IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT Shasta
July 8, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.
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.
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 regarding the offenses will be set forth as needed in the discussion of defendant's specific contentions.
The Abstract of Judgment
As noted above, the court sentenced defendant to 17 years in case No. 9577, and 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. However, the abstract of judgment refers only to case No. 9577 and the sentencing imposed on each of the 38 counts. There is no reference to case No. 8873, its sentence or the custody credits attributable to that case.
Where "a determinate sentence is imposed under section 1170.1(a) consecutive to one or more determinate sentences imposed previously in the same court or in other courts, the court in the current case must pronounce a single aggregate term, as defined in section 1170.1(a), stating the result of combining the previous and current sentences. In those situations: [¶] (1) The sentences on all determinately sentenced counts in all of the cases on which a sentence was or is being imposed must be combined as though they were all counts in the current case." (Cal. Rules of Court, rule 4.452.)
Consequently an amended abstract of judgment must be prepared to reflect the single sentence imposed by the court on June 19, 2009. Because additional considerations, discussed below, require remand for resentencing in case No. 9577, we shall direct the trial court to also recalculate defendant's presentence custody credits.
II Section 654
In case No. 9577, the court sentenced to defendant as follows: Identity theft (count 1), the upper term of three years plus two years for the on-bail enhancement; petty theft with a prior (counts 2, 4, 6, 8, 10, 12, 15, 18, 20, 22, 27, 29, 30, 32, 33, 34, 35, and 37), subordinate effective terms of eight months each; petty theft with a prior (counts 5, 7, 9, 11, 13, 14, 16, 17, 19, 21, 23, 24, 25, 26, 31, 36, and 38), concurrent upper terms of three years each; identity theft (count 3), three years concurrent, stayed pursuant to section 654; and fraudulent use of credit card (count 28), the upper term of three years concurrent, stayed pursuant to section 654.
We note that the abstract of judgment filed February 5, 2010, states the conviction for count 28 was "Petty Theft W/Prior." Count 28 charged, and defendant was convicted of, fraudulent use of a credit card in violation of section 484g. The court can correct this clerical error on remand.
Defendant contends that section 654 bars punishment for both identity theft (count 1) and each of the thefts in which that card was used because the identity card was the means for accomplishing the thefts.
In relevant part, section 654 provides: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other."
"'Under section 654, "a course of conduct divisible in time, although directed to one objective, may give rise to multiple violations and punishment. [Citations.]" [Citations.] This is particularly so where the offenses are temporally separated in such a way as to afford the defendant opportunity to reflect and to renew his or her intent before committing the next one, thereby aggravating the violation of public security or policy already undertaken. [Citation.]' [Citations.] [¶] 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. [Citation.]' [Citation.]" (People v. Andra (2007) 156 Cal.App.4th 638, 640-641.)
Andra illustrates an application of the foregoing principles to facts similar to those of the present case. There, on December 23, 2005, Tiffany Andra opened a credit card account at Citibank representing herself to be Brenda Baker. (People v. Andra, supra, 156 Cal.App.4th at p. 641.) On January 6, 2006, Andra used the card to rent a Lincoln Navigator from Budget Rent-A-Car, which was to be returned on January 8, but was never returned by her. (Ibid.) On January 24 police saw defendant driving the Navigator and recovered it. (Ibid.) Defendant was convicted of identity theft and vehicle theft and was sentenced to consecutive terms on each. (Id. at p. 640.)
Andra argued on appeal that her sentencing on both counts violated section 654 because the identity theft was committed for the purpose of stealing the Navigator. (People v. Andra, supra, 156 Cal.App.4th at p. 641.) The court rejected the argument, observing that the identity theft was complete when Andra obtained the credit card by fraud, and the theft of the Navigator did not occur until over two weeks later when she failed to return it. The hiatus between offenses, the court concluded, "afforded [her] ample opportunity to reflect and then renew her intent before committing the next crime." (Ibid.) Additionally, the court noted, each offense involved a separate victim--Baker and Budget. (Ibid.)
Defendant attempts to distinguish Andra on grounds that the period for reflection in Andra was about two weeks whereas the thefts he committed occurred shortly after he received the credit card, and Andra involved two victims whereas in the instant case the "personal information [was obtained] from a deceased person, so there was no 'victim' of the identity theft."
