P. v. Speed
Filed 7/14/09 P. v. Speed CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, Plaintiff and Respondent, v. LASHAWN RENEE SPEED, Defendant and Appellant. | E045866 (Super.Ct.No. FWV700970) OPINION |
APPEAL from the Superior Court of San Bernardino County. Raymond L. Haight III, Judge. Affirmed.
Mark J. Shusted, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
On March 5, 2008, a first amended information was filed against defendant and appellant LaShawn Renee Speed; it alleged two counts of identity theft under Penal Code[1]section 530.5, subdivision (a) (counts 1 & 5); theft under section 484e, subdivision (d) (counts 2 & 6); second degree burglary under section 459 (counts 3 & 7); and forgery under section 484f, subdivision (a) (counts 4 & 8). On March 13, 2008, a jury convicted defendant on all counts.
On April 15, 2008, the trial court sentenced defendant to the midterm of two years on count 1, and a consecutive term of eight months on count 7. The court imposed a section 654 stay as to the remaining convictions. The court then stayed the execution of the aggregate sentence of two years eight months, and placed defendant on probation on the condition that she serve one year in jail.
Defendant appeals.
I
FACTUAL AND PROCEDURAL HISTORY
A. Counts 1 4: Use of Credit Card Information of Tanner Dewald at Macys
On April 10, 2007, Jennifer Aragon, a Macys sales associate in Rancho Cucamonga, was stationed at the juniors department cash register after 3:30 p.m., when a young woman around 16 or 17 years old, handed Aragon an all access Visa gift card for the purchase of a large amount of clothing. Defendant then arrived at the cashier station and added mens clothing to the pile, which had a combined value of $649.05. Neither woman could supply the personal identification number (PIN) for the card. Therefore, the younger woman signed the automated signature pad at the register. Aragon checked the printed receipt for the transaction and discovered the last four digits of the gift card did not match the last four numbers on the receipt.
Suspecting that defendant and the younger woman might be attempting to purchase the clothing using stolen credit card information, Aragon telephoned Jose Pagan, a loss prevention agent who was able to monitor the transaction over closed circuit television.
Aragon showed defendant that the last four digits on the Visa card did not match the last four numbers on the receipt. Defendant told Aragon to cancel the transaction. Defendant stated she did not understand why the purchase was not approved because she had enough money in the account. Defendant also explained that she did not have the PIN because the Visa card was a gift card.
Aragon began to ring up the transaction a second time. Defendant, however, told her to just forget about it, and took back the Visa card. The two women then headed for the exit. Defendant got on her cell phone.
The security officer, Pagan, observed the two women head toward the west exit of the store and walk outside around 3:45 p.m. Pagan left his office and followed the women outside. There, he approached defendant, identified himself, and asked her to return to the store; defendant complied. Pagan let the younger woman go because he did not see her involved in the transaction.
Pagan escorted defendant to his office, and called for law enforcement assistance. Pagan asked defendant for the card used in the transaction, and defendant handed a card to him. Defendant then denied having any other credit cards or merchandise. Pagan gathered information regarding the Macys transaction.
San Bernardino Deputy Sheriff Patty Ruiz[2]testified that Pagan telephoned her at 4:00 p.m. and explained that he had detained a suspect in his office regarding possible fraudulent credit card use. When Deputy Ruiz arrived at Pagans office in about one minute, she saw defendant seated on a bench.
Deputy Ruiz asked defendant if she had driven to the store. She asked this because, in her experience, if theyve done something fraudulent at Macys, theyve probably done it before, or they plan to do it after they get away with it at another store. So were looking to see if there was anything of interest, any other contraband or stolen items in her car. After defendant denied driving to the store, Deputy Ruiz stated she was going to search defendant and asked: Are you sure you do not have anything on you? Defendant then responded that she was not going to lie and pulled out keys, and described the vehicle and its location.
Deputies Mike Bell and Michael Regalado arrived to assist. Deputy Ruiz gave the other deputies defendants car keys and location, and requested that they search the car.
The two deputies proceeded to search defendants car. They seized three additional cards, receipts from Sears Grand and Wal-Mart, as well as matching merchandise.
After a 30-45 minute interview at Macys, Deputy Ruiz arrested defendant, handcuffed her, and transported her to the Victoria Gardens station. While en route, defendant made spontaneous statements saying that she was stupid, that this was like a sign from God that she was doing something wrong.
At the station, Deputy Ruiz read defendant her rights under Miranda v. Arizona (1966) 384 U.S. 436 (Miranda). Defendant waived her rights. Defendant stated that the unidentified younger woman at Macys was her 17-year-old niece, who did not know that the cards were fraudulent. When Deputy Ruiz pressed defendant for details, defendant changed her story. She stated that she had met a friend or knew a female, she wouldnt identify her by name, who then forwarded her or told her about a girl or lady named G. Defendant added that G. told her she could make money shopping with fraudulent cards. When defendant finished shopping, she was to meet an unidentified male driving a blue pickup truck in the parking lot of an unidentified Wal-Mart, at 3:50 p.m. that day.
