Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 06f01634
BUTZ, J.A jury convicted defendant Tania Latice Hicks of second degree commercial burglary (Pen. Code, §§ 459, 460, subd. (b)--count one), grand theft by false pretenses (§ 532, subd. (a)--count two), unlawful use of personal identifying information (§ 530.5, subd. (a)--counts four through six), possession of a forged driver’s license with intent to commit forgery (§ 470b--count seven), and possessing counterfeiting apparatus (§ 480, subd. (a)--count eight). The trial court found that she had served four prior prison terms. (§ 667.5, subd. (b).) She was sentenced to state prison for nine years eight months, consisting of three years on count eight, eight months consecutive on counts one, four, five and six, and four years for the prior prison terms. A concurrent term of two years was imposed on count seven. The court imposed and stayed an eight-month term on count two.
Undesignated statutory references are to the Penal Code.
The jury acquitted defendant of an additional charge of unlawful use of personal identifying information (§ 530.5, subd. (a)--count three).
On appeal, defendant contends: (1) the jury was erroneously instructed on counterfeiting apparatus; (2) two of the three counts of unlawful use of personal identifying information must be stayed pursuant to section 654; (3) the sentence for possession of a forged driver’s license must be stayed pursuant to section 654; (4) the court erroneously imposed consecutive and unstayed terms based on factors not found by the jury; and (5) the abstract of judgment must be corrected in several respects. The Attorney General concedes the last point. We shall affirm the judgment and order correction of the abstract.
FACTUAL BACKGROUND
A. Prosecution Case-in-chief
Counts one and two: Covarrubias credit account
On November 17, 2005, Som Keohanam was working as a cashier at an electronics store in Sacramento. She approached defendant who was accompanied by Marcel Bassard (count one). Defendant requested assistance in purchasing a television. Bassard provided a credit card and matching identification and signed the name “Richard Cordenero” to complete the transaction. The purchase price, including sales tax, was $2,182.98 (count two).
After the television was purchased, Bassard attempted to purchase some video game systems at a register staffed by Michael Anderson. Defendant told Anderson to process the transaction as a credit, not a debit. After noticing that the credit card appeared suspicious in several respects, Anderson halted the transaction and gave the card to his manager. Defendant left Bassard at the register, took the television outside and loaded it into a red car in the parking lot. The store’s operations manager confronted Bassard about the credit card and told him that the bank had been notified. Bassard and defendant left in the red car.
In November 2005, Isabel Covarrubias had a Lockheed Federal Credit Union checking account and a VISA check card. The fraudulent credit card used at the electronics store contained Covarrubias’s account number. She did not know anyone named Richard Cordenero, had not applied for a credit card (as opposed to a check card), and had never given anyone permission to possess her account information or to purchase items at a Sacramento electronics store.
Counts four through six: the McCalmont credit accounts
On February 13, 2006, a person using the Internet at a copying and shipping company opened a credit account with GE Money Bank, which manages the credit accounts for Lowe’s home improvement centers, in the name of Mark McCalmont. Early the next morning, someone using the Internet at the copying company opened a credit account with Citibank, which manages the credit accounts for Home Depot, in the name of Mark McCalmont. In both instances, the credit applications listed McCalmont’s personal identifying information, except defendant’s cellular telephone number was given as the contact number for McCalmont.
McCalmont did not authorize anyone to use his personal identifying information to create a U.S. Bank Mastercard in his name. Nor did he use a computer to make an online application to GE Money Bank or Citibank. Nor did he make credit purchases from Lowe’s in Elk Grove or Vacaville, or from Home Depot in Stockton.
On February 14, 2006, defendant and John Grayson used the McCalmont GE Money Bank account and a fake McCalmont driver’s license to purchase $3,271.29 in merchandise at Lowe’s in Elk Grove (count four). Defendant and Grayson left the store in a cargo van driven by defendant.
Later that day, defendant and Grayson used the McCalmont Citibank account and the fake McCalmont driver’s license to purchase $975.50 in merchandise at Home Depot in Stockton (count five). They arrived at the store in a cargo van and they left the store in the same van.
Late that evening or early the next day, February 15, 2006, defendant checked into the Executive Inn, located about a mile from the Lowe’s store in Vacaville. Defendant paid for one room for one night using the Citibank credit card and listing her vehicle as a white van.
On the afternoon of February 15, 2006, defendant and Grayson used the McCalmont GE Money Bank account and fake McCalmont driver’s license to purchase $2,204.41 in merchandise at Lowe’s in Vacaville (count six). They left the store in a white cargo van being driven by defendant.
