Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. PA055664, Richard F. Walmark, Judge.
William L. Heyman, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Paul M. Roadarmel, Jr. and Rama R. Maline, Deputy Attorneys General, for Plaintiff and Respondent.
WILLHITE, J.
A jury convicted defendant Nicholas Elton Dean of three counts: count 1, receiving stolen property (Pen. Code, § 496, subd. (a)); count 2, forgery using an access card (§ 484f, subd. (b)); and count 3, theft of access card account information (§ 484e, subd. (d)). In a bifurcated, non-jury trial, the court found one prior conviction under the Three Strikes law true (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and also found true the allegation that defendant was released on bail or on his own recognizance in another case when he committed the instant offenses (§ 12022.1). The court sentenced defendant to 9 years, 4 months: on count 1 the court imposed the principal term of 6 years for receiving stolen property (double the high term of 3 years), plus 2 years for the on-bail enhancement, a total of 8 years, and on count 2, a consecutive term of 16 months (double the 8-month mid-term). On count 3, the court ruled (and the prosecution conceded) that having imposed sentence on count 2, the court was required by section 654 to stay the sentence on count 3.
All undesignated section references are to the Penal Code.
The prosecution elected not to proceed on a prior prison term allegation under section 667.5, subdivision (b), and the court struck that allegation.
On appeal defendant contends that: (1) he was erroneously convicted of both receiving stolen property and theft of access card account information based on the same property; (2) the trial court erred in failing to instruct on the prohibition against conviction for stealing and receiving the same property; and (3) the sentence for forgery using an access card should have been stayed under section 654, because the forgery was committed pursuant to the same intent and objective as the receiving stolen property. We agree with defendant’s first two contentions, and order the conviction on count 1 (receiving stolen property) vacated. The conviction on count 3 (theft of access card account information) is affirmed. This resolution renders defendant’s third contention moot, because the trial court has already ruled that under section 654 it cannot impose separate punishment on counts 2 and 3. We remand for resentencing, the trial court being free to choose the count on which to sentence and the count on which to impose and stay the sentence under section 654.
For the court’s guidance, we note that on the stayed count, the court must actually choose and impose a sentence on that count and then stay it. (See People v. Dominguez (1995) 38 Cal.App.4th 410, 420.) In its original sentence, the court erroneously purported to stay the sentence on count 3, but never selected a sentence on that count.
BACKGROUND
Because defendant does not challenge the sufficiency of the evidence, we briefly summarize the trial evidence in accordance with the standard of review on appeal – in the light most favorable to the prosecution, drawing all reasonable inferences in support of the judgment. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
Prosecution
At 5:50 a.m. on October 12, 2006, at a Walgreens store on Soledad Canyon in Santa Clarita, defendant used a Visa credit card in the name of Connie Finley to purchase a cup of coffee, a $100 Hyatt Hotel gift card, and a Hallmark card. Around 6:00 a.m. that morning, in preparation for a search pursuant to a warrant to be conducted later that morning, Los Angeles Police Detective Noah Stone was conducting a surveillance of a residence at 27706 Haxton Drive in Canyon County, located about one and one-quarter miles from the Walgreens. Detective Stone observed defendant arrive in a Buick automobile, park on the street, and enter the residence carrying a cup of coffee and a small cardboard box.
Around 7:00 a.m., Los Angeles Police Officers, assisted by sheriff’s deputies, executed a search warrant at the Haxton Drive house. They encountered five people inside: defendant, his mother (who identified herself as the owner), and his brother and two sisters. The living room was being used as a sleeping area. Detective William Flannery recovered a black wallet from a night stand there, and asked who stayed in that area. Defendant’s mother said that defendant did. In the wallet, Detective Flannery found defendant’s driver’s license, the Visa card in the name of Connie Finley that defendant had used to make the earlier purchase at Walgreens, and a Washington Mutual ATM card also in the name of Connie Finley. Detective Flannery asked defendant who Connie Finley was. Defendant identified her as his girlfriend. When the detective asked for her phone number so that he could verify that defendant was authorized to have her credit cards, defendant refused to provide it.
On the floor board of the Buick in which defendant had arrived, Detective Stone found the receipt from the earlier purchase at Walgreens. Detective Flannery later obtained from Walgreens the credit card sales slip for the transaction. A surveillance video from the Walgreens was played at trial showing defendant making his purchase there.
When contacted by Detective Flannery, Connie Finley discovered that her Visa card and ATM card were missing from her purse. She did not know defendant and did not give him permission to possess or use the cards.
Defense
Defendant represented himself at trial. As witnesses he called his mother, Carla West, his brother, Daniel Dean, and Detective Stone. Much of their testimony was immaterial to the charges. However, West testified that she did not see the officers seize a black wallet, and Daniel Dean testified that he owned the Buick searched by the police and that defendant never used it.
DISCUSSION
Dual Conviction
Section 496, subdivision (a), provides in part: “A principal in the actual theft of the property may be convicted pursuant to this section. However, no person may be convicted both pursuant to this section and of the theft of the same property.” (Italics added.) Where the evidence would support a conviction of both theft of and receiving the same property, the trial court has a sua sponte duty to instruct the jury that it cannot convict of both offenses based on that property. (People v. Garza (2005) 35 Cal.4th 866, 881.)
Here, defendant was convicted in count 1 of receiving stolen property in violation of section 496, subdivision (a). In count 3, he was convicted of a species of grand theft: unlawfully acquiring or retaining possession of access card account information, in violation of section 484e, subdivision (d). He contends that these convictions were improperly based on the same property: the credit card and ATM card belonging to Connie Finley found in his wallet. He also contends that the trial court erred in failing to instruct the jury that it could not convict him of both counts. We agree with these contentions.
