P. v. Fyfe

Filed 1/21/09 P. v. Fyfe CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Tuolumne County. Eric L. DuTemple, Judge.

Carl M. Faller, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Charles A. French and Peter H. Smith, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

A jury convicted appellant Erin Joseph Fyfe of four counts of second degree commercial burglary (Pen. Code,^[1] 459; counts 1-4) and one count of grand theft by use of an access card or account information for an access card acquired or retained without the permission of the cardholder or the card issuer ( 484g, subd. (a); count 5). Appellant was sentenced to the upper term of three years on count one. Middle term sentences on the other four counts were to be served concurrently. On appeal, appellant contends (1) the trial court erred in admitting incriminatory statements he made to a police investigator because the statements were taken in violation of Miranda v. Arizona (1966) 384 U.S. 436 (Miranda), (2) insufficient evidences supports his convictions of commercial burglary, (3) insufficient evidence supports his conviction of grand theft, and (4) People v. Black (2007) 41 Cal.4th 799 (Black II), which supports the imposition of the upper term in this case, was wrongly decided. We reject these contentions and affirm the judgment.

FACTS

The offenses in this case arose from a short-lived scheme involving appellants use of credit card numbers not belonging to him to make purchases at two Save Mart grocery stores in Sonora during September 2006. On appeal, appellant does not dispute that he made the subject transactions or that he knew the credit card numbers were not his. Rather, he claims the prosecution failed to present sufficient evidence to show that he used the credit card numbers without the cardholders permission or that he knew he was using the credit card numbers without the cardholders permission. Our factual summary will thus focus on circumstances relevant to these issues.

Appellants use of various credit card numbers to make the subject transactions first came to the attention of Theresa Bernard, the cash management supervisor for the Save Mart company. Bernards review of corporate records revealed a pattern occurring at the two Save Mart stores in Sonora (Store 8 & Store 76), whereby a credit card number would be hand-keyed into the system and approved to make a purchase after another form of payment, usually a debit card, was first attempted and declined. Bernard found nine such transactions occurring between September 15 and September 19, 2006. One of the transactions took place at a Save Mart in Angels Camp, and the others took place at the two Sonora stores. Each transaction involved purchase amounts ranging between $200 and $308.80. Bernard testified that generally only one to two percent of credit card transactions are hand-keyed.

Seven of the nine hand-keyed transactions, including the subject transactions, were charged back to Save Mart, meaning the issuing banks directly debited Save Mart for the amounts charged to the credit card numbers. Bernard explained that charge backs are customer initiated, and typically occur when people forget that they [have] made a purchase or because people are saying that there has been fraudulent activity on their account.

Bernard contacted Dan Kohnen, the manager of Store 8. Based on the information Bernard provided, Kohnen reviewed the digital video security system for Store 76, and found five transactions. The video recording showed they were conducted by a single customer, a heavyset male with a ponytail. Kohnen identified in court the customer as appellant.

Kohnen described appellants conduct during the five transactions as follows:

He would have the items he was purchasing in line which were in all cases Blackhawk gift cards[^[2]]. I dont know the exact value he had, there were several of them in there. He would have those on the counter with a greeting card, a gift bag. It looked like he was purchasing for a relative or for somebody for a present. He would -- when it was his turn in line, the clerk would ring him up, he would go to pay with a card of some kind, whether it was an ATM card or credit card through the electronic system at which point funds werent available and then he would present the clerk with another card at which point the clerk would hand punch in the credit card number. [W]e cant hear whats going on, its a video transaction. We dont know whats said. We observe in the video is that its hand punched, the credit card number, the transaction would go through and he would go on his way.

Shortly after Kohnen viewed the video of appellants transactions at Store 76, he returned to Store 8, and happened to see appellant standing in the express line with some gift cards, greeting cards, and a gift bag. Kohnen later identified the gift cards as a $100 Blackhawk Sears card, a $100 American Express credit card, and a $50 American Express gift card. Kohnen described the transaction he witnessed as follows:

[Appellant] was purchasing cards for a relative of some kind or something. He tried to slide his card. It didnt go through. The cashier said, do you have any other way to pay for it. He said, this is my temporary credit card, is the term he used, they just sent it to me. He presented her with a card that said fast cash or something along those lines. When she turned it around it had like a metallic ink pen, like a shimmery gold or silver of some kind with a handwritten credit card number on the back. He said, this is my temporary card until my new one comes in the mail, can you enter it manually.

