Opinion
F051294
9-17-2007
THE PEOPLE, Plaintiff and Respondent, v. ALEX VARGAS GARCIA, Defendant and Appellant.
William Davies, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane Gillette, Chief Assistant Attorney General, Michael P. Farrell and John G. McLean, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
INTRODUCTION
Alex Vargas Garcia appeals from a judgment of conviction on one count of grand theft and three counts of identity theft. He appeals certain issues relating to his sentencing. For the following reasons, the judgment will be affirmed.
STATEMENT OF THE CASE
On May 27, 2004, information No. F03900688-3 was filed in Fresno County Superior Court, charging Garcia in count 1 with grand theft of personal property (Pen. Code, § 487, subd. (a)), and in counts 2, 3, and 4 with identity theft (§ 530.5, subd. (a)).
All further statutory citations are to the Penal Code, unless otherwise indicated.
On June 16, 2004, Garcia was arraigned and pled not guilty to the charges.
On June 23, 2006, Garcia pled no contest to all the charges.
On September 15, 2006, the trial court conducted a sentencing hearing. In the probation report, the probation officer recommended an upper term for count 1 and consecutive terms on the identity theft counts, for a total of five years. Defense counsel argued that the charged offenses constituted a single, continuous and ongoing transaction, and thus the terms for the identity theft counts should be stayed. The trial court found that there were at least four distinct transactions over a period of time (a loan, an account at Fleming Foods, a credit card establishment, and a credit card establishment with other loans), and acknowledged that arguably all were for the purpose of sustaining a fledging business that defendant was trying to start. But because the acts were distinct in time and had different methods of operation, the trial court found that section 654 should not apply.
Thereafter, the trial court determined that defendant was eligible for probation, but that he was not a suitable candidate for probation. The trial court identified as aggravating factors: the age of the victim, elements of planning and sophistication, and the large amount of money taken. The court also noted defendants prior record. The court determined that the upper term was appropriate and imposed the upper term of three years for the section 487, subdivision (a) offense. For each of the three section 530.5, subdivision (a) offenses, the court imposed consecutive terms to count one and to each other, with all but eight months stayed, resulting in three eight-month terms, for a total fixed state prison term of five years. Garcia waived all time credits.
Garcia also was ordered to pay a restitution fine of $1,000. He also was ordered to pay $11,436.01 to Advanta Bank Corporation, $5,103.14 to American Express, and $58,349.57 to the victim. A $20 fee pursuant to section 1465.8 also was ordered.
On September 20, 2006, Garcia filed a notice of appeal challenging matters which occurred after the entering of his plea.
STATEMENT OF THE FACTS
The Statement of the Facts is taken from the probation report, given the plea of no contest.
Marie Jensen owned a house and property in the City of Fresno. In January 1998, Garcia applied to rent the house and in February 1998 moved into the house with his family. During his rental commitment, he became friends with Ms. Jensen.
In October 1999, Garcia came to Ms. Jensen with a business proposition and asked her if she would lend him $15,000 to purchase a liquor license for his new business, Clinton Meat Market. In return, he would pay Ms. Jensen $200 per month from the liquor profits. Ms. Jensen decided to lend Garcia the money and had a lawyer draw up papers and a payment plan.
Garcia obtained the liquor license but Ms. Jensen never received any payments for the loan. In December 1999, Garcia went to Ms. Jensen and asked her if she could open a business credit card using her information for credit reference only. He told her that he would not use the credit card to purchase anything, but only use it as a credit reference. Ms. Jensen agreed because she thought Garcia was a good person and because she wanted to protect her investment, still believing she would receive the $200 per month.
Garcia used Ms. Jensens information to open an Advanta Mastercard business card in the name of Clinton Meat Market. In February 2000, Garcia came to Ms. Jensen to tell her he could not pay the balance on the card. When she asked him why he used the credit card, he stated that he used the card for cash advances to pay for the meat markets bills. Ms. Jensen paid $5,000 towards the credit card because she feared that if she did not, it would ruin her good credit history. Garcia told her not to worry about the remainder of the bill, and that he would take care of it. The total amount on the credit card was $16,436.01.