Counts seven and eight: possession of counterfeiting items
Sacramento County Sheriff’s Detective Christopher Bowman investigated the credit card fraud at the electronics store. Bowman determined that the red car used at the store was registered to Adesina Hicks and that Marcel Bassard lived at her location.
On February 20, 2006, Detective Bowman and several other officers went to Hicks’s apartment complex. They found defendant and Bassard standing and conversing next to a green car. The car trunk was open and a box containing a computer printer was inside.
Defendant was booked into jail. A search of her purse revealed her credit card for an electronics retailer, a receipt charging the printer to her account, a California driver’s license and a U.S. Bank credit card in the name Mark McCalmont, and several banded and sequentially numbered $1 bills.
A search of the green car’s center console revealed a passport style photograph and an envelope containing several receipts. A receipt from a San Francisco motel listed John Grayson as the guest and showed that defendant’s credit card was used to pay for the room. Detectives obtained Grayson’s Department of Motor Vehicles records and determined that he was the person pictured in the passport style photograph and on the Mark McCalmont driver’s license. A receipt from an automotive maintenance store listed defendant’s telephone number, which matched the telephone number listed on two fraudulent credit card applications.
A search of the apartment revealed several washed $1 bills in various stages of reprinting. The serial numbers on the washed $1 bills were in sequence with the mint $1 bills found in defendant’s purse. Detectives also located a laptop computer and a multifunction printer.
B. Defense
Sacramento County Sheriff’s Deputy Michael Heller testified that he interviewed Keohanam regarding the purchase of the television. According to Heller, Keohanam had stated that the male, but not the female, had requested assistance regarding an LCD TV.
The search of defendant’s vehicle did not reveal any merchandise from Lowe’s or Home Depot.
Defendant did not testify.
DISCUSSION
I
Defendant contends the trial court erroneously instructed the jury on the elements of count eight, possessing counterfeiting apparatus. She claims that contrary to the instructions, neither the computer printer found in the car trunk nor the washed paper currency could support her conviction. We are not persuaded.
Section 480, subdivision (a) provides in part: “Every person who . . . knowingly has in . . . her possession any . . . apparatus, paper, . . . machine, or other thing whatever, made use of in . . . counterfeiting bank notes or bills, is punishable by imprisonment in the state prison for two, three, or four years.” Subdivision (b)(1) provides for disposal of the “apparatus or machine used to violate” subdivision (a), if it is a “computer, computer system, or computer network.” Subdivision (b)(2) provides that the terms “‘computer system’” and “‘computer network’” “have the same meaning as that specified in Section 502.”
Section 480 provides:
Section 502 provides in relevant part: “‘Computer network’ means any system that provides communications between one or more computer systems and input/output devices including, but not limited to, display terminals and printers connected by telecommunication facilities.” (§ 502, subd. (b)(2).) “‘Computer system’ means a device or collection of devices, including support devices . . ., one or more of which contain computer programs, electronic instructions, input data, and output data, that performs functions including, but not limited to, logic, arithmetic, data storage and retrieval, communication, and control.” (§ 502, subd. (b)(5).)
The trial court instructed the jury on count eight in relevant part:
“Count Eight charges that on or about February 20th, [defendant] did commit a felony offense, a violation of [section] 480[, subdivision] (a) of the Penal Code in that said defendant did willfully, unlawfully and knowingly have in her possession currency, paper, a printer and other things for the purpose of counterfeiting bank notes or bills. [¶] . . . [¶] To prove defendant is guilty of this crime charged in Count Eight, the People must prove the following: [¶] . . . [¶]
“Item one, that is the element one, defendant possessed paper, apparatus, machine, computer or computer network or other things used to counterfeit bank notes or bills. [¶] The terms ‘computer’ and ‘computer network’ include[] scanners, printer, storage media, computer file. [¶] The term ‘paper’ includes paper currency.
The second italicized passage appeared in the prosecutor’s proposed instruction; the first italicized passage did not. While reading the proposed instruction to the jury, the trial court noticed that the second italicized passage appeared to define the terms “computer” and “computer network,” even though those terms had not been used in the instruction. In order to rectify that problem, the court added the first italicized passage.
“Second element, defendant knew of the presence of these items.
“And, third, that these items were possessed with the specific intent to be used to counterfeit bank notes or bills.
“The term ‘bank notes’ or ‘bills’ includes United States currency. . . . [¶] . . . [¶]
“ . . . The People do not need to prove that defendant actually counterfeited any bills or notes.
