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                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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,                                                                                  C067008

                   Plaintiff and Respondent,                                     (Super. Ct. No. 62082316)

         v.

YOLANDA PEREZ FRYSON,

                   Defendant and Appellant.




         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.

                                                             1
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 eight-
month 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


                                            2
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



                                             3
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-in-
chief 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

                                             4
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

                                              5
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.

                                              6
                                             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


                                             7
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

                                                8
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

                                               9
       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.


                                             10
       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.



                                              11
        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

                                              12
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


                                               13
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.”



                                              14
       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.”



                                             15
       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.



                                              16
       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)];]




                                            17
              “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:


                                              18
               “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.




                                               19
       “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.



                                         20
              “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.)




                                             21
       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.)

                                             22
       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.




                                             23
       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

                                             24
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

                                              25
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.”

                                             26
       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.




                                             27
       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).)

                                             28
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.

                                             29
       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

                                            30
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,

                                              31
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.

                                            32
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

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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




                                              34
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

                                              35
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.




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