P. v. Rodriguez
Filed 3/8/13 P. v. Rodriguez CA4/2
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
THE PEOPLE,
Plaintiff and Respondent,
v.
MIRIAM JEANNETTE RODRIGUEZ,
Defendant and Appellant.
E053806
(Super.Ct.No.
RIF149174)
OPINION
APPEAL from
the Superior Court
of
County. Harry A.
Staley, Judge. (Retired judge of the
Kern Super. Ct. assigned by the
Chief Justice pursuant to art. VI, § 6 of the Cal.
Const.) Affirmed with directions.
Susan S.
Bauguess, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General,
William M. Wood, and Marilyn L. George, Deputy Attorneys General, for Plaintiff
and Respondent.
Defendant
Miriam Jeannette Rodriguez was found guilty by a jury of two counts of elder
financial abuse (Pen. Code,
name="_ftnref1" title="">[1] § 368, subd. (d)), two counts of identity
theft (§ 530.5, subd. (a)), nine counts of grand theft (§ 487, subd. (a)),
one count of recording false documents (§ 115), four counts of
counts of money laundering (§ 186.10, subd. (a)), arising from a series of
fraudulent mortgage transactions involving five separate victims. Each of the victims was Hispanic and had
difficulty understanding English. All of
the victims trusted the defendant, a real estate broker, to help them navigate
through confusing loan modifications or mortgage refinancing, only to be
bilked. Defendant was sentenced to an
aggregate term of 13 years 8 months, and appealed.
On appeal,
defendant argues (1) the instructions on identity theft (counts 19 and 20)
inadequately defined the element of unlawful purpose; (2) consecutive sentences
on counts 24, 25, and 27 (the burglary counts), as well as on counts 7 and 9
(money laundering counts), violate section 654; (3) her presentence custody
credit was miscalculated, entitling her to an additional three days of credit;
and (4) the minute order and abstract of judgment must be amended to reflect
the correct sentence. The People agree
defendant is entitled to additional presentence custody credit, and that the
abstract should be amended. We modify
the judgment to stay the term for count 9, and accept the People’s concessions
on arguments 5 and 6, but otherwise affirm.
BACKGROUND
The
defendant engaged in a series of fraudulent mortgage transactions, exploiting
five Hispanic victims who depended on her knowledge of real estate lending
practices, as well as her ability to read and comprehend English. Because an exhaustive explication of the
facts is not necessary to our resolution of the issues presented, we briefly
summarize what is otherwise a long and complicated history.
A.
Faustina
and Filiberto G. were elderly Mexican immigrants who had minimal education in
and did not speak, read or write English.
Faustina came to the United States in 1970, when she was 40 years old,
while Filiberto was older than 40 when he came to this country. Filiberto had worked in a motor home factory
in the past. In 2002, Filiberto and Faustina
found a home through the defendant, who conducted business as a real estate
broker under the business name Isis Realty, and purchased it for $71,000. By 2005, Filiberto was out of work due to
health problems, although Faustina still worked as a seamstress. Filiberto’s memory was already failing in
2005 and he depended on social security benefits because he did not have
retirement benefits. Filiberto and
Faustina wanted to refinance the home so their real estate taxes and insurance
would be included in the mortgage payments, so they consulted defendant again.
Defendant
told them it was not possible to have their taxes and insurance added to their
mortgage payments, and recommended that they refinance the house, despite the
fact that lending institutions do not require a refinance in order to do so. Defendant advised Faustina to transfer her
interest to Filiberto because she would not qualify, so Faustina executed a
deed transferring her interest to her husband.
The individual who notarized the documents was defendant’s husband.
During this
time frame, defendant borrowed money from Faustina and Filiberto on two
occasions, which defendant paid back with interest. At some point, defendant had Faustino and
Filiberto execute documents, but they did not know what they were signing. When they attempted to purchase a vehicle,
they learned there was a line of credit.
Faustina also noticed her mortgage statements included two amounts, one
for the regular house payment, and the other for a loan. A $50,000 line of credit had been loaned in
Filiberto’s name, using the equity of their home. Filiberto had no recollection of the
transaction and did not recognize the signature as his own. Defendant received $49,000 from that line of
credit after Faustina unwittingly signed a withdrawal request in that
amount. The application for the line of
credit falsely stated that Filiberto worked as a restaurant manager earning
$8,500 per month, when in fact he was only receiving social security
benefits. The restaurant in question was
operated by defendant’s husband.
When
Faustina and Filiberto confronted defendant with the line of credit, defendant
said it was a loan to her and that she would repay it. Defendant instructed Faustina to give
defendant the statements and that defendant would pay. Faustina and Filiberto received two
installment payments from her, but the remainder of the balance on the line of
credit was unpaid. Faustina’s
granddaughter made a report to law enforcement regarding the suspicious
circumstances of the loan.
