, modification of the 

judgment for a misstatement of the underlying enhancement statute is required only 

where the defendant has been misled to his prejudice.” (People v. Neal (1984) 159 

Cal.App.3d 69, 73.) Where the defendant cannot say that the preparation of her defense 

to meet the facts would have differed had the information alleged the enhancements to all 

the charges at issue, the judgment need not be modified. (Id. at pp. 72-73.) 

The second amended consolidated information alleged a section 12022.1 

enhancement as to counts 9, 13, and 16. This put defendant on notice to present a 

defense to the enhancement if she had one. Moreover, it became apparent during the trial 

that the section 12022.1 enhancement was being sought with respect to more counts than 

were alleged in the information. During one of the discussions on jury instructions, the 

court repeatedly noted that the prosecutor’s proposed instruction on the enhancement 

allegation applied the enhancement to each count from 8 through 16. The prosecutor’s 

closing argument made clear that the enhancement was being sought on other counts. 

The verdict forms indicated the enhancement was being sought as to counts 8 through 16, 

with the exception of 12. Defendant never raised an objection, indicating it was no 

surprise to the defense that the enhancement was being sought as to counts 8 through 16.

Defendant has not claimed that she would have prepared her defense any 

differently if she had known from the beginning that the section 12022.1 enhancement 

would be sought for counts 8 through 16. There is no need to modify the judgment for 

this reason. 
28

B. Limiting the Number of Enhancements

The jury found true a section 12022.1 enhancement for each of counts 8 through 

16, with the exception of count 12. The trial court imposed a section 12022.1 

enhancement on each of counts 8 through 16, including count 12. With the exception of 

counts 11 and 16, the enhancements were concurrent. Defendant correctly argues that 

section 12022.1, subdivision (b) allows only one enhancement for each primary offense 

for which defendant commits a secondary offense while released from custody or own 

recognizance.4 (People v. Mackabee (1989) 214 Cal.App.3d 1250, 1260-1262.) This is 

because section 12022.1 is an enhancement that goes to the nature of the offender rather 

than the offense. (Mackabee, at pp. 1261-1262) 

The only evidence offered to prove that defendant was released on own 

recognizance after the first primary offense on June 3, 2008, was a promise to appear, 

indicating defendant had been released for burglary. Although defendant was 

subsequently charged with the additional offenses at issue in this case (i.e., passing 

checks with insufficient funds and additional burglary charges), the jury was presented 

evidence of only the single charge of burglary. Thus, for purposes of the section 12022.1 

enhancement, there was only one primary offense charged on June 3, 2008, and only one 

section 12022.1 enhancement may be imposed for the primary offense of burglary. 

Respondent concedes the issue.

We shall also conclude that only one secondary offense, offering false evidence, is 

available for imposition of the section 12022.1 enhancement based on defendant’s release 

 

4

 “ ‘Primary offense’ means a felony offense for which a person has been released from 

custody on bail or on his or her own recognizance prior to the judgment becoming final, 

including the disposition of any appeal, or for which release on bail or his or her own 

recognizance has been revoked. . . . [¶] ‘Secondary offense’ means a felony offense 

alleged to have been committed while the person is released from custody for a primary 

offense.” (§ 12022.1, subd. (a).)
29

on bail on October 30, 2008. We address defendant’s arguments regarding the 

sufficiency of the evidence and the jury’s findings to impose an enhancement for the 

second primary offense in the next section. On remand, the trial court is directed to

impose only two section 12022.1 enhancements, one for the primary offense of burglary, 

and one resulting from reoffense after release on October 30, 2008. 

C. Sufficient Evidence as to the Enhancements for Counts 14 and 15

In this case, there is evidence defendant committed several secondary offenses 

after being released on her own recognizance for the primary offense of burglary, but the 

evidence that defendant committed a secondary offense after being released on bail on 

October 30, 2008, for the primary offenses of attempted extortion, receiving a bribe, and 

receiving stolen property, consists solely of the evidence she prepared the March 25, 

2008 letter on which she forged Robin Edward’s signature.5 We shall conclude the 

evidence was sufficient to show the letter was prepared and offered after defendant’s 

release on the second primary offense. However, as to defendant’s further claim that the 

jury was not instructed nor did it find the letter was prepared after her release from the 

second primary offense (as opposed to her release on either primary offense) we conclude 

she is correct as to count 14, preparing false evidence, but that the error is harmless as to 

count 15, offering false evidence. 

