P. v.
Filed 6/21/12 P. v. Adams
CA1/4
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opinion has not been certified for publication or ordered published for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.
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST
APPELLATE DISTRICT
DIVISION
FOUR
THE PEOPLE,
Plaintiff and Respondent,
v.
CLIFFORD
EDWARD ADAMS,
Defendant and Appellant.
A129713
(San Mateo
County
Super. Ct.
No. SC069895A)
Defendant
Clifford Edward Adams appeals a judgment entered upon a jury verdict finding
him guilty of identity theft (Pen.
Code,
§ 530.5, subd. (a)) (count one); grand theft (§ 487, subd. (a)) (count
two); commercial burglary (§ 460,
subd. (b)) (count three); and access card fraud (§ 484g) (count
four). The trial court found true
several prior conviction and prison term allegations. The court imposed a six-year sentence for
count one, a concurrent sixteen-month sentence for count three, and a one-year
enhancement pursuant to section 667.5, subdivision (b). Sentence on the remaining counts was stayed
pursuant to section 654. Defendant
contends the trial court committed sentencing error. We shall order the judgment modified to stay
the sentence on count three, and affirm in all other respects.
BACKGROUND
Chase
Bank had issued a credit card to one of the victims of the identity theft,
Noushin Oshidari. Her husband, Babak
Hemati, filed the card away, and the couple did not use it. In January 2009, they received notification
from Chase Bank that there had been a request for a change of address on the
card, although they had never requested the change themselves and were
unfamiliar with the new address, which was on MacArthur
Boulevard in Oakland. Hemati and Oshidari did not know defendant
and never gave him permission to use the card.
Several
charges appeared on the card which Oshidari had not authorized; they were a
charge of $5,150 at a merchant or bank in San Pablo, a transaction of $5,000 at
a financial institution in Stockton, a $5,000 transaction at Wells Fargo in El
Cerrito, a $5,111.99 transaction at Lucky Chances in Colma, a $4,635
transaction in San Pablo, and two transactions, one of $4,240 and the other of
$4,470, at the GCA Napa Valley Casino in American Canyon. Oshidari had not authorized any of those
transactions, which took place on January 7, 8, and 9, 2009.
Pinky
Nacional, who worked as a cashier at the Lucky Chances Casino (Lucky Chances)
in Colma in January 2009, testified that customers could receive cash advances
on their credit cards. On January 9, 2009, she issued to
defendant a cash advance of $5,000, with an added service charge of
$111.99. Defendant used a credit card
with Oshidari’s account number and the name Clifford Adams name printed on the
card.
Cecilia
Garay, a detective with the Town of Colma
and the County of San
Mateo, testified about various methods of
identity theft. One method is an
“account takeover,†in which identifying information is stolen from real estate
agents, car dealerships, or mortgage companies, then used to add other names
onto a credit card account. Another
method is “skimming,†which occurs when account information is taken directly
from a victim’s card and transferred to another card. Equipment to emboss names onto credit cards
is readily available on the internet.
Equipment is also available that can encode account information onto a
card. People involved in identity theft
commonly work as a group.
Garay
interviewed defendant after the incident at Lucky Chances. After Garay told him he had been identified,
defendant said that someone had “made him do it,†that a woman he knew only as
Pokey had asked him to use some credit cards she had, and that Pokey and a friend
of hers named Herby would pick him up from his home in Stockton and take him to
casinos where he could withdraw large sums of money with a credit card. He acknowledged having withdrawn a total of
approximately $20,000 at casinos in San Pablo, Colma, and Napa. He gave the money to Pokey and Herby, and
received $1,200 from them. He said Pokey
arranged to have credit reports stolen from mortgage companies; she would then
call the credit card companies and have cards sent to the address on MacArthur
Boulevard in Oakland.
II.
DISCUSSION
A.
Concurrent
Sentences
The
trial court treated count one, identity theft (§ 530.5, subd. (a)), as the
principal offense, and imposed a concurrent term for count three, commercial
burglary (§ 460, subd. (b)).
Defendant argues the sentence on count three should instead have been
stayed pursuant to section 654.
name="_ftnref3" title="">[3]
“[S]ection
530.5, subdivision (a) provides in relevant part: “ ‘Every person who willfully obtains
personal identifying information, as defined in subdivision (b) of Section
530.55, of another person, and uses that information for any unlawful purpose,
including to obtain, or attempt to obtain, credit, goods, services, real
property, or medical information without the consent of that person, is guilty
of a public offense . . . .’ Thus, to be
guilty under section 530.5, subdivision (a), the defendant must (1) willfully
obtain personal identifying information of another person, and (2)
unlawful purpose without the person’s consent.â€
(People v. Tillotson (2007)
157 Cal.App.4th 517, 533, italics added; see also People v. Mitchell (2008) 164 Cal.App.4th 442, 455 [“[I]t is the
an unlawful purpose that completes the crime and each separate use constitutes
a new crimeâ€] (italics added).) The
basis for the burglary conviction was defendant’s entry into Lucky Chances with
the intent to use the credit card unlawfully.
