Opinion
E052375 Super.Ct.No. RIF150520
02-03-2012
THE PEOPLE, Plaintiff and Respondent, v. BETTY LOUISE FORD, Defendant and Appellant.
Richard Power, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, William M. Wood, Bradley A. Weinreb, and Meredith S. White, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from the Superior Court of Riverside County. Mark E. Johnson, Judge. Affirmed.
Richard Power, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, William M. Wood, Bradley A. Weinreb, and Meredith S. White, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found defendant and appellant Betty Louise Ford guilty of embezzlement exceeding $400 from an elderly or dependent adult (Pen. Code, § 368, subd. (d), count 1); burglary (§ 459, count 2); unlawful use of an access card with the intent to defraud (§ 484g, subd. (a), count 3); and unlawful use of personal identifying information (§ 530.5, subd. (a), count 4). In a bifurcated proceeding, defendant thereafter admitted that she had suffered a prior serious and violent felony conviction (§§ 667, subds. (c) & (e), 1170.12, subd. (c)(1)) and a prior prison term (§ 667.5, subd. (b)). Defendant was sentenced to a total term of 10 years 4 months in state prison with credit for time served.
All future statutory references are to the Penal Code unless otherwise stated.
On appeal, defendant contends (1) there was insufficient evidence to sustain her conviction on count 4; (2) the trial court erred in denying her motion to dismiss her prior strike conviction; and (3) imposition of consecutive terms on counts 1 and 2 violated section 654. We reject these contentions and affirm the judgment.
I
FACTUAL BACKGROUND
In May 2008, defendant lived with her 71-year-old mother, Caroline, who had received a call from her bank, Wells Fargo Bank, about some suspicious activity pertaining to her account. The bank requested that Caroline come in the following morning to discuss the activity. Caroline had three bank cards tied to her Wells Fargo Bank accounts, two linked to her savings account and one to her checking account.
Caroline thereafter discovered that two of her Wells Fargo Bank cards were missing from her wallet, but she still had a Wells Fargo Bank debit card. Caroline kept her wallet in her purse in her unlocked bedroom; sometimes her purse would be out in the kitchen area. Defendant later claimed that she found the missing credit card in Caroline's bedroom dresser.
After meeting with Wells Fargo Bank personnel, Caroline discovered that there were many unauthorized purchases made with her Wells Fargo Bank cards totaling about $7,000. Caroline had only one debit card issued to that account and had not given anyone permission to use her cards. According to Wells Fargo Bank records, several other cards linked to Caroline's account were opened and closed on different dates. Caroline did not recall ordering a second credit card for the checking account or receiving other cards.
After reviewing the charges, Caroline informed the bank that there were 22 fraudulent charges. Some of the charges included cash withdrawals, purchases at various grocery stores and gas stations, a purchase at a Best Buy in the amount of $2,946.64, purchases at an Office Max totaling over $2,000, and a purchase at a PC Club in the amount of $973.50. Caroline had never been to some of the stores at which the cards had been used. The purchases occurred in various cities, including San Bernardino, Moreno Valley, Cerritos, and Long Beach, and were made using two different cards. The unauthorized charges also included paying other bills via telephone or Internet using her card. She did recognize some transactions as being hers.
Defendant's accomplice Patricia Anchondo testified that she had previously told an investigator that defendant had given her Caroline's bank card to buy items that defendant could then turn around and sell. In return, Anchondo would receive $500 for having made the purchases with Caroline's card. Defendant had provided Anchondo a personal identification number (PIN) to access the card's account. Anchondo stated the PIN did not work when she and defendant tried to use it at a gas station. Anchondo used Caroline's bank card to purchase several items at a Best Buy. Anchondo told the investigator, " . . . I don't know if it was [defendant's] mom's credit card or the other one she gave me. But I know I used a PIN on that one, I know that."
Anchondo's police interview was transcribed and admitted into evidence.
At trial, Anchondo recanted her statements to the police, claiming that defendant was not involved in the crimes and that she did not know defendant or her husband. Anchondo and defendant were initially charged together, but after Anchondo pled guilty, defendant was tried separately.
An employee at the Best Buy testified that Anchondo first tried to make a home theatre purchase using a check. However, when the check did not go through, "she pulled out a credit card . . . ." In response to whether the employee checked her identification, the employee responded, "No. We have a policy at Best Buy [that] we don't check the ID's of the Visa card customers or any credit card customers. We don't check their ID. It's a credit card machine they use themselves." In response to whether a PIN was entered to complete the transaction, the employee stated, "I assume if she used it as a debit. She could use it as a debit or credit, depending on how she elected to use the card." The employee, however, noted that if he had told an investigator that a PIN had been used in that transaction, it would have been the "absolute[]" truth.
