From Casetext: Smarter Legal Research

People v. Dean

California Court of Appeals, Second District, Seventh Division
Apr 16, 2009
No. B203623 (Cal. Ct. App. Apr. 16, 2009)

Opinion

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Los Angeles County, Super. Ct. No. PA056055, Meredith C. Taylor, Judge.

Gerald Peters, 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, Senior Assistant Attorney General, Margaret E. Maxwell and Susan S. Kim, Deputy Attorneys General, for Plaintiff and Respondent.


PERLUSS, P. J.

Nicholas Elton Dean appeals from the judgment entered following his conviction by a jury of credit card forgery and receiving stolen property with a special finding by the court in a bifurcated proceeding he had suffered one prior conviction for a serious or violent felony within the meaning of the “Three Strikes” law. Dean asserts the trial court improperly sentenced him to consecutive terms in state prison because the punishment for one of his two convictions should have been stayed pursuant to Penal Code section 654 and because the court failed to state the reasons or adequately consider the factors identified in the California Rules of Court for imposing consecutive terms. We affirm the court’s decision to sentence Dean on both counts and dismiss Dean’s challenge to the decision to impose consecutive terms as moot.

Statutory references are to the Penal Code.

FACTUAL AND PROCEDURAL BACKGROUND

1. Summary of the Evidence at Trial

Dean does not challenge the sufficiency of the evidence to support his convictions for credit card forgery (§ 484f, subd. (b)) and for receiving stolen property (§ 496, subd. (a)). In brief the evidence at trial established that, in the early morning of June 3, 2006, Valerie Valle discovered her wallet, containing her driver’s license and a bank credit card, was missing from her car, which she had parked in her driveway.

The same morning Dean checked into a motel. He signed the motel’s registration card with Valle’s name, handed the motel manager, Prakash Joshi, Valle’s driver’s license and paid the $65.99 room charge using Valle’s credit card. Dean signed Valle’s name on the sales slip authorizing the credit card payment. Joshi did not ask for identification or a credit card in Dean’s own name, believing Dean’s explanation of being in a hurry to use the bathroom and anticipating Valle, his girlfriend, to arrive within minutes to also sign the sales slip. Joshi gave Dean an electronic key card to room 314.

When Valle telephoned her bank that morning to report the theft of her credit card, she learned it had been used to check into a motel. Valle immediately contacted police.

Shortly thereafter, the police went to the motel and spoke to Joshi. After Joshi deactivated the electronic key card, the officers knocked on the door of room 314. They received no response. About 20 minutes later officers detained Dean as he attempted to unlock the door of room 314 with his deactivated electronic key card. Dean was arrested, and Joshi confirmed he was the person who had checked into room 314.

During a search of room 314, officers discovered Valle’s driver’s license and the credit card sales slip Dean had signed with the name “Valerie Valle.” Officers also found a store receipt bearing four numbers that matched the last four numbers of Valle’s credit card and some toiletries that matched items listed on the receipt. The receipt was time and date stamped 4:17 a.m., June 3, 2006.

2. The Verdict and Sentencing

The jury found Dean guilty on both counts. Following a bench trial, the court found true the special allegation Dean had suffered a prior strike conviction, but found not true the allegation he had served a prior prison term for a felony. (§ 667.5, subd. (b).)

The court denied Dean’s motion to dismiss the prior strike conviction for purposes of sentencing (see People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 529-530). Defense counsel then urged the court to impose the lower term of 16 months, doubled under the Three Strikes law. The court replied, “There are two counts, counsel. [Dean] was convicted of each. They are separate and distinct.” Defense counsel asked, “They are separate and distinct?” The court confirmed, “They are separate and distinct.”

Before sentence was imposed, Dean addressed the court and requested he not be sent to state prison. The court advised Dean a state prison commitment was unavoidable and appropriate because of the prior strike conviction. Dean was sentenced to an aggregate state prison term of five years four months, consisting of four years for credit card forgery (the two-year middle term doubled under the Three Strikes law) and 16 months for receiving stolen property (one-third the two-year middle term doubled under the Three Strikes law). In imposing sentence the court observed that count 1, credit card forgery, pertained to Dean’s act of forging Valle’s name on the credit card slip in paying for the motel room and count 2, receiving stolen property, pertained to “all the property that was found in [Dean’s] possession from the vehicle.”