At this point, Kohnen intervened and told appellant he wanted to call the 800 number on the card for verification. Appellant appeared to become nervous and said, Nah, thats okay. Ill pay with another form. When Kohnen insisted and started walking to his office with appellants card, appellant told Kohnen he did not want him to take his credit card out of his sight. Kohnen walked to a nearby telephone and called the police. Meanwhile, appellant started heading towards the door and yelling to customers that Kohnen was trying to steal his credit card and warning them to be careful.

Sonora Police Officer Chad Ellis responded within two minutes, and parked just outside the main entrance of the store. Officer Ellis observed appellant walking, followed by two Save Mart employees. Appellant told Officer Ellis that a man inside was trying to steal his credit card. Kohnen described what happened to Officer Ellis, including how appellant had instructed the cashier to punch in a handwritten number on the back of a gift card, after another card had been declined. Appellant told Officer Ellis that he had done this before.

Officer Ellis found 15 different gift cards in appellants right pocket, including five Sears cards, three Hyatt Hotel cards, three Radio Shack cards, two Regal Entertainment Group cards, and two prepaid wireless cards. Officer Ellis conducted an inventory search of appellants vehicle and later searched a zippered bag appellant had been carrying. These searches uncovered a number of receipts reflecting purchases of gift cards, including purchases made at the subject Save Mart stores on September 18, 2006. There were also receipts reflecting multiple purchases of gift cards from Longs Drug Store, including three separate purchases of $100 Visa gift cards on September 18, 2006, occurring within minutes of each another. Officer Ellis also found five prepaid Visa cards in appellants vehicle. In appellants bag, he found packaging for two prepaid credit cards, an ATM card with numbers handwritten on the back in metallic ink, and three metallic ink pens in different colors.

Sonora Police Investigator Harold Prock testified that when he was dispatched to the Save Mart store on September 19, 2006, he found appellant detained in the backseat of Officer Elliss patrol vehicle. Investigator Prock informed appellant he was under arrest for suspected identity theft. In response, appellant gave a spontaneous statement and told the investigator that [h]e was in the middle of the deal.

Investigator Prock interviewed appellant at his office. Prior to questioning him, Investigator Prock read appellant his Miranda rights and appellant agreed to speak with him. Appellant conceded that his conduct was bad. When Investigator Prock told appellant he knew the credit card numbers were stolen, appellant acknowledged they might not be legitimate. Investigator Prock then told appellant he knew the numbers did not belong to him, in response to which appellant stated, But Im admitting it.

Appellant then discussed how he used the credit card numbers to make purchases. According to appellant, a third party he identified as John D. would give him the credit card numbers. Appellant would then handwrite the credit card numbers on the back of prepaid gift cards. Appellant would later present the gift cards to make purchases at stores. Appellant explained that the purchases would generally exceed the value of the gift cards. For example, he might use a $100 gift card to make a $150 purchase. When the cashier swiped the card, it would not work. Appellant would then instruct the cashier to enter manually the credit card number he had previously written on the back of the card. The purchase would then be approved and charged to the credit card number, not the gift card.

Investigator Prock talked with appellant about whether he should have known better than to use the credit card numbers. The investigator testified that appellant said, [t]hat it was greed and that he had a gut feeling he shouldnt have done it. Appellant told Investigator Prock he has been using the credit card numbers for about 10 days.

On cross-examination, Investigator Prock confirmed that appellant told him he received the credit card numbers from John D. According to appellant, John D. was a fan of appellants rock band and knew that appellant was in serious financial straits. Appellant showed Investigator Prock his cell phone and pointed out John D.s phone number and some text messages he claimed were from John D.

On redirect examination, Investigator Prock testified that when he tried to call John D.s number, he got a message that the number was no longer in service. Investigator Prock confirmed that appellant only gave him the first letter of John D.s last name, and that, other than appellants own statements, he had no other proof connecting the phone number or text messages to someone named John D.

In addition to evidence of the subject Save Mart transactions, the prosecution presented evidence that appellant conducted a similar transaction at an Albertsons grocery store on September 18, 2006. The night manager, Jeffrey Bachtelle, testified that on that date, a suspicious transaction occurred that he reported afterwards to the sheriffs department. Bachtelle explained that a cashier called him over because a managers key was required to punch in a customers credit card manually. The card in question was a gift card that apparently would not scan. A 16-digit number was handwritten in metallic pen on the back of the card along with an expiration date. Bachtelle testified that several factors made the transaction seem unusual to him. First, gift cards customarily do not have expiration dates. Second, the face of the card did not look like any he had seen before. Third, the gift card was being used to purchase another gift card.