“The People allege that defendant possessed the following items: [a] H[ewlett] P[ackard] [Photosmart] 3210 printer/scanner, washed paper currency, and mint condition $1 bills.” (Italics added.)
Defendant claims the instruction that “The terms ‘computer’ and ‘computer network’ include[] scanners, printer, storage media, computer file” was erroneous in two respects. She first contends the court erred by instructing that “the terms ‘computer’ and ‘computer network’” included a “scanner.” We agree that a scanner is not within section 502’s definition of a “computer network,” most obviously because the printer/scanner was not part of any system that provided communication between the scanner and one or more computer systems. (§ 502, subd. (b)(2).) The error is harmless, because a scanner is within section 502’s definition of a “computer system.” Thus, the printer/scanner is a device that contains computer programs, electronic instructions, input data, and output data; and that performs functions such as logic, arithmetic, data storage and retrieval, communication with a computer, and control of internal hardware. (§ 502, subd. (b)(5).) Because the printer/scanner is a “computer system” within the meaning of section 502, it necessarily is an “apparatus” or a “machine” within the meaning of section 480, subdivision (a). Alternatively, even if the printer/scanner is not a “computer system,” it nevertheless is an apparatus or a machine, so any error could not have been prejudicial.
Per the manufacturer’s Web site, the Hewlett Packard Photosmart 3210 has 64 megabytes of internal memory and communicates with a computer via USB, Ethernet and PictBridge connections ( [as of Oct. 21, 2008]).
Defendant next claims the trial court’s instruction was erroneous because section 502’s definition of “computer network” is limited to printers that are “connected by telecommunication facilities,” and the printer/scanner here was not so connected. We agree that the printer/scanner was not within section 502’s definition of a “computer network” because it was not connected to any telecommunication facilities. (§ 502, subd. (b)(2).) The error is harmless because, as we have noted, the printer/scanner is a “computer system” within the meaning of section 502, subdivision (b)(2), and thus an “apparatus” or “machine” within the meaning of section 480, subdivision (a).
The trial court could have avoided these two instructional errors had it augmented the pattern instruction with the words “computer system” rather than with the requested words “computer” and “computer network.” For the reasons stated above, the court’s failure to properly augment the instruction was harmless. (People v. Watson (1956) 46 Cal.2d 818, 836.)
Defendant also claims the trial court erred by instructing the jury that, “The term ‘paper’ includes paper currency.” She relies on People v. Clark (1992) 10 Cal.App.4th 1259 (Clark), which held “the Legislature has discerned separate harms and thus has separately treated the possession of completed counterfeit bills and the making or possessing of the means of counterfeiting.” (Id. at p. 1267; see People v. Franz (2001) 88 Cal.App.4th 1426, 1452.) Thus, possessing completed counterfeit bills is proscribed by section 475, subdivision (a); possessing the means of counterfeiting is proscribed by section 480. (Clark, supra,at p. 1267.)
The washed paper dollars that were the subject of the instruction were not “completed counterfeit bills” within the meaning of Clark, supra, 10 Cal.App.4th 1259. The evidence showed that $1 bills had been washed to remove certain identifying features, with the evident intent of printing in their place certain features scanned from a $20 bill. However, the completion of the counterfeiting, by imprinting the bills with features of the $20 bill, had not been done.
Defendant claims possession of the washed paper currency was not within section 480 for a second reason: because it was proscribed by section 475, subdivision (b). That statute provides: “Every person who possesses any blank or unfinished check, note, bank bill, money order, or traveler’s check, whether real or fictitious, with the intention of completing the same or the intention of facilitating the completion of the same, in order to defraud any person, is guilty of forgery.” (§ 475, subd. (b), italics added.)
By its terms, section 475, subdivision (b) applies to documents that the rightful owner has left “blank” or “unfinished.” Here, however, the subject currency was not obtained from the Federal Reserve in “blank” or “unfinished” condition. Rather, when obtained, the washed currency consisted of completed $1 bills. Only the subsequent process of counterfeiting can be said to have been “unfinished.” Defendant was properly charged with violating section 480, and the jury was properly instructed that possession of the washed bills could constitute that offense.
II
Defendant contends the offenses charged in counts four, five, and six are actually the single offense of theft of Mark McCalmont’s identity in violation of section 530.5, subdivision (a), and thus two of the three counts must be reversed. We are not convinced.
Section 530.5, subdivision (a) states in relevant part: “Every person who willfully obtains personal identifying information . . . of another person, and uses that information for any unlawful purpose, including to obtain, or attempt to obtain, credit, goods, services, real property, or medical information without the consent of that person, is guilty of a public offense . . . .”
