Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Bernardino County, Super. Ct. No. FMV900587 Christopher B. Marshall, Judge.
O'ROURKE, J.
A jury convicted Hector Esquivel of 20 counts of identity theft (Pen. Code, § 530.5, subd. (a); counts 3, 5, 7 through 19, 21, 22, 24, 27 and 34) and six counts of receiving stolen property (§ 496, subd. (a), counts 28 through 33). The trial court sentenced him to a total term of 16 years and four months consisting of the upper term of three years on count 3, consecutive eight-month terms on the remaining identity theft counts and count 28, and concurrent two-year midterms on the remaining convictions of counts 29 through 33. On appeal, Esquivel contends the court prejudicially erred by (1) admitting evidence of other assertedly unrelated crimes; (2) admitting untimely disclosed evidence and failing to grant his ensuing mistrial motion or instruct the jury regarding the late disclosure; (3) imposing separate punishment on the identity theft and receiving stolen property counts; and (4) imposing the upper term on the principal count and consecutive sentences on other counts. Esquivel further contends he is entitled to recalculation of presentence work and conduct credits under amended section 4019.
All statutory references are to the Penal Code unless otherwise indicated.
We agree the amendments to section 4019 apply retroactively to this case and remand the matter for the trial court to determine any additional days of presentence credit to which Esquivel may be entitled and to modify the abstract of judgment accordingly. We otherwise affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In early February 2009, the San Bernardino County Sheriff's Department (Department) discovered that someone had been cashing counterfeit checks purporting to be written from the Department's inmate trust fund account. The checks were payable to various persons (going by the names Alexander Alvarado, Letticia Torres, Ronisha Brown, Anthony Fuentes, Carlos Obeso, Amy Coronado and Alexandra Hansen) who had cashed or attempted to cash them in January and February 2009 at check cashing stores, delis, liquor stores and other local stores. At times, the store employee called the phone number on the check (those numbers included 909-896-0015, 909-638-5662, 525-8045, and 525-0845) and received confirmation from a "Deputy Martinez, " "Detective Martinez, " "Officer Sanchez, " or "Officer Montez" who answered the phone. Some of the calls went to a phone number on which Esquivel was identified as the subscriber. On some occasions, the person attempting to cash the check presented a DMV change of address card to help verify their identity.
Detectives from the Department began an investigation. They interviewed witnesses and victims, conducted search warrants and, over the course of several days in early March, obtained information to track the GPS coordinates of the cell phone number found on the checks.
On March 5, 2009, a San Bernardino County deputy sheriff conducted a traffic stop on Robin Appleby, who was a felon on probation. During the search of her vehicle, the deputy found drugs and drug paraphernalia as well as two laptop computers, a digital camera, a cell phone, and paperwork including a notebook containing numerous credit card or gift card numbers. The phone contained text messages to Esquivel, including messages asking what to do about her "checks" and telling him she needed a social security number. While in a police vehicle, Appleby told a detective she had a computer and black case in her car that she was transporting for Esquivel, who had instructed her not to open anything. During her police interview, Appleby told a detective that Esquivel printed identification cards and checks that he said were for his business. Appleby told the detective that Esquivel put them in an envelope and gave them to Karin Jewett, who was his girlfriend or wife.
Thereafter, deputies surveilled and executed a search warrant on a residence at 265 East Arrow Highway, where they found Esquivel in a bedroom (the North bedroom) with a prepaid phone having a phone number matching one of the numbers seen on some of the counterfeit checks. Surveillance had revealed Appleby arriving at the house, which belonged to a person named Bobby Cromwell. Under the bed was a wallet containing various ATM and other cards belonging to theft victims from stores, an automobile association, libraries and other locations. The bedroom contained a paper with check cashing information. In the dining room, detectives found two computers, a thumb drive connected to a computer and printer, and check stock in the printer identical to the counterfeit checks payable to Alexander Alvarado and Ronisha Brown. Detectives found personal papers and court papers with Esquivel's name on them in the living room. In a second bedroom (the South bedroom), they found another wallet containing Esquivel's identification and debit and credit cards as well as a Department of Motor Vehicles (DMV) change of address form, a business card for a storage company, and a business card for V&P Auto Body with Aaron Coronado's social security and driver's license number handwritten on the back. They also found several drivers' licenses inside a jewelry box in the South bedroom and more blank check stock. Forensic examinations on the computers and thumb drive revealed a scanned legitimate Department check payable to Monica Salcido, and a counterfeit Department check payable to Alexander Alvarado.
Detectives searched Esquivel's storage unit and found, among other things, a social security and cash checking card belonging to Aaron Coronado. Those items had been stolen from Coronado's wife Amy in October 2008.
The next day, Carlos Obeso was arrested trying to cash a counterfeit check at a check cashing store in Upland. In a search of Obeso's apartment, officers found a computer, a check writing program, and multiple printed checks, including checks purporting to be from Department.