Section 484e, subdivision (d), provides: “Every person who acquires or retains possession of access card account information with respect to an access card validly issued to another person, without the cardholder’s or issuer’s consent, with the intent to use it fraudulently, is guilty of grand theft.”
Legally, defendant’s possession of the credit card and ATM card supported his conviction of both counts. The two cards were stolen property that defendant received. They also constituted access card account information that he acquired or possessed. That is, both cards are access cards. Moreover, there was no evidence that defendant possessed access card account information other than by possessing the two cards themselves. The term “access card account information” has been held to “include[] the name of the cardholder, the account number, the expiration date and the magnetic stripe on the back of the card.... Thus, possession of a validly issued access card of another necessarily means possession of [access card] account information with respect to an access card validly issued to another.” (People v. Molina (2004) 120 Cal.App.4th 507, 518.) Therefore, in other words, by possessing both the credit card and the ATM card, defendant possessed stolen property in violation of section 496, subdivision (a), and also possessed the account information on the cards, in violation of section 484e, subdivision (d).
The term “access card” is defined as “any card, plate, code, account number, or other means of account access that can be used, alone or in conjunction with another access card, to obtain money, goods, services, or any other thing of value, or that can be used to initiate a transfer of funds, other than a transfer originated solely by a paper instrument.” (§ 484d, subd. (2).)
Respondent argues that the convictions on counts 1 and 3 were permissible, and that the trial court did not err in failing to instruct the jury on the prohibition against convicting of stealing and receiving the same property. Respondent’s logic is as follows: “Count 1 of the information shows that the property underlying that count was the credit card.... As for count 3, the information shows that [defendant’s] act of ‘possession of access card account information’ was the underlying act of that charge.... Therefore, count 3 involved possession of the ATM card, not the credit card.” Respondent is mistaken.
It is true that count 1 of the information specifically charged receiving stolen property, “to wit, credit cards,” and that count 3 charged “acquir[ing] and retain[ing] possession of access card account information.” Perhaps the prosecution meant to refer in count 1 to a single “credit card,” and in count 3 to access card account information “from an ATM card.” But that was not the way the case was charged or tried.
In her opening statement, the prosecutor referred to the seizure of “two credit cards that had the name of Connie Finley,” and stated that the evidence would prove defendant’s guilt of “receiving stolen property, forgery, and theft of a credit card.” (Italics added.) At the close of evidence, in her argument to the jury, the prosecutor never stated that defendant’s possession of the credit card, as distinguished from the ATM card, formed the basis of the receiving stolen property charge in count 1. Rather, in discussing the property that was the basis of that charge, she referred to the two cards together as “credit cards.” In describing the charge of theft of access card account information in count 3, the prosecutor stated that the charge “could be repetitive of sorts, but once again the defendant acquired or obtained credit card account information.” (Italics added.) She further stated: “As to the theft itself [in count 3], again somewhat repetitious, but we know that the defendant had in his possession this credit card that he showed at the Walgreens.” (Italics added.) She also referred to defendant’s possession of “the two credit cards” as establishing his guilt “of all these crimes.”
Thus, the prosecutor never informed the jury that she was relying on the credit card for the receiving stolen property charge in count 1 and the ATM card for the charge of theft of access card account information in count 3. To the contrary, she referred to both cards as credit cards without any distinction.
More importantly, the jury instructions did not specify that the credit card was the basis of count 1 and that the ATM card was the basis of count 3. The instructions on count 1 simply referred to “stolen property” without further clarification, thus permitting the jury to rely on defendant’s possession of either card or both to support the conviction. With respect to count 3, the court specifically instructed the jury that both an ATM card and a credit card constituted access cards, and that “[t]he People allege that the defendant acquired or retained the account information of the following access cards: an ATM card and a credit card.” (Italics added.) Thus, for count 3, like count 1, the jury could rely on defendant’s possession of either card or both to convict. Finally, nothing in the record suggests that the jury did not rely on defendant’s possession of both cards to support the convictions on counts 1 and 3.
We therefore conclude that the convictions on counts 1 and 3 violate the provision of section 496, subdivision (a), prohibiting conviction of stealing and receiving the same property, and that the trial court erred in failing to instruct on that prohibition. We vacate the conviction on count 1 for receiving stolen property. (See People v. Recio (2007) 156 Cal.App.4th 719, 726 [“Where a defendant is charged with stealing and receiving the same property, the court should instruct the jury to determine the defendant’s guilt on the theft count first, and if it finds the defendant guilty of the theft, to return the receiving verdict unsigned”].) The conviction on count 3 for theft of access card account information stands.
Sentencing
Defendant contends that section 654 prohibits separate punishment for the conviction of receiving stolen property on count 1 and for forgery using an access card on count 2. The contention is moot. The conviction on count 1 must be vacated, leaving only the convictions on counts 2 and 3. The prosecution conceded, and the trial court ruled, that section 654 precludes separate punishment on counts 2 and 3. Therefore, on remand, the court must sentence on one of those counts, and impose and stay the sentence on the other count under section 654.
DISPOSTION
The conviction for receiving stolen property on count 1 is vacated, and the case is remanded for resentencing on counts 2 and 3. The court shall sentence on one of those counts, and impose and stay the sentence on the other count pursuant to section 654. Otherwise, the judgment is affirmed.
We concur: EPSTEIN, P. J., SUZUKAWA, J.