In People v. Mitchell (2008) 164 Cal.App.4th 442 (Mitchell), we recently explained: “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. [Citation.] 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.” (Id. at p. 455; see People v. Tillotson (2007) 157 Cal.App.4th 517, 533.)
In this case, someone used McCalmont’s personal identifying information to obtain a Lowe’s credit card through GE Money Bank on February 13, 2006. In counts four and six, defendant was convicted of using the credit card on February 14 and 15, 2006, at the Lowe’s stores in Elk Grove and Vacaville. Someone used McCalmont’s personal identifying information to obtain a Home Depot credit card through Citibank on February 14, 2006. In count five, defendant was convicted of using the credit card that same day at the Home Depot in Stockton.
As we stated in Mitchell, a violation of “[s]ection 530.5, subdivision (a), is committed each time an offender uses personal identifying information for any unlawful purpose. Contrary to defendant’s argument, the first such fraudulent use did not immunize her from punishment for subsequent fraudulent uses.” (Mitchell, supra, 164 Cal.App.4th at p. 457.) Because three separate fraudulent uses occurred, defendant was properly convicted of three counts of violating section 530.5.
III
Defendant contends the trial court erred by failing to stay imposition of sentence on count seven (§ 470b--possession of a forged driver’s license and identification card to facilitate a forgery) pursuant to section 654. We disagree.
Section 654 provides in relevant part: “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.” (§ 654, subd. (a).)
“‘The proscription against double punishment in section 654 is applicable where there is a course of conduct which . . . comprises an indivisible transaction punishable under more than one statute . . . . The divisibility of a course of conduct depends upon the intent and objective of the actor, and if all the offenses are incident to one objective, the defendant may be punished for any one of them but not for more than one.’ [Citation.] ‘The defendant’s intent and objective are factual questions for the trial court; [to permit multiple punishments,] there must be evidence to support a finding the defendant formed a separate intent and objective for each offense for which he was sentenced. [Citation.]’” (People v. Coleman (1989) 48 Cal.3d 112, 162 (Coleman); see People v. Latimer (1993) 5 Cal.4th 1203, 1208.)
Section 470b provides in relevant part: “Every person who . . . has in his possession any driver’s license . . . with the intent that such driver’s license . . . be used to facilitate the commission of any forgery, is punishable by imprisonment in the state prison, or by imprisonment in the county jail for not more than one year.”
Defendant argues her sentence on count seven should have been stayed because “the driver’s license charged in count [seven] was the one that was used to facilitate the commission of the offenses charged in counts [four, five, and six].” We disagree.
The evidence showed that counts four, five, and six were committed on February 14 and 15, 2006. (See part II, ante.) The forged driver’s license was found in defendant’s purse several days later, on February 20, 2006. The only issue is whether the trial court could deduce that defendant retained the forged license in her possession for several days following the Lowe’s and Home Depot incidents with the intent to use the license to facilitate some future forgery. (Coleman, supra, 48 Cal.3d at p. 162.) Because the forged driver’s license could be used to open new fraudulent credit accounts after the previous ones had been detected by authorities and closed, the inference of intent to again use the driver’s license is compelling. The implied finding of a separate intent and objective is supported by substantial evidence. (Ibid.)
IV
Defendant contends the trial court violated Apprendi, Blakely, and Cunningham by imposing consecutive sentences on counts one, four, five, and six. She acknowledges that our Supreme Court rejected her claim in People v. Black (2007) 41 Cal.4th 799, 821 (Black II), and that this court is bound to follow Black II (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455).
Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435]; Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403]; Cunningham v. California (2007) 549 U.S. 270 [166 L.Ed.2d 856].
Defendant also claims the trial court’s implied factual finding regarding her intent and objective in committing count seven (part III, ante) violates the principles of Cunningham. She acknowledges that our Supreme Court rejected this claim in Black II’s predecessor. (People v. Black (2005) 35 Cal.4th 1238, 1264 (Black I), judg. vacated and cause remanded sub nom. Black v. California (2007) ___ U.S. ___ [167 L.Ed.2d 36].) Black I explained: “For purposes of the right to a jury trial, the decision whether section 654 requires that a term be stayed is analogous to the decision whether to sentence concurrently.” (Black I, supra, 35 Cal.4th at p. 1264.) In Black II, the court concluded that “Cunningham ...does not undermine our previous conclusion that imposition of consecutive terms . . . does not implicate a defendant’s Sixth Amendment rights.” (Black II, supra, 41 Cal.4th at p. 821.) Because the section 654 issue is analogous, it follows that Cunningham also does not undermine Black I’s resolution of the section 654 issue.
