Filed 2/25/13 P. v. Chambers CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G046095

         v.                                                            (Super. Ct. No. 07HF0829)

JOANNA CHAMBERS,                                                       OPINION

     Defendant and Appellant.



                   Appeal from a judgment of the Superior Court of Orange County, Lance
Jensen, Judge. Affirmed.
                   Richard Jay Moller, under appointment by the Court of Appeal, for
Defendant and Appellant.
                   Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, William M. Wood and
A. Natasha Cortina, Deputy Attorneys General, for Plaintiff and Respondent.
              Appellant Joanna Chambers was accused of embezzling money from and,
as the prosecutor alleged in closing argument, “cooking the books” of a construction
company she worked for. She was convicted by jury of one count of grand theft and 67
counts of violating Penal Code section 471, which makes it a crime to make a fraudulent
entry in any book of records.1 She contends the trial court did not properly instruct the
jury on the elements of section 471, but we disagree and affirm the judgment.
                                                  FACTS
              Appellant worked for the Bogart Construction Company from 1994 to
2004. During that time, she held a number of different positions with the company,
including bookkeeper and office manager. She was heavily involved in the day-to-day
operations of the company and had ready access to its digital financial records. She also
had access to the signature stamp of company president Brad Bogart.
              In June 2004, the company controller Kim Krick noticed there was a check
missing from the company‟s check registry. Krick contacted the bank and learned the
check was written to appellant in the amount of $2,450 and cashed by her on June 7,
2004. In the wake of this discovery, Krick audited the company‟s financial records and
discovered numerous discrepancies in the company‟s bank accounts. She also discovered
that several canceled checks were missing from the filing cabinet where such checks
were kept when they came back from the bank.
              Krick obtained copies of the missing checks from the bank and noticed they
were made out to appellant and either cashed by her or deposited into her personal bank
account. However, the company‟s check ledger did not list appellant as the payee of the
missing checks. Rather, the ledger listed other employees or company vendors as the
payee.




         1    All further statutory references are to the Penal Code.


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              The check ledger was the heart of the prosecution‟s case. The prosecution
argued appellant falsified the ledger entries and destroyed the canceled checks when they
came back from the bank so no one would know she was taking the money.
              Appellant did not testify at trial. However, in closing argument, her
attorney claimed the money appellant took was rightfully hers. Defense counsel also
pointed out lots of people had access to the company books, including its president Brad
Bogart. Counsel theorized Bogart knew all about the subject checks and was content
with appellant using them for salary advances or loans. However, after Krick‟s audit
revealed questionable discrepancies in the company‟s books, Bogart turned on appellant
to protect himself and accused her of embezzlement.
              In the end, the jury convicted appellant of one count of grand theft and 67
counts of forgery under section 471. It also found the loss from the theft was over
$100,000, there was property damage exceeding $150,000 and appellant‟s fraudulent
conduct involved the taking of more than $100,000. After dismissing four of the forgery
counts due to pleading error, the court sentenced appellant to six years in prison.
                                               I
              Appellant contends the court erred in failing to instruct the jury that section
471 applies only to the forgery of a public book of records. We disagree.
              Section 471 provides, “Every person who, with intent to defraud another,
makes, forges, or alters any entry in any book of records, or any instrument purporting to
be any record or return specified in Section 470, is guilty of forgery.” Recently, in
People v. Dunbar (2012) 209 Cal.App.4th 114, we held that section 471 applies to the
forgery of both public and private books of record. Appellant makes no attempt to
distinguish Dunbar. He simply reasserts all of the very same arguments we found
unpersuasive in that case. For the reasons explained in Dunbar, we reject appellant‟s
interpretation of section 471. The trial court did not err in failing to instruct the jury the
statute applies only to the forgery of a public book of records.

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                                               II
              Appellant also faults the trial court for failing to instruct the jury that
section 471 requires the making of a false entry into a book of records. Since it is not
reasonably likely the jury failed to find that appellant‟s alleged entries were false, we
uphold its verdict.
              On review, jury instructions “„should be interpreted, if possible, so as to
support the judgment rather than defeat it if they are reasonably susceptible to such
interpretation.‟ [Citation.]” (People v. Martin (2000) 78 Cal.App.4th 1107, 1111-1112.)
In determining whether instructional error has occurred, we consider the record as a
whole, including the specific language challenged and the arguments of counsel. (People
v. Cain (1995) 10 Cal.4th 1, 36-37; People v. McPeters (1992) 2 Cal.4th 1148, 1191.)
Unless there is a reasonable likelihood the jury misunderstood the challenged instruction
in a manner that violated defendant‟s rights, we must uphold the court‟s charge to the
jury. (Ibid.; People v. Franco (2009) 180 Cal.App.4th 713, 720.)
              In this case, the trial court instructed the jury in language that tracks the
wording of section 471. In relevant part, the court stated that to prove appellant was
guilty of violating section 471, the People had to prove she “made, forged or altered an
entry in a book of records” and that she did so “with the specific intent to defraud
another.” Since the statute does not expressly require the alleged entry to be false, we are
hard pressed to fault the trial court for failing to include this requirement in its
instructions to the jury. (People v. Solis (2001) 90 Cal.App.4th 1002, 1014 [the language
of a statute is generally an appropriate basis for instructing the jury on its elements].)
              In any event, given the way the case played out, it is not reasonably likely
appellant was convicted of making entries that were not false. The evidence plainly
showed the company‟s check ledger was made to appear as though the subject checks
were used for legitimate business expenses, when in fact they were issued to appellant.



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There may have been an issue as to who made the fraudulent entries in the ledger, but
there was no dispute that the ledger was falsified.
              Moreover, during closing argument, the prosecutor emphasized over and
over again that this case was about appellant‟s actions in making false entries in the
company books with the intent to defraud. Even though the falsity of the entries was not
disputed, the prosecutor took pains to explain that appellant‟s actions in falsifying the
company records were the means by which she was able to get away with her scheme for
so long. The falsification of the records was a key aspect of the prosecution‟s case and
one that could not have been lost on the jury given everything they were told.
              For all these reasons, we uphold the trial court‟s charge to the jury. It is not
reasonably likely that the jury construed the trial court‟s instructions in a manner that
violated appellant‟s rights by convicting her of making entries in the company books that
were not false. We therefore uphold her convictions for violating section 471.
                                      DISPOSITION
              The judgment is affirmed.



                                                  BEDSWORTH, ACTING P. J.

WE CONCUR:



FYBEL, J.



THOMPSON, J.




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