When
Detective Negrete investigated the report made on behalf of Faustina and
Filiberto, he conducted a title search, where it was learned that a loan in the
amount $188,000 had been made in Filiberto’s name, but the proceeds of the loan
had been transferred to defendant and her agent Carlos Colunga. Faustina was completely unaware that a loan
transaction purportedly executed by Filiberto had been transacted by defendant
in the amount of $188,000. Filiberto did
not recall the loan and indicated that the signature on the papers was not
his. Neither Filiberto nor Faustina
executed a deed of trust for that loan that had been notarized by defendant’s
husband.
A search warrant served on the
lender showed that $95,000 was wired in from Gateway Title. The next entry on the ledger showed that
$86,744.56 was wire-transferred directly to Carlos Colunga, although Filiberto
was named as the borrower; it is highly irregular and considered fraudulent for
loan proceeds to be forwarded to a third party.
Another red flag was the fact that the notary on the documents was not
one approved by Lawyer’s Title, the escrow company used for the loan.
A few days
after that transfer, $6,600 was withdrawn, and a check paid to the order of
defendant in the amount of $80,000 was paid by the bank to which the $86,744.58
was transferred. Another payment in the
amount of $7,870 was disbursed to Isis Realty and Farmers Insurance.
B.
Agripindo
and Guadalupe were married and in 2005, the couple purchased a home using
defendant’s services. At the time of the
home purchase, Agripindo worked in the construction industry. In November 2008, that job ended, and
Agripindo began working in a factory.
Neither Agripindo nor Guadalupe speaks, writes, or reads English.
In early
2008, when the amount of construction work decreased, Agripindo and Guadalupe
began having difficulty meeting their house payments. They went to the defendant for help in
lowering their payments. Defendant
agreed to do so and charged the couple the amount of one month’s house payment,
or $2,915 (she ultimately charged them $1,900) as her fee. Defendant also instructed them to stop making
payments for three months so she could process a loan modification. The defendant presented them with a contract
written in English which she said was necessary for the loan modification, and
they signed it, but did not retain a copy.
The defendant then told Agripindo and Guadalupe that she needed money up
front to start the process. They paid
her $600 in cash shortly after signing the contract, and paid her another $300
in cash 15 days later. A week later,
they paid her $1,000 in cash.
Agripindo
and Guadalupe called frequently over the next three months to check the status
of their loan modification. Defendant
would report that she was working on it, but eventually she suggested a short
sale. Defendant explained that in a
short sale, she would get someone who was willing to let them use his or her
name, but that Agripindo and Guadalupe would keep it; she also indicated she would
find someone to sign for the house. In
that way, Agripindo and Guadalupe would stay in the house, making the payments,
and the proposed buyer would retransfer title to them on a later date.
On June 11,
2008, defendant asked for additional money.
Guadalupe though it was strange that defendant requested cash so she
took the cash her husband obtained and bought money orders. However, defendant requested that the money
orders be left blank. Agripindo and
Guadalupe provided three separate money orders in the amount of $1,000, each,
to the defendant, and a fourth money order in the amount of $200. Although they paid with money orders,
defendant had requested cash.
Approximately one month later, defendant told Agripindo and Guadalupe
that she needed $3,200 more. The couple
had only $1,000 left, however, so they gave her that amount. Eventually, they contacted the bank to find
out if defendant was working on the loan.
The bank officer informed them that they did not qualify for a loan
modification and that the bank had not received any of the money paid by
Agripindo and Guadalupe. The bank
informed them that the house was in default.
Agripindo
and Guadalupe then confronted defendant to find out what happened to the
money. Although defendant informed them
that the money had been sent to the bank, the post office that issued the money
orders traced all of the money to defendant and Carlos Colunga. When they confronted her with the fact the
bank never received the money, defendant got angry and said, “[A]ll [you]
Mexicans are dumb shits.â€
At this
point, Agripindo and Guadalupe demanded a return of all the money they had
advanced, but defendant needed three weeks.
In three weeks, however, defendant said she needed another 20 days, and
when that time elapsed, defendant refused to repay them because the bank had
taken the money. Agripindo and Guadalupe
then contacted the police.
On July 15,
2008, a notice of default was issued and the property was sold in
foreclosure. The bank had no entries
that defendant or Isis Realty attempted to arrange a short sale. In April 2009, Agripindo and Guadalupe were
evicted from the property and had to move in with Agripindo’s brother.
c. Edelmira B.
Edelmira B.
immigrated to the United States from Mexico with her husband in 1989. Edelmira had three years of college education
in Mexico. Edelmira’s husband had been
an accountant in Mexico, but in the United States he took whatever jobs he
could get, including working in strawberry fields, construction, and driving a
truck. Edelmira and her husband owned
two pieces of property and were current on their payments. Neither of them could read English.
