IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT San Joaquin
May 24, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
RICHARD SANAUGUSTIN REYES II, DEFENDANT AND APPELLANT.
Super. Ct. Nos. SF102126A, SF107892A
The opinion of the court was delivered by: Butz , J.
P. v. Reyes 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
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 into his truck, noted the license plate number and gave the information to the police. George Wilkinson had not signed the check or authorized it.
South Stockton Street House (count 1)
On March 26, 2008, Stockton police located defendant's truck in front of a house on South Stockton Street. Parole Officer Lawrence Norvall knocked on the door and Denise Duran answered the door. Although the house had been foreclosed upon and abandoned, it appeared people were living there. Defendant was sitting at a table in the kitchen working on a laptop computer. There were also a tower computer and other computer components in the home. The laptop computer contained files with names, social security numbers and miscellaneous information on other people. The computers also had templates for various states' driver's licenses, front and back, social security cards and security identification cards. In the kitchen, dining room and laundry area of the home, there were stacks of checkbooks, identification cards, driver's licenses, credit cards, social security cards and numerous items belonging to over 120 victims. None of the documents belonged to the occupants of the home. Deputy David Bruegel arrived at the scene and recognized defendant and Duran from the Lowe's store surveillance videos. Clements's property was not found in the home.
Defendant was charged with two counts of receiving stolen property (§ 496, subd. (a)--counts 1 & 7), four counts of second degree burglary (§ 459--counts 2, 3, 4 & 5) and forgery (§ 475, subd. (c)--count 6). It was further alleged defendant had served three prior prison terms. (§ 667.5, subd. (b).)
Following the close of the People's case, the People dismissed one of the burglary charges for insufficient evidence (count 3). The jury found defendant guilty of all remaining counts. In bifurcated proceedings, the court found the three prior prison term allegations true.
Defendant was sentenced to an aggregate term of eight years in state prison as follows: on count 7 (receiving stolen property), the upper term of three years, plus eight months on each of the three burglary convictions (counts 2, 4 & 5). Defendant's sentence on counts 1 (receiving) and 6 (forgery) were stayed pursuant to section 654. An additional year was imposed for each of the three prison term enhancements. On this case, defendant served 197 actual days and was awarded 98 days of conduct credit under section 4019, for a total of 295 days of presentence credit.
Defendant was also on a grant of probation at the time he committed these offenses. The court revoked probation and sentenced defendant to a concurrent term of two years. Defendant served 34 days in actual custody as to the probation case and was awarded 16 days of conduct credit under section 4019 for a total of 50 days of credit on the probation case.*fn2
I. The Trial Court's Failure to Give a Unanimity Instruction Was Not Prejudicial Error
Defendant first contends the trial court erred in failing to give a unanimity instruction as to count 7, receiving stolen property between February 4, 2008, and March 26, 2008.*fn3 In closing argument, the prosecutor argued the count included both Clements's stolen credit card and Wilkinson's stolen checks.
"In a criminal case, a jury verdict must be unanimous. [Citations.] . . . [Citation.] Additionally, the jury must agree unanimously the defendant is guilty of a specific crime. [Citation.] Therefore, cases have long held that when the evidence suggests more than one discrete crime, either the prosecution must elect among the crimes or the court must require the jury to agree on the same criminal act." (People v. Russo (2001) 25 Cal.4th 1124, 1132.)
Here, there were multiple discrete acts that could have formed the basis of the conviction for possessing stolen property: the possession of Clements's credit card in the Lowe's burglaries and the possession of Wilkinson's check in the California Check Cashing burglary. Since the prosecutor did not elect between the multiple acts that could have formed the basis for the receiving stolen property count, "the trial court was required to instruct the jury sua sponte that it must unanimously agree on the criminal conduct supporting the conviction." (People v. Norman (2007) 157 Cal.App.4th 460, 466 (Norman).) The failure to do so was error. Failure to give a unanimity instruction is governed by the harmless error standard of Chapman v. California (1967) 386 U.S. 18, 24, [17 L.Ed.2d 705, 710-711]; namely, whether the error was harmless beyond a reasonable doubt. (People v. Thompson (1995) 36 Cal.App.4th 843, 853 (Thompson).)