The only item appears to be Valle’s driver license; her stolen credit card was never recovered by police.

3. Dean’s Subsequent Conviction and Resentencing

Following sentencing in the case at bar in October 2007, Dean was convicted of additional offenses in a separate proceeding (Super. Ct. L.A. County, 2008, No. PA055664). Pursuant to section 669, in April 2008 the court in the subsequent proceeding vacated the sentence imposed in this case and sentenced Dean for the new offenses, as well as for the two crimes involved in the instant appeal. That court ordered consecutive terms of 16 months for forgery (one-third the two-year middle term doubled under the Three Strikes law) and 16 months for receiving stolen property (one-third the two-year middle term doubled under the Three Strikes law), as subordinate terms, to be served consecutively to the sentencing imposed in No. PA055664. This second case is now pending on appeal in this district (People v. Nicholas Elton Dean, B207218).

DISCUSSION

The Trial Court Was Not Required To Stay the Sentence for Receiving Stolen Property Pursuant to Section 654

Dean argues the trial court violated section 654, which prohibits punishment for two offenses arising from the same act or from a series of acts constituting an indivisible course of conduct (People v. Latimer (1993) 5 Cal.4th 1203, 1216; People v. Harrison (1989) 48 Cal.3d 321, 335), by imposing separate sentences for both credit card forgery and receiving stolen property. According to Dean, the offenses were committed to achieve a single criminal objective—to use Valle’s driver’s license and credit card to purchase goods or services.

Section 654, subdivision (a), provides: “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. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other.”

“The test for determining whether section 654 prohibits multiple punishment has long been established: ‘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. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.’” (People v. Britt (2004) 32 Cal.4th 944, 951-952.) “If, on the other hand, defendant harbored ‘multiple criminal objectives,’ which were independent of and not merely incidental to each other, he may be punished for each statutory violation committed in pursuit of each objective, ‘even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.’” (People v. Harrison, supra, 48 Cal.3d at p. 335.) “‘The principal inquiry in each case is whether the defendant’s criminal intent and objective were single or multiple.’ [Citation.] ‘A defendant’s criminal objective is “determined from all the circumstances....”’” (In re Jose P. (2003) 106 Cal.App.4th 458, 469.)

Whether section 654 applies in a given case is a question of fact for the trial court, which is vested with broad latitude in making its determination. (People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312; People v. Herrera (1999) 70 Cal.App.4th 1456, 1466.) Its findings will not be reversed on appeal if there is any substantial evidence to support them. (Hutchins, at p. 1312; Herrera, at p. 1466; People v. Nichols (1994) 29 Cal.App.4th 1651, 1657.) “We review the trial court’s determination in the light most favorable to the respondent and presume the existence of every fact the trial court could reasonably deduce from the evidence.” (People v. Jones (2002) 103 Cal.App.4th 1139, 1143; see People v. Cleveland (2001) 87 Cal.App.4th 263, 271 [trial court’s finding of “‘separate intents’” reviewed for sufficient evidence in light most favorable to the judgment].)

The decision whether section 654 bars separate punishments for two related convictions is properly made by the trial judge presiding in the court that tried those charges, not the judge in a subsequent proceeding that resentences the defendant under section 669. Accordingly, Dean’s subsequent conviction and sentencing in No. PA055664 does not moot his challenge to the imposition of separate punishments (whether concurrent or consecutive terms of imprisonment) for credit card forgery and receiving stolen property in this case.

Because section 654 potentially reduces the defendant’s aggregate sentence when it applies and does not increase the statutory maximum term for each separate offense when it does not (see People v. Cleveland, supra, 87 Cal.App.4th at p. 270), the Sixth Amendment does not require this determination be made by a jury under the principles articulated in Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531, 159 L.Ed.2d 403] or Cunningham v. California (2007) 549 U.S. 270 [127 S.Ct. 856, 166 L.Ed.2d 856].

Substantial evidence supports the trial court’s conclusion Dean’s receipt of stolen property and his credit card forgery were separate and distinct offenses. The offense of receiving stolen property requires proof the defendant possessed stolen property, knowing the property was stolen. (In re Anthony J. (2004) 117 Cal.App.4th 718.) The additional fraudulent intent to sell the property or otherwise use it for financial gain is not an element of the offense. (See People v. Osborne (1978) 77 Cal.App.3d 472, 477; People v. Wielograf (1980) 101 Cal.App.3d 488, 494.) Dean was guilty of receiving stolen property when he acquired Valle’s driver’s license and credit card prior to entering the motel, knowing they were stolen. Dean’s objective in committing this offense was to possess property he had no right to have.