During Esquivel's preliminary hearing, Kelsi Jewett, Karin Jewett's daughter, testified that she had lived with Esquivel in the past, and knew both Obeso and Esquivel for about six years. Kelsi's mother and Esquivel had a child together. According to Kelsi, Obeso worked with Esquivel at V&P Auto Body; he and Esquivel were friends who were "always seen together." Kelsi testified her mother told her she was cashing checks with false identification cards; that Esquivel would pay someone for their identification and social security card, make checks in their names, find someone that looked like them, and go out to cash the checks. She had seen her mother with a false identification in the name of Amy Coronado. She had also seen Alexandra Hansen's stolen identification and social security cards in her mother's room, but threw them away. Kelsi's mother told her that Esquivel was making sheriff's department checks, that Karin and others would cash them, and that she and Esquivel would split the money. Kelsi had previously told the investigating detective that Obeso was involved in counterfeit checks. According to Kelsi, after Obeso's arrest, her mother told her about his arrest and that she believed he had "ratted" on her and Esquivel.
At trial, Esquivel denied committing any of the crimes. Appleby testified she had lied to the arresting detectives about seeing Esquivel print out checks, and that she had been told to transport the bags and computers not by Esquivel, but by a different man, "Mono, " who she spoke with over the phone. Later in her testimony, Appleby admitted that Mono might have been Esquivel. Karin Jewett testified she made the checks and she and Obeso cashed them. She testified Esquivel had no involvement in the conspiracy to cash counterfeit checks. Kelsi Jewett recanted much of her prior preliminary hearing testimony, claiming she did not know Obeso. She admitted that after speaking with her mother, she was changing her testimony from the preliminary hearing and from what she had told the prosecutor the previous day.
DISCUSSION
I. Admission of Asserted "Other Crimes" Evidence
Esquivel contends the trial court prejudicially erred under Evidence Code sections 1101 and 352 by allowing the prosecutor to present evidence of his unrelated criminal convictions and other unrelated pending charges. He points to three instances of asserted error. The first occurred after opening statements when the prosecutor displayed to the jury a photograph — Exhibit 85 — showing court papers relating to a pending criminal matter, which the prosecutor referred to as "legal papers relating to Esquivel's, a different Esquivel legal case" found by detectives at the Arrow Street address. Declining to admonish the jury to disregard the evidence, the trial court acknowledged it had previously ruled on that evidence in connection with the People's pretrial evidentiary motions, instructed that any mention be limited to "court" or "legal" papers, and ruled it was indicia of Esquivel's residence. The second occurred when the lead detective on the case, Detective Venegas, was permitted to testify on direct examination that he located "court papers with Hector Esquivel's name on it" in both the living room and the South bedroom of the Arrow Street house where police found Esquivel's wallet. The third instance occurred when the court permitted the prosecutor to cross-examine Esquivel about the fact he had "testified in court in October 2008" under oath that he had lived at an address in Los Angeles for 37 years. The court ruled in this last instance that the evidence contradicted Esquivel's earlier testimony about where he lived, and was admissible as impeachment and a prior inconsistent statement.
Exhibit 85 is a photograph of a zippered wallet and an automobile association card containing the name "Robi E. Jacobs" on top of other papers, including a Montclair Police Department Notice to Appear dated October 10, 2008, having Esquivel's name and address handwritten upon it. The Notice to Appear is partially covered by another paper that appears upside down in the photograph, but contains a chart and capitalized heading reading: "Sentences for Driving Under the Influence of Alcohol and/or Drugs."
Esquivel argues the court abused its discretion in each instance. Specifically, he argues evidence of personal papers at the Arrow Street house did not prove his dominion and control and was irrelevant since he did not dispute he had spent nights at that house. He further argues the evidence's probative value was minimal because the prosecutor had other evidence of Esquivel's possession and control, and thus any relevance was substantially outweighed by the probability the evidence, which he characterizes as evidence of "other crimes" or "uncharged offenses, " would cause undue prejudice. Esquivel maintains admission of the evidence was prejudicial because "the evidence provided an inference to the jury that [he] had committed other crimes and had bad character" and the jury was permitted to speculate as to the nature of the documents.
With certain exceptions, " 'evidence of a person's character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion.' (Evid. Code, § 1101, subd. (a), italics added.) Subdivision (b) of the same section, referred to as the 'other crimes' provision, provides that '[n]othing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident...) other than his or her disposition to commit such an act.' (Evid. Code, § 1101, subd. (b).) An example of the application of subdivision (b) would be a case in which the charged crime has distinct features similar to a prior crime that the defendant committed, and the prosecution seeks to present evidence of the prior crime to prove that the defendant committed both crimes." (People v. Alexander (2010) 49 Cal.4th 846, 912, citing People v. Gray (2005) 37 Cal.4th 168, 202-203; see also People v. Catlin (2001) 26 Cal.4th 81, 145 [Evidence Code section 1101 recognizes other crimes evidence may be relevant to facts other than criminal propensity].)
