Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside CountySuper.Ct.No. RIF105685, Russell F. Schooling, Judge. (Retired judge of the Mun. Ct. for the Southeast Jud. Dist. of L.A., assigned by the Chief Justice pursuant to art. VI, § 6, of the Cal. Const.) Affirmed.
Laura L. Furness, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Peter Quon, Jr., Supervising Deputy Attorney General, and Robert M. Foster, Deputy Attorney General, for Plaintiff and Respondent.
King, J.
I. INTRODUCTION
Defendant entered an open guilty plea to 14 felony counts, consisting of six counts of unlawfully obtaining and using another person’s personal information for purchases (Pen. Code, § 530.5, subd. (a); counts 1, 5, 8, 11, 12 & 13), five counts of unlawfully acquiring access cards (§ 484e, subd. (d); counts 4, 6, 7, 9 & 10), two counts of grand theft (§ 487, subd. (a); counts 2 & 14), and one count of second degree burglary (§§ 459, 460, subd. (b); count 3). Defendant was sentenced to eight years eight months in prison, and appeals.
All further statutory references are to the Penal Code unless otherwise indicated.
Defendant’s sentence consisted of the middle term of two years on count 1, plus 10 consecutive eight-month terms on counts 2, 3, 5, and 8 through 14. Additional two-year terms were imposed but stayed on counts 4, 6, and 7.
Defendant contends that 8 of his 14 convictions, namely, those on counts 1, 3, 5, 8, 11, 12, 13, and 14, must be reversed because the prosecution of each underlying offense was time-barred by the applicable limitations periods. The record on this appeal has been augmented to include two arrest warrants, issued on September 29, 2002, and May 4, 2002, respectively. We conclude that the September 29, 2002, arrest warrant timely commenced prosecution on counts 1, 3, 5, 8, 11, and 12, and that the May 4, 2004, arrest warrant timely commenced prosecution on counts 13 and 14.
Defendant’s limitations period defense to count 13 requires this court to determine whether the limitations period for the section 530.5, subdivision (a) violation is three years under section 801 or four years under sections 801.5 and 803, subdivision (c). Section 801 provides for a three-year limitations period for noncapital felony offenses punishable by imprisonment for less than eight years; however, section 801.5 states that offenses described in section 803, subdivision (c) are subject to a four-year limitations period. Although a violation of section 530.5, subdivision (a) is not among the offenses that are expressly listed in section 803, subdivision (c), the list is not exhaustive. We conclude that a violation of section 530.5, subdivision (a) is among the nonlisted offenses described in section 803, subdivision (c). Thus, we conclude that the limitations period for a violation of section 530.5, subdivision (a) is four years, and the May 4, 2004, arrest warrant timely commenced prosecution of count 13 within the four-year limitations period for the offense.
Defendant also contends that the trial court erroneously failed to stay his sentences on counts 2, 3, and 14 under section 654. We reject this claim, because substantial evidence supports the trial court’s implicit conclusion that defendant harbored separate intents and objectives in committing the crimes charged in counts 2, 3, and 14.
See footnote 2, ante.
The following facts are taken from the testimony at two preliminary hearings, one in case No. RIF105685 and the other in case No. RIF116674.
Between mid-March and mid-May 2000, Joseph Malkin went to the Irvine Police Department to report the theft of his identity. Malkin told Irvine Police Detective Damon Tucker that a credit account had been opened in his name, and without his permission, for two Gateway computers which had been shipped to mailbox No. F120 at a Postal Annex store in Riverside. Malkin received corresponding invoices for the computers in the amounts of $2,955 and $3,969, dated in mid-March 2000. Malkin also reported that on March 15, he received two bills from AT&T for two phone accounts in the 909 area code which he had not authorized. Malkin’s credit report listed an address on Sterling Avenue in San Bernardino, which did not belong to him.
On May 17, 2000, Tucker spoke with Wendy Fox, the owner of the Postal Annex store. Ms. Fox told Tucker that on February 2, 2000, a person identifying himself as Christopher Dorsey opened mailbox No. F120. She recalled that Christopher Dorsey said he was in the “Internet business.” She gave Tucker copies of two items of mail addressed to mailbox No. F120. One was a First USA credit card application addressed to Marcelo Gaffaglio, and the other was a letter addressed to Jeffrey S. Bell. Both items of mail had been sent by Gateway.
