IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Calaveras)
September 19, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
PAUL FRANCOISE LAMB, DEFENDANT AND APPELLANT.
(Super. Ct. No. F4513B)
The opinion of the court was delivered by: Hull , J.
P. v. Lamb 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
After denial of his motion to suppress, defendant entered a negotiated plea of no contest to possessing a forged driver's license (Pen. Code, § 470b; further undesignated section references are to the Penal Code), five counts of passing a false check (§ 470, subd. (d)), two counts of possessing a fictitious check (§ 476), three counts of receiving stolen property (§ 496, subd. (a)), two counts of false impersonation (§ 529, subd. 3), possession of personal identifying information of 10 or more persons (§ 530.5, subd. (c)(3)), and three counts of burglary (§ 459). He also admitted four special allegations for prior prison terms (§ 667.5, subd. (b)). The trial court thereafter denied defendant's motion to withdraw his plea and sentenced him to an aggregate state prison term of 17 years, 8 months.
Defendant appeals, challenging the denial of his motions to suppress and to withdraw his plea. He also contends his sentence on several counts must be stayed pursuant to section 654, consecutive sentences were not validly imposed on some counts, and he is entitled to additional presentence credits. We reject defendant's challenges to his motions but agree in part on his other contentions. We therefore affirm in part and reverse in part.
Facts and Proceedings
In light of defendant's plea, the facts are taken from the preliminary hearing and the hearing on defendant's motion to suppress.
On February 2, 2009, T.W. was traveling northbound on Highway 49 north of Sonora when she came up behind a black Dodge Neon. There were two people in the Neon, a male driver and a female front passenger. T.W. observed the female pushing and hitting the male and pulling on the steering wheel, causing the car to swerve over the center line and back over the curb. The female was also waving her arms and yelling at the male. T.W. called 9-1-1 and reported her observation, indicating the car was being driven erratically with speed variations and she was afraid they might hurt someone. She also described the car and reported the license plate number. She gave her name, home telephone number and cell phone number.
At approximately 11:00 p.m., Officer Daniel Gomez received a report about a female subject striking a male subject in a black Dodge Neon. He was informed the registered owner of the car was Jamie Borges. Thereafter, Gomez saw and stopped a car matching the description. The driver of the car was defendant, and the female passenger was Jamie Borges.
Gomez requested identification from defendant and defendant said he lost his driver's license. Defendant identified himself as Matthew W. Gomez asked defendant to step out of the car in order to separate him from Borges. He placed defendant in the back seat of his patrol car with the door open.
Gomez questioned both defendant and Borges and each indicated there had been a verbal argument only. He could see no marks of a fight on the occupants except a cut on Borges's hand. Gomez checked on the driver's license for Matthew W. and learned it had expired. He also called T.W., who confirmed what she had reported to the 9-1-1 operator.
Borges gave Gomez consent to search her car. Gomez found a driver's license containing the name of Matthew W. and a photograph of defendant. However, the license appeared to him to be a forgery. Gomez ran the number on the license and it came up belonging to Lorraine T. Gomez also found in the car hundreds of preprinted blank checks. The name Matthew W. was on many of these checks, with different company names. He found checks containing other names as well, blank check paper and ink cartridges.
Also in the car were various items of merchandise and tools, along with receipts from various stores totaling approximately $14,000. Gomez found four visa gift cards, a visa debit card, a Walgreens card, an American Express gift card, and an AT&T refill card. Defendant and Borges informed Gomez they were on their way to visit a friend in Angels Camp named Lorie B.
Defendant was arrested and taken to jail, where he admitted his name was Paul Lamb. Tags for various clothing items purchased at TJ Maxx were found in defendant's pockets.
During a subsequent search of the home of Lorie B., officers found in a room that defendant had been occupying additional blank checks, a printer, various merchandise, and check-writing computer software. Lorie B. claimed that other items found in the house, such as a set of pots, an Xbox and a computer router, had been given to her by defendant as gifts.