We reject these contentions. With the exception of Exhibit 85, the challenged testimony — in which the jury heard mere references to "court papers" in the Arrow Street house or the defendant's prior testimony "in court" about his residence — is not reasonably characterizable as criminal propensity or "other crimes" evidence. (Compare, People v. Alexander, supra, 49 Cal.4th at p. 911 [trial court permitted witness to testify that she learned the defendant had committed a "serious offense" that eventually resulted in a trial]; People v. Kelly (2007) 42 Cal.4th 763, 782 [court admitted evidence of defendant's financial dealings with other women, assault on another woman, and rapes of three other women]; People v. Catlin, supra, 26 Cal.4th at pp. 119-122 [trial court admitted evidence that defendant killed his fifth wife by poisoning her].) Even if it were, the prosecution admitted the evidence not to prove Esquivel's conduct on any particular occasion (Evid. Code, § 1101(a)), but on the issue of Esquivel's dominion and control over the Arrow Street house, which Esquivel did not own but contained computers and other materials usable to commit identity theft crimes. Evidence Code section 1101, subdivision (a) does not prohibit such use.
Further, the evidence was relevant. The People did not have physical fingerprint or other evidence tying Esquivel to the counterfeit checks, or direct evidence that he himself had cashed any of the checks, and thus it relied on circumstantial evidence. Esquivel's awareness of and control over the blank check stock, identification cards, and other items in the house were facts from which the jury could infer the material facts of knowledge and possession, wrongful intent, and use of identifying personal information for an unlawful purpose. These are all, respectively, elements of receiving stolen property, conspiracy and identity theft. (People v. Russell (2006) 144 Cal.App.4th 1415, 1425 [defendant's knowledge property was stolen is an element of receiving stolen property offense]; People v. Morante (1999) 20 Cal.4th 403, 416 [conspiracy]; see People v. Tillotson (2007) 157 Cal.App.4th 517, 533 [identity theft]; People v. Catlin, supra, 26 Cal.4th at p. 146.)
Finally, Evidence Code section 1101 did not affect the People's ability to challenge Esquivel's credibility with his prior sworn testimony about his residence. (Evid. Code, § 1101, subd. (c) ["Nothing in this section affects the admissibility of evidence offered to support or attack the credibility of a witness"].) Esquivel's prior sworn testimony — in which he stated he had always lived at his parent's house in Los Angeles — contradicted his trial testimony that he lived for a time with Karin and Kelsi Jewett, and was relevant as to the reason why he possessed a DMV change of address card in his wallet at the time of his arrest.
For all the reasons stated above, we reject Esquivel's argument that the evidence had no substantial probative value for purposes of applying Evidence Code section 352. Particularly here, where the trial court neutralized the evidence to references to court or legal papers, we conclude prejudice did not inhere as is the case with evidence of uncharged offenses (People v. Kelly, supra, 42 Cal.4th at p. 783), and thus the court was well within its discretion in concluding any possible prejudice did not outweigh its probative value.
As for Exhibit 85, which arguably reflected evidence of a criminal matter involving Esquivel, none of the evidence concerning that exhibit was offered to prove Esquivel's conduct on any particular occasion. Instead, it was offered to demonstrate Esquivel's dominion and control over the Arrow Street residence, a purpose not precluded under Evidence Code section 1101 as we have stated. At no time did the prosecutor refer to the above-referenced document or testimony as reflecting criminal conduct or any criminal complaint. The trial court observed that the jury's exposure to Exhibit 85 occurred in connection with the prosecutor's over 35 minute PowerPoint presentation containing "a lot of points." The court's refusal to admonish the jury as to this exhibit was based on implicit findings that the jury only briefly saw the exhibit among abundant other evidence and would not necessarily appreciate the papers or "MWV" number as reflecting evidence of a criminal matter. On this record, we find no reason to disturb the trial court's underlying factual findings or its evidentiary ruling.
Assuming any error regarding the challenged evidence, we are compelled to conclude Esquivel has not demonstrated prejudice under the standard of either People v. Watson (1956) 46 Cal.2d 818, 836 (Watson), or Chapman v. California (1967) 386 U.S. 18, 24 (Chapman). In each instance raised by defense counsel, the trial court responded by prohibiting the prosecutor from telling the jury anything other than the fact that the papers demonstrating Esquivel's dominion and control were "court" or "legal" papers. The prosecutor did not place a heavy emphasis on Esquivel's "court papers" or his testimony at a prior court proceeding, and the time spent on that evidence was extremely minimal in relation to the record. The evidence against Esquivel was otherwise strong. Among other things, as we have summarized above, officers found Esquivel at the Arrow Street address with a phone on his nightstand used to verify many of the counterfeit checks and abundant evidence of stolen identification information. Appleby implicated him in the check cashing scheme at the time of her arrest. Testimony from Kelsi Jewett tied him specifically to the counterfeit check scheme. The jury acquitted Esquivel on several counts, indicating they did not base their decision on prejudice stemming from any of the challenged testimony. We conclude under the circumstances that Esquivel cannot establish it is reasonably probable a result more favorable to him would result absent admission of the challenged evidence.