Bachtelle asked the customer for identification and the customer presented his passport. Bachtelle wrote the customers name and passport number on top of the credit card slip after it printed out. Bachtelle identified appellant as the customer in a photo lineup the next day and identified him in court.

Bachtelle explained that despite his suspicions, he authorized appellants purchase because Bachtelle was service oriented and appellant appeared to be just. Bachtelle explained that appellant had been purchasing a Sears gift card, a stuffed animal, and a greeting card, and that he had told Bachtelle it was a gift for a caregiver of a relative. However, after appellant left the store, Bachtelle realized the card appellant presented was not really a gift card because the receipt showed that a Visa credit card number had been charged.

Daniel Graziose, a detective with the Tuolumne County Sheriffs Department, testified he spoke with appellant at the county jail after speaking to Bachtelle on September 19, 2006. Graziose read appellant his Miranda rights and appellant waived them. Graziose asked appellant whether he had been at the Albertsons within the past couple days and used a credit card with a handwritten number on the back of it to buy a Sears card. Appellant responded that he probably did. When Graziose told appellant that Albertsons had a closed-circuit camera, appellant appeared to get nervous and started fidgeting with his hands.

Graziose asked appellant if he knew the number on the credit card he used to make the purchase did not belong to him. Appellant responded that it belonged to Johnny D., a friend of his who lived in Las Vegas, Nevada. Appellant told Graziose he was a singer in a rock band and that Johnny D. was a fan of his. Johnny D. knew that appellants brother had died in Iraq and that appellant was broke. Johnny D. gave the credit card number to appellant to purchase food and stuff. Graziose asked appellant if this had made him suspicious. Appellant responded, Yeah, I had a gut feeling. I needed money.

The Defense

Appellant testified that he was a rock and roll musician and his main instrument was bass guitar. As part of his music profession, he spent time in Las Vegas. While playing in Las Vegas, he developed a moderate fan base. However, he had not played professionally in two years and was experiencing hardship due to the death of his brother in Iraq and having to take care of his ailing mother.

Appellant met John D. in Las Vegas after one of his concerts. According to appellant, everyone knew him simply as John D. and John D. was known in Las Vegas as a high roller with a lot of money. Appellant spoke with John D. about his brothers death, his mothers troubles, and his lack of money. Appellant testified that John D. offered to pay for whatever I needed in terms of food or other things and that I could help my mother with this money and told appellant he could offer his credit numbers or access numbers, through those numbers that I could, you know, use for purchases.

Appellant claimed that John D. gave him [a]ccess numbers to prepaid cards or Green Dot reloadable numbers to be used for a prepaid card. Appellant explained:

[A] Green Dot reloadable card is a card that can be purchased at a drugstore or wherever. And its kind of like a bank account in that -- say if your grandmother wants to go down to the store in her city and purchase an amount of money to be loaded onto your card, she can do so. She can call you on the telephone and give you the access number and you can load that onto your card. Its just like a credit card number only it adds more money to your card.

Appellant testified he would buy the Green Dot cards and that John D. would send him the access numbers by way of text messages appellant would receive on his cell phone. Before he was arrested, appellant believed the access numbers belonged to John D. and that he had permission to use those numbers.

On cross-examination, appellant explained he told Investigator Prock that he had a bad feeling about the card numbers because he was arrested for using them. Previously, appellant had never checked to see if the card numbers had been stolen or were being used without the owners permission. Rather, he assumed they were legitimate card numbers because they worked.

DISCUSSION

I. The Trial Court did not Err in Admitting Appellants Statements to Investigator Prock.

Appellant contends the trial court erred in admitting into evidence incriminating statements he made to Investigator Prock during their interview on September 19, 2006. Appellant claims the statements were taken in violation of Miranda, supra, 384 U.S. 436. We disagree.

A.     Background

Before finding appellants statements admissible, the trial court conducted an Evidence Code section 402 hearing, at which Investigator Prock briefly testified, and listened to the relevant portion of the investigators interview of appellant. ^[3]At the beginning of the interview, the investigator introduced himself and advised appellant that he was under arrest for possession of credit card numbers not personally belonging to him. He then advised appellant of his Miranda rights as follows:

[INVESTIGATOR PROCK]: Okay, you have the right to remain silent, you understand that right?