In 2008,
Edelmira accompanied her nephew and his wife to an appointment with the
defendant. During that meeting,
defendant asked Edelmira if she and her husband owned any property, and told
Edelmira that there were government programs to lower payments. Edelmira made an appointment to meet with
defendant at the home of Edelmira’s sister and brother-in-law. Edelmira and her husband were just getting
ready to make their next payment.
At the
meeting, defendant told Edelmira that she and her husband should take advantage
of the program, but informed them that in order to qualify for a loan
modification, they had to be two months behind in payments. Defendant charged them a fee of $2,500 to
initiate the loan modification.
Defendant also told them that if they could not get a loan modification,
she would arrange a short sale.
Defendant informed them that the short sale process involved them
finding a person to qualify as a purchaser for a fictitious sale who would
transfer title back to Edelmira and her husband after a certain amount of
time. Edelmira and her husband agreed to
take on defendant’s services; Carlos Colunga was present at the meeting. Edelmira gave defendant $2,000.
that was written in English, presented by defendant, although neither could
read English. Defendant did not provide
them with copies of the documents so signed.
Subsequent
to that meeting, when Edelmira and her husband were two months in arrears,
defendant notified them that the bank had rejected the loan modification
application. Defendant proposed doing
the short sale instead. Edelmira and her
husband went to defendant’s office and signed an authorization to permit the
defendant to proceed with the short sale.
They also paid defendant the $500 balance on the original fee charged by
defendant, as well as an addition $375 for an appraisal of the property.
After
signing the paperwork, Carlos Colunga came to the residence of Edelmira and her
husband on January 1, 2009, to pick up a check in the amount of $1,000, made
out to Colunga. Defendant explained that
the checks had to be made out to Colunga because as a real estate agent, she
had to appear impartial, and if the checks were made out to her it would appear
that she was helping them. The money was
necessary to close the deal on the house, according to defendant. As the defendant explained, the money would
be deposited into an account that belonged to her son, so that it could be
deposited into an account for use by the third party who would purchase the
property, an individual named Jose Alegria.
Jose Alegria was the boyfriend of Edelmira’s oldest daughter, who had
agreed to act as the buyer of the residence in the short sale. Edelmira had Colunga write out a receipt for
the check.
On January
3, 2009, defendant came to the home of Edelmira and her husband to pick up
another check in the amount of $1,500.
On January 21, 2009, Edelmira gave defendant another payment of
$1,500. In February 2009, defendant
informed Edelmira that the lender had questioned how Edelmira and her husband
could make payments on their second residence and a car payment, but be unable
to make their payments on this house.
Defendant instructed Edelmira to stop making payments on the second
house, which was rented out, as well as their car payments, so the lender could
see they were behind in everything.
Edelmira did as defendant suggested.
On February
17, 2009, Edelmira received a letter from the lender advising her of an
impending auction of the property.
Edelmira contacted defendant who told Edelmira not to worry because she
could get three extensions from the bank.
On March 5, 2009, defendant informed Edelmira that the escrow had raised
the points on the short sale and that Edelmira and her husband would have to
put up 3.5 percent. Defendant provided
Edelmira with an account number, and Edelmira deposited the money as instructed.
Edelmira
had one more contact with the defendant, when the defendant informed Edelmira
to have Jose Alegria prepare for the closing of escrow, but was unable to
contact the defendant after that.
However, Aurora Loan Services (Aurora), which serviced the loan that
Edelmira and her husband sought to modify, had no record of any contact by
defendant, Carlos Colunga, or anyone from Isis Realty regarding a loan
modification. On October 3, 2008, Aurora
received authorization to speak to Isis regarding the account of Edelmira and
her husband, for the first time. Isis
provided incomplete documentation on October 20, 2008, and the initial
submission expired on January 20, 2009.
The application was resubmitted in February but immediately expired
because the submission was based on the same incomplete information that had
been previously submitted.
In March
2009, Aurora received another submission from Isis, which included an expired
purchase contract and required settlement statement, so that submission was
inadequate as well. Aurora never approved
a short sale on this loan. Additionally,
Aurora would not require the seller in a short sale situation to submit money,
other than a contribution for closing costs.
Aurora never requested $1,000 on January 1, 2009, never made such a
request on January 3, 2009, and did not request that any other funds be paid up
front by Edelmira and her husband. In
fact, Aurora never approved a short sale.
Edelmira,
along with her husband and five children were evicted on May 17, 2009.
d. Henry M. A.
Henry A. was
a self-employed locksmith who immigrated to the United States when he was 15,
in the late 1980’s. He was married to
Rosa G., who owns the locksmith business, although she primarily cared for the
couple’s children and only helped with the accounts of the business. In 2008, the family lived in Riverside with
Henry’s father, who is named Henry D. A.
Henry’s father worked cleaning houses, and the residence where the
family lived was in the name of Henry’s father.