 

5

 Detective Hudson testified he became aware of the April 29, 2008 Edwards letter, 

which was the basis of count 9, about the same time as “the extortion issue.” Thus, there 

is no evidence it was prepared after defendant was release on bail for the Lindsay 

incident. Counts 10, 11, and 12 were based on defendant’s efforts to extort Lindsay, thus 

they happened before she was arrested on those charges. Count 13, receiving stolen 

property, was based on the CPS badge, which was recovered when her home was 

searched incident to her arrest for the Lindsay incident. It could not have been the basis 

for the on bail or own recognizance enhancement. This leaves only the March 25, 2008 

Edwards letter, which was the basis of counts 14, 15, and 16.
30

Counts 14 (preparing false documentary evidence), 15 (offering false evidence), 

and 16 (forgery), were predicated on the March 25, 2008 letter containing the forged 

signature of Robin Edwards. The jury returned a true finding as to the section 12022.1 

enhancement on each of these counts, and the trial court imposed the two-year 

enhancement on count 16 (forgery) and imposed a concurrent two-year term for each of 

counts 14 and 15 (preparing & offering false evidence). Evidence was presented that 

defendant was released from custody on her own recognizance following arrest for 

burglary on June 3, 2008. She was arrested again on October 30, 2008, and posted bail. 

This means that if the convictions for preparing or offering false documentary evidence 

are to be the basis for a second section 12022.1 enhancement, there must be sufficient 

evidence that the letter was prepared or offered after October 30, 2008. 

Defendant argues there was no evidence to indicate when she prepared the forged 

letter dated March 25, 2008, thus no evidence to prove that when she prepared false 

evidence or committed forgery with intent to defraud she was released on bail or own 

recognizance. She concedes the enhancement was proven as to the offering false 

evidence count (count 15), but repeats her argument that the enhancement was not

pleaded as to that count.

In reviewing a claim of insufficient evidence, we determine whether the record 

contains reasonable, credible evidence of solid value from which a reasonable jury could 

determine guilt beyond a reasonable doubt, and presume the existence of every fact 

reasonably deducible from the evidence in favor of the judgment. (People v. Vines

(2011) 51 Cal.4th 830, 869.) The same standard applies when reviewing the sufficiency 

of the evidence to support an enhancement finding. (People v. Wilson (2008) 44 Cal.4th 

758, 806.) 

Detective Hudson first interviewed defendant on June 3, 2008, the same day she 

was arrested and released. Three days after that, Justin Dargen wrote the letter stating 

that the returned checks were a bank error. Five days later, defendant’s attorney at the 
31

time, Christine Galves, wrote a letter to the district attorney urging defendant’s case be 

rejected, and citing the Dargen letter as evidence that no crime had been committed. No 

mention was made in Galves’s letter of other letters from Bank of America. Detective 

Hudson did not become aware of the letter purportedly dated March 25, 2008, until a year 

later.

Galves testified she was retained by defendant very early on in the case. In 

December 2008, public defendant Julia Young was appointed to defendant’s case. She 

served as defendant’s counsel until the end of April 2010. Defendant provided the March 

25, 2008 letter to Julia Young to be used in her defense. Both defendant’s then attorney 

and the defense investigator spoke with Robin Edwards after receiving the March 25, 

2008 letter, and Edwards told them she had not written the letter. Edwards spoke with 

the defense investigator in the spring of 2010.

A reasonable jury could have inferred that if the forged letter had been prepared 

while Galves was representing defendant, Galves would have used the letter in her 

attempt on June 11, 2008, to procure the dismissal of the case against defendant. Instead, 

there is no evidence defendant gave Galves the forged letter, and the attorney to whom 

defendant provided the letter, Julia Young, did not begin representing her until December 

2008. This evidence is sufficient to support the inference that defendant did not prepare 

the letter until after Young began representing her.