The "'requirement of unanimity as to the criminal act "is intended to eliminate the danger that the defendant will be convicted even though there is no single offense which all the jurors agree the defendant committed." [Citation.] . . . "The [unanimity] instruction is designed in part to prevent the jury from amalgamating evidence of multiple offenses, no one of which has been proved beyond a reasonable doubt, in order to conclude beyond a reasonable doubt that a defendant must have done something sufficient to convict on one count."'" (Norman, supra, 157 Cal.App.4th at pp. 464-465.)
Defendant argues the error was prejudicial because "[f]rom the verdict in this case, it is impossible to determine which act the jury found [defendant] committed in order to support the conviction in [c]ount 7. Some jurors could have found that [defendant] demonstrated the requisite specific intent as to possessing the check while others may have believed it with regards to constructively possessing the credit card." We disagree.
The failure to give a unanimity instruction is harmless where there is no reasonable possibility of a disagreement among the jurors regarding the specific acts that could support the charged offense. (People v. Napoles (2002) 104 Cal.App.4th 108, 119; People v. Burns (1987) 196 Cal.App.3d 1440, 1458.) Relatedly, "the failure to give [the unanimity instruction] is harmless when disagreement by the jury is not reasonably probable.'" (People v. Jenkins (1994) 29 Cal.App.4th 287, 299, quoting People v. Melendez (1990) 224 Cal.App.3d 1420, 1430, disapproved on a separate ground in People v. Majors (1998) 18 Cal.4th 385, 408.) This is such a case.
Here, the jury unanimously found defendant guilty of the substantive crime of burglary of the California Check Cashing. To make that finding the jury necessarily rejected the defense proffered by defendant that he was not the person who went into the check cashing store. The jury resolved that credibility dispute against defendant. (See Thompson, supra, 36 Cal.App.4th at p. 853.) The jury also necessarily found that defendant entered the check cashing store to commit a theft. The only way for the jury to have reached that conclusion was to unanimously agree he was in possession of a stolen check, which he intended to cash in the store.
Similarly, defendant was convicted of burglary of Lowe's on February 9. The evidence was that defendant went in to the Lowe's store by himself and attempted to use Clements's credit card. To reach this verdict, the jury again necessarily found he was in possession of Clements's stolen credit card on February 9, knowing it was stolen. Again, contrary to defendant's claim, defendant's entry into the store alone does not establish the burglary. Rather, he had to have entered the store with the intent to commit a theft within the store. On this record, the only way to reach that conclusion was to find that he entered the store with the intention of knowingly attempting to use a stolen credit card to make purchases. Had any of the jurors credited defendant's claim that he did not attempt to use Clements's card on February 9, they could not have unanimously convicted him of those burglaries, as the requisite intent for burglary would have been missing.
Given the state of the evidence, and the verdicts, there is no reasonable probability that there was a split among the jurors on count 7, with some jurors convicting defendant based only on possession of the stolen Wilkinson check and others convicting based only on the possession of Clements's stolen credit card. Rather, the jury could not have agreed unanimously on the burglary conviction of the California Check Cashing store without also agreeing unanimously that defendant was in possession of the stolen property--the Wilkinson check. Nor could they have unanimously agreed that defendant committed the burglary of Lowe's on February 9, without also unanimously agreeing that he was in possession of the stolen property--Clements's credit card. (See People v. Taylor (2010) 48 Cal.4th 574, 626.) Because there is no reasonable probability of disagreement among the jurors regarding the specific acts that could support this offense, the error in failing to give the unanimity instruction was harmless.