Ms. Fox also gave Tucker a copy of Christopher Dorsey’s application for the mailbox and copies of his California identification card and temporary driver’s license. The identification card bore defendant’s photo, and a social security number, birth date, and address in Altadena. The temporary driver’s license listed the same Altadena address. A resident at the Altadena address later told investigating officers that Christopher Dorsey no longer lived there and was in custody in San Bernardino County.
Tucker then located Christopher Dorsey at the San Bernardino County jail. As a result of fingerprinting, Tucker found that Christopher Dorsey’s true name was defendant, Lynn Joseph Dorsey. On July 14, 2000, Tucker interviewed defendant at the San Bernardino County jail. Defendant admitted to Tucker that his true name was Lynn Joseph Dorsey and that Postal Annex mailbox No. F120 belonged to him. Defendant also gave Tucker the address of his apartment on Sterling Avenue in Highland. The number of the address was only slightly different than the Sterling Avenue address that appeared on Joseph Malkin’s credit report.
On the same day, July 14, 2000, Tucker searched defendant’s Highland apartment pursuant to a probation condition. There, Tucker found papers and photos bearing defendant’s true name, other papers (e.g., miscellaneous mail and gas company bills), and photos bearing other people’s names, applications to sporting clubs bearing two or three different names, a tablet of paper bearing people’s names, social security numbers, and birth dates, and paperwork showing purchased transactions from an Internet Web site. The names on the papers included Joseph Malkin, Martin Klein, Scott Matheny, Marcelo Gaffaglio, Jeffrey Bell, Eddie Kelly, and Jay Shumaker.
Tucker later spoke to each of these persons, and discovered that defendant had used their personal identifying information to make unauthorized purchases or open unauthorized accounts. For example, in March 2000, defendant used Martin Klein’s identity to order a $5,800 pair of diamond-studded earrings from Blue Nile, an online jeweler. On May 30 or 31, 2000, defendant ordered a mattress and foundation, priced at approximately $2,900, from Select Comfort in the name of Rick Stanley. The mattress and foundation were shipped to Postal Annex mailbox No. F120 after Select Comfort approved a credit card in Rick Stanley’s name on June 6, 2000.
Defendant also used Christopher Dorsey’s name and social security number to rent the Highland apartment, and he altered a paystub that had been issued to Eddie Kelly to show employment to rent the apartment. Christopher Dorsey was in fact defendant’s then four- or five-year-old son.
III. PROCEDURAL HISTORY
As noted, defendant pled guilty to 14 felony counts consisting of six counts of unlawfully obtaining and using another person’s identifying information (§ 530.5, subd. (a); counts 1, 5, 8, 11, 12 & 13), five counts of unlawfully acquiring access cards (§ 484e, subd. (d); counts 4, 6, 7, 9 & 10), two counts of grand theft (§ 487, subd. (a); counts 2 & 14), and one count of second degree burglary (§§ 459, 460, subd. (b); count 3). The 14 counts were originally charged in felony complaints filed in two separate actions on August 29, 2002, and May 4, 2002, in case Nos. RIF105685 and RIF116674, respectively. The charges were later alleged in a consolidated information filed on October 5, 2004, under lead case No. RIF105685, to which defendant entered his plea.
The complaint in case No. RIF105685 charged defendant with offenses related to Joseph Malkin, Martin Klein, Marcelo Gaffaglio, Jeffrey Bell, Jay Schumaker, Eddie Kelly, and Christopher Dorsey. The later-filed complaint in case No. RIF116674 included charges related to Rick Stanley, and defendant’s use of Stanley’s identifying information to purchase the mattress and foundation from Select Comfort. Defendant was also held to answer on these charges.
