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The People v. Kristopher Aaron Furgison

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (San Joaquin)


February 8, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
KRISTOPHER AARON FURGISON, DEFENDANT AND APPELLANT.

Super. Ct. Nos. SF108337A, SF110810A

The opinion of the court was delivered by: Raye , P.J.

P. v. Furgison 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

The trial court granted a prosecution motion to consolidate case number SF108337A (alleging receiving a stolen checkbook in April 2008) and case number SF110810A (alleging receiving a stolen Home Depot credit card, the use of the credit card, and the commercial burglary of a Home Depot on January 25, 2009). A jury acquitted defendant Kristopher Aaron Furgison of the 2008 offense and convicted him of the three 2009 offenses. The trial court subsequently sustained allegations that defendant had a prior "serious" felony conviction for first degree burglary, for which defendant had served a prior prison term. In pertinent part, the trial court sentenced defendant to the upper term for the burglary with a concurrent term for receiving the stolen credit card; it stayed execution of sentence on the use of the stolen credit card because this occurred in the course of the burglary. (Pen. Code, § 654.)*fn1 It also imposed a $1,000 restitution fine. The minute order and abstract of judgment reflect the imposition of a 10 percent administrative surcharge for the collection of the restitution fine (§ 1202.4, subd. (l)), which was not part of the trial court's oral rendition of judgment.

On appeal, defendant contends imposition of sentence for his receiving the stolen credit card should be stayed under section 654 as well because it was part of an indivisible course of conduct with the burglary. He also contends (and the People concede) that his conviction for use of the credit card must be reduced to a misdemeanor because neither the information nor the verdict made any reference to the total value of the purchases defendant made with the card. Finally, he argues we must strike the administrative surcharge on the restitution fine in the order and abstract because it was not part of the trial court's oral rendition of judgment. We shall modify the judgment and remand for resentencing.

FACTS

The pertinent facts are few. The authorized user of a Home Depot credit card found that it was missing on January 17, 2009. Defendant and his then girlfriend (who later married him) alternately used it at a Home Depot on January 19, 21, 22, and 24 to buy gift cards and merchandise. On January 25 (the date on which the prosecution elected to base the three charges involved in this appeal), defendant attempted to buy over $462 in Home Depot merchandise shortly after 2:00 p.m. (while his then girlfriend was elsewhere in the store using a different credit card to buy gift cards). He twice swiped the stolen card in the machine. The register required authorization for the transaction. Defendant offered a different credit card, resulting in the cancellation of the transaction on the Home Depot card. The other credit card was declined. A loss-prevention employee, who had been keeping defendant under observation, called the police, who arrived during the transaction and arrested defendant.

Defendant testified he had first seen the card during a transaction on January 21 where he was present while his then girlfriend used it. He claimed she gave it to him to use on January 25.

DISCUSSION

I

Section 654 precludes multiple punishment where an act or course of conduct violates more than one criminal statute but a defendant has only a single intent and objective; on the other hand, if the evidence discloses multiple independent criminal objectives that were not incidental to each other, each of the objectives may incur punishment even if they share common acts or formed part of an indivisible course of conduct. (People v. Liu (1996) 46 Cal.App.4th 1119, 1135.) On this issue, we review the trial court's explicit or implicit factual resolutions for substantial evidence. (Id. at pp. 1135-1136; People v. Coleman (1989) 48 Cal.3d 112, 162.) The failure of defendant to object on this basis in the trial court does not forfeit the issue on appeal. (People v. Scott (1994) 9 Cal.4th 331, 354, fn. 17.)

Here, the trial court made the somewhat obscure ruling that receiving the stolen credit card and the burglary "are different matters. The card was from some prior occasion," and then cited People v. Landis (1996) 51 Cal.App.4th 1247 and People v. Bernal (1994) 22 Cal.App.4th 1455 in saying "it is not a 654 problem." The pertinence of the cases is unclear, as both uphold multiple convictions for burglary and theft (or the receipt of stolen property) where the object of the burglary was the theft, noting multiple punishments would not be possible; this is not the factual context of the present case.