II. Defendant Was Properly Convicted of Two Counts of Receiving Stolen Property
In count 1, defendant was convicted of being in receipt of stolen property from "various victims." This count involved the stolen property found in the house on South Stockton Street, which included checks, credit cards, social security cards, and identification of over 120 different victims. Also included in this count are the checks of George Wilkinson. In count 7, defendant was convicted of being in receipt of stolen property, either Clements's credit card or the Wilkinson check used at the California Check Cashing store. Defendant contends we should strike the conviction on count 1, as that count was subsumed within the conviction on count 7. We disagree.
California courts have long held that the receipt, on one occasion, of goods stolen from several owners, constitutes a single offense of receiving stolen property. (People v. Lyons (1958) 50 Cal.2d 245, 275; People v. Smith (1945) 26 Cal.2d 854, 859; People v. Mitchell (2008) 164 Cal.App.4th 442, 461-462.) However, "where the receiving counts involve different property stolen from different victims at different times and where nothing in the record shows [the defendant] received the property on a single occasion, 'the record reasonably supports the inference that [the defendant] received the various stolen goods at different times and in different transactions.'" (People v. Morelos (2008) 168 Cal.App.4th 758, 763; see also People v. Bullwinkle (1980) 105 Cal.App.3d 82, 92, disapproved on another ground in People v. Laiwa (1983) 34 Cal.3d 711, 728.)
Here, Clements's Lowe's credit card was stolen on January 28 or 29, 2008. It was used on three separate dates in early February 2008. Defendant personally attempted to use the stolen card on February 9, 2008. The Wilkinson checks were stolen on either March 14 or 15, 2008, and defendant attempted to cash one of the checks on March 15, 2008. Defendant was also found in possession of checkbooks, identification cards, credit cards, social security cards and numerous items belonging to over 120 different victims on March 26, 2008. Given the different dates when Clements's and Wilkinson's property was stolen, the different dates of defendant's possession of that stolen property, the vast number of other victims and the variety of material stolen from those victims, it was reasonable for the jury to infer that this much property from so many different victims was not received at the same time or in the same transaction. Accordingly, two distinct counts of receiving stolen property were supported by the evidence.
III. Section 654 Does Not Prohibit Separate Punishments for the Burglary and Possession of Stolen Property Offenses
Defendant was sentenced to three years for receipt of stolen property in count 7 and three consecutive terms of eight months for each second degree burglary of Lowe's and the check cashing store. Defendant contends, under section 654, his sentence for at least one of the burglaries must be stayed. He argues that to the extent he possessed either Clements's credit card or the Wilkinson check, it was part of a single course of conduct committed with the single objective of facilitating the burglaries. We disagree.
"The test for determining whether section 654 prohibits multiple punishment has long been established: 'Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.'" (People v. Britt (2004) 32 Cal.4th 944, 951-952.) "If, on the other hand, [the] defendant harbored 'multiple criminal objectives,' which were independent of and not merely incidental to each other, he may be punished for each statutory violation committed in pursuit of each objective, 'even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.'" (People v. Harrison (1989) 48 Cal.3d 321, 335.) "'The principal inquiry in each case is whether the defendant's criminal intent and objective were single or multiple.' [Citation.] 'A defendant's criminal objective is "determined from all the circumstances. . . ."'" (In re Jose P. (2003) 106 Cal.App.4th 458, 469.)
"The defendant's intent and objective present factual questions for the trial court, and its findings will be upheld if supported by substantial evidence. [Citation.] 'We review the court's determination of [a defendant's] "separate intents" for sufficient evidence in a light most favorable to the judgment, and presume in support of the court's conclusion the existence of every fact the trier of fact could reasonably deduce from the evidence.'" (People v. Andra (2007) 156 Cal.App.4th 638, 640-641.) That the crimes were purportedly part of a single, overall scheme--to fraudulently obtain goods or services by using the stolen property--does not mean section 654 bars punishment for all of the crimes.