Subsequent investigation revealed that many of the items found in the car or at the home of Lorie B. had been purchased using forged checks and false identification. Defendant and Borges were seen on surveillance cameras making some of the purchases.
Defendant was charged with possessing a forged driver's license, five counts of passing fraudulent checks, two counts of possessing fraudulent checks, four counts of receiving stolen property, two counts of false impersonation, possession of the personal identifying information of 10 or more people, three counts of entering a public building with intent to commit larceny, and providing false identification to a police officer. He was also charged with four special allegations for prior convictions.
After defendant's motion to suppress was denied, he entered no contest pleas to all charges except one count of receiving stolen property and providing false identification to a police officer. Defendant's subsequent motion to withdraw his plea was denied.
Defendant was sentenced to an aggregate term in state prison of 17 years, 8 months, consisting of the upper term of three years on the possession of a forged driver's license charge, consecutive one-third middle terms of eight months on each of the other charges, and one year each for the special allegations.
Motion to Suppress
Defendant contends the trial court erred in denying his motion to suppress. He argues the traffic stop was unlawful, as it was based solely on statements received from an unknown informant.
"[T]he temporary detention of a person for the purpose of investigating possible criminal activity may, because it is less intrusive than an arrest, be based on 'some objective manifestation' that criminal activity is afoot and that the person to be stopped is engaged in that activity. [Citations.]" (People v. Souza (1994) 9 Cal.4th 224, 230.) "A detention is reasonable under the Fourth Amendment when the detaining officer can point to specific articulable facts that, considered in light of the totality of the circumstances, provide some objective manifestation that the person detained may be involved in criminal activity." (Id. at p. 231.)
In Alabama v. White (1990) 496 U.S. 325 [110 L.Ed.2d 301], the police received an anonymous tip that a woman was carrying cocaine in an attache case and would be leaving an apartment building at a specific time, get into a car of a certain description, and drive to a specific motel. Acting on the tip, the police conducted surveillance and observed the woman proceed as predicted. She was then stopped, searched and cocaine was found in an attache case in her vehicle. (Id. at p. 327 [110 L.Ed.2d at pp. 306-307].)
The United States Supreme Court concluded the tip alone did not justify the stop, but the tip coupled with observations of the defendant's movements in accordance with the tipster's predictions made it reasonable to think the tipster had inside information about the suspect and therefore credit his assertion about illegal activity. (Alabama v. White, supra, 496 U.S. at p. 332 [110 L.Ed.2d at p. 310].)
In Florida v. J.L. (2000) 529 U.S. 266 [146 L.Ed.2d 254] (J.L.), an anonymous caller reported that a young black male standing at a bus stop and wearing a plaid shirt was carrying a gun. Sometime later, officers arrived at the bus stop and observed three black males "'just hanging out [there].'" (Id. at p. 268 [146 L.Ed.2d at p. 259].) One of the three, J.L., was wearing a plaid shirt. The officers did not see a firearm and J.L. made no threatening or otherwise unusual movements. One of the officers approached J.L., frisked him, and found a gun. (Ibid.)
The federal high court concluded the information received by the police was insufficient to justify the stop and frisk. According to the court, the anonymous tip "lacked the moderate indicia of reliability present in [Alabama v. White] and essential to the Court's decision in that case. The anonymous call concerning J.L. provided no predictive information and therefore left the police without means to test the informant's knowledge or credibility." (J.L., supra, 529 U.S. at p. 271 [146 L.Ed.2d at p. 260].)
The court rejected the state's argument that reliability could be based on the tipster's description of the physical characteristics of the defendant, i.e., a black male wearing a plaid shirt at a bus stop. The court explained: "An accurate description of a subject's readily observable location and appearance is of course reliable in this limited sense: It will help the police correctly identify the person whom the tipster means to accuse. Such a tip, however, does not show that the tipster has knowledge of concealed criminal activity. The reasonable suspicion here at issue requires that a tip be reliable in its assertion of illegality, not just in its tendency to identify a determinate person." (J.L., supra, 529 U.S. at p. 272 [146 L.Ed.2d at p. 261].)