In 2006,
Henry M. A. was making payments on his father’s residence because his father
was not earning enough money. In 2008,
Henry M. A.’s business dropped off and he had trouble making payments. He was worried about losing the home but had
heard news stories about people getting help with loan modifications. After asking around, someone referred Henry
M. A. to defendant, so he went with his wife to defendant’s office. Defendant charged Henry M. A. $2,500 to do a
loan modification, which he paid over a two-month period in installments.
In October
2008, defendant asked for another $2,000, explaining that a loan modification
was not possible and a short sale was required.
Defendant did not inform Henry M. A. that the house had already been
sold in a foreclosure proceeding.
Defendant explained to Henry M. A. that a short sale involved the house
being sold to themselves. However,
because Henry M. A.’s name was the same as his father, Henry M. A.’s wife Rosa
G. would have to be the buyer because her surname was different.
The
defendant informed Henry M. A. that the money for the down payment should come
from a separate party. She requested
that Henry M. A.’s uncle sign a letter that she drafted documenting that the
uncle was making a gift of $9,544 to Henry M. A. as a down payment. However, Henry M. A. actually contributed a
portion of the money. Later, Henry M. A.
obtained a cashier’s check, made out to Isis Realty in the amount of $9,544,
and delivered it to the defendant. The
cashier’s check was required because defendant told Henry M. A. he could not
use his own account in order to show the money had come from someone else.
Henry M. A.
and his wife gave defendant their tax returns when applying for the loan
modification. However, the tax returns
submitted by defendant to the lender with the loan modification application
showed the surnames of the children had been changed so they matched his wife’s
surname, a change not made by Henry M.,A. or his wife. After giving defendant the payment, defendant
told Henry M. A. to wait. Henry M.
A. was unaware that on December 16, 2008, the home had been sold.
At some
point after December 16, 2008, Henry M. A. asked defendant for proof that she
was working on the short sale. Defendant
provided a document showing that the loan for the proposed short sale buyer had
been preapproved. The letter, which was
written on outdated letterhead of Production Mortgage, contained the signature
of Patricia O., an underwriter of Production Mortgage, and was dated January
13, 2009. However, the person whose name
appears as the underwriter did not write or sign the letter of approval.
The
Production Mortgage file showed that a purchase contract dated December 2,
2008, had been submitted to Production Mortgage showing Rosa G. as buyer, Henry
D. A. as seller, Isis Realty as realtor-broker, and Carlos Colunga and
defendants as agents. However,
Production Mortgage had canceled the proposed short sale and informed the
broker-agent (defendant) that the ratio was too high. Production Mortgage noticed that Rosa G. had
paperwork from a collection company in the name of Rosa A., and that the A.
name appeared on tax returns as the surname of Rosa’s children. The records of Production Mortgage reflected
that it considered the deal to be a “bailout†and that it was suspected that
the buyer and seller were related. When
Henry M. A. contacted Production Mortgage, his father’s lender, about the
preapproval, he was instructed to contact defendant. However, the defendant could not be found.
EMC
Mortgage Corporation serviced the loan on the home of Henry D. A. The account history for the loan showed that
Carlos Colunga had contacted the lender inquiring about a short sale on
September 9, 2008. The short sale was
initially approved after the bank completed its financial analysis and
determined it would accept a short payoff.
The next step was to receive a final HUD approval so closing could
occur. However, EMC never received this
approval. The foreclosure sale was
postponed in November, but when the closing did not occur by the deadline, the
foreclosure sale went forward.
Additionally, if EMC had known that the proposed purchaser in the short
sale was married to the son of the borrower, it would have shut the file down.
Subsequently,
Henry M. A. and his family received an eviction letter.
Procedural
History
Defendant
was charged by information with multiple offenses. In counts 1 and 2, she was
charged with elder financial abuse respecting Filiberto and Faustino G. (§ 368,
subd. (d)); counts 3, 11, 15, 16, 18, 21, 23, 26, and 28 charged her with grand
theft respecting Works Savings Bank, Wachovia Mortgage Corporation, Agripindo
A., Henry A., and Edelmira B., (§ 487, subd. (a)); count 4 alleged she recorded
a forged document (§ 115.5, subd. (a)); counts 5, 6, 7, 8, 9, 10, 12, and 13
charged defendant with money laundering (§ 186.10, subd. (a)); counts 19 and 20
alleged identity theft of Patricia O. (§ 530.5, subd. (a)); and counts 22,
24, 25, and 27 charged residential burglary.
The information also included
quantity enhancements as to counts 1 and 2 (§ 12022.6, subd. (a)(2)), and
counts 5, 7, and 9 (§ 186.10, subd. (c)(1)(a)), and the burglary counts
included an allegation that another person, not an accomplice, was present at
the time the burglaries were committed.
(§ 667.5, subd. (c)(21).)
Defendant was tried by a jury and
convicted of all counts, save those dismissed by the People. At sentencing, the court denied probation and
selected count 22 as the principal term.
