Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. NA082331, James B. Pierce, Judge.
Mark Yanis, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Stephanie Brennan and Charles S. Lee, Deputy Attorneys General, for Plaintiff and Respondent.
WILLHITE, Acting P.J.
Raymond Alvarez appeals from the judgment entered following his conviction by jury on four counts of identity theft. (Pen. Code, § 530.5, subd. (a).) Appellant contends that the trial court violated Penal Code section 654 by imposing consecutive sentences for each count because all four counts were part of an indivisible course of conduct. We disagree with appellant and therefore affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Prosecution Evidence
Terry Clay Lovingier owned a construction company, Lovco Construction (Lovco), which had a contract with the Chevron oil refinery in El Segundo. In April 2005, Lovingier promoted appellant to the position of site supervisor at the Chevron site.
One of appellant’s primary responsibilities as site supervisor was to authorize the payroll by reviewing employee hours and pay codes and faxing the information to Lovco’s office, where Billie Lyman generated and signed the paychecks. When Lovingier hired appellant, he emphasized the importance of this responsibility, telling appellant he would need to know everyone who worked at the site, know that they were on site, and ensure that everyone was paid properly. When appellant started in this position in April 2005, there were 30 to 40 employees at the Chevron site. By 2006 or 2007, there were about 100 employees there.
Appellant was the only person at the site who had authority to hire, and he was aware that company policy prohibited the hiring of day laborers who were paid in cash, because all employees needed security badges to work at Chevron. He also was the only person at the Chevron location who had the authority to assign pay codes, which determined pay rates.
Appellant supervised clerks who inputted employee hours into the computer at the Chevron site. This information was used to generate Lovco’s weekly payroll and to enable Lovco to receive payment from Chevron. Guadalupe Molina was the clerk who was primarily responsible for inputting the hours.
Appellant knew all the Lovco employees at the site because he held safety meetings every morning that were mandatory for all employees. Roberto Guzman, Lovco’s personnel and safety director, testified that appellant seemed to know everyone at the site because he spoke with them every morning.
In August 2007, Lovingier fired Molina after Chevron let him know that Molina had billed Chevron for eight Saturdays that she actually had not worked. Lovingier testified that appellant must have approved the hours Molina billed.
In mid-2007, Lovingier fired Luis Velasquez after learning that he was not working under his true name. Velasquez previously had failed a drug test, but appellant allowed Velasquez to continue working for Lovco by using the name Edward Navarro, a friend of Velasquez’s who had worked at Lovco. After Lovingier learned of the deception, he told appellant to fire Velasquez.
In July 2008, Chevron terminated the contract with Lovco and withheld over $1.5 million in payment in order to audit Lovco’s files. Chevron’s auditors discovered “ghost employee files, ” which were files of employees receiving paychecks but not actually working.
Adan Galvez testified that appellant hired him to work for Lovco in February 2007, but he quit after working only four days because he did not like the work. When Galvez was hired, he gave appellant his driver’s license and social security card. Galvez received one paycheck from Lovco, which he cashed, but he did not receive any other checks. However, when he received his W-2 in 2008, it indicated that he had been paid almost $18,000 by Lovco. Lovco’s records indicated that Galvez worked from February 2007 to July 2007 and earned $16,782. Galvez asked appellant to correct his W-2, but appellant told him nothing could be done, so Galvez reported the incident to the police.
Eutiquio Balleza-Requena was hired by Lovco on July 17, 2006, and worked at the Chevron site for two days. When he was hired, he provided Lovco with his driver’s license and social security card. According to Lovco’s records, Balleza-Requena worked from July 2006 through June 2007 and was paid $24,295.20.
Roger Robleto worked for Lovco at the Chevron site for two days in July 2006 and was paid $600 in cash. He never received any checks from Lovco. According to Lovco’s records, Robleto worked from July 2006 through June 2007 and was paid $24,295.20. Robleto contacted the police after he learned that someone was using his social security number.
Jesus Maria Alvarez worked for Lovco at the Chevron site for two days in December 2005. According to Lovco’s records, Alvarez worked from February 2006 through June 2007 and was paid $60,057.80. In 2006 or 2007, the IRS notified Alvarez that he owed almost $22,000 in taxes.
Guzman, Lovco’s personnel and safety director, testified that at some point he received telephone calls from people complaining that they had received W-2 forms for hours they had not worked.