In total, Deputy Ruiz recovered 10 credit cards. Three of them were legitimate credit cards issued to defendant. The remaining seven were determined to have personal identifying information of third parties embedded on the magnetic strip on the rear of the cards. In addition, the seven fraudulent cards had peel-off stickers affixed to the upper right corners of the cards, to obscure the original face value of each card. The use of such stickers was a common practice in cases of fraudulent card usage. Five $100 bills were recovered from defendants purse.
The information on the magnetic strip used in the attempted Macys theft was traced to a credit card issued to Tanner Dewald, of Chickasha, Oklahoma. Dewald testified that his banking identifying information had been used for several purchases totaling in excess of $1,000 at Wal-Mart stores earlier on April 10, 2007, with the last one being at the Wal-Mart in Paramount, at 1:56 p.m.
B. Counts 5 8: Use of Credit Card Information of Michael Murphy at Sears
Relying on the property and receipts seized from defendants car, representatives of Sears were contacted. The videotapes of the pertinent transactions were reviewed, and introduced into evidence, as described below.
The videotape, as described by Damon Bryant, the loss prevention manager at Sears Grand in Rancho Cucamonga, showed that on April 10, 2007, shortly before 3:00 p.m., several items were placed on a sales register counter in the sporting goods department by the younger woman and defendant. The younger woman presented a credit card to the sales clerk to pay for the items. When the card was not approved, the cashier handed it to defendant. The younger woman then handed the cashier another credit card; that card was approved. The cashier handed the card and receipt to defendant. Since one of the items purchased was a NordicTrack machine, defendant left her name with the cashier for pick up at a later-arranged time.
The information on the magnetic strip used in the Sears transaction was traced to a bank account maintained by Michael Murphy at Commerce Bank in New Jersey. Murphy had never visited California prior to the Sears theft.
C. Defense Case
Defendant testified that she had a masters degree in marriage and family therapy. She had been working as a counselor at a child development center, but left that position around March 18, 2007. On the date of the offenses, she was living with her grandmother in Los Angeles.
Several months earlier, defendant had discussions about becoming a mystery shopper for one Larry Scott, who was a security officer she met at work. Scott has since become deceased. Scott told defendant that he would ask if the person who gave him assignments, a woman known as G., had any assignments for defendant.
On April 10, 2007, G. telephoned defendant and asked her to rendezvous with her and Scott about 5:00 p.m. in the parking lot of a restaurant in Rancho Cucamonga.
Scotts girlfriend, Treese Elliot, drove defendant to the parking lot because defendant had loaned her rental car to Scott several days earlier. When defendant and Elliot arrived at the parking lot between 2:00 and 2:30 p.m., Scott was already there with defendants rental car. He was with the young woman who was seen in the videotapes with defendant at Macys and Sears. The young woman asked to be called Key Key. Defendant estimated Key Key to be 20 or 21 years old.
Key Key explained that she had several more assignments to complete prior to meeting with G. Defendant volunteered to accompany her in order to get a sense of shopping procedures. Defendant noticed that Key Key had a stack of credit cards, but no purse. Defendant offered to hold the cards in her purse; Key Key agreed.
At Sears and Macys, defendant followed Key Keys directions. She had no idea that any of the cards Key Key gave her were fraudulent. Defendant decided not to use one of her own credit cards to pay for the merchandise at Macys because it was lot of money, and no one had hired her yet.
Defendant testified that she received the five $100 bills after cashing travel reimbursement checks from her former employer.
II
ANALYSIS
After defendant appealed, and upon her request, this court appointed counsel to represent her. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436, setting forth a statement of the case and a summary of the facts, and requesting this court to undertake a review of the entire record.
We offered defendant an opportunity to file a personal supplemental brief, and she has done so. In her 21-page supplemental brief, defendant claims that her Fourth Amendment rights were violated, she received ineffective assistance of counsel (IAC), and the trial court erred in instructing the jury as to counts 1 and 5. Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have independently reviewed the record for potential error.
First, we address defendants claim that her Fourth Amendment rights were violated because Deputy Ruiz questioned defendant at Macys prior to advising defendant of her Miranda rights, and because two deputies searched defendants car without a search warrant. We note, and defendant acknowledges, that no motion to suppress evidence under section 1538.5 was filed in this action. A motion to test the validity of a search or seizure must be raised in the superior court to preserve the point for review on appeal. (People v. Miranda (1987) 44 Cal.3d 57, 80; see also, People v. Garrido (2005) 127 Cal.App.4th 359, 363-365 [motion made at or before preliminary hearing must be renewed in superior court in order to preserve the issue for appellate review].) Thus, no search or seizure issue is properly before us to review.