The court imposed the midterm of four years for count 22, and imposed
consecutive terms (one-third the midterm) for counts 1, 5, 7, 9, 15, 18, 24, 25
and 27, along with one-third the term for any enhancements. For counts 3, 6, 8, 10, 11, 12, 13, 16, 19,
and 20, the court imposed concurrent midterm sentences, and the court stayed
terms on counts 2, 21, 23, 26 and 28, pursuant to section 654.
Defendant timely appealed.
Instruction Defining the Elements of Identity Theft (§ 530.5, Subdivision (a))
Is Proper.
Defendant
argues her convictions for identity theft in counts 19 and 20 must be reversed
because the trial court failed to define “unlawful purpose,†as part of the
mental element of section 530.5, subdivision (a). We disagree.
It is settled that in criminal
cases, even in the absence of a request, the trial court must instruct on the
general principles of law relevant to the issues raised by the evidence. (People
v. Breverman (1998) 19 Cal.4th 142, 154.)
The general principles of law governing the case are those principles
closely and openly connected with the facts before the court, and which are
necessary for the jury’s understanding of the case. (People
v. St. Martin (1970) 1 Cal.3d 524, 531.)
The language of a statute defining a crime is generally an appropriate
and desirable basis for an instruction, and is ordinarily sufficient when the
defendant fails to request amplification.
(People v. Solis (2001) 90
Cal.App.4th 1002, 1014.)
The elements of section 530.5
include: (1) that the person willfully
obtain personal identifying information belonging to someone else; (2) that the
person use that information for any unlawful purpose; and (3) that the person
who uses the personal identifying information do so without the consent of the
person whose personal identifying information is being used. (People
v. Barba (2012) 211 Cal.App. 4th 214, 223, citing In re Rolando S. (2011) 197 Cal.App.4th 936, 940, and
Cal.App.4th 517, 533.)
CALCRIM No. 2040, the CALCRIM
instruction that pertains to this offense, sets forth the elements of the
offense in section 530.5, subdivision (a), as follows:
“The defendant is charged [in Count
_____] with the unauthorized use of someone else's personal identifying
information in violation of Penal Code section 530.5[, subdivision] (a).
“To prove that the defendant is
guilty of this crime, the People must prove that:
“1. The defendant willfully
obtained someone else’s personal identifying information;
“2. The defendant willfully used
that information for an unlawful purpose;
“AND
“3. The defendant used the
information without the consent of the person whose identifying information she
was using.â€
As can be seen from the above,
“unlawful purpose†is not the “mental element†of the statute. The term is only used in the statute to describe
the defendant’s “use†of information “willfully obtained.†The requisite mental state for the crime was
defined in CALCRIM No. 252, with which the court properly instructed the jury.
CALCRIM No. 2040 correctly
instructs the jury on the elements of the crime. Defendant’s claim is not that the instruction
omits any element of the crime, but, rather, that the instruction fails to
clarify the term “unlawful purpose†as it is used in the statute. Generally, when a party complains that an
instruction is too general, lacks clarity, or is incomplete, he must request
the additional or qualifying instruction in order to have the error
reviewed. (People v. Welch (1999) 20 Cal.4th 701, 757, citing
Cal.App.4th 1128, 1162.)
When a word or phrase is commonly
understood by those familiar with the English language and is not used in a
technical sense peculiar to the law, the court is not required to give an
instruction as to its meaning in the absence of a request. (People
v. Estrada (1995) 11 Cal.4th 568, 574, quoting People v. Rowland (1992) 4 Cal.4th 238, 270-271.) Further, a trial court has no
upon an accurate statement of law without a request from counsel. (
638, citing People v. Kelly (1992) 1
Cal.4th 495, 535.) Failure to request
clarification of an otherwise correct instruction forfeits the claim of error
for purposes of appeal. (
151, disapproved on a different point in People
v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22; People v. Samaniego (2009) 172 Cal.App.4th 1148, 1163.)
We may review the claim of error
despite the failure to preserve such an issue for appeal of instructional
error; to the extent a defendant’s substantial rights were affected. (§ 1259; see People v. Rundle, supra, 43 Cal.4th at p. 151, disapproved on
another point in People v. Doolin, supra,
45 Cal.4th at p. 421, fn. 22.) In
determining the correctness of jury instructions, we consider the instructions
as a whole. (People v. Carrasco (2006) 137 Cal.App.4th 1050, 1061.) An instruction can only be found to be
ambiguous or misleading if, in the context of the entire charge, there is a
reasonable likelihood that the jury misconstrued or misapplied its words. (People
v. Campos (2007) 156 Cal.App.4th 1228, 1237, citing People v. Frye (1998) 18 Cal.4th 894, 957, disapproved on a
different point in People v. Doolin,
supra, 45 Cal.4th at p. 421, fn. 22.)