II
DISCUSSION
A. Sufficiency of the Evidence
Defendant contends there was insufficient evidence to support her conviction in count 4 for unlawful use of personal identifying information (§ 530.5, subd. (a)), also known as identity theft. We find this argument unpersuasive.
"In reviewing a claim [regarding the] sufficiency of the evidence, we must determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime or special circumstance beyond a reasonable doubt. We review the entire record in the light most favorable to the judgment below to determine whether it discloses sufficient evidence — that is, evidence that is reasonable, credible, and of solid value — supporting the decision, and not whether the evidence proves guilt beyond a reasonable doubt. [Citation.] We neither reweigh the evidence nor reevaluate the credibility of witnesses. [Citation.] We presume in support of the judgment the existence of every fact the jury reasonably could deduce from the evidence. [Citation.] If the circumstances reasonably justify the findings made by the trier of fact, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citation.]" (People v. Jennings (2010) 50 Cal.4th 616, 638-639.)
The trial court instructed the jury on section 530.5, subdivision (a), in the language of CALCRIM No. 2040, in pertinent part, as follows: "The defendant is charged in Count 4 with the unauthorized use of someone else's personal identifying information. [¶] To prove that the defendant is guilty of this crime, the People have to prove that: [¶] 1. The defendant willfully obtained someone else's personal identifying information; [¶] 2. The defendant willfully used that information for an unlawful purpose; AND [¶] 3. The defendant used the information without the consent of the person whose identifying information she was using. [¶] Personal identifying information includes a person's name, address, telephone number, demand deposit account number, savings account number, checking account number, PIN (personal identification number) or password or an equivalent form of identification. [¶] Someone commits an act willfully when he or she does it willingly or on purpose. [¶] An unlawful purpose includes unlawfully obtaining or attempting to obtain credits, goods, or service in the name of the other person without the consent of that person. [¶] It is not necessary that anyone actually be defrauded or actually suffer a financial, legal, or property loss as a result of the defendant's acts."
Section 530.5, subdivision (a), provides in pertinent part: "Every person who willfully obtains personal identifying information, as defined in subdivision (b) of Section 530.55, of another person, and uses that information for any unlawful purpose, including to obtain, or attempt to obtain, credit, goods, services, real property, or medical information without the consent of that person, is guilty of a public offense . . . ."
The jury here was also instructed that defendant could have been a direct perpetrator or aided and abetted another pursuant to CALCRIM Nos. 400 and 401. Additionally, the jury was instructed that "[t]he People have presented evidence of a conspiracy" in accordance with CALCRIM Nos. 416 and 417. In closing the prosecutor informed the jurors, "The defendant and [Anchondo] conspired to steal from Caroline using her card. No matter if the defendant or [Anchondo] actually used those cards in the stores, either way the defendant is responsible."
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Thus, in order to convict defendant of identity theft, the jury was required to find that (1) defendant willfully obtained the personal identifying information of Caroline; and (2) she used that information for an unlawful purpose without Caroline's consent. (People v. Tillotson (2007) 157 Cal.App.4th 517, 533.) Section 530.5, subdivision (a) does not require an intent to defraud. (People v. Hagedorn (2005) 127 Cal.App.4th 734, 744.)
Defendant argues that her conviction for identity theft must be reversed because there was no evidence to show that "any personal identifying information about [Caroline] was obtained and used." Rather, the evidence implied that defendant "obtained a card or cards from her mother's house and had passed them on for someone else to use." Defendant's argument is based on the assumption that direct evidence be presented that she had obtained her mother's personal identifying information and that she or Anchondo had used the victim's card as a debit card, thus requiring personal identifying information, rather than as a credit card. While it might not be possible to pinpoint an exact point in time when defendant had passed on the victim's bank cards and PIN's, it is certainly reasonable to infer that at some point defendant's accomplice was told the victim's personal identifying information relating to the victim's bank cards and had used that personal identifying information. In fact, Anchondo told the investigator that defendant had provided her a PIN to access the card's account, but that the PIN did not work at a gas station. Anchondo also told the investigator, " . . . I don't know if it was [defendant's] mom's credit card or the other one she gave me. But I know I used a PIN on that one, I know that." Circumstantial evidence here shows that defendant obtained her mother's bank cards and account information and passed along that information and bank cards to Anchondo to make unlawful purchases.
