P. v. Wilkins

Filed 8/28/08 P. v. Wilkins CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

Defendant Jimmie Lee Wilkins was charged by information with grand theft of personal property exceeding $400 from Frances Ortiz (Pen. Code,[1] 484. 487, subd. (a); count 1); receiving stolen property, a check ( 496, subd. (a); count 2); petty theft from Bank of America with a specified prior ( 666; count 3); petty theft from Ortiz with a specified prior (count 4); and first degree burglary ( 459, 460, subd. (a); count 5). The information further alleged that defendant had a prior serious felony conviction ( 667, subd. (a)) and three prior strikes ( 667, subds. (b)-(i), 1170.12), and that he had served three prior prison terms ( 667.5, subd. (b)). Prior to trial, defendant and the prosecutor stipulated for purposes of counts 3 and 4 that defendant had a prior conviction under section 496, and that he had served a prison term for the offense. A jury convicted defendant of counts 1, 2 and 3, but was unable to reach a verdict as to counts 4 and 5. The court found true the allegations that defendant had three prior strikes and that he had served three prior prison terms. The court granted defendants Romero motion[2] as to count 3, but denied it as to counts 1 and 2, and sentenced defendant to the indeterminate term of 25 years to life consecutive to the determinate term of three years eight months. The court also ordered defendant to pay victim restitution.

Defendant contends on appeal that (1) the evidence is insufficient to support the conviction for grand theft, as the alleged victim suffered no loss; (2) the evidence is insufficient to support the conviction for grand theft under either theory argued by the prosecution; (3) the court erred in not instructing the jury on false pretenses; (4) the evidence is insufficient to support the conviction for petty theft; (5) the evidence is insufficient to support the conviction for receiving stolen property; (6) the court erred in instructing the jury on receiving stolen property; (7) the courts sentence violated section 654; (8) the sentence constitutes cruel and unusual punishment; and (9) victim restitution in the amount of $702.42 to one of the victims should be stricken. As we find that the evidence is insufficient to support the conviction for petty theft, but find no other reversible error, we will reverse the conviction on count 3 and order the eight-month consecutive term for that count and the $8.50 in restitution to Bank of America stricken, and affirm the judgment as so modified.

Defendant has also filed a petition for writ of habeas corpus, which this court ordered considered with the appeal. In the petition, defendant contends that trial counsel rendered ineffective assistance when she failed to object to admission of evidence admitted under Evidence Code section 1101, subdivision (b). We will dispose of the petition by separate order.

BACKGROUND

Defendant was charged by information with grand theft of personal property exceeding $400 from Frances Ortiz ( 484, 487, subd. (a); count 1), receiving stolen property, a check ( 496, subd. (a); count 2), petty theft from Bank of America with a specified prior ( 666; count 3); petty theft from Frances Ortiz with a specified prior ( 666; count 4) and first degree burglary ( 459, 460, subd. (a); count 5). The information further alleged that defendant had a prior serious felony conviction ( 667, subd. (a)) and three prior strikes ( 667, subds. (b)-(i), 1170.12), and that he had served three prior prison terms ( 667.5, subd. (b)). Defendant moved to bifurcate trial on the alleged priors and the court granted the motion. Defendant and the prosecutor stipulated for purposes of counts 3 and 4 that defendant had previously been convicted of a felony violation of section 496, and that he had served a prison term for the offense.

The Prosecutions Case

In June 2004, Wayne Gardiner lived in an apartment on Meridian Avenue in San Jose, and defendant lived below Gardiner in the same building. The mailboxes for the apartment complex were arranged in groups, and the mail carrier opened the back of each group box and sorted the mail into the individual boxes. Gardiner was not working, and he told defendant that he was on disability. Disability insurance checks for $1,169.62 regularly arrived in Gardiners mailbox twice each month. However, Gardiner did not receive his check in mid-June 2004. He did not give anybody else permission to have or to cash that check. He called his insurance company and complained about not receiving the check. A few weeks later, the police came and asked him questions about the check. He did not see defendant at the apartment complex after that time.

Gardiner met Frances Ortiz prior to June 2004, when she and her family visited defendant at the apartment complex. Defendant introduced Ortiz to Gardiner as his aunt, but they are actually cousins.[3] Ortiz was also receiving disability benefits at that time. A check for $842 from the Social Security Administration was directly deposited into Ortizs bank account the beginning of each month. She would withdraw cash from her account in order to pay her share of the rent by using the banks ATM.[4]

On June 21, 2004, defendant asked Ortiz to help him cash a check. He told her that he had received a government check but he did not have a bank account. He promised her a few bucks for helping him. She thought that hed probably give me 60; he even mentioned 100. Ortiz agreed to help defendant. She did not look at defendants check as she trusted him because he is family. They went to the Pruneyard branch of Bank of America. Defendant wanted her to use the banks ATM, and he filled out an envelope. She did not know how to deposit the check using the ATM so she went inside the bank. When she came back outside, she keyed her PIN into the ATM and then stepped aside. Defendant keyed in the amount of the deposit and put the envelope into the ATM.