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, supra, 157 Cal.App.4th at p. 533.) Thus, it is the use of the identifying
information for an unlawful purpose that completes the crime and each separate
use constitutes a new crime. (People v. Mitchell
(2008) 164 Cal.App.4th 442, 455.) The
statutory language of section 530.5, subdivision (a), has been held to be
sufficiently clear, not requiring an intent to defraud as a prerequisite for a
conviction under that portion of section 530.5.
(People v. Hagedorn (2005) 127
Cal.App.4th 734, 748 [holding that the jury was properly instructed on the
elements of the offense charged using CALCRIM No. 2040].)
In dicta, the reviewing court in
that, standing alone, the phrase “‘uses . . . for any unlawful purpose’†might
be considered unconstitutionally vague under particular circumstances, because
persons of common intelligence might have to guess at its meaning and could
differ as to its application.†(
Cal.App.4th at p. 746.) However, the
court went on to state that “the statute goes on to define ‘uses . . . for any
unlawful purpose’ as including the obtaining, or attempted obtaining, of
‘credit, goods, services, or medical information in the name of [an]other
person without the consent of that person . . . .’†The court did not hold that term “unlawful
purpose†was ambiguous, requiring special instructions, and its holding does
not support defendant’s assertion that a trial court is required, sua sponte,
to define the term “unlawful purpose.â€
In our view, the term “unlawful purpose†is a term commonly understood
by those familiar with the English language and is not used in a technical
sense peculiar to the law.
Here, In order to obtain additional
money from Henry A., defendant had falsely represented that the loan
modification had been approved, and used the personal identifying information
of Patrica O. and Production Mortgage to induce Henry A. to come up with
additional cash. In recreating the
letterhead of Production Mortgage, defendant used its identifying information
from an outdated letter, as well as the name and underwriter information of
Patricia O. In creating the false
approval letter, defendant could not have been acting by mistake or
unintentionally. In using the
information to defraud Henry A. out of additional funds which the lender denied
requesting, in the name of the other person without the consent of that person,
her purpose can be nothing but unlawful.
(See People v. Hagedorn, supra,
127 Cal.App.4th at p. 747.)
Because ignorance of the law is no
excuse for a violation thereof (People v.
Hagedorn, supra, 127 Cal.App.4th at p. 748), defendant may be presumed to
know that using the identity of another, without consent to use it, to
fraudulently induce a third party to pay her money to which she was not
otherwise entitled; no further explanation of “unlawful purpose†was required.
Counts 24 and 25 Were Proper Where There Were Separate Entries on Separate
Occasions, and Separate Takings By False Pretenses.
Defendant argues that consecutive
sentences for the burglaries charged in counts 24, 25, and 27 violated the
multiple punishment prohibition found in section 654, since all were part of an
indivisible course of conduct. We
disagree.
Section 654 bars multiple
punishments for separate offenses arising out of a single occurrence where all
of the offenses were incident to one objective.
(People v. McKinzie (2012) 54
Cal.4th 1302, 1368, citing Neal v. State
of California (1960) 55 Cal.2d 11, 19.)
A course of conduct divisible in time, although directed to one
objective, may give rise to multiple violations and punishment. (People
v. Beamon (1973) 8 Cal.3d 625, 639, fn. 11.) This is particularly true where the offenses
are temporally separated in such a way as to afford the defendant opportunity
to reflect and to renew his or her intent before committing the next one,
thereby aggravating the violation of public security or policy already
undertaken. (People v. Kurtenbach (2012) 204 Cal.App.4th 1264, 1289, citing
919, 935.)
In the present case, the burglaries
reflect three separate entries into the home of Edelmira B., with the felonious
intent of defrauding Edelmira of separate sums of money. Although there may have been one overarching
criminal scheme, they were committed on different days. (See, e.g., People v. Andra (2007) 156 Cal.App.4th 638, 640-642 [identity theft
committed to facilitate a vehicle theft and to obtain money by false pretenses
did not implicate section 654, because the identity theft occurred prior to the
other crimes]; People v. Kwok (1998)
63 Cal.App.4th 1236, 1256 [burglary to facilitate commission of crimes nine
days later not subject to § 654]; People
v. Williams (1988) 201 Cal.App.3d 439, 442 [burglary to obtain jewels to
facilitate solicitation of murder months later not subject to section 654
although part of overarching scheme].)
In our view, the defendant had the
opportunity to reflect and renew her criminal intent prior to the commission of
the second and third burglaries. As separate
crimes committed on separate occasions, the court had the discretion to impose
separate sentences.
Count 7, But Requires a Stay of Count 9.
Defendant
argues that the cashier’s check for $80,000, which is the subject of counts 7
and 9, were part of an indivisible course of conduct derived from the original
single wire transfer to Carlos Colunga in the amount of $86,744.56. As such, she argues that the consecutive terms
for both counts were barred by section 654 and that both terms should have been
stayed. We disagree.