V
Defendant contends, and the Attorney General concedes, the abstract of judgment must be corrected in five respects. We accept the Attorney General’s concession as to four of the five points.
(1) Defendant’s eight-month consecutive sentence on count one was not stayed pursuant to section 654. In item 1 of the abstract, the “x” in the box entitled “654 STAY” must be stricken and an “x” placed in the box entitled “CONSECUTIVE 1/3 NON-VIOLENT.”
(2) Defendant’s eight-month consecutive sentence on count two was stayed pursuant to section 654. In item 1 of the abstract, the “x” in the box for “CONSECUTIVE 1/3 NON-VIOLENT” must be stricken and an “x” placed in the box for “654 STAY.”
(3) Defendant received eight-month consecutive terms on counts four, five, and six. In item 1 of the abstract, the “PRINCIPAL OR CONSECUTIVE TIME IMPOSED” for each of these three counts should be listed as “8,” not “(8).”
(4) The count four incident at Lowe’s occurred in February 2006. In item 1 of the abstract, the “YEAR CRIME COMMITTED” must be 2006, not 2005.
(5) Although the parties have not discussed it, we note that defendant’s two-year concurrent sentence on count seven is neither a principal nor a consecutive term; it does not count toward the aggregate term of imprisonment. Thus, in the “PRINCIPAL OR CONSECUTIVE TIME IMPOSED” column in item 1, the sentence term should be shown in parenthesis, i.e., “(2.0).”
(6) We also note that defendant received four separate prior prison term enhancements of one year each. In item 3 of the abstract, each enhancement should be listed separately and the term of each should be “1” year, not one entry of “4” years.
(7) It was undisputed at trial that the fraudulent charge on the Lockheed Federal Credit Union credit card was $2,182.98. The probation report recommended restitution in that amount. The clerk’s transcript reflects that restitution was, in fact, awarded in that amount. However, the reporter’s transcript inexplicably omits the 98 cents; the award to Lockheed Federal Credit Union is stated as simply “$2,182.” The abstract of judgment at item 11 conforms to the clerk’s transcript, not the reporter’s transcript. The parties concur that the 98 cents should be stricken. We disagree.
“‘It may be said . . . as a general rule that when, as in this case, the record is in conflict it will be harmonized if possible; but where this is not possible that part of the record will prevail, which, because of its origin and nature or otherwise, is entitled to greater credence [citation]. Therefore whether the recitals in the clerk’s minutes should prevail as against contrary statements in the reporter’s transcript, must depend upon the circumstances of each particular case.’” (People v. Smith (1983) 33 Cal.3d 596, 599 (Smith).)
In this case, the reporter’s transcript shows restitution awards to GE Money Bank and Citibank in the undisputed amounts of $2,204.41 and $975.50, respectively. The undisputed amount is also awarded to Lockheed Federal Credit Union, except for the inexplicable omission of the 98 cents. Because the trial court’s evident intent was to award the undisputed amount of restitution shown by the testimony, we conclude the clerk’s transcript, which most closely (exactly) reflects that amount, is entitled to greater credence. (Smith, supra, 33 Cal.3d at p. 599.) No correction of item 11 of the abstract is necessary.
DISPOSITION
The judgment is affirmed. The trial court is directed to correct the abstract of judgment in the six respects noted in part V of the Discussion, ante, and to forward a certified copy of the corrected abstract to the Department of Corrections and Rehabilitation.
We concur: SCOTLAND , P. J., BLEASE , J.
“(a) Every person who makes, or knowingly has in his or her possession any die, plate, or any apparatus, paper, metal, machine, or other thing whatever, made use of in counterfeiting coin current in this state, or in counterfeiting gold dust, gold or silver bars, bullion, lumps, pieces, or nuggets, or in counterfeiting bank notes or bills, is punishable by imprisonment in the state prison for two, three, or four years; and all dies, plates, apparatus, papers, metals, or machines intended for the purpose aforesaid, must be destroyed.
“(b)(1) If the counterfeiting apparatus or machine used to violate this section is a computer, computer system, or computer network, the apparatus or machine shall be disposed of pursuant to Section 502.01.
“(2) For the purposes of this section, ‘computer system’ and ‘computer network’ have the same meaning as that specified in Section 502. The terms ‘computer, computer system, or computer network’ include any software or data residing on the computer, computer system, or computer network used in a violation of this section.”