II. Admission of Assertedly Untimely Discovery
Esquivel contends the court abused its discretion by (1) permitting the prosecutor to admit new evidence that the People had not provided the defense before trial; (2) refusing his ensuing request for a mistrial; and (3) denying his request for the "late discovery" instruction, CALCRIM No. 306. The evidence consists of a 19-page forensic computer report concerning contents of one of the computers seized at the time of Esquivel's arrest, a one-page supplement to the computer report, and copies of "calls for service" reports related to Esquivel from the La Verne Police Department. Esquivel maintains his counsel's inability to examine some of the evidence and prepare his defense violated his constitutional rights to a jury trial and due process, and, combined with the fact the People's case was built on circumstantial evidence, prevents a conclusion that the court's errors were harmless under either Watson, supra, 46 Cal.2d at p. 836 or Chapman, supra, 386 U.S. 18.
A. Background
On the morning of Wednesday, June 10, 2009, several days into trial, defense counsel advised the court the prosecutor had just handed him a 19-page forensic computer report. Defense counsel objected to the late disclosure and asked the court to preclude use of the report in its entirety, The prosecutor explained that the report had been given to him by Detective Stephen Wolff just that morning; that he had met with the detective the previous day and learned he was still working on the computer. After further discussion, the prosecutor advised the court that the police had had the computers in their possession since March 5, 2009. He agreed to not call Detective Wolff until the following Monday to provide defense counsel with time to review the report.
The prosecutor explained: "I was handed this [forensic report] this morning shortly before I came to court by [Detective] Wolff at the Rancho Police Department. And I don't know the full story behind it. I do know that I met with him yesterday. He said he had been working on this computer for sometime [sic]. I don't know how long some time is. And I told him hey, you got to fish or cut bait. I need this stuff. So he got it to me this morning right before I walked into the courtroom. And I don't know what else to say about it." In response to questioning, the prosecutor stated that the report "relates to one of I believe five different computers that forensic examination has been done on. And unfortunately, the last one that got done on apparently is the one that is most relevant according to what I'm seeing in this report, just looking over it in the last few minutes that we have had it. [¶] But it relates to items, in particular, the original, legitimate Monica Salsedo [sic]check was scanned onto this computer in a folder that was labeled HEC.... And then again, I'm just interpreting this."
The court agreed there had been delay, but acknowledged the difficulty in examining computers. Pointing out both counsel had agreed there was no bad faith and that the People had turned the document over as soon as it was available, the court declined to exclude the document. It advised defense counsel it would allow him to recall Robin Appleby or seek a reasonable continuance if necessary (the court observed the remaining witnesses had merely identified checks and the fact they were cashed.) Defense counsel asked for an opportunity to review the report before he would answer and for a jury instruction regarding late discovery, but stated with regard to the forensic report he would be "up to speed" the next day. In the meantime, the prosecutor agreed not to question witnesses about the report, though he advised the court and counsel that based on his review of the document, he would be asking Detective Wolff to conduct some additional searches.
That afternoon, the prosecutor gave defense counsel a one-page supplement to the forensic computer report, which was generated after adding the name "Karin" to the search. Given the chance to respond and request additional time, defense counsel stated he did not think he would make any request other than for a jury instruction.
During Detective Venegas's cross-examination, defense counsel asked whether the detective had police reports for Esquivel predating the incident. Venegas answered that he had calls for service he had obtained earlier that morning that had not been provided to defense counsel. During a break in testimony, after the prosecutor advised the court he wanted to question the detective about those calls, defense counsel raised the issue of late discovery, arguing that the prosecutor should have revealed any information in the police department's possession. The prosecutor then requested an Evidence Code section 402 hearing to clarify the detective's knowledge of the evidence. At that hearing, Detective Venegas testified he had learned of the calls that morning from the La Verne Police Department, and did not tell the prosecutor they had anything to do with fraud. The detective also related that the La Verne Police Department had a computer for Karin Jewett that he picked up, but the prosecutor informed him it was too late to do anything with it.
After learning this, defense counsel continued to question the detective as follows: "[Defense counsel]: You have calls for service. Are those in the matters we have been provided if any? [¶] [Detective Venegas:] No. [¶] [Defense counsel:] So you have some information about Mr. Esquivel committing crimes similar to this one which you have not provided? [¶] [Detective Venegas:] That I obtained this morning." To the extent the calls revealed damaging information about Esquivel's other crimes, the information was elicited by defense counsel.
In response to this information, defense counsel sought a mistrial for (1) the detrimental late disclosure of information in the police department's possession, and (2) the fact he had received a surprise answer to his question, reflecting badly on his client. He complained Karin Jewett's computer had not been analyzed forensically and might contain exculpatory evidence. The prosecutor pointed out that none of the evidence had been withheld; that he did not know whether the calls for service had anything to do with check cashing and in his view the calls were irrelevant. He explained there was no indication there was any relevant evidence related to Jewett's computer. The prosecutor suggested counsel's arguments were speculative.