[APPELLANT]: Yes.

[INVESTIGATOR PROCK]: Okay! Anything [you say] may be used against you in a court. Do you understand that right?

[APPELLANT]: Yes.

[INVESTIGATOR PROCK]: Okay! You have the right to the presence of an attorney before and during questioning? Do you understand that right?

[APPELLANT]: Oh, yeah. [] []

[INVESTIGATOR PROCK]: If you cannot afford an attorney, one will be appointed for you, free of charge before questioning if you want. Do you understand that right?

[APPELLANT]: Yes

[INVESTIGATOR PROCK]: Having your rights in mind, are you willing to speak to me?

[APPELLANT]: Is this going to be recorded?

[INVESTIGATOR PROCK]: Yes it is.

[APPELLANT]: Well, um.

[INVESTIGATOR PROCK]: I need an answer, either yes or no or, or you can talk. Its up to you.

[APPELLANT]: Um!

[INVESTIGATOR PROCK]: Did you understand your rights?

[APPELLANT]: Yes!

[INVESTIGATOR PROCK]: Okay,

[APPELLANT]: Yes.

[INVESTIGATOR PROCK]: Yes, youll talk to me?

[APPELLANT]: Yeah.

After this exchange, appellant and Investigator Prock briefly spoke about having appellants handcuffs removed and how appellants vehicle would be handled. The interview then continued as follows:

[INVESTIGATOR PROCK]: [O]nce again, I am an investigator for the City of Sonora. I investigate crimes, of Internet crimes, any felony crimes thats committed in the corporate area in the City of Sonora.

[APPELLANT]: Okay.

[INVESTIGATOR PROCK]: Okay, I assist the officers in their cases. Okay, currently right now you are under arrest for credit card fraud, okay, for possession of stolen credit card numbers.

[APPELLANT]: Okay.

[INVESTIGATOR PROCK]: And utilizing those stolen credit card numbers to perform transactions at the Upper Savemart store on the sixteenth of this month. Okay?

[APPELLANT]: Okay.

[INVESTIGATOR PROCK]: Okay! Do you know why theres any reason why you are on video you doing that? Cause you realize theres video in these stores?

[APPELLANT]: (Unintelligible)

[INVESTIGATOR PROCK]: Capturing you doing that. Okay, do you realize theres video in the Longs Drug Store also of transactions being committed by yourself. Were you aware that theres video?

[APPELLANT]: No, youre making me aware right now.

[INVESTIGATOR PROCK]: Okay, let me explain to you that there are digital recordings of you in there making the transactions.

[APPELLANT]: Okay.

[INVESTIGATOR PROCK]: Okay. Now we can do this one of two ways Okay, I can sit here with you all day long sitting here trying to get out of you whats going on, what brought you to that point. Or Ill let you sit there and tell me what brought you to that point. Its your choice. Okay, you said when we were out there. Okay, youre caught in the middle.

[APPELLANT]: Right.

[INVESTIGATOR PROCK]: Okay can you explain that a little bit better?

[APPELLANT]: Well, can we talk confidentially on this?

[INVESTIGATOR PROCK]: Everything you talk to me is confidential. This is for my records. Okay the tape recording (Unintelligible)

[APPELLANT]: But there, is that part of something that is going to be used in court?

[INVESTIGATOR PROCK]: It will not be used in court we dont play the recordings in court. The recording is for me, for writing my report and for whats been going on and keeping a record of whats been going on.

[APPELLANT]: Okay.

[INVESTIGATOR PROCK]: The tape can actually protect you.

[APPELLANT]: Okay.

[INVESTIGATOR PROCK]: So I cant write something you didnt say....

[APPELLANT]: Oh, right on.

[INVESTIGATOR PROCK]: Okay, you understand that? This will keep me from writing something or saying something....

[APPELLANT]: Right.

[INVESTIGATOR PROCK]: That did not actually occur. So its actually a protection for yourself.

[APPELLANT]: Okay.