As discussed in the previous
section, section 654, subdivision (a), bars multiple punishment not only for a
single criminal act but for a single indivisible course of conduct in which the
defendant had only one criminal intent or objective. (People
v. Moseley (2008) 164 Cal.App.4th 1598, 1603, citing People v. Bauer (1969) 1 Cal.3d 368, 376.) If all of the crimes were merely incidental
to, or were the means of accomplishing or facilitating one objective, a
defendant may be punished only once. (
443, 458.)
However, as we also pointed out, a
course of conduct divisible in time, although directed to one objective, may
give rise to multiple violations and punishment. (People
v. Beamon, supra, 8 Cal.3d at p. 639, fn. 11; see also People v. Kwok, supra, 63 Cal.App.4th at pp. 1253-1254.) If the offenses were committed on different
occasions, they may be punished separately.
(Kwok, at p. 1253
Thus, where the offenses are temporally separated, affording the
defendant an opportunity to reflect and to renew her intent before committing
the next offense, multiple punishment is permitted. (People
v. Gaio, supra, 81 Cal.App.4th at p. 935.)
Here, count 5 relates to the wire
transfer from the escrow account to the bank account of Carlos Colunga in the
amount of $86,744.56. Count 7 refers to
the cashier’s check in the amount of $80,000 withdrawn from the account of
Carlos Colunga, and count 9 relates to the deposit of those funds into the
defendant’s account. Because the
defendant had the opportunity to reflect and renew her intent between the
deposit of the wire transfer into Colunga’s account and the act of obtaining
the cashier’s check in the amount of $80,000 payable to herself, the court had
discretion to sentence the defendant separately for the cashier’s check.
Defendant relies on the holding of
Cal.App.4th 443, as support for her position that both counts 7 and 9 should be
stayed. However, in Conners, the defendant was charged with a single count of money
laundering and a single count of receiving stolen property relating to the
receipt and cashing of several stolen checks.
The issue in that case was whether the defendant could be separately
punished for receiving stolen property based on the same act that was the
subject of the money laundering. The
court concluded that the evidence showed he harbored a single intent: to receive the stolen funds. (People
v. Conners, supra, 168 Cal.App.4th at p. 458.) The Conners
case is distinguishable from the present case where the act alleged in
count 5 (the wire transfer of funds into the account of Carlos Colunga) is a
separate act occurring on a date different from the cashier’s check payable to
the defendant’s order.
However, both counts 7 and 9 relate
to the same cashier’s check, made payable to the order of the defendant. As such, counts 7 and 9 were part of the same
indivisible course of conduct, and the sentence for one of two counts should
have been stayed pursuant to section 654.
We therefore modify the sentence to stay the term for count 9, as well
as the enhancement thereto.
Identity Theft, Did Not Violate Section 654.
Defendant claims that the
concurrent sentences imposed for counts 19 and 20 are barred by section 654. We
disagree.
We have previously discussed the
principles embodied in section 654. We also acknowledge that section 654 is
violated as much by concurrent sentences as by consecutive terms. (People
v. Deloza (1998) 18 Cal.4th 585, 594-595.)
An exception to the applicability of section 654 is made where a crime
of violence is committed against more than one victim. (People
v. Williams (1992) 9 Cal.App.4th 1465, 1473, citing Neal v. State of California, supra, 55 Cal.2d at pp. 20-21.) However, where the offenses arising out of
the same transaction are not crimes of violence but involve crimes against
property interests of several persons, only a single punishment is permissible. (Williams,
at p. 1473, citing People v. Bauer,
supra, 1 Cal.3d at p. 378.) The crux
of the issue is whether identity theft is a crime involving “property
interests.â€
Section 530.5 penalizes the acts of
obtaining personal identifying information of another person and using that
information to obtain or attempt to obtain credit, goods or services in the
name of the other person without their consent.
(People v. Valenzuela (2012)
205 Cal.App.4th 800, 806.) Identity theft involving possession of personal
identifying information relating to different victims may be separately charged
and result in separate convictions. (
Actual injury or loss is not an
element of the offense. (
800, 818.) Section 530.5, subdivision
(a), is committed each time an offender uses personal identifying information
for any unlawful purpose. (
Section 530.5 addresses
disruptions caused in victims' lives when their personal identifying
information is used, even if those victims may not have been financially harmed
as a result of a defendant’s conduct. (
214, 226, citing People v. Valenzuela,
supra, 205 Cal.App.4th at p. 808.)
We have not found and neither party
has pointed us to any case in which the identities of two victims were
appropriated in a single document.
Nevertheless, there were two victims of the identity theft. Each identity was appropriated for a
different but related purpose: the use
of the letterhead of Production Mortgage was used to induce Agripindo A. to
believe his application had been officially approved by his lender, which, in
turn, induced him to trust defendant’s representations requiring the payment of
funds. The use of Patricia O.’s identity
as the purported underwriter and signator of the letter furthered this
purpose. The two violations were part of
an indivisible course of conduct but impacted each victim in a unique and
individual way.