However, the problem with respect to the imposition of the section 12022.1 

enhancement is not whether the jury could have reasonably concluded the letter was 

prepared after October 30, 2008, but that the jury was never instructed it was required to

make such a finding in order to impose a second enhancement with respect to counts 14, 

15, and 16, and never made such a finding. Nevertheless, any error in failing to instruct 

the jury to make such a finding was harmless as to count 15, offering false evidence, 

because there was no reasonable probability defendant would have received a more 

favorable result had the court so instructed. (People v. Watson (1956) 46 Cal.2d 818, 
32

837.) Defendant admits that the fact of her offering the document in her defense would 

support a true finding on count 15, offering false evidence.6 The March 25, 2008 letter 

(the basis of count 15) had to have been offered after October 30, 2008, since defendant 

gave the letter to Julia Young to be used in her defense, and Julia Young was not 

appointed to defendant’s case until December 2008. 

We will remand for resentencing with instructions to impose only two section 

12022.1 enhancements, and the second section 12022.1 enhancement must be imposed 

for the offense of offering false documentary evidence (count 15).7

VI

Stayed Sentences

Defendant claims the court erred by failing to stay the sentences on one of the 

burglary convictions (count 7), on one of the preparing false evidence convictions (count 

14), and on one of the section 12022.1 enhancements (count 15) pursuant to section 654. 

To the extent her arguments have merit, there is no change to her aggregate sentence 

because these sentences were imposed concurrently. Her argument is not meritorious as 

to count 7.

A. Count 7

The factual basis for counts 5 and 6 (passing a check with insufficient funds & 

burglary) was that defendant entered a US Bank branch in Yuba City at 1:39 p.m. and 

presented a check in the amount of $4,000, drawn on her Bank of America account. 

There were not sufficient funds in the Bank of America account to cover the check. Of 

the $4,000, defendant withdrew $3,500 in cash and deposited $500. The factual basis for 

 

6

 She argues the enhancement was not proper as to count 15 because the information did 

not allege an enhancement as to that count, an argument we rejected, ante.

7

 Although the trial court imposed and stayed an enhancement on count 12, the jury did 

not make a section 12022.1 enhancement finding as to count 12. Therefore, no 

enhancement may be imposed for count 12.
33

count 7 was that approximately four hours later, defendant entered a US Bank branch in 

Lincoln and withdrew $1,100 from her account. 

Section 654, subdivision (a), provides that “[a]n act or omission that is punishable 

in different ways by different provisions of law shall be punished under the provision that 

provides for the longest potential term of imprisonment, but in no case shall the act or 

omission be punished under more than one provision.” In addition to limiting 

punishment for multiple convictions arising out of a single act, section 654 limits 

punishment for multiple convictions arising out of a course of conduct deemed to be 

indivisible in time where the defendant entertained a single principal objective. (People 

v. Beamon (1973) 8 Cal.3d 625, 639.)

Where an “ ‘act or omission’ ” is a course of conduct, as opposed to a single act, it 

may be punished more than once if it constitutes a “ ‘divisible transaction’ . . . .” (People 

v. Kwok (1998) 63 Cal.App.4th 1236, 1252.) The determination whether a course of 

conduct is divisible depends on (1) whether all of the offenses were incident to one 

objective, (2) whether the course of conduct is divisible in time, and (3) whether the 

defendant had an opportunity to reflect and to renew her intent before committing the 

next crime. (Id. at p. 1253; People v. Louie (2012) 203 Cal.App.4th 388, 399.) 

In this case defendant’s course of conduct was divisible in time. During the 

approximately four hours between withdrawing the first $3,500 and the second $1,100, 

defendant had an opportunity to reflect and renew her intent. Section 654 does not 

mandate stay of the sentence on count 7.

B. Count 14

Defendant argues the sentence on count 14 should have been stayed, rather than 

imposed concurrently, because the conviction for preparing false evidence and offering 

false evidence were the means of accomplishing one objective in which she harbored 

only one intent. The People concede the argument. As we are reversing defendant’s 

conviction on count 16, forgery, we shall direct the trial court to impose only one 
34

sentence for preparing or offering false evidence (counts 14 & 15), and to stay the 

sentence on the other conviction.

C. Enhancement to Count 15

The trial court stayed the sentence in count 15, offering false evidence. It 

nevertheless imposed a concurrent two-year enhancement on count 15. Punishment for 

an enhancement cannot be imposed separately from the underlying offense. (People v. 

Smith (1985) 163 Cal.App.3d 908, 914.) When the sentence for the underlying offense is 

stayed, the enhancement must also be stayed. (Ibid.) On remand we will direct the trial 

court to stay any enhancements for which it has stayed the underlying conviction.