[INVESTIGATOR PROCK]: Okay, so I ... (Unintelligible)

[APPELLANT]: Cause I want to cooperate, so, I want to cooperate. (Unintelligible)

After the trial court listened to the tape recording of this exchange, defense counsel argued:

Detective Prock is clearly heard saying, Everything you talk to me is confidential, and that is negating the Miranda warnings and I think it is clearly on the disk. My client has said, Can we talk confidentially on this? The response was, Everything you talk to me is confidential. And later on my client says, But some part of that is going to be used in court? And the answer, it will not be used in court. And I think that clearly undoes the Miranda warnings that were given at the beginning of the CD. (Italics added.)

In response, the prosecutor argued:

First of all, when someone is arrested of a crime and has been read their rights and clearly told anything they say can and will be used against you in a court of law and waives those rights, to then ask an officer can we talk confidentially with the expectation that, in fact, everything they say is then not going to be used against him in a court of law, its a stretch. People use the words confidential to imply a lot of things. And we dont know exactly what the defendant meant when he said confidential. Thats a term of art. Hey, you and I are talking, can we keep this confidential. That doesnt mean, can we keep this outside the courtroom.

Secondly, the statement by Investigator Prock, This will not be used in court, the words uttered out of Investigator Procks mouth practically in the same sentence, but the next sentence is that the recording will not be used. What he explains to the defendant is that the recording will help him note accurately what the defendant says or doesnt say. You have to expect as an individual whose [sic] been arrested for a crime, whose [sic] been read your rights, that statement means that what you say is going to be recorded in some form or fashion but that the recording is going to be used to make it accurate and the defendant agrees with that. At several times he says, Yeah. Okay. I understand that. Okay. Thats cool. I dont think any of that negates the Miranda advisement in any way, shape or form. (Italics added.)

The trial court called a recess to listen to the relevant portion of the interview again in chambers. The court thereafter denied the defense motion to exclude appellants statements to Investigator Prock, explaining:

As I indicated I reviewed [the recording] several times. Theres a clear waiver after the admonition that any statement made to the officer could be used against him. As the conversation progresses, the defendant asked Officer Prock whether they could talk confidentially and Officer Prock responded, everything is confidential and explained that this is for my records. It specifically referred to the tape. The defendant then asked him again, can that be used in court or any of that be used in court? The officer replied that the tape is -- and refers specifically to the tape. Again, the tape is not used in court. Its used for my records and explained that the tape could protect the defendant because anything that he said, the officer could write down and use the tape to make sure it was accurate. Therefore, it would protect the Defendant that anything he said would be accurately reflected in the officers notes. The defendant indicated he did want to cooperate. And I dont see that thats a reitification [sic] of the Miranda right to assert self-incrimination. I dont know if I would recommend that as a practice but I think that clearly there was a knowing and intelligent waiver of the legal rights and he understood what those rights were, questions of the confidentiality of the tape and perhaps his discussion to the officer explained that anything he said, even though the tape was confidential, it isnt played in the courtroom, that his discussion with the officer would be included in his report and could be used and the tape would simply be used to make sure that his notes are accurate and anything that the Defendant told the officer would be accurately reflected because of the tape. I just dont see that there was a reitification [sic] of the right. (Italics added.)

B.     Analysis

Appellant contends the trial court erred in denying his motion to exclude his statements to Investigator Prock. Appellant argues that he did not knowingly and intelligently waive his Miranda rights because Investigator Prock promised that his recorded statements would remain confidential and not be used in court. Appellant appears to be arguing that Investigator Procks purported promise of confidentiality vitiated the previous Miranda advisements and appellants waiver of his rights.

The Fifth Amendment to the United States Constitution guarantees that a suspect in a criminal case may not be compelled to be a witness against himself in any respect. (Colorado v. Spring (1987) 479 U.S. 564, 574.) To protect the Fifth Amendment privilege against self-incrimination, a person undergoing a custodial interrogation must first be advised of his right to remain silent, to the presence of counsel, and to appointed counsel, if indigent. [Citation.] As long as the suspect knowingly and intelligently waives these rights, the police are free to interrogate him. [Citation.] (People v. Stitely (2005) 35 Cal.4th 514, 535.) The waiver inquiry has two aspects. First, the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception. Second, the waiver must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it. Only if the totality of the circumstances surrounding the interrogation reveals both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived. [Citations.] (Moran v. Burbine (1986) 475 U.S. 412, 421.)