In People v. Saldana (2002) 101 Cal.App.4th 170 (Saldana), the police received an anonymous tip from a pay phone that a gray Ford Taurus station wagon with a license number ending in "319" was parked in the parking lot of a restaurant at the intersection of San Gabriel and Garvey in the City of Rosemead and the driver was carrying a gun and a kilo of cocaine. An officer went to the indicated parking lot and observed a vehicle matching the description. He entered the license plate number in his mobile terminal and determined the name and address of the registered owner, Jose Saldana. He then entered that address in his terminal and received information that a person living at that address was wanted on a warrant. (Id. at pp. 172-173.)
Approximately an hour later, the officer observed the defendant exit the restaurant, enter the station wagon and drive away. With the assistance of other units, the officer effected a traffic stop. After obtaining the defendant's consent to search the vehicle, the officers discovered a bag of marijuana. However, they did not find either a gun or cocaine. (Saldana, supra, 101 Cal.App.4th at p. 173.)
The trial court denied the defendant's suppression motion, but the Court of Appeal reversed. The appellate court concluded the matter was indistinguishable from J.L. (Saldana, supra, 101 Cal.App.4th at p. 176.) The court explained: "There was an anonymous telephone tip. The tip contained no internal indicia of the basis for or reliability of the informant's information. The tip did not include predictive information that could be corroborated by observation. The observed corroboration that a vehicle fitting the description was indeed present at the described location did not corroborate the criminal element of the tip that the station wagon contained a gun or cocaine. Appellant's observed conduct of exiting the restaurant, entering the station wagon, and driving away was not suspicious." (Id. at p. 175.) The court found the additional factor of an outstanding warrant for someone living at the defendant's residence immaterial, as "it had no logical tendency to prove that the current driver of the station wagon was currently in possession of a gun or cocaine." (Ibid.)
In support of his motion to suppress, defendant relied primarily on Saldana and, by implication, J.L. The trial court concluded the present matter is more akin to People v. Coulombe (2000) 86 Cal.App.4th 52 (Coulombe) than Saldana or J.L. In Coulombe, two separate citizens, approximately five to ten seconds apart, approached police officers at a New Year's Eve celebration, pointed toward a restaurant, and indicated that a man wearing a white cap had a gun. The officers entered the restaurant and observed the defendant, who was the only one wearing a white cap. The officers approached the defendant, told him why they were there and asked if he had any weapons. The defendant denied carrying any weapons, but clutched the right side pocket area of his pants. Concerned for their safety, the officers searched the defendant and discovered a revolver. (Coulombe, at pp. 54-55.)
The trial court granted the motion to suppress but the Court of Appeal reversed. The appellate court distinguished J.L. on several bases. First, the tip had been provided by two separate informants five to ten seconds apart. In addition, the tip had not been provided by telephone but in person, thereby giving the officers an opportunity to observe the citizen informants and assess their credibility. By providing the tips in person, the citizens "subjected themselves to scrutiny and the risk of losing their anonymity." (Coulombe, supra, 86 Cal.App.4th at p. 58.) Finally, the circumstances of the alleged gun possession were "markedly different" from those in J.L. In Coulombe, "the possession occurred not at a bus stop with only two of the suspect's friends present, but rather in a throng of thousands of New Year's Eve celebrants. The danger presented was thus much increased." (Ibid.)
The People argue the present matter is distinguishable from each of the foregoing cases in that, here, the citizen informant was not anonymous but rather identified herself and gave both her home and cell phone numbers. They further argue the present matter involved a contemporaneous report of criminal activity, as in Coulombe. In addition, the People assert the present matter involved activity that posed an immediate threat to the public.