In March 2000, Ms. Jensen received a bill from Fleming Companies Incorporated for $25,464 in food for the Clinton Meat Market. Ms. Jensen had no idea the bill was in her name because she never signed any documents regarding that company. When Ms. Jensen contacted Garcia and inquired about the bill, he said, "You signed it. You just forgot you did." Ms. Jensen later contacted Fleming Companies, viewed the signed documents, and told them that the signature on the document was not hers.
Garcia also periodically asked Ms. Jensen for cash. On one occasion, she gave him money when he came to her home and told her that he needed $2,000 to pay for the PG&E bill. Garcia would also tell Ms. Jensen that if she did not pay him, he would lose his business. Over time, he borrowed approximately $9,000 in cash from Ms. Jensen for which to pay various bills. At this time, Ms. Jensen still believed Garcia was a good person and he would repay her.
In June 2000, Garcia transferred the business to another party because he could no longer afford it. On August 31, 2000, he filed for bankruptcy. At this time, Ms. Jensen contacted Garcia and asked him what was going to happen to all the bills and to her credit. He told Ms. Jensen that the bankruptcy was in his name and that her credit would be fine.
On October 20, 2000, Ms. Jensen received a bill in her name from American Express for a total of $4,819.56. Ms. Jensen knew nothing about the credit card and never signed for or gave authorization to obtain a credit card in her name. American Express advised Ms. Jensen that the bill came to her residence because they had not yet received any payments. When Ms. Jensen contacted Garcia, he said, "It was for the business and you signed for it. You must have forgot [sic] about it." At this point, Ms. Jensen became scared and decided to call the police.
In November 2000, Garcia moved from Ms. Jensens rental property but did not leave any information about where he could be reached. Garcias sister-in-law moved into the property and advised Ms. Jensen of Garcias fraudulent past.
When Ms. Jensen was asked by the police why it took her so long to report the incidents, she said that she did not tell anyone because she was embarrassed. Ms. Jensens daughter told the police that Garcia had made no attempts to repay Ms. Jensen and had possibly started another business, M&M Market. Ms. Jensens daughter was concerned that Garcia had Ms. Jensens personal information and might be using it to obtain additional credit cards and/or loans without Ms. Jensens knowledge.
After having Ms. Jensen complete a handwriting exemplar and having it evaluated by a handwriting expert, it was determined that the signatures on the credit card applications were not her signature.
On July 12, 2001, Ms. Jensens daughter contacted detectives and advised them that she had received information regarding the City of Fresno business license for Clinton Meat Market. Garcia was listed as the sole owner of the market.
On October 26, 2001, while conducting further investigation, detectives found that in Fresno County, one must either purchase a new liquor license for approximately $250 or purchase a license transfer for $2,500. Detectives also discovered that the $15,000 initial loan from Ms. Jensen to Garcia was paid in the form of a check and was deposited into Garcias personal account.
Garcia was arrested on February 8, 2003.
DISCUSSION
I.
Consecutive Terms
On appeal, Garcia first contends that the trial court violated section 654 when it imposed consecutive sentences for the three identity theft counts.
Section 654, subdivision (a) states: "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." By its terms, section 654 applies where a person suffers multiple punishments for a single criminal act or omission. (People v. Beamon (1973) 8 Cal.3d 625, 637-638.) This provision also applies "when there is a course of conduct which violates more than one statute but constitutes an indivisible transaction. [Citation.]" (People v. Saffle (1992) 4 Cal.App.4th 434, 438.) "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." (Neal v. State of California (1960) 55 Cal.2d 11, 19.)
On appeal, the burden is on the party attacking the sentence to show that the sentencing decision was in error. The appellate court reviews the trial courts order imposing multiple sentences in the context of a section 654, subdivision (a) question for substantial evidence. (People v. Downey (2000) 82 Cal.App.4th 899, 917.) In conducting the substantial evidence analysis, the appellate court must review the record in a light most favorable to the respondent and presume the existence of every supporting fact that trier of fact could reasonably deduce from the evidence. (People v. McGuire (1993) 14 Cal.App.4th 687, 698.)