After depositing the check, defendant asked Ortiz to take out some cash, but she was not able to get out the amount of money defendant asked for. She took her ATM card out of the machine and asked defendant to go inside the bank with her, but he refused. She went inside and was told that it would take a few days for the check that was deposited to clear. She then used the ATM to take out $100 in cash and told defendant that the check had to clear before they could get any additional money out. Defendant became upset and asked Ortiz to take him to Best Buy. She agreed. There, he asked her to buy some items for him, including a stereo and some CDs, using a check on the account into which he had deposited his check. Ortiz paid for defendants items, as well as for some drinks for herself and others with her, with two of her checks. One of the checks was for $641.23 and the other was for $61.19. Ortiz later gave carbon copies of the two checks from her checkbook to the police. Other than the drinks, defendant kept all of the items that Ortiz paid for with her two checks.

Best Buy records reflect that Ortiz purchased a home theater stereo system, a service plan, two CDs, a DVD, and some sodas. The same day, about 90 minutes after the purchases, the service plan was returned and $99.99 in cash was paid out. The receipt for the return states that the cash was given to Yavaugnie Wilkins, and it lists defendants mothers address and telephone number.

Bank of America records show that the $1,169.62 check deposited into Ortizs account on June 21, 2004, at the ATM of the Pruneyard branch was made out to Wayne Gardiner. Prior to that deposit, the balance on Ortizs account was $5.68, so the amount immediately available to Ortiz after the deposit was $105.68, because a hold was placed on the check. The bank records also show the following posted activity after the deposit through June 24, 2004: a purchase of $35.15, a cash withdrawal of $100, a cash withdrawal of $150, a purchase of $34.11, a purchase of $6.33, a cash withdrawal of $20 and a purchase of $22.70, leaving the account overdrawn by $11.03 at the end of June 24, 2004. The total amount of the deposited check was ultimately credited to Ortizs account and was not withdrawn from the account by the bank before Ortiz closed the account.[5]

On July 22, 2004, defendant asked Ortiz to deposit another check into her account. He told her that he was in the process of opening an account, that it was not open yet and there was no money in the account, but that he had the checks and he would be putting money into the account. Although Ortiz was not aware at this time that there was something wrong with defendants first check, she told defendant that this was the last time she could help him. Defendant and Ortiz went back to the same Bank of America branch and deposited defendants check at the ATM as they had before because defendant refused to go inside the bank. Ortiz did not look at the check that defendant deposited. Defendant told Ortiz that he had signed his name on the check so she did not have to sign it. She tried to take some cash out but could not. She told defendant that, as with the first check, this check would have to clear before she could take the cash out. Defendant told Ortiz that when she got paid on the first of the month, she had to pay him the balance of the first check. He also said that the second check would clear.

Bank of America records show that the check that was deposited into Ortizs account on July 22, 2004, was written on defendants Bank of America checking account for $375. Prior to that deposit, although Ortiz had received her automatic deposit of $862 at the beginning of July, her account was overdrawn in the amount of $320.92, including for insufficient funds fees on June 25, July 7, July 8, and July 14, 2004.

Defendant opened his Bank of America checking account on July 1, 2004, with a deposit of $100 in cash. On July 6, 2004, another $100 was transferred from defendants savings account into the checking account, and the savings account was closed. Also on July 6, 2004, two withdrawals from the checking account totaling $200 were made. On July 17, 2004, an ATM deposit of $1,000 was made into the account, but the check used was returned on July 19, 2004, because the check was drawn on the same account that it was deposited into. Five attempts to make a withdrawal and one account balance inquiry were made at a non-Bank of America ATM on July 17, 2004, which incurred $8.50 in fees that Bank of America had to pay the other bank.[6] Several checks were written on the account, including two to Best Buy, one to Toys-R-Us, one to Tanglewood Apartments, and one to Safeway, which were not honored by the bank due to insufficient funds.

Ortiz was notified by Bank of America that defendants $375 check was returned for insufficient funds and that the deposit amount was taken out of her account by the bank on July 26, 2004.

On August 1, 2004, Ortiz went to the bank to get her rent money and learned that the balance in her account was less than she expected.[7] The same day, defendant came to Ortizs home to collect the difference between the checks he gave her and what she gave him back. Ortiz told defendant that the money had been taken out of her account and she did not know why. He told her that he did not care; he wanted his money. He said that if she did not pay him he would come after her. She gave defendant $200 of the $300 she was able to withdraw from her account because she thought she still owed him that amount. Because of that, she was not able to pay her rent.

Ortiz went to the bank to find out why there was no money left in her account. A woman at the bank told her that the first check had been stolen and that she should call the police or she would get blamed for having a stolen check. Ortiz called the police immediately after talking to the woman at the bank. She told the police that she had allowed defendant to deposit the two checks into her account. A day or two later, Ortiz confronted defendant about what she had learned. All defendant said to her was, Im sorry. He did not tell Ortiz where he got the first check, but he handed her the pink slip for his car in order to pay her back. Ortiz took the pink slip from defendant because she was hysterical, but she returned it to defendants mother sometime later.

On November 20, 2005, defendant called his mother from jail. Their conversation was recorded and a part of the recording was played for the jury. During the call, defendant said that the mailman coulda made a mistake and put his mail in my box. That, that it, that is what happened. Uh, and then I contacted Tita. I, yeah, I contacted, shes, but then when I contacted her, I told her I will give you $550 to cash this check. Uh, then she asked me where, where did it come from; I said Thats not important right now, but if you, if you cashed it, youll get half. 