The People rely, inter alia, on People v. Wells (2006) 38 Cal.4th 1078 (Wells). In Wells, a CHP officer received an anonymous tip about a possibly intoxicated driver weaving all over the road. The subject vehicle was described as an 80's model blue van traveling northbound on Highway 99. The officer was headed southbound on Highway 99 at the time about three to four miles north of the indicated location. He pulled over to the shoulder and waited. Two or three minutes later, the officer saw a blue van drive by and immediately effected a traffic stop. Prior to the stop, the officer did not observe any erratic driving of the van. The driver was eventually arrested for driving under the influence. (Id. at p. 1081.)
The California Supreme Court granted review to consider the following issue: "Does an anonymous and uncorroborated tip regarding a possibly intoxicated highway driver afford a police officer reasonable suspicion sufficient to justify a temporary detention to investigate further?" (Wells, supra, 38 Cal.4th at p. 1082.) In resolving that issue, the court relied heavily on United States v. Wheat (8th Cir. 2001) 278 F.3d 722 (Wheat), in which the Circuit Court of Appeals distinguished the circumstance of a traffic stop of a suspected drunk driver from the pat search of an individual suspected of carrying a gun, as in J.L. In Wheat, the court indicated cases allowing the traffic stop stress the accuracy of the informant's description and location of the vehicle, the greater urgency presented by reckless highway drivers, and the minimal intrusion involved in a vehicle stop. (Wheat, supra, 278 F.3d at pp. 729-730.)
As described by the California Supreme Court, "Wheat concluded that tips of drunken or erratic driving may indeed provide reasonable suspicion justifying a traffic stop if the following factors are present: First, the tipster must furnish sufficient identifying information regarding the vehicle and its location, so the officer and reviewing courts may be reasonably sure the vehicle stopped is the one identified by the caller. [Citation.] Second, the tip should indicate the caller had actually witnessed a contemporaneous traffic violation that compels an immediate stop, rather than merely speculating or surmising unlawful activity. [Citation.] And third, at least the 'innocent details' of the tip must be corroborated by the officers. [Citation.]" (Wells, supra, 38 Cal.4th at p. 1086.)
The California Supreme Court ultimately agreed with Wheat that the situation presented by a reckless driver is distinguishable from that presented in J.L.: "First, a report of a possibly intoxicated highway driver, 'weaving all over the roadway,' poses a far more grave and immediate risk to the public than a report of mere passive gun possession. . . . [¶] . . . [¶] Second, doubts regarding the tipster's reliability and sincerity are significantly reduced in the setting of a phoned-in report regarding a contemporaneous event of reckless driving presumably viewed by the caller. Instances of harassment presumably would be quite rare. [Citations.] [¶] Third, the level of intrusion of personal privacy and inconvenience involved in a brief vehicle stop is considerably less than the 'embarrassing police search' on a public street condemned by J.L. . . . We have observed that 'in light of the pervasive regulation of vehicles capable of traveling on the public highways, individuals generally have a reduced expectation of privacy while driving a vehicle on public thoroughfares.' [Citation.] [¶] . . . [¶] Fourth, the relatively precise and accurate description given by the tipster in the present case regarding the vehicle type, color, location, and direction of travel, all confirmed by the investigating officer within minutes of receiving the report, enhanced the reliability of the tip." (Wells, supra, 38 Cal.4th at pp. 1087-1088.)
The present matter is controlled by Wells. Although the citizen informant did not report suspected drunk driving, she nevertheless reported such erratic driving that she feared for public safety. The details recounted by the informant regarding the description of the car and its occupants and the direction it was traveling were confirmed by Officer Gomez prior to the traffic stop. Furthermore, unlike Wells or the other cases described above, the informant in this matter was not altogether anonymous. She provided both her name and two phone numbers. Granted, as defendant points out, at the time of the traffic stop, nobody took the effort to confirm the accuracy of the name or the phone numbers, which could have proved false. Nevertheless, the fact the informant identified herself adds to the totality of the circumstances. In this instance, as in Wells, Officer Gomez was justified in effecting a traffic stop to investigate the matter. Thus, the trial court did not err in denying defendant's motion to suppress.