Here, the trial court imposed an upper term sentence of three years for the grand theft count and three consecutive eight-month terms on the identity theft counts. Garcia argues that the three consecutive eight-month terms should be stayed because the identity theft counts were part of his ongoing intent and objective to obtain funds to operate the Clinton Meat Market.
Section 530.5, subdivision (a) provides in relevant part that: "Every person who willfully obtains personal identifying information" of another person without the other persons consent and "uses that information for any unlawful purpose ... is guilty of a public offense." According to Garcia, to find a violation of section 530.5, subdivision (a), personal information must be stolen and used each time. In this case, there is no evidence in the record that Garcia stole Ms. Jensens personal information each time he fraudulently applied for a business account or credit card. Rather, there was one victim who had her identity stolen one time. The State contends that section 530.5, subdivision (a) requires only that a defendant use the stolen information on separate occasions in order to find the defendant guilty of multiple violations. We agree with the States interpretation of section 530.5, subdivision (a). A defendant can violate section 530.5, subdivision (a) multiple times if the defendant willfully obtains the personal identifying information of another person without that other persons consent at a single instance and uses that information for unlawful purposes multiple times. Therefore, the trial court did not err in concluding that Garcia was guilty of multiple section 530.5, subdivision (a) violations.
Turning to section 654, we also conclude that there was substantial evidence to support the trial courts decision to impose consecutive terms for the multiple section 530.5, subdivision (a) offenses. From the record, a trier of fact could reasonably infer that Garcias establishment of an account with Flemings Foods, with Advanta Bank, and with American Express, occurred at separate times and through different methods of operation. It is reasonable to infer that Garcia had time to reflect on his acts each time he signed the various applications for establishing an account, and yet, at each of those times, Garcia had the intent and objective to open an account with different business entities to defraud them and to defraud Ms. Jensen.
Thus, there was no error in the imposition of consecutive terms.
II.
Restitution Order
Garcia also contends that his criminal restitution should not include the remaining balance and interest on the $15,000 loan that he received from Ms. Jensen because Ms. Jensen has a civil remedy available to recover on that loan. Garcia contends that there is simply insufficient evidence that this amount was the result of Garcias criminal conduct, but was more likely the result of his inability to run a business. We disagree that criminal restitution is so limited.
California Constitution article I, section 28, which is also known as Proposition 8, grants crime victims the constitutional right "to restitution from the wrongdoers for financial losses suffered as a result of criminal acts ...." (Cal. Const., art. I, § 28, subd. (a).) "Restitution shall be ordered from the convicted persons in every case, regardless of the sentence or disposition imposed, in which a crime victim suffers a loss, unless compelling and extraordinary reasons exist to the contrary." (Id., § 28, subd. (b).)
Section 1202.4, subdivision (b) implements this constitutional provision by providing that" [i]n every case where a person is convicted of a crime, the court shall impose a separate and additional restitution fine, unless it finds compelling and extraordinary reasons for not doing so, and states those reasons on the record."
In interpreting article I, section 28 of the California Constitution and section 1202.4, we look to well-established principles of statutory analysis. (See California Teachers Assn. v. Governing Bd. of Golden Valley Unified School Dist. (2002) 98 Cal.App.4th 369, 375.) "`Courts must ascertain legislative intent so as to effectuate a laws purpose. [Citations.] "In the construction of a statute ... the office of the judge is simply to ascertain and declare what is ... contained therein, not to insert what has been omitted, or to omit what has been inserted; ...." [Citation.] Legislative intent will be determined so far as possible from the language of statutes, read as a whole, and if the words are reasonably free from ambiguity and uncertainty, the courts will look no further to ascertain its meaning. [Citation.] "`The court should take into account matters such as context, the object in view, the evils to be remedied, the history of the times and of legislation upon the same subject, public policy, and contemporaneous construction." [Citations.] "Moreover, the various parts of a statutory enactment must be harmonized by considering the particular clause or section in the context of the statutory framework as a whole." [Citations.]" (Id., at pp. 375-376.) Moreover, in this case, any interpretation that limits a victims rights to restitution would be in derogation of the expressed intent and purposes of Proposition 8 and section 1202.4. (People v. Carbajal (1995) 10 Cal.4th 1114, 1122.)
