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The People v. Brian Douglas Reed

July 8, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
BRIAN DOUGLAS REED, DEFENDANT AND APPELLANT.



Super. Ct. No. 07F9577

The opinion of the court was delivered by: Hull ,j.

P. v. Reed 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Brian Douglas Reed appeals from the judgment of the Shasta County Superior Court sentencing him to state prison in case Nos. 07F8873 (8873) and 07F9577 (9577) for 17 years based upon multiple theft related convictions. Defendant does not challenge the sufficiency of the evidence supporting the convictions, instead his challenges relate solely to sentencing issues. We remand the matter to the trial court with directions.

PROCEEDINGS

On October 25, 2007, in case No. 8873, defendant pleaded guilty to identity theft (Pen. Code, § 530.5; unless otherwise specified, statutory references that follow are to the Penal Code) and possession of a completed check with intent to defraud (§ 475, subd. (a)). He was sentenced to concurrent three-year terms on each count.

On January 21, 2009, an amended information was filed charging defendant with 38 theft related counts occurring on or about October 11 through October 14, 2007. On February 9, 2009, a jury convicted defendant of 35 counts of petty theft with a prior theft conviction (§ 666). Prior to trial, defendant admitted the prior conviction that elevated the petty thefts to felonies. The jury also convicted defendant of two counts of identity theft (§ 530.5), one count of fraudulent use of an access card (§ 484g), and found true an allegation that he had been released from custody on his own recognizance in case No. 8873 when he committed the foregoing offenses (§ 12022.1).

On June 19, 2009, the court sentenced defendant to 17 years in case No. 9577, and sentenced defendant in case No. 8873 to a subordinate effective term of eight months for the identity theft and a concurrent three-year term for the unlawful check possession.

On appeal, defendant contends that the abstract of judgment, which cites only the sentence imposed in case No. 9577, must be amended to reflect the combined sentences in both cases as orally pronounced by the court, and that remand is required for recalculation of custody credits. As to case No. 9577, he also contends that section 654 bars multiple punishment for both identity theft and the petty thefts; that the conviction for fraudulent use of an access card must be reduced to a misdemeanor because of a change in the law which became effective prior to his judgment becoming final; and that he was improperly convicted of multiple thefts from the same victim. We agree with defendant's first and third contentions, but reject the second and fourth.

FACTS

Case No. 8873

Except for defendant's contention regarding the abstract of judgment and remand for recalculation of custody credits, he is not challenging any other aspect of his conviction in case No. 8873.

Case No. 9577

On October 1, 2007, in response to defendant's applications for credit cards in the name of Adrian T. Brown (who died in September 1993), Citibank issued credit cards in that name for both a personal and a business account. From October 11 through October 14 defendant used the credit cards to make purchases in the Redding/Anderson area from businesses such as 7-11 Minimart, Wal-Mart, Shell, etc. Details ...


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