Defendant's reliance on People v. Jaramillo (1976) 16 Cal.3d 752 and People v. Landis (1996) 51 Cal.App.4th 1247 is misplaced. Both cases involved circumstances where the defendant was convicted of burglary and of being in possession of stolen property. The stolen property at issue was the same property taken in the burglaries. Because the same property provided the basis for the convictions, section 654 barred multiple punishment. In contrast, in this case, the stolen property was the check and the credit card. The burglaries were committed by defendant's entry into commercial establishments with the intent to use the stolen property to obtain either goods or cash. The procurement of those goods or cash from the merchants was distinct from the possession of the already stolen property.
Similarly, defendant's reliance on People v. Caruth (1965) 237 Cal.App.2d 401, People v. Rosenberg (1963) 212 Cal.App.2d 773 and People v. Martin (1962) 208 Cal.App.2d 867 is also misplaced. Those cases held that multiple punishments were not permissible for the use of a forged check and the theft of merchandise obtained with it. Multiple punishment was barred in those cases because the forgeries were not distinct offenses from the attempted thefts. This principle would preclude the trial court from imposing sentence for both the burglaries and the use of the Lowe's credit card and the Wilkinson check. It does not, however, have any bearing on whether there was a receipt of the stolen credit card independent of the burglary. Intent to use or actual use of the stolen property is not an element of receipt of stolen property. (People v. Rowland (1971) 21 Cal.App.3d 371, 376.)
Here, the offenses of receiving stolen property were completed before defendant entered the commercial establishments with the intent to use stolen property to commit a theft. Because defendant's receipt of the stolen property was distinct and antecedent to his attempted use of that property to commit the burglaries, defendant's case is analogous to a felon's possession of a gun before using it to commit another offense. In such a case, separate punishments are permitted 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.) In that circumstance, as in this case, 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 uses it. For example, defendant could have sold the stolen property, rather than attempting to use it himself in the burglaries. Because receiving Clements's stolen credit card and Wilkinson's stolen check and the burglaries of the Lowe's and the California Check Cashing store are divisible, section 654 does not bar separate punishments for the separate crimes.
IV. There Was Substantial Evidence Supporting the Burglary Conviction in Count 2
Defendant contends there was insufficient evidence he aided and abetted in the burglary of the Lowe's on February 4, 2008, count 2. Specifically, he argues there was no evidence demonstrating he was aware that the heavy-set woman he was with was using a stolen credit card or intended to use one when she came in the store. Again, we disagree.
When determining whether the evidence was sufficient to sustain a conviction, "our role on appeal is a limited one." (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) "[T]he test of whether evidence is sufficient to support a conviction is 'whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" (People v. Holt (1997) 15 Cal.4th 619, 667.) "We draw all reasonable inferences in support of the judgment." (People v. Wader (1993) 5 Cal.4th 610, 640.) Reversal is not warranted unless it appears "'that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].'" (People v. Bolin (1998) 18 Cal.4th 297, 331.)
An aider and abettor "must 'act with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense.'" (People v. Mendoza (1998) 18 Cal.4th 1114, 1123 (Mendoza).) "Among the factors which [the trier of fact] may [consider] in making the determination of aiding and abetting are: presence at the scene of the crime, companionship, and conduct before and after the offense. [Citations.] In addition, flight is one of the factors which is relevant in determining consciousness of guilt." (In re Lynette G. (1976) 54 Cal.App.3d 1087, 1094-1095.) An aider and abettor to burglary must form the intent to aid and abet the crime before the perpetrator leaves the burglarized structure. (People v. Montoya (1994) 7 Cal.4th 1027, 1044-1045.)
Here, defendant went in to the Lowe's store with Duran and the heavy-set woman who had previously used the stolen card successfully and attempted to use it, unsuccessfully. The three went to the checkstand together, with multiple carts filled with large bulky items including laminate flooring, a ceiling fan and blinds. When the card did not work and the store manager offered to call the credit card company to assist the purchase, the trio declined his assistance and left the store together. Within a few days, defendant returned to the store where the heavy-set woman had previously been successful in using Clements's credit card and again attempted to make purchases with Clements's credit card. When he was unable to use the card, he left the store. Almost two months later, defendant is found in a home full of stolen credit cards, among other things, with Duran, one of the women from the February 4 burglary.