The court ruled none of the evidence was late discovery; that it was not discovered until that morning and was not intended to be used or offered. Finding no association between the service calls and any fraudulent checks, it denied counsel's mistrial motion. The court ruled there was no relevance to Jewett's computer, which was not Esquivel's property.
During the jury instruction conference, defense counsel asked the court to instruct the jury with CALCRIM No. 306, which would have entitled the jury to consider the fact an attorney for the People had failed to disclose evidence "within the legal time period, " on the weight and significance of that evidence. The court denied the request, stating that in each of the instances raised by defense counsel, there had been no late discovery.
CALCRIM No. 306 provides in part: "Both the People and the defense must disclose their evidence to the other side before trial, within the time limits set by law. Failure to follow this rule may deny the other side the chance to produce all relevant evidence, to counter opposing evidence, or to receive a fair trial. [¶] An attorney for the (People/defense) failed to disclose: [within the legal time period]. [¶] In evaluating the weight and significance of that evidence, you may consider the effect, if any, of that late disclosure. [¶] [However, the fact that the defendant's attorney failed to disclose evidence [within the legal time period] is not evidence that the defendant committed a crime.]"
B. Standard of Review
We review the trial court's evidentiary rulings and rulings on discovery matters for abuse of discretion. (People v. Jablonski (2006) 37 Cal.4th 774, 805 [admissibility of evidence]; People v Curl (2009) 46 Cal.4th 339, 357 [discovery rulings]; People v. Ayala (2000) 23 Cal.4th 225, 299 [same].)
C. Analysis
The success of Esquivel's contentions turns on whether the trial court could reasonably conclude that the prosecutor did not violate his discovery obligations under section 1054.1, et seq. These discovery statutes require a prosecutor to disclose enumerated evidence — including "relevant real evidence seized or obtained as part of the investigation of the offenses charged" (§ 1054.1, subd. (c)) and "reports or statements of experts" (§ 1054.1, subd. (f)) — "if it is in the possession of the prosecuting attorney or if the prosecuting attorney knows it to be in the possession of the investigating agencies[.]" (See also People v. Morrison (2004) 34 Cal.4th 698, 713; Schaffer v. Superior Court (2010) 185 Cal.App.4th 1235, 1242.) The prosecutor must disclose the evidence 30 days before trial unless "the material and information becomes known to, or comes into the possession of, a party within 30 days of trial, [in which case] disclosure shall be made immediately." (§ 1054.7.)
Here, the prosecutor advised the court and defense counsel of the forensic computer report's existence immediately upon its acquisition. Esquivel does not point to evidence or any other indication in the record that the prosecutor willfully suppressed or intentionally delayed disclosing the report; indeed, defense counsel declined to attribute any bad faith to the People or police. The court granted defense counsel a several-day continuance to prepare for cross-examination with regard to the report. As in People v. Verdugo (2010) 50 Cal.4th 263, the continuance appears to have been more than adequate to remedy any presumed violation of the discovery statutes, and Esquivel does not attempt to demonstrate otherwise. (Id. at p. 281.)Under these circumstances, Esquivel has not shown the trial court abused its discretion in allowing the prosecutor to admit the report into evidence.
As for the calls for service in the possession of the La Verne Police Department, we agree with the People that the trial court reasonably concluded — based on Detective Venegas's testimony at the Evidence Code section 402 hearing — that the evidence did not involve fraud and did not relate to Esquivel's fraud charges. Other than engaging in speculation that the calls might have contained exculpatory material, Esquivel does not explain how evidence of unspecified police calls for service would tend " ' "logically, naturally, and by reasonable inference" to establish material facts' " in the case against him. (People v. Harris (2005) 37 Cal.4th 310, 337.) We cannot say the court abused its discretion in ruling they were irrelevant, and thus not discoverable under section 1054.1, subdivision (c). Finally, the record shows both the service reports and Jewett's computer were in the possession of the La Verne Police Department, and not within the prosecutor's knowledge or possession until the day Detective Venegas gave his testimony. The prosecutor had no general obligation to discover or gather that evidence for Esquivel's benefit. (See In re Steele (2004) 32 Cal.4th 682, 697 [prosecution cannot reasonably be held responsible for evidence in the possession of all governmental agencies, including those not involved in the investigation or prosecution of the case]; In re Littlefield (1993) 5 Cal.4th 122, 135; People v. Uribe (2008) 162 Cal.App.4th 1457, 1476; People v. Superior Court (Barrett)(2000) 80 Cal.App.4th 1305, 1314-1315.)
Because the court did not abuse its discretion in concluding the challenged materials were not untimely disclosed, it had no basis to give CALCRIM No. 306 or declare a mistrial. (People v. Ayala, supra, 23 Cal.4th 225, 282-283 [refusal to grant mistrial not an abuse of discretion where there was no evidence of misconduct].)