The Defense Case

In August 2004, Ortiz called the police department and said that she had deposited some stolen checks on June 21, 2004. San Jose Police Officer Kevin Cassidy met with Ortiz at her home on August 15, 2004. Ortiz was visibly upset. She told the officer that her nephew asked her to deposit the two checks into her account. She said that she bought things for him at Best Buy with her own checks in order to pay him for the money that had been deposited. Sometime later, she gave defendant $200 when he came to her home and told her she owed it to him. Later, when she confronted defendant about the bad checks, he stated that he had stolen some $1,100 from his upstairs neighbor. Ortiz provided the officer copies of the bad checks that she had received from the bank. She did not mention that she received a pink slip from defendant.

Officer Cassidy later spoke to Gardiner. Defendant was not at home when the officer tried to contact him.

San Jose Police Detective Frank Keffer spoke to Ortiz in August 2004. Detective Keffer had already reviewed a police report, which included copies of two checks that had been deposited into Ortizs account. Ortiz told the detective that defendant gave her the checks to deposit and that she had deposited the two checks into her account before going to Best Buy to purchase items for defendant. She gave the detective carbon copies from her checkbook of the two checks she wrote to Best Buy. She also said that defendant came back to her and demanded $200, and that she gave him $200 in cash. She did not mention anything about coming into possession of a car.

Defendant was arrested on August 11, 2005.

Stipulations

The parties stipulated to the following facts underlying defendants prior convictions.[8] [O]n or about December 31st, 1990, defendant Jimmie Wilkins took and drove a 1986 Mercedes 190, bringing it to Superior Auto Sales without the consent of the owner and with the ill attempt to personally deprive the owner of entitled possession of the car. [] . . . [O]n or about October 20th, 1992, defendant Jimmie Wilkins took an automobile from Frank Vales person or immediate presence against his will by means of force or fear, and with the intent to permanently deprive the owner of the vehicle. . . . [O]n or about November 9th, 1992, defendant Jimmie Wilkins took a Ford Mustang from Robert Meyes[s] person and immediate presence by means of force or fear and with the intent to permanently deprive the owner of the vehicle.

Verdicts, Romero Motion and Sentencing

On August 2, 2006, outside the presence of the jury, defendant waived jury trial on the prior allegations. On August 7, 2006, the jury found defendant guilty as charged in count 1 (grand theft, 484, 487, subd. (a)), count 2 (receiving stolen property, 496, subd. (a)), and count 3 (petty theft, 666), but deadlocked as to count 4 (petty theft,  666) and count 5 (first degree burglary, 459, 460, subd. (a)). The court found true the allegations that defendant had three prior convictions that qualified as strikes ( 667, subd. (b)-(i), 1170.12), and that he had served three prior prison terms ( 667.5, subd. (b)). There being no objection, the court then granted the prosecutors motion to dismiss counts 4 and 5.

On October 18, 2006, defendant filed a request that the court strike his strikes pursuant to section 1385 and Romero, supra, 13 Cal.4th 497. The prosecutor filed opposition to the motion. On November 2, 2006, the court denied the motion to strike the strikes as to counts 1 and 2, but granted it as to count 3. The court then sentenced defendant to concurrent terms of 25 years to life on counts 1 and 2, with consecutive terms of one year each for the three prison priors, and eight months, or one-third the midterm, for count 3, for a total term of 25 years to life consecutive to three years eight months. The court also ordered defendant to pay $702.42 in restitution to Ortiz and $8.50 in restitution to Bank of America.

DISCUSSION

Sufficiency of the Evidence ofCount 1

The court instructed the jury, in part, that defendant is charged in counts 1, 3 and 4 with theft. The defendant has been prosecuted for theft under two theories: theft by trick and theft by larceny. Each theory of theft has different requirements, and I have instructed you on both. You may not find the defendant guilty of theft unless all of you agree that the People have proved that the defendant committed theft under at least one theory. But all of you do not have to agree on the same theory. [] If you conclude that the defendant committed a theft, you must decide whether the crime is grand theft or petty theft. The defendant committed grand theft if he stole property or services worth more than four hundred dollars. All other theft is petty theft. (See Judicial Council of Cal. Crim. Jury Instns. (2006), CALCRIM No. 1861.)

The prosecutor argued to the jury that defendant was charged in count 1, grand theft. This relates to the property, money. Its by way of check. It is money Ms. Ortiz had effectively [given] him by purchasing the property at Best Buy that she gave to him. The jury found defendant guilty of grand theft as charged in count 1.

Defendant first contends that there is insufficient evidence to support his conviction on count 1 because there is no evidence that Ms. Ortiz suffered any loss from the act of depositing Mr. Gardiners check. Since Ms. Ortiz lost nothing, there was no taking from her, and there was insufficient evidence to support a theft conviction. Defendant separately contends that there is insufficient evidence to support the conviction on count 1 under either of the theories of theft on which the court instructed the jury. He also contends that, because of the insufficiency of the evidence to support the two theories on which the court instructed the jury, the court erred in failing to instruct the jury on a third possible theory: false pretenses.

Respondent contends that there is sufficient evidence to support defendants conviction on count 1. [Defendant] knew he had given Ortiz a check to deposit into her bank account which belonged to Gardiner, not him, and then effectively took Ortizs money from her account by getting her to pay for items at Best Buy with two separate checks written on her account knowing full well that he had not deposited his money into her account to cover those checks.