On July 9, 2004, an amended complaint was filed in case No. RIF116674. This amended complaint included a “Zamora allegation” (People v. Zamora (1976) 18 Cal.3d 538, 564-565, fn. 26 (Zamora) [setting forth standards for pleading delayed discovery]) that the charges pertaining to Rick Stanley were not discovered and could not reasonably have been discovered, either by law enforcement or Rick Stanley, until July 14, 2000, the date Detective Tucker found paperwork bearing Rick Stanley’s name in defendant’s apartment. The amended complaint further alleged that the mattress and foundation were shipped to an address unknown to Mr. Stanley.
IV. DISCUSSION
A. Defendant’s Limitations Period Claims are Without Merit
Defendant contends that 8 of his 14 convictions, namely those based on counts 1, 3, 5, 8, 11, 12, 13, and 14 of the consolidated information, must be reversed because the limitations period on each of these counts had run by the time the People commenced prosecution of them. We conclude that the charges underlying each of these convictions were timely filed.
1. The Applicable Law
A defense based on a statute of limitations is jurisdictional and may be raised at any time unless expressly waived. Thus, when a charging document indicates on its face that a charge is untimely, a defendant convicted of the charge may raise a limitations period defense to the charge at any time. The defendant does not forfeit the defense by failing to raise it in the trial court or by pleading guilty to the charge; he must expressly waive the defense. (People v. Williams (1999) 21 Cal.4th 335, 338-340 and cases cited; People v. Smith (2002) 98 Cal.App.4th 1182, 1191.)
The prosecution of a criminal offense must be “commenced” within the applicable limitations period. (§ 799 et seq.) As pertinent here, a prosecution is “commenced” when an information is filed (§ 804, subd. (a)) or when an arrest warrant is issued which names or describes the defendant with the same degree of particularity required of an indictment, information, or complaint (id., subd. (d); Cal. Law Revision Com. com., Deering’s Ann. Pen. Code (1998 ed.) foll. § 804, p. 221). In contrast, the filing of a felony complaint does not commence prosecution of the charges stated in the complaint. (People v. Terry (2005) 127 Cal.App.4th 750, 764.)
2. Analysis
Neither the consolidated information nor any of the underlying felony complaints alleged that arrest warrants were issued on any of the charges. The augmented record, however, includes copies of arrest warrants issued on September 29, 2002, and May 4, 2004. As pertinent here, the September 29, 2002, warrant was issued on the charges that later became counts 1, 3, 5, 8, 11, and 12 of the consolidated information. The May 4, 2004, arrest warrant was issued on what later became counts 13 and 14.
(a) Counts 1, 3, 5, 8, 11, and 12
We first address defendant’s limitations period defenses to counts 1, 3, 5, 8, 11, and 12. Count 3 charged defendant with burglary, and the limitations period for burglary is three years. (§ 801.) Counts 1, 5, 8, 11, and 12 charged defendant with the unauthorized use of personal identifying information, or identity theft. (§ 530.5, subd. (a).) As discussed below, the limitations period for a violation of section 530.5, subdivision (a) is four years (§§ 801.5, 803, subd. (c)); however, for purposes of counts 1, 5, 8, 11, and 12, it is sufficient to note that the limitations period for a violation of section 530.5, subdivision (a) is not less than three years (§ 801).
The consolidated information alleged that counts 1, 3, 5, 8, 11, and 12 occurred between February 2, 2000, and April 2, 2000. The evidence presented at the preliminary hearing on these counts also showed that February 2, 2000, was the earliest date any of these offenses were committed. Prosecution of each offense commenced when an arrest warrant on the charges was issued on September 29, 2002, and well within three years of the earliest date any of the offenses were committed. Thus, defendant’s limitations period defense to counts 1, 3, 5, 8, 11, and 12 fails.
(b) Counts 13 and 14
In count 13, defendant was charged with the unauthorized use of Rick Stanley’s personal identifying information, another violation of section 530.5, subdivision (a). In count 14, he was charged with the grand theft of the “bed set” or mattress and foundation he ordered from Select Comfort using Stanley’s personal identifying information. It is clear that the May 4, 2004, arrest warrant commenced prosecution of counts 13 and 14. The question we must determine is whether the prosecution of counts 13 and 14 was timely commenced.