Finally, "[a] trial courts determination of the amount of restitution is reversible only if appellant demonstrates a clear abuse of discretion." (People v. Atkins (2005) 128 Cal.App.4th 1376, 1382.) "In determining the amount of restitution, all that is required is that the trial court `use a rational method that could reasonably be said to make the victim whole, and may not make an order which is arbitrary or capricious. [Citations.] The order must be affirmed if there is a factual and rational basis for the amount. [Citation.]" (Id. at p. 1382.)
Here, it is undisputed that Garcia received a $15,000 loan from Ms. Jensen in order to acquire a liquor license. It is also undisputed that it costs $250 to $2,500 to acquire the liquor license that Garcia was seeking. Thus, it is reasonable to infer that Garcia received the $15,000 loan under false pretenses. It is also reasonable to infer that the loan was part of Garcias course of conduct in stealing property from Ms. Jensen. We note that count 1 of the information, which charged that Garcia unlawfully took money from Ms. Jensen in an amount exceeding $400 dollars, does not exclude the $15,000 loan from its scope. Thus, we believe that article I, section 28 of the California Constitution and section 1202.4 permit the inclusion of the loan amount in a victim restitution order in order to make Ms. Jensen whole for the economic losses she incurred through Garcias criminal conduct. We also conclude that the trial court used a rational method that could reasonably be said to make the victim whole when it included the remaining balance and interest on the $15,000 loan in its victim restitution order.
Therefore, the trial court did not abuse its discretion in including the remaining balance and interest on the loan amount in the victim restitution order.
III.
Court Security Fee
Garcia also asserts that the trial court improperly imposed a $20 court security fee under section 1465.8 because he committed his offense prior to the effective date of the statute. Thus, according to Garcia, the imposition of the $20 security fee either violates the ex post facto provisions of the federal and state constitutions or the fee does not apply retroactively to his case.
Section 1465.8 provides for a fee of $20 to maintain court security. That section provides, in pertinent part: "(a)(1)To ensure and maintain adequate funding for court security, a fee of twenty dollars ($20) shall be imposed on every conviction for a criminal offense, including a traffic offense, except parking offenses ...." ###
Here, Garcia committed his offenses between 1998 and 2000. On June 23, 2006, Garcia entered his pleas to the charges. He was sentenced on September 15, 2006. Section 1465.8 was not effective until August 17, 2003. Despite the fact that Garcia committed the charged offenses prior to the effective date of the statute, however, we conclude that the trial court did not err in imposing the $20 court security fee.
In People v. Wallace (2004) 120 Cal.App.4th 867 Wallace), our sister court held that imposition of the $ 20 court security fee under section 1465.8 was not an ex post facto violation, although the charged offense occurred prior to the effective date of the statute. We agree with the detailed analysis by the Wallace court. The Wallace court found that the Legislature enacted the fee for nonpunitive reasons given that the Legislature enacted to fee to "`ensure and maintain adequate funding for court security," described the amount as a "fee" instead of a "fine," and applied the fee both to criminal and civil actions. (Id., 120 Cal.App.4th at pp. 875-876) Moreover, the Wallace court found that the fee was not so punitive either in purpose or effect so as to negate the Legislatures intent given its minor amount, the fact that the fee is unlike to deter future criminal behavior, and the rational relationship between the fee and the stated nonpunitive intent. (Id. at pp. 876-878.)