D. Prejudice
Even assuming the People somehow violated reciprocal discovery obligations, we would not disturb the judgment in view of Esquivel's inability to demonstrate prejudice. "It is defendant's burden to show that the failure to timely comply with any discovery order is prejudicial, and that a continuance would not have cured the harm." (People v. Pinholster (1992) 1 Cal.4th 865, 941, overruled on other grounds in People v. Williams (2010) 49 Cal.4th 405, 459; see People v. Carpenter (1997) 15 Cal.4th 312, 386-387, superseded by statute on another ground as stated in Verdin v. Superior Court (2008) 43 Cal.4th 1096, 1106.) Esquivel does not explain the significance of the forensic computer report to his case, or why, without that report, the evidence against him was weak or insufficient. The court permitted defense counsel a several day continuance to review and prepare to respond to the forensic computer report, and Esquivel does not explain how the continuance was insufficient to cure any prejudice. Esquivel neither explains why, with respect to the other evidence as to which he did not seek a continuance, such a continuance would not have cured the harm. He does not meet his burden to show resulting prejudice.
And, given the strength of the circumstantial evidence against Esquivel as summarized above, we cannot say any omission by the prosecutor affected the trial result; in other words, there is no reasonable probability a result more favorable to Esquivel would have been reached had the court excluded the forensic report from evidence. (People v. Zambrano (2007) 41 Cal.4th 1082, 1135, fn. 13 [violation of reciprocal discovery statute is subject to appeal under Watson harmless error standard], overruled on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
III. Sentencing Issues
Esquivel contends the trial court abused its discretion in imposing the upper term on count 3 because substantial evidence does not support the court's underlying factual findings. He also challenges the court's imposition of consecutive sentences on grounds the court engaged in improper dual use of the facts of victim vulnerability and the seriousness of the crimes. Finally, he advances a challenge to his sentence under section 654. We reject the contentions.
A. Upper Term Sentence
In sentencing Esquivel, the trial court imposed the upper term on Esquivel's count 3 identity theft offense. It found he had organized the conspiracy, which involved criminal sophistication on his part in orchestrating identity theft crimes using stolen information from numerous victims. It found in committing the crimes, Esquivel took advantage of Jewett, the mother of one of his children, to hide behind her acts of fraudulently cashing checks he had created. The court observed Esquivel had a seven-year history of prior convictions consisting of two misdemeanors and a more serious felony drug conviction in 2008. Finally, the court found Esquivel expressed no remorse for his crimes, but rather continued to deny wrongdoing. It found no factors in mitigation.
Section 1170, subdivision (b), provides in part: "When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the choice of the appropriate term shall rest within the sound discretion of the court.... The court shall select the term which, in the court's discretion, best serves the interests of justice." We review the trial court's sentencing choice for abuse of discretion. (People v. Sandoval (2007) 41 Cal.4th 825, 847.)
California Rules of Court, rule 4.421 identifies as factors in aggravation that the "defendant... occupied a position of leadership or dominance of other participants in its commission" (Cal. Rules of Court, rule 4.421(a)(4)), the "manner in which the crime was carried out indicates planning, sophistication, or professionalism" (Cal. Rules of Court, rule 4.421(a)(8)), and the "defendant's prior convictions... are numerous or of increasing seriousness." (Cal. Rules of Court, rule 4.421(b)(2), italics added.) A single aggravating factor supported by substantial evidence suffices to impose the upper term. (People v. Osband (1996) 13 Cal.4th 622, 732; People v. Jones (2009) 178 Cal.App.4th 853, 863, fn. 7; People v. Lamb (1988) 206 Cal.App.3d 397, 401 ["One factor alone may warrant imposition of the upper term [citation] and the trial court need not state reasons for minimizing or disregarding circumstances in mitigation"].)
We conclude the upper term was justified by the trial court's finding that the crime involved substantial planning and criminal sophistication and professionalism. The case involved numerous victims, including those having had their identity stolen and the business establishments that cashed the checks. Esquivel was found in possession and control of computers, blank check stock and numerous items of stolen property. The jury could reasonably infer from Kelsi Jewett's testimony that Esquivel created and distributed the checks to the numerous coparticipants in the conspiracy.
Further, the probation report provides ample evidence that appellant's prior offenses were numerous. As few as three prior convictions have been found to be numerous within this rule of court. (People v. Searle (1989) 213 Cal.App.3d 1091, 1098 [involving three prior convictions for driving while intoxicated within 11 months of each other].) Esquivel suffered three convictions: two misdemeanors in February and June 2001 and a felony possession conviction in July 2008. In short, the court did not abuse its sentencing discretion in making its assessment.
B. Consecutive Sentences
The trial court justified consecutive sentences under California Rules of Court, rule 4.425 by relying on "the nature, seriousness, and circumstances of these crimes, " including the fact there were over 30 identified victims over a two month period; the "losses of hundreds to thousands of dollars to the victims, with additional victims still unknown"; and the unique vulnerability of the victims due to their "lack of knowledge and inability to combat the loss of their personal identifying information." It found the vulnerability extended to Department.