Defendant was present with the heavy-set woman and Duran while trying to use the stolen credit card. He later had possession of, and attempted to use, the same stolen card at the same location where the heavy-set woman had been able to use the card. His behavior of simply leaving a store upon being told the transaction could not be completed was consistent with his behavior when told the Wilkinson stolen check could not be cashed. Duran was not only with him at the Lowe's on February 4, but he had a continuing relationship with her, which included their apparent joint involvement in a counterfeiting ring. Defendant possessed numerous stolen credit cards, and attempted to use a stolen check. On this record, there was sufficient evidence for the jury to infer that defendant "act[ed] with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense." (Mendoza, supra, 18 Cal.4th at p. 1123.)
V. Defendant Is Entitled to Additional Custody Credits Under Amendments to Section 4019
Lastly, defendant contends he is entitled to additional custody credits under the amendments to section 4019, effective January 25, 2010, which increased the rate at which prisoners earn presentence conduct credits. Defendant states the increased credits apply retroactively to his pending appeal and entitle him to additional conduct credits. After briefing concluded, a subsequent amendment modified the section 4019 formula. We agree defendant is entitled to additional credits.
The Attorney General contends the amendments should not be given retroactive effect. Until the issue is finally decided by the California Supreme Court (People v. Brown (2010) 182 Cal.App.4th 1354, review granted June 9, 2010, S181963), we conclude, for the reasons that follow, that the amendments apply to all defendants sentenced prior to those effective dates.
In October 2009, the Legislature passed Senate Bill No. 3X 18, which, among other things, revised the accrual rate for conduct credits under section 4019. The parties agree that the amendment became effective on January 25, 2010. (Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28, § 50.)
On September 28, 2010, as an urgency measure effective on that date, the Legislature enacted Senate Bill No. 76 (2009-2010 Reg. Sess.) (Stats. 2010, ch. 426, § 1), which amended section 2933, regarding presentence conduct credits for defendants sentenced to state prison. The amendment gives qualifying prisoners one day of presentence conduct credit for each day of actual presentence confinement served (§ 2933, subd. (e)(1), (2), (3)), thereby eliminating the loss of one day of presentence conduct credit under the rate specified by Senate Bill No. 3X 18, when the person served an odd number of days in presentence custody. (Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28, § 50.) Section 2 of Senate Bill No. 76 also eliminates the directive in former section 4019 that no presentence conduct days are to be credited for commitments of fewer than four days. (§ 4019, subd. (e).)
Neither of the amendments states that it is to be applied prospectively only. Consequently, we conclude the amendment increasing the rate for earning presentence conduct credit applies retroactively to defendants sentenced prior to those effective dates. (See In re Estrada (1965) 63 Cal.2d 740, 745 [statutory amendments lessening punishment for crimes apply "to acts committed before its passage provided the judgment convicting the defendant of the act is not final"]; People v. Doganiere (1978) 86 Cal.App.3d 237, 239-240 [applying the rule of Estrada to an amendment involving conduct credits]; People v. Hunter (1977) 68 Cal.App.3d 389, 393 [applying the rule of Estrada to an amendment involving custody credits].)
Defendant was sentenced on June 9, 2009. Consequently defendant, having served 197 days in presentence custody in case No. SF107892A is entitled to 197 days of conduct credit. Having served 34 days in presentence custody in case No. SF102126A, defendant is entitled to 34 days of conduct credit. We shall order the judgment modified accordingly.
The judgment is modified to reflect that defendant is entitled to a total of 394 days of presentence custody credit in case No. SF107892A, consisting of 197 days of actual custody plus 197 days of conduct credit. In case No. SF102126A, defendant is entitled to a total of 68 days of presentence custody credit, consisting of 34 days of actual custody plus 34 days of conduct credit. As modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment to reflect this modification and to forward a certified copy to the Department of Corrections and Rehabilitation.
We concur: RAYE , P. J. ROBIE, J.