In reviewing the sufficiency of evidence under the due process clause of the Fourteenth Amendment to the United States Constitution, the question we ask is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. [Citations.] We apply an identical standard under the California Constitution. [Citation.] In determining whether a reasonable trier of fact could have found defendant guilty beyond a reasonable doubt, the appellate court must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] The same standard also applies in cases in which the prosecution relies primarily on circumstantial evidence. [Citation.] (People v. Young (2005) 34 Cal.4th 1149, 1175.)

The trial court instructed the jury that it could find defendant guilty on count 1 if it found: (1) Defendant obtained property that he knew was owned by someone else; (2) The property owner consented to defendants possession of the property because defendant used fraud or deceit; (3) When defendant obtained the property, he intended to deprive the owner of it permanently; (4) Defendant kept the property; and (5) The owner did not intend to transfer ownership of the property. (See CALCRIM No. 1805.)

The elements of theft by trick and device are: (1) the obtaining of the possession of the property of another by some trick or device; (2) the intent by the person so obtaining possession to convert it to his own use and to permanently deprive the owner of it; and (3) that the owner, although parting with possession to such person, does not intend to transfer his title to that person. (People v. Traster (2003) 111 Cal.App.4th 1377, 1390, fn. omitted; see also CALJIC No. 14.05.)

The evidence established that the crime against Ortiz as alleged in count 1 satisfied the requirements for a conviction of grand theft by trick. Ortiz gave defendant property worth over $400 after he tricked or defrauded her into believing that the funds she was using to purchase the property were his. He told her that he needed to deposit his check into her account because he did not have an account, and that she could reimburse him in part by buying him the stereo system, the CDs and DVD at Best Buy using the checks she had for her account. However, defendant knew that the check he was depositing in Ortizs account was not his, and that Ortiz could not get additional funds until the check had cleared. Ortiz agreed to buy the items for defendant at Best Buy because defendant claimed that she was using his money to do so, not her own money. As a result, Ortiz wrote checks at Best Buy for $702.42 on her account ($641.23 plus $61.19) during the time that there was a hold on the check defendant had deposited into the account. As Ortiz consented to defendants taking of the property that she bought at Best Buy due to defendants fraud or deceit, we will not set aside defendants conviction on count 1.

In addition, as we find that the evidence is sufficient to support defendants conviction on count 1 under the theory of grand theft by trick, we need not further discuss defendants contention that the trial court erred when it failed to instruct the jury on a false pretense theory of liability as to that count.

Sufficiency of the Evidence of Count 2

Defendant was charged in count 2 with receiving stolen property, a check. The prosecutor argued to the jury that [t]his is the Wayne Gardiner check, receiving stolen property. How could it be stolen? Maybe the mailman really did put it in the defendants mailbox. Either the defendant knew that the check was stolen or it was found under circumstances which give a person knowledge or means of inquiry as to the true owner. The mans name is on the check, Wayne Gardiner. What inquiry what effort does the defendant do to return it to Mr. Gardiner? Nothing, thats stolen property.

The court instructed the jury that [l]ost property is stolen if it is found under circumstances which give a person knowledge of or means of inquiry as to the true owner, and the person appropriates such property to his own use, or to the use of another person not entitled thereto without first making reasonable and just effort to find the owner and to restore the property to him. (See 485; see also Civ. Code,  2080.)

Defendant contends that there is insufficient evidence to support his conviction on count 2 because the evidence shows without contradiction that Mr. Gardiner was never in possession of the check. Given that Mr. Gardiner never possessed the check, the check never entered the realm of lost property. Defendants contention is based on his underlying claim that, [u]nder the common law, lost property is property which was once in possession of the owner and was subsequently and involuntarily parted with. Respondent contends that there was more than sufficient evidence to show that [defendant] received stolen property.

The courts instructions did not define lost property. Indeed, section 485, on which the courts instruction was based, does not define lost property, nor does any other California statute. However, the court instructed the jury pursuant to CALCRIM No. 101 that [w]ords and phrases not specifically defined in the instructions are to be applied using their ordinary, everyday meanings. Although one everyday meaning of lost is something that is no longer possessed (Merriam-Websters Collegiate Dict. (10th ed. 1999) p. 689), another everyday meaning is something taken away or beyond reach or attainment. (Ibid.) The evidence in this case showed that Gardiner regularly received a disability insurance check in his mailbox twice each month, yet he did not receive the check he expected in mid-June 2004. The check was later deposited into Ortizs bank account by defendant. The jury could have reasonably found on this evidence that Gardiners disability insurance check was lost property because it had been taken away from Gardiner by some unknown person, that the check was stolen because it had information identifying Gardiner as its true owner yet no attempt was made to restore it to Gardiner, and that defendant possessed the stolen check at the time he deposited it into Ortizs bank account. Substantial evidence supports defendants conviction on count 2.

