(Super. Ct. No. 08F0005029)
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
While employed as chief executive officer (CEO) for Haven Humane Society (Haven), a nonprofit animal shelter located near Redding, California, defendant Norman Ray Ryan used a Haven credit card to pay for a personal trip and obtained reimbursement for a company trip he did not take. Defendant was thereafter convicted of two counts each of unauthorized use of personal identifying information (Pen. Code, § 530.5, subd. (a)) and grand theft (id. at § 487, subd. (a)) and was placed on formal probation for a period of three years. (Undesignated section references that follow are to the Penal Code.)
Defendant appeals, contending his conviction on one count of unauthorized use of personal identifying information must be reversed, because that charge was based on unauthorized use of a corporate logo and a corporate logo does not qualify as personal identifying information for purposes of such a charge. Defendant also claims instructional error, prosecutorial misconduct, and ineffective assistance of counsel. We reject each of these contentions and affirm the judgment.
Haven is a nonprofit organization that operates an animal shelter in Anderson, California. Defendant was hired as Haven's chief executive officer in May 2007. During defendant's tenure, Haven had a VISA credit card account which defendant used on occasion to pay for Haven expenses. At other times, defendant paid for Haven expenses with his own funds and asked for reimbursement.
The controller for Haven at the time was Cheryl W. Defendant submitted requests for reimbursement to Cheryl. When he did so, Cheryl asked for documentation to support the request. Sometimes she would not receive it, despite multiple requests.
A few months after defendant came to work at Haven, he called Cheryl W. into his office to discuss a proposed trip to a conference in Chicago. The conference was purportedly sponsored by the Humane Society of the United States (HSUS). Defendant indicated he intended to go to the conference then immediately use vacation time for a personal trip to the Philippines.
Defendant ultimately did not go to the conference in Chicago. There was, in fact, no such conference sponsored by HSUS. Instead, defendant flew from Redding to San Francisco and from there to the Philippines as planned. Defendant paid for the trip from Redding to San Francisco using the Haven credit card. He did not thereafter reimburse Haven for the cost, which was $603.80 (counts 4 and 5).
In December 2007, defendant asked Cheryl W. to process a check for him for expenses in the amount of $783.14. He came to her office with a piece of paper, which he identified as a receipt for a Southwest Airlines flight to the Chicago conference. Cheryl wrote down the amount from the receipt and told defendant she would need a requisition form signed by him with the receipt attached. Cheryl later brought the check to defendant for his signature. Defendant took the check but never provided the requested paperwork.
Cheryl W. later found the Southwest Airlines receipt on defendant's desk and made a copy of it. The document showed a flight from San Francisco to Chicago on October 30, 2007, returning on November 2. The departure flight number was 106; the return flight number was 1009. A Southwest Airlines custodian of records testified at trial that there is no record of defendant having flown on a Southwest flight between October 30 and November 2. He further testified flight number 106 from San Francisco on October 30, 2007, did not go to Chicago, and there was no flight number 1009 from Chicago on November 2. The custodian indicated the receipt defendant showed to Cheryl had been altered.
Yvonne P., a Haven board member, testified that she had encouraged defendant to seek training about animals and was happy to hear he was planning to attend the conference in Chicago. After defendant's trip to the Philippines, Yvonne asked defendant about the Chicago conference. Defendant "kind of changed the subject and said we would talk about it later . . . ."
Defendant was later terminated from Haven for reasons other than the matters charged in this case.
Defendant was charged with one count of embezzlement (§ 424), two counts of identity theft, and two counts of grand theft. At trial, defendant testified that he did in fact use the Haven credit card to pay for the personal trip from Redding to San Francisco and did not reimburse Haven. Defendant indicated Haven never asked him for reimbursement. Regarding the Chicago trip, defendant testified he intended to attend a conference in Chicago sponsored by Kintera, not HSUS, but, at the last minute, decided not to go. Defendant denied having prepared the altered Southwest Airlines receipt and denied having presented it to Cheryl W. for reimbursement. Defendant indicated he thought the reimbursement check he received from Cheryl was for a business trip he took to Portland, for which he had not been reimbursed.
Defendant was convicted on all charges. The trial court later dismissed the embezzlement count. The court then suspended imposition of sentence and placed defendant on formal probation for three years, with 180 days in jail on count 2, a concurrent 180 days on count 3, 180 days on a work program on count 4, and a concurrent amount on count 5.