The offense of credit card forgery, as charged in the case, requires proof the defendant signed the cardholder’s name on a credit card sales slip without authorization, with the intent to deceive another and to defraud the cardholder of money, goods, services or something else of value. (See Judicial Council of Cal. Crim. Jury Instns. (2008) CALCRIM No. 1955.) Thus, Dean committed credit card forgery at the motel when he presented Valle’s stolen credit card and signed her name to the credit card sales slip to rent a room. Dean’s objective in committing the offense was to deceive the motel employee and to defraud Valle of the cost of renting the motel room.

To knowingly possess a stolen driver’s license and credit card, on the one hand, and to use a stolen credit card for financial gain by defrauding the cardholder, on the other hand, are distinct criminal purposes. (See People v. Andra (2007)156 Cal.App.4th 638, 640-641 [punishment for both vehicle theft and identity theft not barred by § 654 even though purpose of identity theft was to facilitate vehicle theft two weeks later]; People v. Kwok (1998) 63 Cal.App.4th 1236, 1253-1256 [separate punishment for two burglaries not barred by § 654 even though first burglary was committed to facilitate subsequent crimes].)

That both crimes were purportedly part of a single, overall scheme—to fraudulently obtain goods or services by using the stolen property—does not mean section 654 bars punishment for both crimes. “‘Under section 654, “a course of conduct divisible in time, although directed to one objective, may give rise to multiple violations and punishment. [Citations.]” [Citations.] This is particularly so where the offenses are temporally separated in such a way as to afford the defendant opportunity to reflect and to renew his or her intent before committing the next one, thereby aggravating the violation of public security or policy already undertaken.’” (People v. Andra, supra, 156 Cal.App.4th at p. 640; accord, People v. Beamon (1973) 8 Cal.3d 625, 639, fn. 11; People v. Gaio (2000) 81 Cal.App.4th 919, 935; People v. Kwok, supra, 63 Cal.App.4th at pp. 1253-1254.) The offense of receiving stolen property was completed before Dean entered the motel with the intent to commit credit card forgery. The trial court was entitled to conclude the separation in time between the crimes afforded Dean sufficient opportunity to reflect upon his initial crime and reconsider his course of conduct.

Thus, section 654 does not bar separate punishments for the two separate crimes.

Dean’s Challenge to the Discretionary Imposition of Consecutive Sentences for the Two Offenses Is Moot

Section 669 provides, when a person is convicted of two or more crimes in different proceedings, “the second or other subsequent judgment upon which sentence is ordered to be executed shall direct whether the terms of imprisonment or any of them to which he or she is sentenced shall run concurrently or consecutively.” That is, whether the trial court in the case at bar had imposed concurrent or consecutive terms for credit card forgery and receiving stolen property, the trial judge sentencing Dean in the subsequent proceeding, No. PA055664, in April 2008 had the responsibility—and the concomitant discretion—to impose either concurrent or consecutive terms for those offenses based on his own evaluation of the relevant sentencing criteria. Accordingly, any error or abuse of discretion committed in imposing consecutive terms as part of Dean’s original sentence (and we believe there was none) is immaterial, and Dean’s challenge to that portion of his sentence in this case is moot. To the extent Dean has properly preserved his objection to the imposition of consecutive terms for these offenses in connection with his resentencing in No. PA055664, those arguments may be considered with his appeal in that case.

DISPOSITION

The judgment is affirmed.

We concur: ZELON, J., JACKSON, J.


Summaries of

People v. Dean

California Court of Appeals, Second District, Seventh Division
Apr 16, 2009
No. B203623 (Cal. Ct. App. Apr. 16, 2009)
Case details for

People v. Dean

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. NICHOLAS ELTON DEAN, Defendant…

Court:California Court of Appeals, Second District, Seventh Division

Date published: Apr 16, 2009

Citations

No. B203623 (Cal. Ct. App. Apr. 16, 2009)

Citing Cases

People v. Dean

In determining whether the trial court properly denied Dean's motion to strike his 1998 burglary conviction…