Both parties proffer inapt analogies. Defendant relies on People v. Rosenberg (1963) 212 Cal.App.2d 773, 775-776, which held that multiple punishments were not permissible for the use of a forged check and the theft of merchandise obtained with it. While this is the principle that precluded the trial court from imposing sentence for both the burglary and the use of the Home Depot credit card, it does not have any bearing on whether there was a receipt of the stolen credit card independent of the burglary. The People are similarly misfocused. They cite People v. Deloza (1998) 18 Cal.4th 585, 592 and assert the existence of multiple victims allowed multiple punishments. They need to read their authority more closely: this principle applies only to violent offenses. They also assert the undisputed proposition that the offenses of receiving stolen property and burglary have independent objectives in the abstract, the former of which was accomplished before defendant entered the store. However, this simply begs the question in the present case of whether receiving the stolen credit card and the burglary were nonetheless part of a course of conduct on January 25 that had a single objective.

A felon's antecedent possession of a gun before using it to commit another offense will allow separate punishments for both being a felon in possession of a gun and the other offense in which the gun was involved. (People v. Ratcliff (1990) 223 Cal.App.3d 1401, 1412.) We find this is an analogous principle, because there is a proscribed antecedent possession of an object that can be employed for a purpose other than the later burglary offense in which defendant actually used it. (For example, as the People pointed out in oral argument, defendant could have sold the Home Depot credit card during his antecedent possession of it.) As receiving the stolen Home Depot credit card and the burglary of the Home Depot are therefore divisible, the trial court properly imposed sentence on both offenses.

II

Section 484g requires a jury to make a finding (pursuant to section 1157) of the degree of the offense, based on whether or not the value of the property for which a defendant fraudulently used a credit card exceeded $400. (People v. Love (2008) 166 Cal.App.4th 1292, 1301.) "Because the jury did not find that the value of the items obtained exceeded $400 . . . , these felony convictions must be reduced to misdemeanors and defendant must be resentenced." (Ibid.)

As noted above, the information did not allege any value for the property involved in the use of the stolen credit card, nor did the verdict form include any finding regarding the value of the property. The People thus properly concede that we must reduce the conviction for fraudulent use to a misdemeanor and remand for resentencing, which the trial court must again stay pursuant to section 654.

III

Neither a minute order nor the abstract of judgment in criminal proceedings may add to or modify the oral pronouncement of judgment that it purports to summarize. (People v. Mitchell (2001) 26 Cal.4th 181, 185.)

The trial court did not impose an administrative surcharge in its oral pronouncement of judgment. Defendant asserts this precludes the minute order and abstract from including one.

The People assert ipse dixit that San Joaquin County has exercised its discretion to authorize the imposition of a 10 percent surcharge for the recovery of administrative costs on the amount of any restitution fines (§ 1202.4, subd. (l)), and imposition of such surcharges is mandatory, which would allow this court to modify the judgment to include it on appeal in spite of the People's failure to raise the issue initially in the trial court. (Cf. People v. Smith (2001) 24 Cal.4th 849 [parole-revocation restitution fine]; People v. Benner (2010) 185 Cal.App.4th 791, 797, petn. for review den. Sept. 29, 2010 (S184512) [administrative screening fee for convicted defendants who had been released on own recognizance].)

The People purport to quote from the San Joaquin enactment without providing a certified copy of it or providing a citation to it and requesting that we take judicial notice of it. They have therefore failed to establish this essential fact on which their argument is predicated.

More to the point, the statute merely permits the Board of Supervisors of a county to enact the surcharge. Nothing in the statute mandates a trial court to impose the surcharge in a county that has authorized it to do so: "At its discretion, the board of supervisors of any county may impose a fee to cover the actual administrative cost of collecting the restitution fine, not to exceed 10 percent . . . , to be added to the restitution fine and included in the order of the court . . . ." (§ 1202.4, subd. (l).) In contrast, "In every case where . . . [a] sentence includes a period of parole, the court shall . . . assess an additional parole revocation restitution fine in the same amount" (§ 1202.45), and "[a]n administrative screening fee of twenty-five dollars . . . shall be collected from each person arrested and released on his . . . own recognizance upon conviction of any . . . offense related to the arrest" (§ 1463.07). (Italics added.) We consequently may not modify the judgment to include the surcharge, nor may the minute order and amended abstract of decision on remand.

DISPOSITION

We modify the judgment to reflect that the conviction in count 003 for use of the stolen credit card is a misdemeanor. The trial court shall resentence defendant on the misdemeanor and stay its execution pursuant to section 654. The trial court is directed to prepare an amended abstract of judgment reflecting this modification and omitting the administrative surcharge on the restitution fine, and to send a certified copy thereof to the Department of Corrections and Rehabilitation.

We concur:

ROBIE , J.

BUTZ ,J.


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