California Rules of Court, rule 4.425 states that in imposing consecutive sentences a trial court may consider: (1) whether the "crimes and their objectives were predominantly independent of each other"; (2) whether the "crimes involved separate acts of violence or threats of violence"; and (3) whether the "crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior." (Cal. Rules of Court, rule 4.425(a)(1)-(3).) These criteria are not exclusive, however. California Rules of Court, rule 4.408(a) states: "The enumeration in these rules of some criteria for the making of discretionary sentencing decisions does not prohibit the application of additional criteria reasonably related to the decision being made. Any such additional criteria must be stated on the record by the sentencing judge."
"[A] trial court has discretion to determine whether several sentences are to run concurrently or consecutively. [Citations.] In the absence of a clear showing of abuse, the trial court's discretion in this respect is not to be disturbed on appeal. [Citations.] Discretion is abused when the court exceeds the bounds of reason, all of the circumstances being considered." (People v. Bradford (1976) 17 Cal.3d 8, 20.)
We perceive no abuse of discretion. Esquivel maintains the court's findings have no evidentiary support; that there were only a few counts in which the check amounts exceeded $1000, and his case constituted merely a number of small crimes. He argues the crimes were "basic" identity theft against establishments with abundant security and protections. But the trial court found the victims of the stolen identification were vulnerable, and witnesses, including Amy Coronado, testified as to the use of personal identification that had been stolen from them and used without their permission and knowledge. Further, that Esquivel committed his crimes against multiple victims, at separate times and separate places, are each independent bases for imposing consecutive sentences. (People v. Osband, supra, 13 Cal.4th at pp. 728-729; People v. Caesar (2008) 167 Cal.App.4th 1050, 1060-1061 ["[T]he presence of separate victims named in separate counts" alone may justify selection of consecutive sentences], disapproved on another ground in People v. Superior Court (Sparks) (2010) 48 Cal.4th 1, 18; see also People v. King (2010) 183 Cal.App.4th 1281, 1323-1324.)
C. Sentencing Under Section 654
Esquivel contends the court improperly imposed separate punishment on his identity theft and receiving stolen property counts. Pointing to the fact the crimes were committed during a short (approximately 60-day) period of time involving the same actions and people, and asserting the stolen property was used in furtherance of the identity theft/check cashing conspiracy, he maintains the crimes involved an indivisible course of conduct pursuant to a single criminal objective. The People respond that the crimes are separate and distinct acts; that they were committed over a period of several weeks allowing time for Esquivel to reflect on his conduct before each crime, and they involved different victims: the individuals whose identity was stolen for the receiving stolen property counts and the establishments who cashed the checks for the identity theft charges.
Section 654 provides in 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." Under section 654, "[i]f all the offenses are incidental to one objective, the defendant may be punished for any one of them, but not for more than one. On the other hand, if the evidence discloses that a defendant entertained multiple criminal objectives which were independent of and not merely incidental to each other, the trial court may impose punishment for independent violations 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. Liu (1996) 46 Cal.App.4th 1119, 1135; see also People v. Latimer (1993) 5 Cal.4th 1203, 1208.) It is the defendant's intent and objective, not the temporal proximity of his offenses, that determines the indivisibility of the transaction. (People v. Harrison (1989) 48 Cal.3d 321, 335.)
Further, " ' "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 (2007) 156 Cal.App.4th 638, 640; see also People v. Kwok (1998) 63 Cal.App.4th 1236, 1253-1254.)
Whether a defendant held more than one criminal objective is a factual question and will be upheld on appeal if supported by substantial evidence. (People v. Osband, supra, 13 Cal.4th at pp. 730-731; People v. Andra, supra, 156 Cal.App.4th at p. 640.) On our review we accept the evidence in a light most favorable to the sentencing decision and draw all reasonable inferences in its favor. (Andra, at pp. 640-641.) Where, as here, the trial court does not expressly make a finding that the defendant committed divisible criminal acts, we will imply such a determination and review it for substantial evidence. (People v. Alford (2010) 180 Cal.App.4th 1463, 1468; People v. Nelson (1989) 211 Cal.App.3d 634, 638.)
The fact Esquivel used stolen property in furtherance of his identity theft cashing scheme does not permit a conclusion that these crimes were either "indivisible" or pursuant to a single objective or intent. As the appellate court discussed in People v. Kwok, supra, 63 Cal.App.4th 1236, where one offense is committed to facilitate commission of a later offense, and the offenses are committed several months apart, they may be properly separately punished under section 654. (Id. at pp. 1253-1254, discussing People v. Williams (1988) 201 Cal.App.3d 439, 440-442.) People v. Andra, supra, 156 Cal.App.4th 638 is an example of such circumstances. There, the defendant used a stolen identity to open bank accounts into which she deposited stolen and forged checks, withdrawing the funds over a period of several weeks. (Id. at p. 642.) The court held the defendant was properly punished for both identity theft and obtaining money by false pretenses, because "the temporal separation between these crimes, [gave her] substantial opportunity to 'reflect' on her conduct and then 'renew' her intent to commit yet another crime. [Citation.] She chose, repeatedly, to continue on in her crime spree." (Ibid.) Accordingly, the defendant was properly separately punished for her crimes, which were divisible in time, even though her course of conduct was pursued with the single objective of accessing fraudulently obtained funds.