Once it is determined that a suspects decision not to rely on his rights was uncoerced, that he at all times knew he could stand mute and request a lawyer, and that he was aware of the States intention to use his statements to secure a conviction, the analysis is complete and the waiver is valid as a matter of law. (Moran v. Burbine, supra, 475 U.S. at pp. 422-423, fn. omitted.) If, however, the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At this point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise. (Miranda, supra, 384 U.S. at pp. 473-474, fn. omitted.) If a suspects request for counsel or invocation of the right to remain silent is ambiguous, the police may continue talking with him for the limited purpose of clarifying whether he is waiving or invoking those rights. [Citations.] (People v. Box (2000) 23 Cal.4th 1153, 1194.) Statements obtained in violation of these rules are inadmissible to prove guilt. (People v. Stitely, supra, 35 Cal.4th at p. 535.)

In considering a claim that a statement or confession is inadmissible because it was obtained in violation of a defendants rights under Miranda , we accept the trial courts resolution of disputed facts and inferences, and its evaluation of credibility, if supported by substantial evidence. [Citation.] Although we independently determine whether, from the undisputed facts and those properly found by the trial court, the challenged statements were illegally obtained [citation], we give great weight to the considered conclusions of a lower court that has previously reviewed the same evidence. [Citations.] (People v. Wash (1993) 6 Cal.4th 215, 235-236.)

We have listened to the tape recording of the interview and are convinced, based both on the discernable words and the inflection of the speakers voices, that appellant was inquiring into the confidentiality of the recording of his statements, not the statements themselves, and that Investigator Prock did not promise appellant that his statements would remain confidential and would not be used against him in court, but only that the recording of appellants statements would not be used against him in court. In response to appellants query whether he could talk confidentially on this, Investigator Prock explained that the recording would not be played in court and that it could protect appellant by preventing the investigator from attributing to appellant statements he did not actually make. (Italics added.) Implicit in Investigator Procks explanation is that he would testify regarding appellants statements in court, but if he said something inaccurate, appellant could use the tape recording to impeach him.

We believe the record supports the trial courts determination that appellants waiver of his Miranda rights was knowing and intelligent -- that is, made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it. (People v. Cortes (1999) 71 Cal.App.4th 62, 69-70.) The record also supports the courts determination that appellants waiver was not later vitiated by Investigator Procks statements regarding the confidentiality of the tape recording of the interview. Nor do we view appellants question asking if it would be confidential as an attempt to assert his right against self-incrimination. Once it was explained that the tape recording would not be used against him in court and could actually protect him, appellant appeared satisfied and expressed a willingness to cooperate and continue with the interview. Appellant did not appear to be confused about whether his statements would be admissible in court, but rather his concern focused on whether the recording, not the underlying statements, would be used in court. Thus, his question regarding the confidentiality of the recording was not akin to the defendants requests to speak off the record in the cases cited by appellant. (See e.g., People v. Braeseke (1979) 25 Cal.3d 691, 702-703 [officers elicited defendants confession after apparently acceding to his request for an off the record interview; Supreme Court held the off-the-record request was inconsistent with a knowing waiver of self-incrimination rights].)

The other cases cited by appellant are also inapposite. In People v. Hinds (1984) 154 Cal.App.3d 222, the detective deliberately misled the defendant by telling him that anything he said doesn't necessarily held [sic] against you, it can be held to help you, and further threatened that if he called his attorney the police could not help [the defendant] anymore. ( Id. at pp. 230-231.) People v. Quartermain (1997) 16 Cal.4th 600, involved the admission of statements made by the defendant during a meeting with the prosecutor, under an explicit agreement between the prosecutor and defense counsel that nothing the defendant said could be used against him. (Id. at pp. 618-621.) Nothing comparable to those facts is presented in this case or disturbs our conclusion that the trial court properly admitted appellants statements to Investigator Prock.

II. Sufficient Evidence Supports the Commercial Burglary Convictions.

Appellant contends the evidence was insufficient to support his convictions for commercial burglary ( 459). Specifically, he argues the evidence was insufficient to show he had the specific intent to commit theft. We disagree.

When the sufficiency of the evidence is challenged on appeal, the court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence -- that is, evidence which is reasonable, credible, and of solid value -- such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d. 557, 578.)