Second, we address defendants related claim that her trial counsel rendered ineffective assistance of counsel because he failed to file a motion to suppress evidence prior to trial. To prevail on a claim of ineffective assistance of counsel, the defendant must show that counsels performance fell below a standard of reasonable competence, and that there is a reasonable probability the result would have been more favorable to the defense in the absence of counsels deficient performance. (Strickland v. Washington (1984) 466 U.S. 668, 687-688; People v. Dennis (1998) 17 Cal.4th 468, 540-541.) When a claim of ineffective assistance is made on direct appeal, and the record does not show the reason for counsels challenged actions or omissions, the conviction must be affirmed unless there could be no satisfactory explanation. (People v. Pope (1979) 23 Cal.3d 412, 426.)
In this case, the record does not show the reason why defense counsel did not file a motion to suppress evidence. However, as defendant points out, counsel could have refrained from filing the motion because he intended to call defendant to the stand in her own defense. (People v. Boyer (2006) 38 Cal.4th 412, 462 [Under certain circumstances, evidence obtained in violation of the defendants rights, though unavailable for use in the prosecutions case-in-chief, can be used to impeach an accused who elects to testify in his or her own behalf. [Citations.]].)
Another reason for refraining from filing the motion could have been that counsel believed that the motion would not be successful. Here, after Deputy Ruiz arrived at the Macys office, she saw defendant. Before the deputy could start her investigation, defendant asked Deputy Ruiz for permission to use the restroom. The deputy did not allow defendant to use the restroom until the deputy determined that there was no threat of weapons, or any contraband that might get flushed down the toilet or disposed of improperly. Hence, in order to let defendant go to the restroom, Deputy Ruiz asked defendant if she had any contraband or credit cards used for the purchase. When defendant responded that she had neither, the deputy told defendant that the deputy was going to do a pat-down search of [defendant]. In response, defendant pulled out cards from her bra. When the deputy again indicated that she was going to search defendant, defendant pulled her keys out. In sum, defendant requested to go to the restroom. In response, Deputy Ruiz was going to search defendant to ensure the deputys safety and to ensure that evidence would not be destroyed before complying with defendants request to use the restroom. There was no Miranda violation. Hence, the credit cards and keys were obtained properly.
In a related argument, defendant argues that her trial counsel rendered IAC because he failed to file a motion to suppress evidence seized from a warrantless search of her car. Defendants IAC argument must fail because such a motion would have been unsuccessful. Ordinarily, even when officers have probable cause to conduct a search, they must obtain a warrant unless there are exigent circumstances that make it impractical to do so. (Groh v. Ramirez (2004) 540 U.S. 551, 558.) However, there is an exception to this requirement for searches of vehicles. . . . [T]he automobile exception has no separate exigency requirement. (Maryland v. Dyson (1999) 527 U.S. 465, 466.) Thus, if there is probable cause to believe contraband is located in a vehicle, police may conduct a warrantless search of the vehicle without exigent circumstances. Further, the justification to conduct such a warrantless search does not vanish once the car has been immobilized[.] (People v. Panah (2005) 35 Cal.4th 395, 469.) Therefore, defendants IAC claim is without merit.
Third, defendant claims instructional error: The instructions with respect to counts 1 and 5 deprived defendant of the applicable defense of actual mistake of fact by requiring an actual and reasonable mistake of fact. In order to violate section 530.5, subdivision (a), a defendant must both (1) obtain personal identifying information, and (2) use that information for an unlawful purpose. (People v. Tillotson (2007) 157 Cal.App.4th 517, 533.)
Here, the trial court instructed the jury as follows:
The defendant is not guilty of Identity Theft if she did not have the intent or mental state required to commit the crime because she reasonably did not know a fact or reasonably and mistakenly believed a fact. [] . . . []
If the defendants conduct would have been lawful under the facts as she reasonably believed them to be, she did not commit Identity Theft. [] . . . []
If you find that the defendant believed that the credit/gift cards used at Macys and Sears were valid and if you find that belief was reasonable, she did not have the general intent or mental state required for Identity Theft.
Defendant claims that the requirement set forth in the instructionsthat the mistake of fact was a reasonable mistakewas an error: [W]here the defendant presents a defense based on mistake of fact as an aider and abettor, the defendant need not establish that her subject mistake of fact was additionally, a reasonable one.
We find defendants argument to be without merit and find that the instruction given was proper. Assuming arguendo that the instruction should not have required a reasonable belief, any such error was harmless under any standard. In the same jury instruction, the jury was not required to find that the alleged mistake of fact as to the other crimestheft and forgerybe reasonable. Notwithstanding, the jury found defendant guilty of all counts. Therefore, any alleged error in requiring that the jury find defendants mistake of fact reasonable as to the identity theft counts was harmless.
We have now concluded our independent review of the record and find no remaining arguable issues.
III
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
/s/ McKinster
J.
We concur:
/s/ Hollenhorst
Acting P.J.
/s/ King
J.
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[1]All statutory references are to the Penal Code unless otherwise specified.
[2]Deputy Ruizs surname at the time of the incident was Carbajal.