CALCRIM No. 376

In instructing the jury on count 2, receiving stolen property, the court instructed pursuant to CALCRIM No. 376 as follows. If you conclude that the defendant knew he possessed property and you conclude that the property had in fact been recently stolen, you may not convict the defendant of receiving stolen property based on those facts alone. [] However, if you also find that supporting evidence tends to prove his guilt, then you may conclude that the evidence is sufficient to prove he committed receiving stolen property. The supporting evidence need only be slight and need not be enough by itself to prove guilt. You may consider how, where and when the defendant possessed the property along with any other relevant circumstances tending to prove his guilt of receiving stolen property. [] Remember that you may not convict the defendant of any crime unless you are convinced that each fact essential to the conclusion that the defendant is guilty of that crime has been proved beyond a reasonable doubt. (Italics added.)

Defendant contends that the word slight emphasized above unfairly and improperly shifted the burden of proof here and ultimately rendered the instruction unconstitutional. It did so because the instruction served to reduce the burden of proof which the People are required to carry. Respondent first contends that defendant forfeited this contention as he did not request a correction or clarifying instruction below. Respondent also contends that defendants contention has been rejected by several appellate courts of this state. (See e.g., People v. ODell (2007) 153 Cal.App.4th 1569, 1573-1577; People v. Solorzano (2007) 153 Cal.App.4th 1026, 1033-1036 (Solorzano); People v. Anderson (2007) 152 Cal.App.4th 919, 946-950.) As we agree with respondents latter contention, we need not address respondents former contention.

As the Solorzano court stated: [T]he inference that possession of stolen property creates is permissive, not mandatory. The case law is settled that requiring only slight corroborating evidence in support of a permissive inference, like the one that possession of stolen property creates, neither changes the prosecutions burden of proving every element of the offense nor otherwise violates the right to due process if, as here, the conclusion suggested is one that common sense and reason can justify in light of the proven facts before the jury. [Citations.] [] The permissive inference that CALCRIM No. 376 authorizes if the jury finds slight supporting evidence is linguistically synonymous with, and constitutionally indistinguishable from, the permissive inference that CALJIC No. 2.15 authorizes if the jury finds slight corroborating evidence. CALJIC No. 2.15 has withstood repeated constitutional attack. [Citations.] Like CALJIC No. 2.15, CALCRIM No. 376 neither undermines the presumption of innocence nor violates due process. (Solorzano, supra, 153 Cal.App.4th at pp. 1035-1036.)

Sufficiency of the Evidence ofCount 3

Defendant was charged in count 3 with having committed petty theft from Bank of America, after having served a prison term for a specified prior offense. ( 666.)[9] The prosecutor argued to the jury that Bank of America didnt lose that much. Thats why its a petty theft, $8.50, but thats money out of pocket. Thats what that count relates to. The jury found defendant guilty of petty theft as charged in count 3.

Defendant contends that the evidence is insufficient to support the conviction on count 3. He argues that, while the bank may have incurred fees in the amount of $8.50, there is no evidence that [he] obtained possession of any money. [W]hile Bank of America may have incurred a loss, there is no evidence that it did so as a result of [defendant] coming into possession of its money. Instead, it was a result of another entity coming into possession of its money that Bank of America incurred a loss.

Respondent contends that this court should conclude that a rational fact-finder could have found that [defendant] exercised the requisite dominion and control over Bank of Americas money so as to possess it. Here, [defendant] effectively took possession of Bank of Americas money ($8.50) by repeatedly using the services of the various non-Bank of America ATMs in his attempt to check his balance and withdraw money on his zero-balance account, and allowing Bank of America to be billed for such transactions knowing full well that he had no ability or intention of paying Bank of America for fees incurred on his account.

As stated above, the court instructed the jury that defendant was prosecuted for petty theft under count 3 under two theories: theft by trick and theft by larceny. It instructed on theft by trick as we discussed above regarding count 1. It further instructed the jury that it could find defendant guilty on count 3 if it found: (1) Defendant took possession of property owned by somebody else; (2) Defendant took the property without the owners consent; (3) When defendant took the property he intended to deprive the owner of it permanently or for so extended a period of time that the owner would be deprived of a major portion of the value or enjoyment of the property; and (4) Defendant moved the property and kept if for a period of time. (See CALCRIM No. 1800.)

The evidence did not establish that the crime alleged in count 3 satisfied the requirements for a conviction of petty theft either by trick or by larceny. Defendant made an ATM deposit of a $1,000 check into his checking account on July 17, 2004, but the check was written on the same account that he was depositing the check into, which at the time had a zero balance. He thereafter attempted to obtain a withdrawal of cash from that same account using a non-Bank of America ATM, even though he knew or should have known that his account had a zero balance. Bank of America incurred a loss of $8.50 in fees that it had to pay to the other bank because it could not charge defendants account for the fees. However, defendant never obtained, had possession of, or kept for any length of time the $8.50 that Bank of America paid the other bank. Accordingly, there is insufficient evidence to support the conviction on count 3 and we will reverse that conviction and strike the eight-month consecutive term and the order to pay $8.50 in restitution to Bank of America.

Concurrent Sentences on Counts 1 and 2

The probation report recommended that defendant be sentenced to 25 years to life on count 1 with a concurrent term of 25 years to life on count 2. It stated: Although Count Two involves a separate victim from Count one, the counts appear transactionally related and arguably occurred on the same occasion, and therefore concurrent sentencing is recommended. At sentencing, the court told the parties that it had been wrestling whether count 2 is 654 and whether it should be consecutive or concurrent, and it asked the parties for their thoughts.