Ordinarily,
where a crime involves property interests, the fact that separate violations
were part of an indivisible course of conduct would preclude multiple
punishment. (People v. Williams, supra, 9 Cal.App.4th at p. 1473.) However, identity theft does not implicate
property interests and the consequences to the respective victims were
significant and unique to each. No
published cases have addressed the applicability of section 654 to multiple
identity thefts.
We conclude that
separate punishment for the misappropriation of the identifying information of
multiple victims is permissible. Each
victim suffered a violation of integrity, reputation and reliability. To apply section 654 would ignore the extent
of the unique injury to each victim’s reputation, resulting in a windfall to a
defendant. Here, the use of both
identities was critical to the defendant’s goal. The use of the Production Mortgage letterhead
alone may or may not have successfully persuaded Agripindo A. to part with more
money at the defendant’s request. Thus,
it was necessary for defendant to co-opt the identity of an underwriter to seal
the deal. In such circumstances, where
defendant does not challenge the factual basis for the court’s imposition of
concurrent sentences, and where each victim suffered unique injury, we can find
no error.
Days of Presentence Custodial Credit.
Defendant asserts her presentence
calculated. The People agree that
defendant is entitled to three additional days of presentence credit. We agree.
The clerk of the superior court will be directed to amend the sentencing
minutes and the abstract of judgment to reflect that she earned 804 days credit
for time actually spent in presentence custody, and 120 days of conduct credit,
for total presentence custody credit in the amount of 924 days.
Judgment Should Be Corrected.
Defendant
asserts the clerk incorrectly recorded his sentence in the minutes and on the
abstract of judgment. Specifically, she
notes that in the oral pronouncement of judgment, the court imposed consecutive
one-third middle terms for counts 5 and 7, but that the minute order and
abstract reflect full consecutive sentences of two years on each count. Additionally, she notes that although the
court imposed consecutive one-third middle terms for counts 25 and 27, the
minutes and abstract of judgment reflect concurrent terms for those
counts. The People agree that these
clerical errors should be corrected. We
agree that the clerk’s minutes of the sentence and the abstract of judgment do
not conform to the oral sentence.
The
abstract of judgment constitutes the commitment and is the order sending the
defendant to prison, and the process and authority for carrying the judgment
and sentence into effect; no other warrant or authority is necessary to justify
or require its execution. (§ 1213;
181, 185, citing In re Black (1967)
66 Cal.2d 881, 890.) The “abstract is a
contemporaneous, statutorily sanctioned, officially prepared clerical
sentence.†(People v. Delgado (2008) 43 Cal.4th 1059, 1070 [emphasis by
court].) “When prepared by the court
clerk, at or near the time of judgment, as part of his or her official duty, it
is cloaked with a presumption of regularity and reliability.†(Ibid.,
citing Evid. Code, §§ 660, 664, 1280.)
It should go without saying that accuracy is essential in a document
that prescribes the execution of sentence to the Department of Corrections and
Rehabilitation (CDCR) and to which a criminal investigation and identification
number is assigned for interagency use.
(§ 1213, subd. (a).)
For those
persons committed to state prison, the CDCR relies on the information contained
in the abstract to determine the defendant’s release date, as well as to
determine where the defendant should be housed, based on a classification score
determined in reliance on the information about the conviction contained in the
abstract. (See 15 Cal. Code of Regs.
§§ 3075 [initial intake], 3077 [criteria for County Assessment Program],
3078.3 [criteria for Alternative Custody Program Exclusion], 3269 [criteria
considered for inmate housing assignments], 3375 [classification process],
3375.1 [inmate placement based on classification score].) Erroneous information on the abstract of
judgment can result in errors in the defendant’s classification score. With thousands of inmates received by CDCR
for processing and classification, misplaced information on an abstract of
judgment can result in errors or the unnecessary consumption of time on the
part of CDCR.
This court
has the authority to correct clerical errors at any time. (People
v. Mitchell, supra, 26 Cal.4th at pp. 186-187.) The clerk is directed to amend the minutes of
the sentencing and the abstract of judgment to reflect the following: (a) consecutive terms of eight months each on
counts 5 and 7, respectively; (b) consecutive terms of one year eight months
each on counts 25 and 27, respectively.
DISPOSITON
The sentence is
modified to stay the term of eight months for count 9, along with the
four-month term imposed for the enhancement to count 9. In addition, we direct the clerk of the
superior court to amend the sentencing minutes and the abstract of judgment to
conform to the oral pronouncement of judgment as set forth in section 6 of
this opinion, and
include the modification to count 9, and to forward a copy of the amended
abstract to the CDCR. In all other
respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL
REPORTS
RAMIREZ
P.
J.
We concur:
RICHLI
J.
MILLER
J.
name="_ftn1" title=""> [1] All further statutory references are to the
Penal Code unless otherwise indicated.
Defendant originally charged Edelmira $2,500, but only $2,000 was paid
at the first meeting.