The critical point of Andra was whether the time between the fraudulent obtaining of the credit card and the thefts the card was used to commit afforded the defendant an adequate opportunity to reflect and renew her intent, which it did. (People v. Andra, supra, 156 Cal.App.4th at p. 640-641.) Here, the card was issued by Citibank on October 1, 2007. Defendant was released from custody on October 6. On October 11 he began using the card and continued to do so until October 14, when he was caught. Because defendant was released five days after Citibank sent the card to defendant, it is reasonable to infer that he obtained possession of the card within a day or two of his release. This afforded defendant ample opportunity to reflect on the thefts he committed from various locations from October 11 through October 14.
Additionally, defendant is wrong in his assertion that because Brown was deceased Brown could not be a victim of identity theft. Section 530.55 states, "(a) For purposes of this chapter [which includes section 530.5], 'person' means a natural person, living or deceased . . . ."
Consequently, section 654 does not preclude sentencing on both the thefts wherein the card was used and the identity theft of that card.
III Change in the Law
Defendant was convicted in count 28 of fraudulent use of an access card, a violation of section 484g, based upon his having used the Brown card to obtain over $500 at Win-River Casino. At the time of defendant's offense and his sentencing, a violation of section 484g was grand theft, a felony, if the amount of the money or goods fraudulently obtained was over $400. Effective January 25, 2010, the Legislature enacted Senate Bill No. 18 (2009-2010 3d Ex. Sess.) (Sen. Bill No. 18) which raised the felony threshold amount from over $400 to over $950. (Sen. Bill No. 18, ch. 28, §15.)
In re Estrada (1965) 63 Cal.2d 740, held that where an amendment to a statute lessens the punishment for an offense and there is no saving clause, defendants whose judgments are not final before the effective date of the amendment are entitled to its retroactive application. (Id. at pp. 744-745.) Defendant contends that because the jury found his theft was "more than $400" he is entitled to have this conviction reduced to a misdemeanor.
The People contend to the contrary, arguing: "[T]he modification to section 484g did not affect the punishment at all. It was merely a guideline for the amount of money that distinguishes a misdemeanor from a felony violation. The change did not reduce the punishment for a felony conviction under the section or eliminate any criminal sanction for appellant's acts." We disagree.
"Theft is divided into two degrees, the first of which is termed grand theft; the second, petty theft." (§ 486.)
Grand theft is punishable either "by imprisonment in a county jail not exceeding one year or in the state prison." (§ 489, subd. (b).) "Petty theft is punishable by fine not exceeding one thousand dollars ($1,000), or by imprisonment in the county jail not exceeding six months, or both." (§ 490.)
Thus, a person convicted of violation of section 484g on or after January 25, 2010, where the value of property, services or goods stolen was not over $950, could not be sentenced to more than six months in county jail. This is an obvious lessening of the punishment, and defendant is entitled to have his conviction reduced as a matter of law to a misdemeanor, his felony sentence vacated and to be resentenced.
IV Theft from the Same Victim
Several theft counts were from the same victim. Specifically, counts 2 and 5--7-11 Minimarket; counts 4, 17, and 19--Shell Oil; counts 6, 7, and 24--Wal-Mart; counts 8, 9, 13, and 14--Frontier Credit; counts 10 and 11--Rancho Market; counts 12 and 16--Rite Aid; counts 18 and 23--Arco AM/PM; counts 20, 21, and 25--USA Petroleum; and counts 29 and 28--Win-River Casino. For counts 2, 6, 8, 10, 12, 18, 20, and 29, the court imposed consecutive effective terms of eight months each. For the remainder of the counts the court imposed concurrent terms of three years each.
Defendant contends that the convictions in counts 5, 7, 9, 11, 13, 14, 16, 17, 19, 21, 23, 25, and 28, for which concurrent terms were imposed, must be reversed and dismissed because they were thefts from the same victim committed pursuant to a continuous plan or scheme.
It is a "well-established rule that in a series of takings from the same individual, there is a single theft if the takings are pursuant to one continuing impulse, intent, plan or scheme, but multiple counts if each taking is the result of a separate independent impulse or intent." (People v. Packard (1982) 131 Cal.App.3d 622, 626.)