Motion to Withdraw Plea
Defendant contends the trial court abused its discretion in denying his motion to withdraw his plea in light of indications in the record that he was not fully informed of the consequences of his plea. In particular, defendant cites the following exchange at the time of the plea, as reflected in the reporter's transcript:
"THE COURT: Have you had enough time to talk over the facts and circumstances and defenses with your lawyer?
"DEFENDANT: I don't think so."
The court then proceeded to question defendant about whether he was under the influence of any drugs, alcohol or medication, without acknowledging the foregoing response. Defense counsel later informed the court he had had sufficient time to confer with his client.
At the time of the motion to withdraw the plea, the trial court indicated that, assuming defendant had responded as indicated in the reporter's transcript, the court must not have heard him. The court explained that its normal procedure in such circumstance is to suspend the hearing and allow the defendant further time to consult with his attorney, which did not occur here. At the hearing on defendant's motion to withdraw his plea, both defense counsel testified that defendant did not at any time say he needed more time to confer with them.
In denying the motion, the court ultimately concluded that, notwithstanding the verbal response, defendant acknowledged in his written plea form that he had had sufficient time to consult with his attorney, which form cannot be subject to misinterpretation.
"On application of the defendant at any time before judgment . . ., the court may, . . . for a good cause shown, permit the plea of guilty to be withdrawn and a plea of not guilty substituted." (§ 1018.) Where, as here, the defendant was represented by counsel at the time of the guilty plea, the court has discretion whether to permit withdrawal of the plea upon a showing of good cause. (People v. Cruz (1974) 12 Cal.3d 562, 566.) "Mistake, ignorance or any other factor overcoming the exercise of free judgment is good cause for withdrawal of a guilty plea. [Citations.] But good cause must be shown by clear and convincing evidence." (Ibid.)
A trial court's denial of a motion to withdraw a guilty plea will not be disturbed unless abuse of discretion is shown. (People v. Holmes (2004) 32 Cal.4th 432, 442-443; People v. Wharton (1991) 53 Cal.3d 522, 585.) We "must adopt the trial court's factual findings if substantial evidence supports them." (People v. Fairbank (1997) 16 Cal.4th 1223, 1254.) Moreover, "'pleas resulting from a bargain should not be set aside lightly and finality of proceedings should be encouraged.'" (People v. Weaver (2004) 118 Cal.App.4th 131, 146.)
In the present matter, we cannot say the trial court abused its discretion in denying defendant's motion to withdraw his plea. The key inquiry in light of defendant's allegations is whether he, in fact, entered the plea knowingly and intelligently. In this regard, defendant contends he did not have enough time to consult with counsel before entering his plea. This is based solely on his purported statement that he did not think he had sufficient time to talk to his attorney. However, defendant does not explain what it is he needed to discuss further with counsel before entering his plea, except as to certain peripheral sentencing consequences of the plea. For example, defendant does not allege he did not have sufficient time to discuss his chances of prevailing at trial or the maximum exposure if he rejected the plea agreement. Defendant does not contend he did not have sufficient time to discuss with counsel the evidence for and against him.
The only claim defendant makes is that he was not aware of all the fines and penalties that would be imposed in addition to his nearly 18-year prison sentence. But, with only one exception, defendant acknowledged at the plea hearing that he understood each of the fines and penalties that could be imposed. The one exception was a court security fee of $20 which, when asked if he was aware of it, defendant answered, "I am now, sir." Of course, as the People point out, this statement came after defendant's purported statement that he had not had enough time to consult with counsel. Thus, it could not have been the basis for such comment. Furthermore, it is inconceivable that a $20 fee, in light of the many thousands of dollars of fines and fees defendant also faced and the approximately 18-year prison sentence, would have had any impact on his plea decision. Thus, we find no abuse of discretion in denying defendant's motion to withdraw his plea.
