Super. Ct. Nos. SF102126A, SF107892A
The opinion of the court was delivered by: Butz , J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Richard Sanaugustin Reyes II appeals his convictions for burglary (Pen. Code, § 459)*fn1 and receiving stolen property (§ 496). He contends: (1) the trial court erred in failing to give a unanimity instruction as to one of his two receiving stolen property convictions; (2) we should strike one of his receiving stolen property convictions as it is subsumed within the other; (3) he cannot be sentenced for both receipt of stolen property and burglary; (4) there was insufficient evidence to sustain his conviction for aiding and abetting one of the burglaries; and (5) he is entitled to additional credits under the recent amendments to section 4019. As to this last point, we agree defendant is entitled to additional custody credits. In all other respects, we shall affirm the judgment.
Kelley Clements's Credit Card and Lowe's Burglaries (counts 2 & 4)
On January 28 or 29, 2008, Kelley Clements's home was burglarized and among the items stolen was her Lowe's credit card. Clements called Lowe's to cancel her card and was informed of purchases to her account. She had not made or authorized the purchases.
A few days after Clements's card was stolen, on February 3, 2008, Clements's Lowe's card was used to purchase a $900 gift card and merchandise totaling $623.37 from the Trinity Parkway store. That same day, a heavy-set woman attempted to use Clements's Lowe's credit card to purchase about $2,500 of merchandise at the East Hammer Lane store. When she was asked by the cashier for identification, she produced a California ID with her photograph and Clements's name. Because the woman would not remove the identification from her wallet, and the clerk believed the identification was fraudulent, the clerk asked for additional identification. The heavy-set woman offered to go to her car and get different identification. When she returned, she said her husband had left with the car; the purchase was cancelled and the woman left the store.
The next day, February 4, 2008, the same heavy-set woman, defendant and Denise Duran returned to the East Hammer Lane Lowe's and went to the self-checkout register. They brought multiple carts to the checkstand, filled with items such as laminate flooring, blinds and a ceiling fan. The cashier recognized the heavy-set woman from the day before, and informed the store manager, who shut down the self-checkout aisle and cashiers proceeded to check them out. The purchase did not go through as the credit card was declined. The store manager asked to see the card so he could assist with the transaction by calling the credit card company and getting the transaction cleared. The trio declined and left the store together.
Five days later, on February 9, 2008, defendant went to the Lowe's on Trinity Parkway, where the heavy-set woman had successfully used Clements's credit card. He tried to make a purchase using Clements's card and the transaction was not denied. The cashier made a copy of defendant's identification.
George Wilkinson's Checks and the California Check Cashing Burglary (counts 5 & 6)
Carol Kirkpatrick, a bookkeeper for several small Bay Area medical practices, received a call on March 15, 2008, from one of her clients, George Wilkinson, M.D., who reported to her that someone had attempted to cash one of his checks at a check cashing store. Kirkpatrick went to her car and discovered that two briefcases were missing, which contained client files with sensitive financial information, including checks of Dr. Wilkinson and other clients. Kirkpatrick reported the incident to the sheriff's office and prepared a list of the stolen items.
Counts 5 (burglary) and 6 (forgery)
On March 15, 2008, defendant went into a California Check Cashing store and tried to cash one of George Wilkinson's stolen checks. The check was made out to "Richard Reyes" (and an accomplice) and included defendant's home address. The assistant manager, Saul Zambrano, thought the signature on the check looked suspicious, so he called the phone number on the check to confirm. Ann Wilkinson informed Zambrano the check had been stolen. When Zambrano informed defendant the check was a "bad check" and he could not cash it, defendant left the store. Zambrano watched defendant get ...