"Whether a series of wrongful acts constitutes a single offense or multiple offenses depends upon the facts of each case, and a defendant may be properly convicted upon separate counts charging grand theft from the same person if the evidence shows that the offenses are separate and distinct and were not committed pursuant to one intention, one general impulse, and one plan." (People v. Bailey (1961) 55 Cal.2d 514, 519.)
Likening his circumstances to those in Bailey and Packard, defendant argues, "Here, the thefts were all committed over a short time period pursuant to a common plan or scheme: the use of credit cards obtained in the name Adrian Brown. The evidence provides no grounds to infer that [defendant] had a separate intent or plan when, for example, he committed theft against Frontier Credit four times in two days."
In Bailey, the defendant was convicted of grand theft based upon her unlawful receipt of welfare checks totaling in excess of $3,000 over an 18-month period by concealing from the department that she was in fact living with a man as husband and wife. Each check she received was less than $200, which was the threshold for grand theft, but the aggregate was more than $200. (People v. Bailey, supra, 55 Cal.2d at pp. 515, 518.) The appellate court held that the trial court properly instructed the jury on the applicable principle, to wit, that if several thefts were done pursuant to an initial design to take more than $200, and if more than that amount was taken, there was a single crime of grand theft; however, if there was no such initial design the taking of less than $200 was petty theft. (Id. at pp. 518-520.)
In Packard, the defendant, an employee of Paramount Studios, was convicted of three counts of grand theft based upon his forming a fake production company and submitting phony invoices to bill the studio for the reproduction of nonexistent scripts. Over a three-year period, Paramount issued checks to the company in excess of $472,000. (People v. Packard, supra, 131 Cal.App.3d at p. 625.) On appeal, the defendant contended he was improperly convicted of three counts because the takings were all part of a continuing scheme to steal money from Paramount. The appellate court agreed that such was the only reasonable conclusion to be drawn from the evidence and reversed two of the counts. (Id. at pp. 626, 631.)
The flaw in defendant's argument is that, unlike Bailey and Packard, there is no substantial evidence that defendant's thefts were part of a plan or scheme to steal from particular victims. Indeed, rather than showing that defendant obtained the cards to steal from any specific sources, defendant's use of the cards from October 11 through October 14 show nothing more than that the cards were used to steal from random targets of opportunity as the occasion arose. He committed a separate and stand-alone crime and harbored a separate intent to steal from each of his victims on each of the occasions he fraudulently used the cards. It does not matter here that he repeated his crimes over and again against the same victim. Consequently, Bailey and Packard are factually distinguishable.
V Section 4019 Credits
Pursuant to this court's miscellaneous order No. 2010-002, we deem defendant to raise whether amendments to section 4019, effective January 25, 2010, which provide two days of conduct credit for every two days actually served for eligible prisoners, apply retroactively to his pending appeal and entitle him to additional presentence credits. (Sen. Bill No. 18, Stats. 2009, 3d Ex. Sess., 2009-2010, ch. 28, § 50.) We conclude that the amendments do apply to all eligible prisoners whose appeals were pending as of January 25, 2010. (See In re Estrada, supra, 63 Cal.2d at p. 745 [amendment lessening punishment applies to acts committed before its passage if conviction is not final]; People v. Hunter (1977) 68 Cal.App.3d 389, 393 [applying Estrada to amendment allowing custody credits]; People v. Doganiere (1978) 86 Cal.App.3d 237 [similar].)
Further, the Legislature enacted Senate Bill No. 76 (2009-2010 Reg. Sess.); Statutes 2010, chapter 426, section 1, effective September 28, 2010, which provides for eligible prisoners one day of conduct credit for each actual day served, thereby eliminating the loss of one day of presentence conduct credit under the rate specified by the January 25 amendments when the defendant serves an odd number of days of presentence custody. (See § 2933, subd. (e).) For the same reasons we concluded the January 25 amendments should be retroactively applied we likewise find similarly for the September 28 amendments.
Count 28, a violation of section 484g is reduced to a misdemeanor and the matter is remanded for resentencing on that count. The trial court is directed to prepare an amended abstract of judgment reflecting the combined sentencing in case Nos. 07F9577 and 07F8873. If defendant is an eligible prisoner, he is to be awarded presentence credits pursuant to section 2933. The court is directed to prepare an amended abstract of judgment reflecting these modifications and forward a copy to the Department of Corrections and Rehabilitation.
We concur: NICHOLSON , Acting P. J. ROBIE , J.
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