We also conclude that the fee was properly applied in this case. Although we review this issue independently, (see In re Chavez, (2004) 114 Cal.App.4th 989, 994), we reach the same conclusion as the trial court and we agree with the analysis provided by the trial court on this matter. As the trial court explained:
This issue is currently before the California Supreme Court. (See People v. Carmichael (2006) 135 Cal.App.4th 937, review granted May 10, 2006, S141415; People v. Alford (2006) 137 Cal.App.4th 612, review granted May 10, 2006, S142508.)
"This Court further recognizes that Wallace did not consider the issue as to whether section 1465.8 was retroactive. However, Penal Code section 3 provides that `[n]o part of [the Penal Code] is retroactive, unless expressly so declared. The statute `embodies the general rule that when there is nothing to indicate the contrary it will be presumed that the Legislature intended a statute to operate prospectively and not retroactively. "That rule of construction however, is not a straitjacket...." [Citation.] (In re Chavez [,supra, 114 Cal.App.4th at p. 994].) `In general, application of a law is retroactive only if it attaches new legal consequences to, or increases a partys liability for, an event, transaction, or conduct that was completed before the laws effective date. [Citations.] Thus, the critical question for determining retroactivity usually is whether the last act or event necessary to trigger application of the statute occurred before or after the statutes effective date. [Citations.] A law is not retroactive "merely because some of the facts or conditions upon which its application depends came into existence prior to its enactment." [Citation.] (People v. Grant (1999) 20 Cal.4th 150, 157.)"
Here, although Garcia committed the charged offenses prior to the operative date of section 1465.8, he was not convicted of those charged offenses until he pled no contest in June 23, 2006, and was sentenced on September 15, 2006, both dates that are well after the operative date of the section 1465.8. Therefore, there is no retroactivity issue in this case because the date of Garcias conviction, which occurred after the operative date of the section 1465.8, is the last act or event that triggered application of section 1465.8.
Thus, we conclude that the trial court did not err in imposing the $20 security fee.
IV.
Upper Term Sentence
Finally, Garcia contends that the trial court erred by imposing an upper term in count 1 under Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), Blakely v. Washington (2004) 542 U.S. 296 (Blakely), and also Cunningham v. California (Jan. 22, 2007, No. 05-6551) 549 U.S. ___ [127 S.Ct. 856; 2007 WL 135687] (Cunningham). We disagree.
In Cunningham, the United States Supreme Court held that Californias Determinate Sentencing Law "violates Apprendis bright line rule: Except for a prior conviction, `any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." (Cunningham, supra, 127 S.Ct. 856; 2007 WL 135687 at p. *11.) Thus, the middle term prescribed under California law, not the upper term, is the relevant statutory maximum. (Ibid.)
Here, the trial court imposed an upper term of three years on count 1. At the sentencing hearing, the trial court made the following findings: "In looking at the factors in aggravation, I think it is clear pursuant to 4.421 that the victim was particularly vulnerable.... The Court believes that this crime was carried out with planning and sophistication.... This did involve the taking of money of great monetary value. [The defendant] clearly had a position of trust or confidence." None of these factors were admitted by appellant, or found true by a jury based on proof beyond a reasonable doubt.
However, the trial court also noted that Garcia had a criminal record since 1999. "I take into consideration his record since 1999. These crimes were committed at different times and places and dont indicate a single period of aberrant behavior."
In People v. Black (Black II), the California Supreme Court held that a defendants prior convictions can be found true by a judge by a preponderance of the evidence, and that a defendants criminal history can be an aggravating circumstance that independently satisfies the Sixth Amendment of the federal Constitution and renders the defendant eligible for the upper term. (Black II, 41 Cal.4th 799, 818-820 & fn. 9.)
Here, the trial court found that Garcia had a criminal record since 1999. This finding is supported by the substantial evidence contained in the probation report. (See Black II, supra, 41 Cal.4th at p. 818, fn. 7.) Garcias criminal history renders him eligible for the upper term. Thus, Garcias subsequent upper term sentence was constitutional.
DISPOSITION
The judgment is affirmed.
We concur:
Vartabedian, J.
Dawson, J.