VII

Proposition 47

We granted defendant’s request to file a supplemental brief arguing the provisions 

of Proposition 47, enacted by the voters at the November 4, 2014, general election apply 

retroactively to reduce her conviction for receiving stolen property from a felony to a 

misdemeanor.

Proposition 47 required “misdemeanors instead of felonies for nonserious, 

nonviolent crimes . . . unless the defendant has prior convictions for specified violent or 

serious crimes.” (Ballot Pamp., Gen. Elec. (Nov. 4, 2014) text of Prop. 47, p. 70.) It also 

added section 1170.18 to the Penal Code, which provides that a person who is “currently 

serving a sentence for a conviction . . . of a felony or felonies who would have been 

guilty of a misdemeanor under the act that added this section . . . had this act been in 

effect at the time of the offense may petition for a recall of sentence before the trial court 

that entered the judgment of conviction in his or her case to request resentencing . . . .” 

Defendant correctly notes that the crime of receiving stolen property is now a 

misdemeanor if the value of the property did not exceed $950 and the defendant did not 

have a disqualifying prior conviction. (§ 496, subd. (a).) She argues that pursuant to In 
35

re Estrada (1965) 63 Cal.2d 740, 744-748, the provisions of Proposition 47 operate 

retroactively to reduce her receiving stolen property conviction to a misdemeanor.

Estrada stated: “When the Legislature amends a statute so as to lessen the 

punishment it has obviously expressly determined that its former penalty was too severe 

and that a lighter punishment is proper as punishment for the commission of the 

prohibited act. It is an inevitable inference that the Legislature must have intended that 

the new statute imposing the new lighter penalty now deemed to be sufficient should 

apply to every case to which it constitutionally could apply.” (Estrada, supra, 63 Cal.2d 

at p. 745.) This includes “acts committed before its passage provided the judgment 

convicting the defendant of the act is not final.” (Ibid.)

Thus, Estrada held that if an amended statute mitigates punishment, the 

amendment will operate retroactively to impose the lighter punishment unless there is a 

saving clause. (Estrada, supra, 63 Cal.2d at p. 748.) The Legislature may signal its 

intent by including an express saving clause making the amendment prospective, “or its 

equivalent.” (People v. Nasalga (1996) 12 Cal.4th 784, 793, fn. omitted.) 

People v. Yearwood (2013) 213 Cal.App.4th 161, held that a provision in 

Proposition 36, the Three Strikes Reform Act of 2012, which created a postconviction 

resentencing procedure similar to the one in Penal Code section 1170.18, was the 

“functional equivalent” of a saving clause. (Yearwood, at p. 172.) Referencing 

Yearwood this court has concluded that a defendant subject to Proposition 47 is limited to 

the statutory remedy of petitioning for recall of sentence in the trial court after the 

judgment has become final. (People v. Noyan (2014) 232 Cal.App.4th 657, 672.) 

We agree with the result in People v. Noyan, supra, 232 Cal.App.4th 657. The 

procedure set forth in section 1170.18 applies to “[a] person currently serving a sentence 

for a conviction . . . of a felony or felonies who would have been guilty of a misdemeanor 

under the act . . . .” Defendant is such a person. There is no need to ask whether 

Proposition 47 is retroactive as to her. The act clearly states the manner in which any 
36

adjustment in her sentence is to be accomplished. Defendant is limited to the statutory 

remedy of petitioning the trial court for recall of sentence when her judgment is final.

DISPOSITION

The convictions for accepting a bribe (count 11) and forgery (count 16) are 

reversed. The case is remanded for resentencing with directions to select a new principal 

term and to select a new subordinate term to replace the term imposed for count 16 

(forgery). If the trial court intends to impose a second Penal Code section 12022.1 

enhancement, count 15, offering false evidence, must be used as the second subordinate 

term. No more than two enhancements pursuant to Penal Code section 12022.1 may be 

imposed. The sentence on either count 14 (preparing false documentary evidence) or 

count 15 (offering false evidence) must be stayed, and the enhancement on any stayed 

sentence must be stayed. In all other respects, the judgment is affirmed.

 BLEASE , Acting P. J.

We concur:

 NICHOLSON , J.

 MAURO , J.