Defendant also appears to fail to recognize that she was prosecuted under an aider and abettor theory. A defendant is liable as an aider and abettor if he or she knew of the perpetrator's unlawful purpose; intended to commit, encourage, or facilitate the commission of the crime; and by act or advice aided, promoted, encouraged, or instigated its commission. (§ 31; People v. McCoy (2001) 25 Cal.4th 1111, 1117-1118.)
"An appellate court must accept logical inferences that the jury might have drawn from the circumstantial evidence." (People v. Maury (2003) 30 Cal.4th 342, 396.) Before we can reverse the judgment for insufficiency of the evidence, "it must clearly appear that upon no hypothesis whatever is there sufficient substantial evidence to support it." (People v. Redmond (1969) 71 Cal.2d 745, 755.) That is not the state of the record here. Defendant's insufficiency of the evidence argument simply asks us to reweigh the facts and credibility of the witnesses. (E.g., People v. Bolin (1998) 18 Cal.4th 297, 331-333.) That we cannot do.
B. Motion to Dismiss Prior Strike
Defendant also contends the trial court abused its discretion by refusing to strike her prior serious and violent felony conviction, to wit, a 1982 murder conviction, pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). We disagree.
In Romero, the Supreme Court held that a trial court has discretion to dismiss three-strikes prior felony conviction allegations under section 1385. (Romero, supra, 13 Cal.4th at pp. 529-530.) The touchstone of the analysis is "'whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme's spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies.' [Citation.]" (People v. Carmony (2004) 33 Cal.4th 367, 377.)
"[A] trial court's refusal or failure to dismiss or strike a prior conviction allegation under section 1385 is subject to review for abuse of discretion." (People v. Carmony, supra, 33 Cal.4th at p. 375.) "[A] trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it." (Id. at p. 377.)
"Because the circumstances must be 'extraordinary . . . by which a career criminal can be deemed to fall outside the spirit of the very scheme within which he squarely falls once he commits a strike as part of a long and continuous criminal record, the continuation of which the law was meant to attack' [citation], the circumstances where no reasonable people could disagree that the criminal falls outside the spirit of the three strikes scheme must be even more extraordinary." (People v. Carmony, supra, 33 Cal.4th at p. 378.)
We cannot conclude the trial court abused its discretion in declining to strike defendant's prior strike conviction. The relevant considerations supported the trial court's ruling, and there is nothing in the record to show that the court declined to exercise its discretion on improper reasons or that it failed to consider and balance the relevant factors, including defendant's personal and criminal background. In fact, the record clearly shows the court was aware of its discretion, aware of the applicable factors a court must consider in dismissing a prior strike, and appropriately considered and balanced the factors outlined above.
Defendant has manifested a persistent inability to conform her conduct to the requirements of the law. As recognized by the trial court, following her 1982 murder sentence and parole, defendant has had a "long and continuous" record of theft convictions. From 1990 to 2003, defendant had engaged in repeated non-law-abiding conduct. Her current offenses were her sixth theft-related convictions and were committed while on parole. Defendant's criminal record includes numerous theft-related convictions, drug-related offenses, trespassing, the prior strike conviction for murder, and poor performances on parole.
The court here could not overlook the fact that defendant continued to commit criminal offenses and violate the terms and conditions of her parole even after repeatedly serving time in prison and/or jail. Her conduct as a whole was a strong indication of her unwillingness or inability to comply with the law. Her disregard for the law is evidenced by her continual parole violations and criminal convictions. It is clear from the record that prior rehabilitative efforts have been unsuccessful. Indeed, defendant's prospects for the future look no better than the past, in light of defendant's record of prior offense and reoffense and apparent substance abuse. All of these factors were relevant to the trial court's decision under Romero; there is no indication from the record here that the court failed to consider the relevant factors or that it failed to properly balance the relevant factors or that it abused its discretion in determining that, as a flagrant recidivist, defendant was not outside the spirit of the three strikes law. (People v. Carmony, supra, 33 Cal.4th at pp. 375, 377-378.)
Although a court may consider drug addiction as a mitigating factor (People v. Garcia (1999) 20 Cal.4th 490, 503), it may also consider a drug-addicted defendant's failure to address his or her addiction over a period of many years as a factor in the defendant's prospects for re-offending if the court were to strike a prior strike and impose a shorter sentence. (People v. Williams (1998) 17 Cal.4th 148, 161, 163.) Defendant had about 30 years since her conviction for the prior strike offense to attempt to get her drug habit under control.