To obtain a conviction of second degree commercial burglary, the prosecution must prove that (1) the defendant entered a commercial building (2) with the intent to commit grand or petit larceny or any felony. ( 459.) The jury here was also instructed on the theory of theft by false pretenses. The crime of theft by false pretenses requires proof that (1) the defendant made a false representation or pretense to the owner of the property, (2) with the intent to defraud the owner of the property, and (3) the owner of the property transferred the property to the defendant in reliance on the representation. (People v. Miller (2000) 81 Cal.App.4th 1427, 1440; People v. Wooten (1996) 44 Cal.App.4th 1834, 1842.)
Because intent is rarely susceptible of direct proof, it may be inferred from all the facts and circumstances disclosed by the evidence. [Citations.] Whether the entry was accompanied by the requisite intent is a question of fact for the jury. [Citation.] Where the facts and circumstances of a particular case and the conduct of the defendant reasonably indicate his purpose in entering the premises is to commit larceny or any felony, the conviction may not be disturbed on appeal. [Citation.] (People v. Kwok (1998) 63 Cal.App.4th 1236, 1245.)

Appellant contends there was insufficient evidence he entered the Save Mart stores with the intent to commit theft because there was no evidence he knew his use of the credit card numbers was without the permission of the cardholders, or that his use of the credit card numbers was in fact without their permission. Appellant points to the absence of testimony from cardholders and the issuing credit card companies that he used the card numbers without their permission. He further complains the prosecution presented no evidence to rebut his claim that the card numbers had been given to him by a wealthy music fan and he believed that his use of the numbers was authorized and therefore lawful. We find appellants arguments unconvincing and conclude the jury could reasonably conclude from all the circumstances surrounding the transactions that appellant knew his use of the credit card numbers was unauthorized by the cardholders, and that he had the requisite intent to commit theft when he went into the Save Mart stores and used the numbers to make the subject purchases.

First, we disagree with appellants assertion that there was insufficient evidence to show that he used the credit card numbers without the cardholders permission. Bernards testimony that appellants purchases were charged back to Save Mart combined with appellants admission that the card numbers did not belong to him, support a reasonable inference that the charge backs were initiated by cardholders who did not authorize his use of their credit card numbers. According to Bernards unchallenged testimony, a charge back essentially occurs when a cardholder notifies the issuing bank that a transaction on the cardholders account is one the cardholder cannot remember making or suspects to be fraudulent. In response, the issuing bank debits Save Mart immediately for the amount questioned by the cardholder. Since the credit card numbers admittedly did not belong to appellant, it can be reasonably inferred that the cardholders who initiated the charge backs did not authorize his use of their card numbers.

The jury could also reasonably disbelieve appellants claim that he thought the credit card numbers belonged to John D. and that he had permission to use them. Other than appellants statements, there was no independent evidence verifying the existence of John D. Appellants credibility was further strained by the pattern of his use of the credit card numbers. According to appellant, John D. gave him the credit card numbers to help appellant buy food and other necessities. However, appellant did not use the credit card numbers to purchase such items but instead used them to make multiple purchases of gift cards within a period of five days.

Another circumstance inconsistent with appellants claim that he believed he had permission to use the card numbers is that he apparently presented the card numbers to cashiers as if they were his own. In one instance, Kohnen directly witnessed appellant tell the cashier that the card he presented with a handwritten number on the back was his temporary credit card and had just been sent to him. Appellant also admitted on cross-examination that he never told any of the cashiers that the credit card numbers he asked them to enter belonged to someone else who had given him permission to use them.

Finally, appellants post-arrest statements to Investigator Prock could reasonably be viewed as inconsistent with someone who honestly believed he had permission to use the credit card numbers. Appellant statements reflected awareness that his conduct was bad and the credit card numbers might not be legitimate. Appellant also represented that his conduct was motivated by greed.

In light of the foregoing circumstances, the jury could reasonably infer that appellant knew his use of the credit card numbers was unauthorized by the cardholders and he therefore harbored the requisite intent to commit theft when he entered the Save Mart stores and used those numbers to make the subject transactions. Accordingly, we conclude substantial evidence supports appellants convictions of second degree commercial burglary.

III. Sufficient Evidence Supports the Grand Theft Conviction

Appellant next contends the evidence was insufficient to support his conviction of grand theft ( 484g, subd. (a)). We disagree.

Section 484g, provides in relevant part:

Every person who, with the intent to defraud, (a) uses, for the purpose of obtaining money, goods, services, or anything else of value, an access card or access card account information that has been altered, obtained, or retained in violation of Section 484e or 484f, or an access card which he or she knows is forged, expired, or revoked is guilty of theft. If the value of all money, goods, services, and other things of value obtained in violation of this section exceeds four hundred dollars ($400) in any consecutive six-month period, then the same shall constitute grand theft.