We begin by noting that May 30, 2000, is the earliest date counts 13 and 14 could have been committed. The Zamora allegation in the July 9, 2004, amended complaint alleged that counts 13 and 14 were not discovered and could not reasonably have been discovered until July 14, 2000, the date Tucker found paperwork bearing Rick Stanley’s name in defendant’s apartment. In contrast, the consolidated information alleges that counts 13 and 14 were committed “on or about June 6, 2000.” The evidence at the preliminary hearing showed that counts 13 and 14 could not have been committed any earlier than May 30 or 31, 2000, the date defendant ordered the mattress and foundation using Stanley’s identity. Thus, May 30, 2000, is the earliest date counts 13 and 14 were committed.
The limitations period for grand theft as charged in count 14 is four years. (§§ 801.5, 803, subd. (c)(1); People v. Thorbourn (2004) 121 Cal.App.4th 1083, 1086.) Thus, the issuance of the May 4, 2004, arrest warrant timely commenced prosecution of count 14 within four years of May 30, 2000, the earliest date the crime could have occurred.
Defendant’s limitations period defense to count 13 is more problematic. It requires us to determine whether the limitations period for the unauthorized use of personal identifying information, a violation a section 530.5, subdivision (a) is three years under section 801, or four years under sections 801.5 and 803, subdivision (c). For the reasons that follow, we conclude that the limitations period is four years.
At the time the plea was entered, section 530.5, subdivision (a) provided that “[e]very person who willfully obtains personal identifying information . . . of another person [without the authorization of that person], and uses that information for any unlawful purpose, including to obtain, or attempt to obtain, credit, goods, services, or medical information in the name of the other person without the consent of that person, is guilty of a public offense [punishable by imprisonment in the state prison].”
Subject to exceptions not applicable in this case, section 801 provides that the “prosecution for an offense punishable by imprisonment in the state prison shall be commenced within three years after commission of the offense.” The statute applies to felony offenses “not otherwise dealt with expressly,” that is, felony offenses for which no other statute expressly prescribes a limitations period. (Cal. Law Revision Com. com., Deering’s Ann. Pen. Code, supra, foll. § 801, p. 197.)
Defendant argues that, because no statute expressly prescribes a limitations period for violating section 530.5, subdivision (a), the three-year limitations period of section 801 applies. The Attorney General counters that sections 801.5 and 803, subdivision (c) expressly prescribe a longer four-year limitations period for section 530.5, subdivision (a) violations.
Section 801.5 provides that, “[n]otwithstanding Section 801 or any other provision of law, prosecution for any offense described in subdivision (c) of Section 803 shall be commenced within four years after discovery of the commission of the offense, or within four years after the completion of the offense, whichever is later.” In pertinent part, section 803, subdivision (c) applies to “an offense punishable by imprisonment in the state prison, a material element of which is fraud or breach of a fiduciary obligation . . . .” (Italics added.)
Section 803, subdivision (c) lists 11 categories of crimes that are subject to the four-year limitations period. Section 530.5 is not included in the list, but the list is not exhaustive. (§ 803, subd. (c).) “Crimes not specifically delineated [in section 803, subdivision (c)] are included under its umbrella as long as the crimes have as their core, or a material element of the crime is, fraud or breach of a fiduciary obligation. [Citations.]” (People v. Guevara (2004) 121 Cal.App.4th 17, 25 (Guevara).)
In its entirety, section 803, subdivision (c) provides: “A limitation of time prescribed in this chapter does not commence to run until the discovery of an offense described in this subdivision. This subdivision applies to an offense punishable by imprisonment in the state prison, a material element of which is fraud or breach of a fiduciary obligation, the commission of the crimes of theft or embezzlement upon an elder or dependent adult, or the basis of which is misconduct in office by a public officer, employee, or appointee, including, but not limited to, the following offenses: [¶] (1) Grand theft of any type, forgery, falsification of public records, or acceptance of a bribe by a public official or a public employee. [¶] (2) A violation of Section 72, 118, 118a, 132, 134, or 186.10. [¶] (3) A violation of Section 25540, of any type, or Section 25541 of the Corporations Code. [¶] (4) A violation of Section 1090 or 27443 of the Government Code. [¶] (5) Felony welfare fraud or Medi-Cal fraud in violation of Section 11483 or 14107 of the Welfare and Institutions Code. [¶] (6) Felony insurance fraud in violation of Section 548 or 550 of this code or former Section 1871.1, or Section 1871.4, of the Insurance Code. [¶] (7) A violation of Section 580, 581, 582, 583, or 584 of the Business and Professions Code. [¶] (8) A violation of Section 22430 of the Business and Professions Code. [¶] (9) A violation of Section 10690 of the Health and Safety Code. [¶] (10) A violation of Section 529a. [¶] (11) A violation of subdivision (d) or (e) of Section 368.” (Italics added.)