Section
654 has been applied “to preclude multiple punishment where multiple acts, or
offenses, were committed incident to a single intent and objective.†(People
v. Gaio (2000) 81 Cal.App.4th 919, 935.)
However, “[u]nder 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.]â€
(Ibid.; see also
637-638.) “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).)
Defendant
draws our attention to a number of cases in which section 654 has been held to
bar multiple punishment for a burglary and the associated theft, where the
purpose of the burglary was to commit the theft. (See, e.g., People v. Isenor (1971) 17 Cal.App.3d 324, 335-336 [concurrent
sentences for burglary and theft arising out of same occurrence improper];
Cal.App.2d 620, 628-629 [“[w]here a person enters a house to commit theft, and
does commit theft, he may be guilty of both burglary and larceny, but under the
‘one objective’ test he may be punished for only one offenseâ€];
29, 32 [section 654 “forbids multiple punishment for separate indivisible
crimes arising out of a single act which were the means and were incidental to
the accomplishment of a single objectiveâ€]; compare People v. Green (1985) 166
Cal.App.3d 514, 518 [section 654 did not bar multiple punishment where intent
to commit robbery and rape was formed after intruders entered residence to
commit theft of other property].)
Defendant
contends the burglary and identity theft fall within this rule. He argues that the crime of identity theft
was not complete until he actually used the credit card at the Lucky Chances,
and that his intent and objective in entering the casino was to facilitate the
unlawful use of the card. (See
1216-1217 (Latimer) [double
punishment for kidnapping and rape barred by section 654 where defendant’s
purpose in driving victim to isolated area was to rape her].)
The
Attorney General disagrees, arguing that this case is governed by
There, the court concluded section 654 did not bar multiple punishment
where the defendant committed identify theft by using a victim’s personal
information to obtain a credit card over the Internet, and committed vehicle
theft by, two weeks later, failing to return a car to a rental agency after she
had rented it using the credit card. (
The court stated: “The weeks
between the commission of these crimes afforded defendant ample opportunity to
reflect and then renew her intent before committing the next crime. [Citation.]
Moreover, these crimes, committed more than two weeks apart, had two
different victims: Ms. Baker and Budget
Rent-A-Car. Accordingly, no plausible
argument can be made that defendant’s sentence on either count should be stayed
under section 654.†(
On
this record, defendant has the better argument.
In finding section 654 applied to counts one (identity theft), two
(grand theft), and four (access card fraud), the trial court explicitly found
that “each crime was based upon the same facts, namely the use of a credit card
to obtain cash on a single occasionâ€â€”that is, the incident at Lucky
Chances. Moreover, in arguing to the
jury that defendant was guilty of identity theft, the prosecutor relied solely
on the events at Lucky Chances to show that defendant used Oshidari’s personal
identifying information for an unlawful
purpose. Thus, unlike the case in
of identity theft was already complete before defendant committed burglary by
entering the casino.
name="_ftnref4" title="">[4] There is no basis to conclude the burglary
was anything other than incidental to defendant’s intent to withdraw money
using the credit card, and there is no evidence of any significant delay
between defendant’s entering the building and his obtaining the money so as to
make the transaction divisible and take it outside the rule of the burglary
cases discussed above.
The
Attorney General argues, however, that section 654 does not apply because the
delay between the time the identity theft began—when defendant acquired the
identifying information or credit card—and the time of the burglary gave
defendant the opportunity to reflect and renew his intent. We are not persuaded by this argument. Defendant’s undisputed intent and objective
in committing the burglary was to facilitate the identity theft. (See Latimer,
supra, 5 Cal.4th at pp.
1216-1217.) Indeed, the only reason his
entry into the casino was a crime at all was the fact that he entered with the
intent to use the credit card unlawfully.
The
Attorney General also contends that under Andra,
multiple punishment was proper because the crimes had different victims—that
is, Oshidari and Hemati were the victims of the identity theft, and Lucky
Chances was the victim of the burglary.
The Attorney General is correct
that there is a “multiple victim†exception to the application of section
654. This exception, however, applies to
crimes of violence committed against
multiple victims. (People
v. Centers (1999) 73 Cal.App.4th 84, 99 (Centers); see also People v.
Solis (2001) 90 Cal.App.4th 1002, 1023.)
“Where, however, the offenses arising out of the same transaction are
not crimes of violence but involve crimes against property interests of several
persons, this court has recognized that only single punishment is
permissible.†(People v. Bauer (1969) 1 Cal.3d 368, 378.) Here, the only interests at stake were
property interests, and the multiple victim exception does not apply. (See Centers,
supra, 73 Cal.App.4th at p. 99
[“Burglary, standing alone, is not a violent crime for purposes of the multiple
victim exception. [Citations.]â€].)