Velasquez testified under a grant of immunity. He started working for Lovco at the Chevron site sometime before 2005. After Velasquez’s suspension for a positive drug test, he suggested to appellant that he work under Navarro’s name, and appellant agreed. Velasquez obtained an identification in Navarro’s name and cashed the checks at a check cashing facility.
At some point while Velasquez was working as Navarro, appellant and Molina asked him to cash checks for people who did not have identification. Velasquez agreed, so he took paychecks from appellant and Molina, cashed them at the check cashing facility and returned the money to Molina. The checks usually were signed already, but sometimes Velasquez signed them.
Defense Evidence
Alberto Duran Galaviz, appellant’s brother-in-law, worked as a foreman for Lovco from 1998 to 2008. He testified that he remembered working with Adan Galvez for approximately six months.
Armando Molina (no relation to Guadalupe Molina) worked for Lovco from about 2004 to 2008. He testified that Velasquez told him that Velasquez and Guadalupe Molina were splitting proceeds from fake checks.
Appellant testified that he initially did not accept the position of site supervisor from Lovingier because he did not have the necessary skills. He eventually accepted the position because Lovingier promised to show him how to run the business. He testified that Lovingier never told him that his primary responsibility was the payroll or that he would be required to know all the employees, and that he would not have accepted the position if he had known.
Appellant was responsible for about 80 people in 2006, and by 2007 the number had grown to about 130 people. He testified that he only knew about 70 percent of the people in 2006 and that he hired most, but not all, of the employees. The other people were hired by Guzman.
Appellant testified that after people were hired, their identification and social security cards were copied, but he did not know what happened to the documents after that. He stated that Guadalupe Molina was responsible for those documents. He did not supervise or interview subcontractors who brought in their own employees.
Appellant stated that he did not review or sign payroll records or time sheets and that he did not know anything about pay codes. He testified that Molina took care of all those matters. After Molina left, he discovered some checks with unfamiliar names on them, so he called Lovingier to tell him. Lovingier told appellant not to worry about it, so appellant just sent the checks back to Lovingier.
Appellant stated that Galvez worked about two weeks before quitting, but about two months later, Galvez returned and worked for Galaviz for six to eight months. Appellant occasionally drove a van pool and picked Galvez up several times. The van pool regularly stopped at Bank of America for the employees to deposit their paychecks. Appellant often allowed people who did not have accounts to cash their paychecks against his bank account. He stated that they both would sign the check and then he would leave so the person could get cash from the bank teller.
When Galvez contacted appellant in 2007 regarding his problem with his W-2, appellant told him to speak with Lyman about it. Appellant spoke to Lyman and Lovingier about Galvez’s W-2, but he was told nothing could be done about it.
According to appellant, it was Lovingier’s idea to have Velasquez return to work under Navarro’s name after Velasquez’s positive drug test. Appellant denied asking Velasquez to cash checks for him and receiving cash. He testified that Lovingier was lying in order to get money from him and that Velasquez and Lyman also were lying.
Rebuttal Evidence
Lovingier testified that appellant never told him he lacked the skills necessary to accept the position of site supervisor and that appellant accepted the position with no delay. He also stated that appellant supervised Molina’s work, including payroll issues.
Procedural Background
Appellant was charged by information with one count of grand theft by embezzlement (Pen. Code, § 487, subd. (a)), and one count each of identity theft (Pen. Code, § 530.5, subd. (a)) regarding Galvez, Balleza-Requena, Robleto and Alvarez.
The jury found appellant not guilty of the grand theft charge and guilty of all four identity theft counts. The court sentenced appellant to the midterm of two years on count 2 and eight months each on counts 3, 4 and 5, for a total of four years. The court imposed the requisite fines, fees, and conditions, and gave appellant credit for 50 days of actual custody and 50 days of good time/work time credit for a total of 100 days. Appellant filed a timely notice of appeal.
DISCUSSION
Appellant contends that his sentence violates Penal Code section 654 because, even though he used the identity of more than one victim, all four identity thefts were committed pursuant to the single objective of obtaining money from Lovco. We disagree with appellant.
Although appellant did not raise the applicability of Penal Code section 654 in the trial court, claims regarding section 654 may be raised for the first time on appeal. (People v. Hester (2000) 22 Cal.4th 290, 294-295.)