The question therefore is whether a violation of section 530.5, subdivision (a) is an offense described in section 803, subdivision (c). More specifically, the question is whether “fraud” is a “material element” of a section 530.5, subdivision (a) violation, as these terms are used in section 803, subdivision (c).
“‘“Our role in construing a statute is to ascertain the Legislature’s intent so as to effectuate the purpose of the law. [Citation.]”’ [Citations.]” (People v. Canty (2004) 32 Cal.4th 1266, 1276.) “We begin by examining the statute’s words, giving them a plain and commonsense meaning. [Citation.] We do not, however, consider the statutory language ‘in isolation.’ [Citation.] Rather, we look to ‘the entire substance of the statute . . . in order to determine the scope and purpose of the provision . . . . [Citation.]’ [Citation.] That is, we construe the words in question ‘“in context, keeping in mind the nature and obvious purpose of the statute . . . .” [Citation.]’ [Citation.]” (People v. Murphy (2001) 25 Cal.4th 136, 142.)
If the language of the statute supports more than one reasonable construction, “we may consider ‘a variety of extrinsic aids, including the ostensible objects to be achieved, the evils to be remedied, the legislative history, public policy, contemporaneous administrative construction, and the statutory scheme of which the statute is a part.’ [Citation.] Using these extrinsic aids, we ‘select the construction that comports most closely with the apparent intent of the Legislature, with a view to promoting rather than defeating the general purpose of the statute, and avoid an interpretation that would lead to absurd consequences.’ [Citation.]” (People v. Sinohui (2002) 28 Cal.4th 205, 211-212.)
Section 803, subdivision (c) is a tolling provision which predates the enactment of sections 530.5, subdivision (a) and 801.5 in their present forms. In view of the overall substance and purpose of section 803, subdivision (c), courts have interpreted its “fraud as a material element” requirement broadly. Specifically, the statute has been interpreted as encompassing offenses that do not require “intent to defraud” but that involve fraudulent or deceptive conduct.
Section 803, subdivision (c) was enacted in 1984. (Stats. 1984, ch. 1270, § 2, p. 4335.) Section 801.5 was enacted in 1986 and amended in 1995 to its present form. (Stats. 1986, ch. 1324, § 2, p. 4675; Stats. 1995, ch. 704, § 1, p. 5313.) Section 530.5, subdivision (a) was enacted in 1997. (Stats. 1997, ch. 768, § 6, p. 4169.)
In People v. Bell (1996) 45 Cal.App.4th 1030, 1038, 1060 (Bell), the defendants were convicted of, among other crimes, offering false documents in evidence (§ 132) and filing false instruments (§ 115, subd. (a)). Section 132 was listed in section 803, subdivision (c), but section 115, subdivision (a) was not. Thus, the question was whether section 115 was included in section 803, subdivision (c). The People argued that section 132 was a “near mirror image” of section 115 and, “by a parity of reasoning,” section 115 should be included in the statute. The Bell court agreed with the People, noting that intent to defraud was not an element of either crime. (Bell, supra, at p. 1061.) The court also noted that the “core purpose” of section 115 was to “protect the integrity and reliability of public records,” and suggested that the “core purpose” of section 132 was essentially the same, that is, to protect the integrity and reliability of documents offered in evidence. Thus, the court concluded that both crimes were described in section 803, subdivision (c).
Section 132 makes it a felony to knowingly offer in evidence as genuine any document or written instrument, knowing it to be forged or fraudulently altered. Similarly, section 115, subdivision (a) makes it a felony to knowingly procure or offer any false or forged instrument to be filed, registered, or recorded.