Here, the record shows that for at least one of the receiving stolen property counts (count 30), there was sufficient temporal separation and time for reflection to permit multiple punishment. Amy Coronado testified her wallet had been stolen in October 2008. Several months later in February 2009, Esquivel had a person pose as Amy Coronado to cash checks. Esquivel does not otherwise summarize or point to evidence assertedly supporting his claim that the receiving stolen property crimes were not temporally separate from the identity theft crimes, and thus committed as an "indivisible" course of conduct with the identity theft counts. He merely asserts "[t]he 'stolen property' evidence included identification cards, driver's license, and social security cards that were shown to have been used as the identifying information of names and addresses placed on counterfeit checks or to create identification used by individuals cashing the counterfeit checks." Absent a meaningful explanation as to how the evidence shows the trial court's implied finding lacks support, we shall not disturb it. We conclude the court did not err in declining to stay the concurrent sentences on the receiving stolen property counts count under section 654.
IV. Presentence Conduct Credits
Esquivel contends he is entitled to recalculation of his presentence worktime and good behavior credits under the 2009 amendments to section 4019 effective January 25, 2010, because his appeal is pending and his conviction not final. Section 4019 sets forth the formula for calculating conduct credits. (People v. Dieck (2009) 46 Cal.4th 934, 939 & fn. 3.) At the time of his sentencing, former subdivisions (b) and (c) of section 4019 allowed a defendant to earn up to two days of presentence conduct credit for each six-day period of confinement. (Added by Stats. 1976, ch. 286, § 4, p. 595, amended by Stats. 1978, ch. 1218, § 1, p. 3941, & Stats. 1982, ch. 1234, § 7, p. 4553.) If a defendant earned all of the presentence credit available under former subdivision (f) of section 4019, the defendant would be deemed to have served six days for every four days spent in custody. (Dieck, at p. 939.)
The amended section 4019 relied upon by Esquivel allows a defendant to earn up to two days of presentence behavior credit for every four-day period of confinement. (Amended § 4019, subds. (b)(1), (c)(1); amended by Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28, § 50, eff. Jan. 25, 2010.) If a defendant earns all of the presentence credit available under amended section 4019, the defendant will be deemed to have served four days for every two days spent in custody. (Amended § 4019, subd. (f).)
Sections 4010 and 2933 have been further amended by urgency legislation operative September 28, 2010. (Stats. 2010, ch. 426, § 2.) The trial court on remand shall decide whether the September 2010 amendments affect this case. Unless otherwise noted, all references to section 4019 or its amendments refer to the version that went into effect January 25, 2010.
Appellate courts have reached different conclusions on whether the amended statute applies retroactively to convictions that are not yet final on the effective date of the new law. Some hold amended section 4019 applies retroactively because the amendments mitigate punishment. Others hold amended section 4019 does not apply retroactively because the Legislature inferably did not intend it to apply retroactively. The California Supreme Court is currently reviewing the issue. (See People v. Brown (2010) 182 Cal.App.4th 1354, review granted June 9, 2010, S181963 [amendments apply retroactively]; People v. Rodriguez (2010) 183 Cal.App.4th 1, review granted June 9, 2010, S181808 [amendments prospective only]; see also People v. House (2010) 183 Cal.App.4th 1049, review granted June 23, 2010, S182813; People v. Landon (2010) 183 Cal.App.4th 1096, review granted June 23, 2010, S182808; People v. Pelayo (2010) 184 Cal.App.4th 481, review granted July 21, 2010, S183552; People v. Otubuah (2010) 184 Cal.App.4th 422, review granted July 21, 2010, S184314; People v. Hopkins (2010) 184 Cal.App.4th 615, review granted July 28, 2010, S183724; People v. Norton (2010) 184 Cal.App.4th 408, review granted Aug. 11, 2010, S183260; People v. Keating (2010) 185 Cal.App.4th 364, review granted Sep. 22, 2010, S184354; People v. Eusebio (2010) 185 Cal.App.4th 990, review granted Sep. 22, 2010, S184957; People v. Bacon (2010) 186 Cal.App.4th 333, review granted Oct. 13, 2010, S184782.)
Recognizing resolution of the issue is subject to further guidance by the Supreme Court, we conclude the former is more persuasive than the latter view. Accordingly, we conclude amended section 4019 applies retroactively to this case and we remand the matter to the trial court for a determination of any additional presentence credits to which Esquivel may be entitled.
DISPOSITION
The matter is remanded to the trial court to determine any additional presentence credits to which Esquivel may be entitled under Penal Code section 4019, modify the sentencing records accordingly, and forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. The judgment is affirmed in all other respects.
I CONCUR: McDONALD, J.
BENKE, J., dissenting and concurring.
For the reasons stated in People v. Zarate (Feb. 14, 2011, D056837) ____ Cal.App.4th ____ [2011 D.A.R. 2423], I conclude Esquivel is not entitled to the presentence credit he requests under Penal Code section 4019. In all other respects, I agree with the majority opinion.