The prosecutor argued that it is not 654. I think when you . . . look at just the plain language of 654, its not the same act or omission. It may be generally within the same ultimate objective, but it isnt the same act or omission. The court agreed. The prosecutor then argued that section 667, the Three Strikes law, requires mandatory consecutive sentencing on counts 1 and 2 if the crimes did not arise on the same occasion, and if they did not come out of the same set of operative facts. If either side fails, then the court has the discretionary sentencing choice of a concurrent sentence so lets talk about them separately. [] Arises on the same occasion, Your Honor, the Penal Code section 496 is complete the minute he has the intent to convert this check into cash for himself, even though it is a continuing offense that occurred, it ends when he relinquishes the check to the ATM machine. Its complete the minute he has that intent. [] The grand theft conviction wasnt complete until sometime later at Best Buy, and frankly that aspect, that intent, didnt even start until the failure to withdraw the cash from the ATM machines. So I think it is hard to say theyre on the same occasion. The analysis is probably different when were talking about the same set of operative facts . . . . In determining whether a crime arose out of [the] same set of operative facts, the court is to consider the nature and elements of the charged offenses. For example, the extent to which common acts and elements of such offenses unfold together or overlap and to the extent to which the elements of one offense have been satisfied rendering that offense completed in the eyes of the law before commission of further criminal acts constitute additional and separately chargeable offenses. . . . [] Maybe that seems confusing, but the gist of it is, Your Honor, I think the court should find given his overall objective is to convert this check to money that they arise out of the same set of operative facts, and if so common mandatory consent [sic] is not required, and then it becomes a discretion[ary] choice.

After the court informed the parties that it intended to impose concurrent sentences on counts 1 and 2, stating that it was going to exercise my discretion and follow probations recommendation in that regard, the court again asked whether counsel would like to be heard on the matter. Defense counsel responded, No.

In his opening brief, defendant contends that, because the offenses in counts 1 and 2 constitute an indivisible course of conduct, section 654 prohibits punishment for both offenses. Respondent contends in the response brief that the court did not abuse its discretion when it determined that section 654 did not apply because defendant committed two separate and distinct acts against different victims. As the parties did not address the applicability of section 667, subdivision (c)(6),[10] in their briefs, we requested simultaneous supplemental briefing on this issue. In his supplemental brief, defendant contends that section 667, subdivision (c)(6), authorized the trial court to impose concurrent sentences on counts 1 and 2. Respondent contends in the supplemental brief that section 667, subdivision (c)(6), did not give the trial court authority to impose concurrent sentences on these counts.

The three strikes law is a comprehensive, integrated sentencing scheme that applies to all cases coming within its terms. (See 667, subd. (f)(1) [Notwithstanding any other law, subdivision (b) to (i), inclusive, shall be applied in every case in which a defendant has a prior felony conviction as defined in subdivision (d)] . . . .) (People v. Casper (2004) 33 Cal.4th 38, 41-42.) By its terms, section 667, subdivision (c)(6), requires consecutive sentences whenever a defendant with one or more strikes is convicted, as here, of multiple felonies not committed on the same occasion, and not arising from the same set of operative facts. (Casper, supra, at p. 42; People v. Deloza (1998) 18 Cal.4th 585, 594 (Deloza).) Consecutive sentencing is discretionary under section 667, subdivision (c) only if the current felony convictions are committed on the same occasion or aris[e] from the same set of operative facts. ( 667, subd. (c)(6) . . . .) (Casper, supra, at p. 42; People v. Lawrence (2000) 24 Cal.4th 219, 233 (Lawrence).) While the strike allegation was dismissed as to count 3, defendant remained subject to the consecutive sentencing requirements of section 667, subdivision (c)(6), by virtue of the two counts that retained the strike allegations, counts 1 and 2. (Casper, supra, at p. 43.)

The words same occasion in section 667, subdivision (c)(6), do not have a special or peculiar import different from their ordinary, generally understood meaning. The phrase committed on the same occasion is commonly understood to refer to at least a close temporal and spatial proximity between two events, although it may involve other factors as well. (Deloza, supra, 18 Cal.4th at p. 594; Lawrence, supra, 24 Cal.4th at p. 226.) Thus, if a defendants crimes were committed in one location, were brief in duration, and were committed essentially simultaneously against the same group of victims, they were committed on the same occasion within the meaning of section 667, subdivision (c)(6). (Deloza, supra, 18 Cal.4th at pp. 595-596; Lawrence, supra, 24 Cal.4th at p. 227.)

The words same set of operative facts in section 667, subdivision (c)(6), mean sharing common acts or criminal conduct. (Lawrence, supra, 24 Cal.4th at p. 233.)  [W]here the elements of the original crime have been satisfied, any crime subsequently committed will not arise from the same set of operative facts underlying the completed crime; rather such crime is necessarily committed at a different time. (Id. at p. 232, quoting People v. Durant (1999) 68 Cal.App.4th 1393, 1406.)