In People v. Fine (1997) 52 Cal.App.4th 1258 (Fine), the court had to determine whether Penal Code section 803, subdivision (c) encompassed a violation of Corporations Code section 25110, the strict liability offense of offering to sell and issue and selling and issuing unqualified securities. (Fine, supra, at pp. 1262-1266.) Corporations Code section 25110 was not listed in Penal Code section 803, subdivision (c); however, a violation of Corporations Code section 25540 “of any type” was listed. The court reasoned that Corporations Code section 25110 “came within the ambit” of Corporations Code section 25540; thus, Penal Code section 803, subdivision (c) could not “reasonably be read to exclude [Corporations Code] section 25110 offenses from its coverage,” even though it expressly applied only to “‘an offense . . . a material element of which is fraud.’” (Fine, supra, at p. 1265.) Regarding the “fraud as a material element” requirement, the court explained that, although a violation of Corporations Code section 25110 could be proven “without evidence of a specific intent or motive to defraud, it nonetheless involves a deception upon the buyer by the unqualified securities seller. . . .” (Fine, supra, at p. 1265.)
The Fine court found further support for its broad interpretation of the “fraud as a material element” requirement in the legislative history of section 803, subdivision (c). The Law Revision Commission comment to the statute states that, “[a]lthough subdivision (c) generally governs crimes involving fraud or breach of fiduciary duty, all types of grand theft are included within subdivision (c) in order to avoid the need to characterize the material elements of the particular crime in every case.” (Fine, supra, 52 Cal.App.4th at pp. 1265-1266, citing Cal. Law Revision Com. com., 50 West’s Ann. Pen. Code, § 803 (1997 pocket supp.), p. 24.)
And in Guevera, supra, 121 Cal.App.4th 17, Penal Code section 803, subdivision (c) was broadly construed to encompass a violation of Elections Code section 18203, the felony offense of knowingly filing or submitting for filing any false nomination paper or declaration of candidacy. Like the offenses in issue in Bell and Fine, Elections Code section 18203 was not listed in Penal Code section 803, subdivision (c), nor did it require intent to defraud. But, citing Bell and Fine, the Guevara court held that the offense fell within the ambit of Penal Code section 803, subdivision (c), because the offense was “designed to protect the integrity and reliability of publicly filed election documents and has at its core protections against fraud. . . .” Accordingly, the Guevara court held that, under Penal Code section 801.5, the limitations period for violations of Elections Code section 18203 was four years after discovery. (Guevara, supra, at p. 26.)
Bell and Fine did not involve the four-year limitations period of section 801.5, but only the interpretation of the tolling provision of section 803, subdivision (c) itself.
Here, as with the statutory offenses at issue in Bell, Fine, and Guevara, a violation of section 530.5, subdivision (a) is not listed in section 803, subdivision (c). Nor does a violation of section 530.5 subdivision (a) require an intent to defraud. (People v. Hagedorn (2005) 127 Cal.App.4th 734, 744 (Hagedorn).) But, as Hagedorn illustrates, a violation of section 530.5, subdivision (a) necessarily involves fraud and deception, and is precisely the type of offense that section 803, subdivision (c) was intended to encompass.
The defendant in Hagedorn was convicted of violating section 530.5, subdivision (a) for obtaining and using the personal identifying information of another person, Pettet, to cash a check made payable to Pettet. The check represented payment for work that the defendant performed in Pettet’s name. The defendant argued that his conviction violated his due process rights because section 530.5, subdivision (a) was unconstitutionally vague as applied to his conduct. He argued, in part, that the statute “did not give him fair warning that he was committing a crime by cashing a check, albeit in the name of another, for work he himself performed and without causing harm or loss to the issuer of the check, the check cashing store, or the person whose identity he used.” Thus, he argued, the statute had to be construed as requiring an intent to defraud. (Hagedorn, supra, 127 Cal.App.4th at pp. 739-741, 744, italics added.)