As used throughout the statutory scheme, [a]ccess card is defined as any card, plate, code, account number, or other means of account access that can be used, alone or in conjunction with another access card, to obtain money, goods, services, or any other thing of value, or that can be used to initiate a transfer of funds, other than a transfer originated solely by a paper instrument. ( 484d, subd. (2).)

Pursuant to Judicial Council of California Criminal Jury Instructions (2007), CALCRIM No. 1956, the jury was instructed to prove appellant guilty of grand theft, the prosecution was required to prove, among other things, that he used an access card or account information for an access card that had been acquired or retained without permission of the cardholder or card issuer.

As indicated above, it is appellants position that the evidence was insufficient to show that he used the credit card numbers to make purchases without the permission of the cardholders. Accordingly, he argues there was a failure of proof on the grand theft count. Again, he notes the lack of testimony from credit cardholders or credit card companies that they did not authorize appellants use of the credit cards numbers.

For the reasons discussed above, we believe the jury could reasonably infer from the circumstances that appellant used the credit card numbers without the cardholders permission. Appellants admission that the card numbers did not belong to him, combined with evidence that the transactions he used them for were charged back to Save Mart, support a reasonable inference that appellant acquired and used the credit card numbers without the permission of the cardholders. Moreover, appellant has cited no authority that direct evidence from the cardholders or the issuing credit card companies was required. The jury was properly instructed, direct and circumstantial evidence are acceptable types of evidence to prove or disprove the elements of a charge and [n]either is entitled to any greater weight than the other. In light of the substantial circumstantial evidence that appellant acquired and used the credit card numbers without the cardholders permission, we reject his sufficiency of the evidence challenge to his conviction of grand theft.

IV. The Trial Court did not Err in Imposing the Upper Term

The probation report revealed that appellants criminal history included felony drug convictions in two cases, one in state court in 1990, and one in federal court in 1993, for which appellant received a state jail term, a federal prison term, and probation terms. In imposing the upper term for appellants conviction of commercial burglary in count 1, the trial court noted that appellant has served a prior prison term and that his prior performance on probation was unsatisfactory.

Appellant recognizes that the trial courts reliance on his criminal history to select the upper term sentence was supported by our Supreme Courts decision in Black II, supra, 41 Cal.4th 799. Appellant argues that Black IIs holding that a persons criminal history can render him or her eligible for an upper term sentence was wrongly decided because it contradicts the United States Supreme Courts decision in Cunningham v. California (2007) 549 U.S. 270. However, as appellant candidly acknowledges, in light of Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 [Supreme Court decisions are binding upon and must be followed by all the state courts of California], we are bound to follow Black II and must reject his challenge to the upper term.

We must likewise reject appellants challenge to the remedy imposed by People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval), which requires that on remand for Cunningham error, the defendant should be resentenced in accordance with Californias determinate sentencing law as recently amended by the state Legislature pursuant to Senate Bill No. 40. (Sandoval, at p. 846.) Again, appellant recognizes that this court is bound by Sandoval. (Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d at p. 455.) To preserve the issue for federal appeal, however, appellant contends that Sandovalsapplication violates constitutional prohibitions against ex post facto laws and guarantees of equal protections. We need not reach these issues, however, because we have concluded the trial court did not erroneously rely on appellants criminal history to impose the upper term in this case.

DISPOSITION

The judgment is affirmed.

_____________________

HILL, J.

WE CONCUR:

_____________________

WISEMAN, Acting P.J.

_____________________

LEVY, J.

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^[1] Further statutory references are to the Penal Code unless otherwise specified.

^[2] Kohnen explained that a Blackhawk gift card is a prepaid credit card that can be purchased at Save Mart stores. He likened it to a prepaid American Express credit card, explaining: You can purchase an American Express preloaded credit card for a hundred dollars with this fee, $6 or $7 something like that for a fee, at which point you can take that credit card and use it anywhere you can use an American Express card as a credit card with a hundred dollar limit.

^[3] The parties below stipulated that the trial court could listen to the interview without a transcript being prepared. Our analysis and conclusion, like the trial courts, is based on a careful review of the audio recording of the interview (Peoples exhibit No. 22). To aid our review, however, we ordered that the record on appeal be augmented to include a transcript of the relevant portion of the interview. A certified copy of the transcript was filed on December 4, 2008. The quoted material in the background section of our discussion is based on the transcript.