Voluntariness of Plea
Defendant contends that, in light of his "I don't think so" response to the question whether he had had enough time to confer with counsel, his plea was not voluntary and knowing. However, for the same reasons we reject defendant's contention that the trial court erred in denying his motion to withdraw the plea, we reject this contention. Defendant has not demonstrated how he was not made aware of the consequences of his plea. In light of defendant's overall exposure to prison and monetary fines, of which he was fully aware, the fact that he may not have been aware of a court security fee of $20 must be considered de minimus.
Penal Code Section 654
Defendant contends his sentence on a number of counts must be stayed pursuant to section 654 because the same conduct gave rise to multiple convictions. The People concede the sentence on one count must be stayed.
Section 654 reads: "(a) 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. . . ." Although section 654 speaks in terms of "an act or omission," it has been judicially interpreted to include situations in which several offenses are committed during a course of conduct deemed indivisible in time. (People v. Beamon (1973) 8 Cal.3d 625, 639.)
"'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 contends he cannot be punished separately on count one, in light of his punishment on counts 2 through 5. Count 1 charged a violation of section 470b, which reads: "Every person who displays or causes or permits to be displayed or has in his possession any [altered or falsified] driver's license or identification card . . . with the intent that such driver's license or identification card be used to facilitate the commission of any forgery, is punishable by imprisonment in the state prison, or by imprisonment in the county jail for not more than one year." Counts 2 through 5 charged forgery, in violation of section 470, subdivision (d). That section prohibits, among other things, knowingly passing a check known to be false, altered, forged or counterfeited with intent to defraud.
Defendant contends that in each of the forgery counts, he both counterfeited a check and then used the falsified driver's license of Matthew W. to pass the check as genuine in order to obtain merchandise. Thus, defendant argues, his display of the false driver's license was solely for the purpose of facilitating the forgeries. As such, he cannot receive separate punishment for both crimes, and the sentence on count 1 must be stayed.
We disagree. When defendant was stopped by Officer Gomez on February 2, he was in constructive possession of a false driver's license containing the name of Matthew W. This was a violation of section 470b separate and apart from defendant's prior use of the driver's license to facilitate a string of forgeries. At the time of defendant's arrest, he was also in constructive possession of a number of fraudulent checks which could easily be used in conjunction with the driver's license to facilitate future forgeries. Separate punishment was therefore appropriate.
Defendant raises the same argument with respect to counts 7 and 8, which charged a violation of section 476. That section reads: "Every person who makes, passes, utters, or publishes, with intent to defraud any other person, or who, with the like intent, attempts to pass, utter, or publish, or who has in his or her possession, with like intent to utter, pass, or publish, any fictitious or altered . . . check . . . is guilty of forgery." In each count, defendant was charged with possession of a fictitious check with intent to utter, pass or publish.
Again we disagree. At the time of defendant's arrest, he was in constructive possession of a false driver's license of Matthew W. He was also in constructive possession of checks with the name of Matthew W. imprinted on them. However, some of the checks in defendant's possession contained other names. Thus, even if defendant were correct that his possession of the driver's license of Matthew W. and checks imprinted with the same name were for a common purpose of using the checks to obtain merchandise, the same cannot be said of defendant's possession of the driver's license and checks imprinted with other names. Thus, separate punishment is permitted.
Defendant contends he cannot be punished separately on count 1 and either the three charges of receiving stolen property (§ 496; counts 9, 14, 15) or the three charges of burglary (§ 459; counts 16, 17, 18). In each of the latter charges, defendant argues, he used the false identification to commit the crime. However, for the same reasons as described above, defendant could be punished separately for his possession of the false driver's license at the time of his arrest and his earlier use of that license to commit the other offenses.