Accordingly, [i]f there are two or more current felony convictions not committed on the same occasion, i.e., not committed within close temporal and spa[t]ial proximity of one another, and not arising from the same set of operative facts, i.e., not sharing common acts or criminal conduct that serves to establish the elements of the current felony offenses of which defendant stands convicted, then the court shall sentence the defendant consecutively on each count pursuant to subdivision (c)(6). Conversely, where a sentencing court determines that two or more current felony convictions were either committed on the same occasion or aris[e] from the same set of operative facts . . . , consecutive sentencing is not required under the three strikes law, but is permissible in the trial courts sound discretion. (Lawrence, supra, 24 Cal.4th at p. 233.)

In this case, in exercising its discretion to impose concurrent sentences for count 1 (grand theft of property valued over $400, the property Ortiz bought for defendant at Best Buy) and count 2 (receiving stolen property, Gardiners disability insurance check), the trial court implicitly found that the two offenses either were committed on the same occasion or arose from the same set of operative facts. The prosecutor argued that the two offenses were not committed on the same occasion, but they did arise out of the same set of operative facts. We find that the record supports the prosecutors contention, and that the trial court retained discretion to impose concurrent sentences on counts 1 and 2.

The operative facts underlying defendants offense of receiving stolen property were that defendant appropriated Gardiners disability insurance check for his own use without making a reasonable and just effort to find and restore the check to Gardiner, the checks rightful owner. Defendants appropriation of the check for his own use occurred when he deposited the check into Ortizs bank account and then had Ortiz use checks on the account to buy items for him at Best Buy. The operative facts underlying defendants offense of grand theft were that defendant tricked Ortiz into believing that the funds she was using to buy the items at Best Buy were his funds that he had just deposited into her account. Thus, the two offenses shar[ed] common acts or criminal conduct, and therefore arose out of the same set of operative facts. (Lawrence, supra, 24 Cal.4th at p. 233.) Accordingly, the trial court retained discretion to impose concurrent sentences on counts 1 and 2, and we cannot say that the trial court abused its discretion in doing so.

Cruel and Unusual Punishment

The probation report states that the then 37-year-old defendant has one misdemeanor conviction for resisting arrest and 12 prior felony convictions. He has two prior convictions for receiving stolen property, two for second degree robbery, two for auto theft, two for reckless evasion of a peace officer, and one each for assault on a peace officer and possession of a deadly weapon in court. He has been institutionalized for most of his life. He spent seven and one-half years at the California Youth Authority beginning at age 13. He was sentenced to six years in state prison in 1993 for his three strike priors, to six years in 1998 for a receiving stolen property conviction, and to four years in 2006 on charges unrelated to the facts of this case. He is unsure whether he completed the 7th or 8th grade, he has never had steady employment, and he has a young son that resides with his mother.

In his written request that the court strike his strikes, defendant contended in part that sentencing him under the Three Strikes law violates state and federal prohibitions against cruel and unusual punishment. He argues here, as he did below, that a life sentence is grossly disproportionate to his crimes. Respondent contends that defendants sentence does not violate the prohibition against cruel and/or unusual punishment under the state and federal Constitutions.

Whether a punishment is cruel or unusual is a question of law for the appellate court, but the underlying disputed facts must be viewed in the light most favorable to the judgment. [Citations.] [Citation.] Cruel and unusual punishment is prohibited by the Eighth Amendment to the United States Constitution and article I, section 17 of the California Constitution. Punishment is cruel and unusual if it is so disproportionate to the crime committed that it shocks the conscience and offends fundamental notions of human dignity. (In re Lynch (1972) 8 Cal.3d 410, 424. (People v. Mantanez (2002) 98 Cal.App.4th 354, 358, fns. omitted.; see also Ewing v. California (2003) 538 U.S. 11, 23-24 (Ewing).)

The main technique of analysis under California law is to consider the nature both of the offense and the offender. (People v. Dillon (1983) 34 Cal.3d 441, 479.) The nature of the offense is viewed both in the abstract and in the totality of circumstances surrounding its actual commission; the nature of the offender focuses on the particular person before the court, the inquiry being whether the punishment is grossly disproportionate to the defendants individual culpability, as shown by such factors as age, prior criminality, personal characteristics, and state of mind. (People v. Dillon, supra, 34 Cal.3d at p. 479 . . . .) [] The judicial inquiry commences with great deference to the Legislature. Fixing the penalty for crimes is the province of the Legislature, which is in the best position to evaluate the gravity of different crimes and to make judgments among different penological approaches. (Harmelin v. Michigan [(1991)] 501 U.S. [957,] 998 (conc. opn. of Kennedy, J.); People Dillon, supra, 34 Cal.3d at p. 477.) Only in the rarest of cases could a court declare that the length of a sentence mandated by the Legislature is unconstitutionally excessive. [Citations.] (People v. Martinez (1999) 76 Cal.App.4th 489, 494; see also Ewing, supra, 538 U.S. at pp. 24-25.)

Regarding the nature of the offenses in this case, defendant was found guilty by a jury of receiving stolen property, a disability insurance check of over $1,100 belonging to his neighbor, and grand theft of property over $400, because he had his cousin buy things for him at Best Buy using funds he made her think were his but were in fact her funds. These offenses are not considered serious or violent felonies. ( 667.5, subd. (c), 1192.7, subd. (c).) However, defendant has two prior convictions for receiving stolen property and he has already served a prison term for one of the convictions. In addition, although defendants neighbor eventually fully recovered his stolen disability insurance funds and Bank of America did not go after defendants cousin for the amount of the stolen check, defendant harmed both his cousin and his neighbor emotionally and monetarily for his own personal gain. And, as the trial court found, defendant took advantage of a position of trust or confidence when he manipulated his cousin into helping him complete his scheme.