Defendant was charged in count 2 with unlawful use of the personal identifying information of Southwest Airlines. The prosecution theory was that defendant used a fraudulent Southwest Airlines receipt bearing a Southwest logo to obtain reimbursement for a flight from San Francisco to Chicago that he did not in fact take. Defendant was convicted as charged.
Unauthorized Use of Southwest Logo
Defendant contends his conviction on count 2 is not supported by substantial evidence, because a corporate logo does not qualify as personal identifying information.
Section 530.5, subdivision (a), reads in relevant part: "Every person who willfully obtains personal identifying information . . . of another person, and uses that information for any unlawful purpose, including to obtain, or attempt to obtain, credit, goods, services, real property, or medical information without the consent of that person, is guilty of a public offense." Section 530.55, subdivision (a), defines "person" to include a corporation or other such legal entity. Section 530.55, subdivision (b), defines "personal identifying information" as "any name, address, telephone number, health insurance number, taxpayer identification number, school identification number, state or federal driver's license, or identification number, social security number, place of employment, employee identification number, professional or occupational number, mother's maiden name, demand deposit account number, savings account number, checking account number, PIN (personal identification number) or password, alien registration number, government passport number, date of birth, unique biometric data including fingerprint, facial scan identifiers, voiceprint, retina or iris image, or other unique physical representation, unique electronic data including information identification number assigned to the person, address or routing code, telecommunication identifying information or access device, information contained in a birth or death certificate, or credit card number of an individual person, or an equivalent form of identification."
Defendant contends the list of items specified in section 530.55, subdivision (b), does not include a corporate logo. Defendant further argues the catch-all phrase, "an equivalent form of identification," should not be read to include corporate logos, because such logos are different from the listed items in that logos are meant to be widely distributed, whereas the items included in section 530.55, subdivision (b), are of a personal nature not meant for public consumption.
The People respond that there is no limit in section 530.55, subdivision (b), to information that is confidential, and a corporate logo is nothing more than the corporation's name, which is included in the list. The People point out that a politician might want his or her name to be widely known, yet misuse of that name by another could still violate section 530.5.
We need not decide whether corporate logos in general qualify as personal identifying information within the meaning of section 530.55, subdivision (b). In the present matter, the document presented by defendant to Cheryl W. to support his claim for reimbursement contained much more than just a corporate logo. The document appears to be a two-page email message confirming the Chicago flight. The top of the first page of the message reads as follows:
"Ticketless Confirmation - RYAN/NORMAN - 5U2SYC
"From: Southwest Airlines
"Sent: Tue 10/13/07 10:37 PM
"Reply-to: Southwest Airlines
Below the foregoing is a confirmation statement containing the details of the flight, including dates, flight numbers, destinations, and costs. The top left-hand corner of this section contains what appears to be a corporate logo for Southwest Airlines, with the picture of an airplane above "SOUTHWEST.COM." Near the bottom of the first page of the document is the following fare rule: "Valid only on Southwest Airlines. All travel involving funds from this Confirm no. must be completed by 10/14/08. Any change to this itinerary may result in a fare increase." The second page contains the caption "Southwest Airlines Co. Notice of Incorporated Terms" followed by: "Air transportation by Southwest Airlines is subject to Southwest Airlines' Passenger Contract of Carriage, the terms of which are incorporated by reference."
It is clear from the foregoing that the document in question contains much more than just the corporate logo for Southwest Airlines. In several locations, it contains the name of the company itself. Defendant does not dispute that the name of a company qualifies as personal identifying information within the meaning of section 530.55, subdivision (b). Hence, defendant's substantial evidence claim fails.
Adoptive Admissions Instruction
Yvonne P. testified that, following defendant's trip to the Philippines, which occurred right after his purported trip to the Chicago conference, she mentioned the conference to defendant and he "kind of changed the subject" and said he would talk to her later about it.
Defendant contends this evasive response amounted to an adoptive admission. According to defendant, it is undisputed he received a reimbursement check for $783.14. Defendant testified he thought the check was reimbursement for a trip to Portland he had taken earlier and for which he had not been reimbursed. Hence, he argues, "an admission via [Yvonne] that [defendant] was still ...