Defendant next contends he cannot be punished separately on counts 3 and 5 as well as counts 7 and 8. As noted above, counts 3 and 5 charged the actual passing of a forged check, whereas counts 7 and 8 charged possession of a forged check. Counts 3 and 7 concerned a common victim, as did counts 5 and 8. Defendant argues the prosecutor asserted the counterfeited check charged in count 3 was the same check that was used to purchase merchandise charged in count 7 and the counterfeited check charged in count 5 was the same check used in count 8. That is not correct. The prosecutor said that, as to count 3, that there were 17 checks found in defendant's possession with the same victim's name on them. As for count 5, there were four checks containing the same victim's name. Regarding counts 7 and 8, the prosecutor said nothing about those being based on the same checks charged in counts 3 and 5. The same checks that were used to purchase merchandise prior to defendant's arrest, as alleged in counts 3 and 5, obviously could not have been in defendant's possession at the time of his arrest, as charged in counts 7 and 8. A defendant can be punished separately for passing a fictitious check on one occasion and possessing additional checks relating to the same victim on another.
Defendant next contends he cannot be punished separately on count 10, which charged false impersonation of Matthew W. in violation of section 529, subdivision 3. Section 529, subdivision 3, makes it a crime to falsely impersonate another and, while doing so, obtain a benefit or impose a burden on the individual whose identity is assumed. As above, defendant argues the false impersonation of Matthew W. was for the purpose of facilitating the other crimes alleged in counts 1 through 5. Thus, defendant argues, he cannot be punished both on counts 1 through 5 and on count 10.
False impersonation in violation of section 529, subdivision 3, requires more than just assuming another's identity. (See People v. Chardon (1999) 77 Cal.App.4th 205, 211-213.) It also requires that, while in the guise of the other person, the defendant "[d]oes any other act whereby, if done by the person falsely personated, he might, in any event, become liable to any suit or prosecution, or to pay any sum of money, or to incur any charge, forfeiture, or penalty, or whereby any benefit might accrue to the party personating, or to any other person." (§ 529, subd. 3.)
The People contend defendant violated section 529, subdivision 3, separate and apart from his use of Matthew W.'s identity to obtain merchandise, when he identified himself as Matthew W. to Officer Gomez at the time of the traffic stop. The People argue the use of Matthew W.'s identity under these circumstances subjected Matthew W. to prosecution for driving without a valid license because, as it turned out, the driver's license of Matthew W. had expired.
We disagree. Both the language of section 529, subdivision 3, and the relevant authorities require that the defendant commit some other act in addition to the false impersonation. In People v. Robertson (1990) 223 Cal.App.3d 1277, the defendant's conviction under section 529, subdivision 3, was upheld where, in addition to giving his brother's name at the time of his arrest, the defendant signed his brother's name to booking and own-recognizance release forms at the time of his release from jail. (Id. at pp. 1279, 1282.) In People v. Cole (1994) 23 Cal.App.4th 1672, the defendant gave the false name "Larry Quesenberry" at the time of his arrest along with Quesenberry's date of birth. When asked if his middle name was "Ray," which was Quesenberry's middle name, the defendant answered affirmatively. The Court of Appeal concluded providing the date of birth and middle name were all part of the false impersonation and did not qualify as other acts for purposes of section 529, subdivision 3. (Id. at pp. 1674-1676.) In People v. Chardon, supra, 77 Cal.App.4th 205, the defendant was stopped for speeding and identified herself to the arresting officer as Michelle Chardon, which was her sister's name. After the officer determined that Michelle Chardon had a valid driver's license, he wrote up a citation in the sister's name. The defendant signed her sister's name to the citation's promise to appear. (Id. at pp. 208-209.) The Court of Appeal concluded the separate act of signing her sister's name to the citation was sufficient to support the defendant's conviction under section 529, subdivision 3. (Id. at pp. 212-213.)
In the present matter, there is no evidence defendant did anything more at the time of his arrest than identify himself as Matthew W. Thus, this act alone cannot support count 10. And because the only other acts that could support a violation of section 529 subdivision 3, were those charged in counts 1 through 5, section 654 bars separate punishment on count 10.