A trial court abuses its discretion in striking a prior conviction if it is "'guided solely by a personal antipathy for the effect that the three strikes law would have on [a] defendant,' while ignoring 'defendant's background,' 'the nature of his present offenses,' and other 'individualized considerations.' [Citation.]" (Romero, supra, 13 Cal.4th at p. 531.) However, that is precisely what defendant would have this court do.
Thus, given defendant's continuous criminal history, her parole violations, the seriousness of the present and past offenses, and her seemingly dim prospects for rehabilitation and lack of meaningful crime-free periods, we cannot say that the trial court abused its discretion when it declined to dismiss defendant's prior strike conviction.
C. Imposition of Consecutive Terms on Counts 1 and 2
The trial court imposed a four-year prison term (doubled to eight years due to the prior strike) for count 1, embezzlement against Caroline, and a one-year four-month term for count 2, burglary of Office Max. In her supplemental brief, defendant contends that imposition of consecutive terms on count 1 (embezzlement exceeding $400 from an elder) and count 2 (burglary) violated section 654, because defendant harbored one intent and objective, and the actual victim of the thefts was the bank. For the reasons explained, below we find defendant's contention unmeritorious.
Under section 654, "[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. . . ." The statute thus prohibits punishment for two crimes arising from a single, indivisible course of conduct. (People v. Latimer (1993) 5 Cal.4th 1203, 1208.)
Whether a course of conduct is indivisible for purposes of section 654 depends on the intent and objective of the actor. If all the offenses are incidental to one objective, the defendant may be punished for any one of them, but not for more than one. (People v. Latimer, supra, 5 Cal.4th at p. 1208.) 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 part of an otherwise indivisible course of conduct. (People v. Centers (1999) 73 Cal. App.4th 84, 98 [Fourth Dist., Div. Two].)
The question of whether section 654 is factually applicable to a given series of offenses is for the trial court, and the law gives the trial court broad latitude in making this determination. Its findings on this question must be upheld on appeal if there is any substantial evidence to support them. (People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312.) "'We must "view the evidence in a light most favorable to the respondent and presume in support of the [sentencing] order the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]" [Citation.]' [Citation.]" (Id. at pp. 1312-1313.)
"'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. [Citation.]' [Citations.]" (People v. Andra (2007) 156 Cal.App.4th 638, 640.)
Andra illustrates an application of the foregoing principles to facts similar to those of the present case. There, on December 23, 2005, the defendant, Tiffany Andra, opened a credit card account at Citibank representing herself to be Brenda Baker. (People v. Andra, supra, 156 Cal.App.4th at p. 641.) On January 6, 2006, Andra used the card to rent a Lincoln Navigator from Budget Rent-A-Car, which was to be returned on January 8, but was never returned by her. (Ibid.) On January 24, police saw the defendant driving the Navigator and recovered it. (Ibid.) The defendant was convicted of identity theft and vehicle theft and was sentenced to consecutive terms on each. (Id. at p. 639-640.)
The defendant argued on appeal that her sentencing on both counts violated section 654 because the identity theft was committed for the purpose of stealing the Navigator. (People v. Andra, supra, 156 Cal.App.4th at p. 641.) The appellate court rejected the argument, observing that the identity theft was complete when Andra obtained the credit card by fraud, and the theft of the Navigator did not occur until over two weeks later when she failed to return it. The hiatus between offenses, the court concluded, "afforded [her] ample opportunity to reflect and then renew her intent before committing the next crime." (Ibid.) Additionally, the court noted, each offense involved a separate victim — Baker and Budget. (Ibid.)
In the present matter, there is substantial evidence to support the trial court's imposition of separate punishments on counts 1 and 2. There is no question here that defendant committed two separate crimes, against two separate victims. Defendant first stole from her elderly mother by having thousands of dollars unlawfully transferred out of her mother's bank accounts on about 22 different occasions. That crime was thus completed before defendant committed the burglary or it preceded the commission of the burglary. The burglary, in turn, was based upon defendant or her accomplice's subsequent act of unlawfully entering the Office Max with the intent to commit a larceny. Although the record is not clear how much time passed, clearly some time passed between the time defendant stole money from her elderly mother and the time defendant or her accomplice presented her mother's bank card to Office Max to obtain merchandise. Moreover, as the Andra court noted, each offense involved a separate victim - Caroline and Office Max.
For these reasons, we conclude there was substantial evidence to support the trial court's decision to punish the embezzlement charge in count 1 separately from the burglary offense in count 2. We therefore reject defendant's assertion that the embezzlement and burglary charges were indivisible and separate punishment was impermissible.
III
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RICHLI
Acting P.J.
We concur:
KING
J.
MILLER
J.