Accordingly,
the trial court should have stayed the sentence on count three rather than
running it concurrently with the sentence in count one. We shall therefore order the judgment
modified to stay the concurrent sentence for count three. (See People
v. Spirlin (2000) 81 Cal.App.4th 119, 131.)
B.
Defendant
contends the evidence does not support the imposition of a one-year enhancement
under section 667.5, subdivision (b). At
the court trial on the enhancement allegations, the District Attorney submitted
defendant’s prison packet (§ 969b), which showed he was convicted of
robbery (§ 212.5, subd. (b)), assault with a firearm (§ 245, subd.
(a)(2)), and being a felon in possession of a firearm (§ 12021,
subd. (a)) in 1993, and sentenced to 16 years in prison. He was released on parole in 2002,
rearrested, and again released on parole in 2003. The evidence also included records from
Oregon, which showed that defendant was convicted of felonies in 2006 and 2007,
and on each occasion placed on probation.
Section
667.5 provides for enhancement of prison terms for new offenses because of
prior prison terms. At the time in
question, subdivision (b) of that section provided: “Except where subdivision (a) [related to
specified violent felonies] applies, where the new offense is any felony for
which a prison sentence is imposed, in addition and consecutive to any other
prison terms therefor, the court shall impose a one-year term for each prior
separate prison term served for any felony; provided that no additional term shall be imposed under this subdivision for any
prison term served prior to a period of five years in which the defendant
remained free of both prison custody and the commission of an offense which
results in a felony conviction.â€
(Former § 667.5, subd. (b), italics added.)
The
parties disagree about the interpretation of the “washout period†established
by the italicized language. Relying on
475, 500-501 (Shoals), defendant
argues that under section 667.5, subdivision (b), he cannot receive the
one-year enhancement unless the People show that he suffered
period following his prison term.
case, concluding that the defendant there was not subject to the enhancement
because “proof of felony convictions and
prison custody during the five-year washout period after defendant’s discharge
from parole [was] not established.†(
As
the Attorney General points out, the court in People v. Fielder (2004) 114 Cal.App.4th 1221, 1229-1231, reached a
different result, stating, “According to the ‘washout’ rule, if a defendant is
free from both prison custody and the
commission of a new felony for any five-year
period following discharge from custody or release on parole, the enhancement
does not apply. [Citations.] Both prongs of the rule, lack of prison time
a felony conviction for a five-year period, are needed for the ‘washout’ rule
to apply. This means that for the
prosecution to prevent application of the ‘washout’ rule, it must show a
defendant either served time in
prison or committed a crime leading
to a felony conviction within the pertinent five-year period. (People
v. Elmore (1990) 225 Cal.App.3d 953, 957 [‘washout’ period does not apply
if defendant committed a new offense resulting in a felony conviction within
five years even without a showing he was incarcerated in state prison as a
result thereof]; People v. Young
(1987) 192 Cal.App.3d 812, 816 [‘We hold that the statute requires a convicted
felon to remain free from prison custody and the commission of an offense
resulting in a felony conviction for a single, continuous five-year period in
order to avoid the enhancement provided in section 667.5, subdivision (b)’];
and People v. Jackson (1983) 143
Cal.App.3d 627, 631 [‘It is self-evident that no five-year period elapsed in
which appellant was free from both prison custody and the commission of offenses resulting in felony convictions as
required by section 667.5, subdivision (b) in order to avoid
enhancement’].)†(Fielder, supra, 114 Cal.App.4th at p. 1229.) The court in Fielder concluded the Shoals
decision was “based upon a misreading of the pertinent statutory language,†and
reasoned instead that the language of the washout provision “requires the
presence of two elements: no prison
custody and no commission of an
offense resulting in a new felony conviction for a five-year period. Therefore, for the prosecution to avoid
application of the ‘washout’ provision, it need only show one of those elements
has occurred.†(Fielder, supra, 114
Cal.App.4th at p. 1231.) We agree
with Fielder’s reading of section
667.5, subdivision (b). Under the plain language
of the statute, to avoid application of
the washout rule, the People need only show that a defendant
the five-year period.
Defendant
does not dispute that he committed new felony offenses in 2006 and 2007, and
that there was therefore no five-year period after his prison term in which he
both was free of prison custody and committed no offense resulting in a felony
conviction. Accordingly, the trial court
properly imposed a one-year enhancement pursuant to section 667.5, subdivision
(b).
>
Defendant’s
sentence is modified so that execution of sentenced imposed for count three is
stayed pending finality of the judgment and service of the sentence on count
one, the stay to become permanent upon completion of the term imposed. As so modified, the judgment is
affirmed.
_________________________
RIVERA,
J.
We concur:
_________________________
REARDON, ACTING P. J.
_________________________
SEPULVEDA, J.*
* Retired Associate Justice of
the Court of Appeal, First Appellate District, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
name="_ftn1" title=""> [1]
All statutory references are to the Penal Code.
name="_ftn2" title=""> [2]
Nacional could not identify defendant in court at the August, 2010 trial, but
recognized him in a photographic lineup on
January 29, 2009.