The court in Hagedorn rejected the defendant’s vagueness claim, and concluded that section 530.5, subdivision (a) “clearly and unambiguously” does not require an intent to defraud anyone. (Hagedorn, supra, 127 Cal.App.4th at pp. 741, 744-747.) Instead, the court reasoned, the statute clearly made defendant’s conduct criminal, even though he did not necessarily intend to cause harm or loss to anyone, including Pettet, the issuer of the check, or the check cashing store. As the court said, the statute is broad enough to encompass identity theft which does not involve an intent to defraud or cause financial loss or harm. (Id. at pp. 743-744, 747.)
The court also noted that section 530.5, subdivision (a) “contemplates misleading the person or entity from whom the goods, services, etc. are obtained.” (Hagedorn, supra, 127 Cal.App.4th at p. 747, italics added.) The court explained: “What the statute contemplates and proscribes is using someone else’s personal identifying information, without consent and for purposes that include obtaining credit or goods. It does not require an intent to defraud the person whose identity is assumed. The wording of the statute contemplates misleading the person or entity from whom the goods, services, etc. are obtained.” (Ibid., italics added.) Ostensibly, the purpose of section 530.5, subdivision (a) is to criminalize the fraudulent use of another’s personal identifying information, regardless of whether the user intends to defraud anyone and regardless of whether any actual harm is caused.
Based on the foregoing, we conclude that section 530.5, subdivision (a) is one of the nonlisted offenses that section 803, subdivision (c), and specifically its “fraud as a material element” language, was intended to encompass. Our conclusion is bolstered by the legislative history of section 801.5.
As noted, section 801.5 was amended in 1995 to its current form, which states: “Notwithstanding Section 801 or any other provision of law, prosecution for any offense described in subdivision (c) of Section 803 shall be commenced within four years after discovery of the commission of the offense . . . .” (Stats. 1995, ch. 704, § 1, p. 5313.) A report on the 1995 amendment by the Assembly Committee on Public Safety states that “[t]he existing statute of limitations for white collar crime is inadequate given the more extensive investigative requirements frequently associated with these complex financial crimes. The proposed one year extension is narrowly crafted to apply to those crimes involving fraud or breach of a fiduciary duty. [¶] . . . White collar crimes are complex in nature and investigation of these white collar crimes typically require more time than that for street crime. The complexity of white collar crime arises not simply from the massive volume of documents involved, but also from the fact that such crimes are by their design difficult to detect . . . . [¶] . . . [¶] . . . [C]rimes involving fraud or breach of a fiduciary duty almost always involve documentary proof.” (Assem. Com. on Public Safety, Analysis of Sen. Bill No. 734 (1995-1996 Reg. Sess.), as amended May 7, 1995, pp. 1-2, italics added.)
Section 530.5, subdivision (a), the “white collar” crime of unlawfully obtaining and using another’s personal identifying information was enacted in 1997, two years after the 1995 amendment to section 801.5. (Stats. 1997, ch. 768, § 6, p. 4169.) But, like the white collar crimes involving fraud or breach of a fiduciary duty that existed at the time of the 1995 amendment to section 801.5, a section 530.5, subdivision (a) violation involves documentary proof and is difficult to detect.
Accordingly, the limitations period on defendant’s section 530.5, subdivision (a) violation charged in count 13 did not run until four years after discovery of the violation. (§§ 801.5, 803, subd. (c).) The earliest date count 13 could have been discovered was May 30, 2000, the date defendant ordered the mattress and foundation from Select Comfort, using Rick Stanley’s identity, and prosecution of the offense commenced upon the issuance of the May 4, 2004, arrest warrant. Thus, the prosecution of count 13 was timely commenced.
Lastly, we note that in People v. Soni (2005) 134 Cal.App.4th 1510, 1518-1519 (Soni), Division Three of this court followed Bell and held that section 803, subdivision (c) encompasses section 115 violations, notwithstanding the Legislature’s enactment of section 803.5 effective January 1, 2004. (Stats. 2003, ch. 468, § 10.5, p. 2785.) Section 803.5 states: “With respect to a violation of Section 115 or 530.5, a limitation of time prescribed in this chapter does not commence to run until the discovery of the offense.” (Italics added.) The defendant in Soni argued that the enactment of section 803.5 showed that the Legislature intended not to include section 115 within the meaning of section 803, subdivision (c), because the two statutes were redundant. The court in Soni disagreed, and held that, notwithstanding section 803.5, section 803, subdivision (c) applies to section 115 violations for the reasons stated in Bell and Guevera. (Soni, supra, at p. 1519.)