As to the nature of the offender, the probation report shows that defendant has spent most of his adult life, as well as his teen years, institutionalized for felony offenses. The trial court found that defendants statements to the probation officer indicated that defendant feels that he is a victim of the system, which meant that if hes cut some slack here and gets out, he will repeat it because hes not a criminal; hes a victim. The court further found that a life sentence seems appropriate given a lifetime of bad acts, a lifetime of felony behavior, and no indication even while hes here in court that hes going to change that behavior.

On this record, even with the reversal of the conviction for petty theft, we cannot say that a life sentence is so disproportionate so as to offend fundamental notions of human dignity in light of the remaining offenses and the nature of the offender. (People v. Martinez, supra, 76 Cal.App.4th at p. 494.)

Victim Restitution

At sentencing, the court ordered defendant to pay victim restitution in the amount of $702.42 to Ortiz and $8.50 to Bank of America. We have previously found that the order to pay $8.50 to Bank of America must be stricken due to the insufficiency of the evidence to support the conviction for petty theft. Defendant contends that the order requiring him to pay Ortiz $702.42 should be stricken as the record does not support a finding that Ortiz suffered a loss in that amount.

Respondent first contends that defendant has waived this claim by failing to raise it below. However, a challenge to the sufficiency of the evidence to support a restitution order requires no predicate objection in the trial court. (People v. Viray (2005) 134 Cal.App.4th 1186, 1217.) Respondent further contends that the record supports the trial courts order. We agree with this latter contention.

[I]n every case in which a victim has suffered economic loss as a result of the defendants conduct, the court shall require that the defendant make restitution to the victim or victims in an amount established by court order, based on the amount of loss claimed by the victim or victims or any other showing to the court. ( 1202.4, subd. (f).) The defendant has the right to a hearing before a judge to dispute the determination of the amount of restitution. (Id. at subd. (f)(1).)

The probation report in this case stated that Ortiz requested restitution in the amount of $2,357.42. At sentencing the court stated that the claimed restitution amount of $2,3357.42, if I understand though, should be changed to $641.23 and another loss of $61.19 for a total of $702.42; is that correct? The probation officer responded, Yes, Your Honor. The corrected amount of the requested restitution corresponds to the amount of the two checks Ortiz used at Best Buy to purchase a stereo system, CDs and a DVD for defendant and sodas for the people on the shopping trip. There was evidence at trial regarding these two checks, which constitutes prima facie evidence of the amount of the victims loss. (See People v. Foster (1993) 14 Cal.App.4th 939, 946-947.) Accordingly, defendants contention that the record does not support the trial courts order is not well taken. (People v. ONeal (2004) 122 Cal.App.4th 817, 820; People v. Fulton (2003) 109 Cal.App.4th 876, 886-887.)

DISPOSITION

The conviction on count 3 is reversed due to the insufficiency of the evidence. The judgment is ordered modified by striking the eight-month consecutive term imposed on count 3 and the order to pay $8.50 in restitution to Bank of America. As so modified the judgment is affirmed. The clerk of the superior court is ordered to prepare an amended abstract of judgment and to forward it to the Department of Corrections and Rehabilitation.

___________________________________________________

Bamattre-Manoukian, ACTING P.J.

WE CONCUR:

__________________________

MIHARA, J.

_________________________

duffy, J.

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[1] Further unspecified statutory references are to the Penal Code.

[2]People v. Superior Court (Romero) (1996) 13 Cal.4th 497.

[3] Defendants mother and Ortizs mother are sisters. Ortizs family members refer to her as Tita.

[4] Ortiz testified that she was convicted in 1994 of a felony theft offense not involving violence.

[5] $105.68 (the amount available to Ortiz after the June 21, 2004 deposit) minus $368.29 (the amount withdrawn from the account between that time and June 24, 2004), does not equal minus $11.03, but the discrepancy is not explained in the record on appeal.

[6] The fees were $1.50 for each of the five withdrawal attempts and $1.00 for the balance inquiry.

[7] There was testimony that Bank of America records show that the August 1, 2004, $300 ATM withdrawal was the first posted withdrawal from Ortizs account after July 26, 2004. There was no testimony concerning when the checks Ortiz wrote to Best Buy were posted to her account or concerning why Ortizs account was overdrawn on July 22, 2004, if the $1,169.62 check deposited on June 21, 2004, remained fully credited to her account.

[8] The evidence was offered under Evidence Code section 1101, subdivision (b), to prove intent.

[9] Every person who, having been convicted of . . . a felony violation of Section 496, and having served a term therefor in any penal institution . . . , is subsequently convicted of petty theft, then the person convicted of that subsequent offense is punishable by imprisonment in the county jail not exceeding one year, or in the state prison. ( 666.)

[10] Section 667, subd. (c)(6), states in pertinent part: Notwithstanding any other law, if a defendant has been convicted of a felony and it has been pled and proved that the defendant has one or more prior [strikes], the court shall adhere to each of the following: [] . . . [] (6) If there is a current conviction for more than one felony count not committed on the same occasion, and not arising from the same set of operative facts, the court shall sentence the defendant consecutively on each count . . . .