Defendant was charged in count 11 with false impersonation of Gabriel D. In count 14, defendant was charged with receiving stolen property from Treat's and in count 15 with receiving stolen property from Calaveras Lumber. According to the evidence presented at the preliminary hearing, defendant used the identification of Gabriel D. to facilitate forgeries at those two establishments.
Defendant contends he cannot be punished for both the receiving stolen property counts and the false impersonation. The People concede error, and we accept the concession. Defendant's sentence must be modified to stay the punishments on counts 10 and 11.
In imposing consecutive sentences on all counts, the court explained "the crimes were each committed independently of one another at different times and different places." Defendant argues this factual determination is "demonstrably untrue" as to the offenses charged in counts 1, 7, 8, 10 and 11. We agree.
Inasmuch as we have concluded separate punishment on counts 10 and 11 is not permitted, the question whether such punishment could run consecutively is rendered moot.
As explained above, count 1 is based on defendant's possession at the time of his arrest of the false driver's license of Matthew W. Counts 7 and 8 were based on defendant's possession at the time of his arrest of fraudulent checks bearing names other than Matthew W. Thus, all three offenses were committed at the same time and place.
Section 669 imposes an affirmative duty on a sentencing court to determine whether the terms of imprisonment for multiple offenses are to be served concurrently or consecutively. (In re Calhoun (1976) 17 Cal.3d 75, 80-81.) That decision is left to the court's discretion. (People v. Jenkins (1995) 10 Cal.4th 234, 255-256.) The sentencing court is required to state reasons for its sentencing choices. (Cal. Rules of Court, rule 4.406(b)(5); People v. Walker (1978) 83 Cal.App.3d 619, 622.) This ensures that the sentencing judge analyzes the problem and recognizes the grounds for the decision, assists meaningful appellate review, and enhances public confidence in the system by showing sentencing decisions are careful, reasoned, and equitable. (People v. Martin (1986) 42 Cal.3d 437, 449-450.)
In the present matter, the trial court gave a single reason for imposing consecutive sentences on counts 7 and 8--the fact that they were committed independently of each other at different times and different places. However, because that is not factually true, we must conclude the court abused its discretion in imposing such consecutive sentences. The matter must be remanded to allow the court to exercise its discretion in light of the facts and circumstances presented.
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 argues the increased credits apply retroactively to cases on appeal on the effective date. We agree.
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 for certain defendants. 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, ch. 28, § 50 (2009-2010 3d Ex. Sess.).) 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 it is to be applied prospectively only. We conclude the amendments apply retroactively to defendants sentenced prior to the 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].)
It is undisputed the nature of defendant's conviction in this matter and prior convictions do not disqualify him from the benefits of this new legislation. Defendant was sentenced on November 6, 2009. By that time, he had served 278 days in presentence custody. He is therefore entitled to 278 days of conduct credit, for a total of 556 days of presentence credit. We shall order the judgment modified accordingly.
In his opening brief, defendant contended he is entitled to an additional day of actual custody credit for the period from his arrest on February 2, 2008, to sentencing on November 6, 2009, but an equal reduction in conduct credit. The People responded that defendant miscalculates the actual number of days in custody and, in his reply brief, defendant concedes such error. As for conduct credits, we have already determined defendant is entitled to an equal number of conduct credits as his actual credits.
The judgment is modified to reflect a stay of the sentences imposed on counts 10 and 11 and a total of 556 days of presentence credit, consisting of 278 days of custody credit and 278 days of conduct credit. The matter is remanded to the trial court for a redetermination of whether the sentences on counts 7 and 8 should run concurrently or consecutively. In all other respects, the judgment is affirmed. Following determination of whether counts 7 and 8 should run concurrently or consecutively, the trial court is directed to prepare an amended abstract of judgment to reflect this fact as well as the foregoing modifications and to forward a certified copy to the Department of Corrections and Rehabilitation.
BLEASE , Acting P. J.
MAURO , J.
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