Penal Code section 654 provides, in pertinent part, that “[a]n 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.” (Pen. Code, § 654, subd. (a).) The statute “prohibits multiple punishment for a single criminal act and for two crimes arising from a single indivisible course of conduct in which the defendant had only one criminal intent or objective. [Citation.]” (People v. Conners (2008) 168 Cal.App.4th 443, 458, fn. omitted.) “‘“Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor.”’ [Citation.] The ‘intent and objective’ test is a rigorous one, however, since ‘a “broad and amorphous” view of the single “intent” or “objective” needed to trigger the statute would impermissibly “reward the defendant who has the greater criminal ambition with a lesser punishment.”’ [Citation.]” (People v. Morelos (2008) 168 Cal.App.4th 758, 769.)
“The trial court has broad latitude in determining whether [Penal Code] section 654, subdivision (a) applies in a given case. [Citations.]” (People v. Garcia (2008) 167 Cal.App.4th 1550, 1564.) “Whether multiple convictions are part of an indivisible transaction is primarily a question of fact. [Citation.] We review such a finding under the substantial evidence test [citation]; we consider the evidence in the light most favorable to [the People] and presume the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]” (People v. Martin (2005) 133 Cal.App.4th 776, 781.)
Although appellant obtained and unlawfully used the identities of four different people, he contends that all four offenses were committed pursuant to the single objective of obtaining money unlawfully from Lovco. However, “[i]n deciding whether a defendant commits a series of thefts pursuant to a single intent or plan, we do not use a single, broad objective of stealing property. A defendant who steals from multiple victims over a lengthy crime spree may have a single objective of obtaining as much money or property as possible. However, he has still committed multiple offenses. [Citations.]” (People v. Mitchell (2008) 164 Cal.App.4th 442, 456 (Mitchell).)
There is no question that appellant committed multiple offenses that were divisible from each other. (See People v. Andra (2007) 156 Cal.App.4th 638, 641 [rejecting the argument that the sentence on a vehicle theft count or an identity theft count should have been stayed, finding the two weeks’ time between the commission of the crimes “afforded defendant ample opportunity to reflect and then renew her intent before committing the next crime, ” and the crimes had two different victims]; People v. Butler (1996) 43 Cal.App.4th 1224, 1248 [where the defendant possessed two unlawfully cloned cell phones, the court rejected the argument that section 654 prohibited punishment on both counts, finding his “crimes were committed against two different victims, the lawful owners of the two cellular phone numbers”].) Not only were the offenses committed over a long period of time, but they were committed with respect to different victims, with different consequences to each.
People v. Brooks (1985) 166 Cal.App.3d 24 (Brooks), cited by appellant, is distinguishable. The defendant in Brooks was charged with 14 counts of grand theft after he accepted items on consignment for an auction but did not give the proceeds of the sales to the original owners of the items. On appeal, the court held that the thefts were punishable as a single offense under Penal Code section 654. (Id. at p. 31.) The court reasoned that the 14 thefts were “from a single fund arising from a single auction” and thus part of an overall plan with a single objective. (Ibid.) Unlike Brooks, in which all the thefts were from a single transaction – the auction – the identity thefts committed by appellant were from distinguishable transactions over an extended period of time.
Appellant’s reliance on People v. Packard (1982) 131 Cal.App.3d 622 (Packard) also is unavailing. Packard addressed the principle articulated in People v. Bailey (1961) 55 Cal.2d 514 (Bailey) that, “where multiple takings are motivated by a single intention and plan, they constitute a single crime.” (Mitchell, supra, 164 Cal.App.4th at p. 455.) However, “neither Bailey nor Packard was concerned with the correct application of section 654. Rather, both addressed the question of whether a series of thefts committed over a period of time should be charged as one offense or as multiple offenses. [Citations.]” (People v. Kwok (1998) 63 Cal.App.4th 1236, 1254.)
In Mitchell, the court found the Bailey doctrine did not apply in the context of identity theft. The court reasoned that “[i]n 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.” (Mitchell, supra, 164 Cal.App.4th at p. 455.) Similarly here, it was the use of each victim’s identifying information for an unlawful purpose that constituted the offense. The crimes of identity theft did not involve merely obtaining money unlawfully from Lovco. The victims suffered tax consequences as a direct result of the theft of their identifying information. Appellant’s use of identifying information from four separate victims constituted separate crimes that could be separately punished.
DISPOSITION
The judgment is affirmed.
We concur: MANELLA, J., SUZUKAWA, J.