B. The Separate Terms Imposed on Counts 2, 3, and 14 Did Not Violate Section 654
Defendant was sentenced to consecutive terms of eight months for his grand theft convictions in counts 2 and 14 and his burglary conviction in count 3. He contends his sentences on counts 2 and 3 should have been stayed relative to count 1, and his sentence on count 14 should have been stayed relative to count 13. (§ 654.) We disagree, because substantial evidence supports the trial court’s implied finding that defendant harbored multiple objectives in committing counts 1, 2, and 3, and counts 13 and 14.
Section 654 protects criminal defendants against multiple punishment for a single act or omission or an indivisible course of conduct which violates more than one statute and thus constitutes more than one crime. (People v. Liu (1996) 46 Cal.App.4th 1119, 1135.) The divisibility of a defendant’s course of conduct depends upon the defendant’s intent and objective. If the defendant’s crimes “were merely incidental to, or were the means of accomplishing or facilitating one objective, [the] defendant may be found to have harbored a single intent and therefore may be punished only once.” (People v. Harrison (1989) 48 Cal.3d 321, 335, citing Neal v. State of California (1960) 55 Cal.2d 11, 19.) “‘“The defendant’s intent and objective are factual questions for the trial court; . . . there must be evidence to support a finding the defendant formed a separate intent and objective for each offense for which he was sentenced. . . .”’” (People v. Green (1996) 50 Cal.App.4th 1076, 1085, citations omitted.) An implied finding that the crimes were divisible must be upheld on appeal if substantial evidence supports it. (People v. Blake (1998) 68 Cal.App.4th 509, 512.)
Defendant argues that his sentences on counts 2 and 3 should have been stayed relative to count 1, because his grand theft of the Gateway computer (count 2) and his burglary of the Postal Annex store (count 3) were part of the same course of conduct as his obtaining and using Joseph Malkin’s personal identifying information (count 1). This claim fails because substantial evidence supports the trial court’s implicit determination that defendant obtained Postal Annex mailbox No. F120 and thereafter burgled the Postal Annex store (count 3) for multiple objectives, including the receipt of merchandise other than the Gateway computer which defendant obtained through the use of Malkin’s identifying information (count 2). Malkin reported that two unauthorized AT&T phone accounts were ordered in his name. Thus, the evidence showed that defendant obtained Malkin’s personal identifying information (count 1) for the purpose of stealing merchandise other than the Gateway computer.
Defendant next claims that his grand theft of the Select Comfort mattress and foundation (count 14) was part of the same course of conduct as his use of Rick Stanley’s personal identifying information (count 13). Again, we disagree. There was no evidence that defendant obtained Stanley’s identifying information solely for the purpose of ordering merchandise from Select Comfort. And, based on defendant’s use of other people’s identifying information for the purpose of multiple purposes (e.g., Malkin), the trial court reasonably and implicitly concluded that defendant harbored multiple criminal objectives in obtaining and using Stanley’s personal identifying information.
DISPOSITION
The judgment is affirmed.
We concur: Ramirez, P.J., Richli, J.
In addition, the Fine court noted the contents of a report by the Senate Committee on Judiciary, Analysis of Assembly Bill No. 804 (1985-1986 Reg. Sess.), which amended Penal Code section 803, subdivision (c) to encompass Corporations Code section 25540 violations “of any type.” (Fine, supra, 52 Cal.App.4th at p. 1266.) The committee report stated that the “fraud as a material element” language of the statute was not intended to limit the statute to securities violations “which necessarily involve fraud,” and that the statute already contained similar language which made it clear that “‘all grand thefts run from the date of discovery whether or not fraud is involved.’” (Ibid.)
The same reasoning applies here. We do not believe that the enactment of section 803.5 in 2003 indicates that the Legislature intended not to include section 530.5 in section 803, subdivision (c), for the reasons explained above. In addition, nothing in the legislative history of section 803.5 indicates that the Legislature intended to overrule Bell, or exclude section 530.5 violations from section 803, subdivision (c).