Opinion
B229044
10-06-2011
THE PEOPLE, Plaintiff and Respondent, v. KENNETH DELMAR GILL, Defendant and Appellant.
Donald H. Glaser, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. KA089001)
APPEAL from a Judgment of the Superior Court of Los Angeles County. Tia G. Fisher, Judge. Affirmed.
Donald H. Glaser, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
FACTUAL BACKGROUND
On September 29, 2009, defendant and a companion, codefendant David Vincent, entered a Best Buy store in the City of Industry and attempted to purchase a computer and accessories using a false identification and a fraudulent Best Buy credit card.
Defendant and Vincent selected a laptop, and Vincent selected a computer carrying case. Jonathan Loh, the sales associate, had become suspicious of defendant and Vincent when they first walked into the store, and Loh notified loss prevention. Loh would become suspicious in a situation where a person comes in with a friend and the friend just wanders around. In this case, Vincent had picked out one of the most expensive computers, which was one that cost about $1,699, which also made Loh suspicious. Loh took defendant and Vincent to a register at the customer service booth with a good camera angle.
Vincent swiped his credit card through the machine although Loh had not totaled up the transaction yet, and Loh knew it was a fraudulent Best Buy card based on the speed with which Vincent moved the card through the machine. In addition, Loh noted that the card's coloring looked like it had been "colored in," and Loh observed that it looked like some of the lettering had been cut off. Loh asked Vincent for his identification, and asked for the Best Buy card. Vincent gave Loh his driver's license which bore the name "Richard Marks." Loh observed that the picture looked like Vincent.
At this time, Loh went back to the office and asked loss prevention to call the sheriff's department. When Loh got back to the register, the defendant and Vincent were no longer in the store. Defendant and his friend did not take the laptop or the license and Best Buy card, and they never returned to the store to pick up the driver's license or the Best Buy card. Another Best Buy employee working in loss prevention saw defendant drive up to the front of the store to pick up Vincent. The employee obtained the license plate of the car, a Toyota Camry.
Loh later identified defendant from a six-pack photographic array. The numbers on the credit card were those of Remedio Dulguime, who had a Best Buy credit card on September 29, 2009. Dulguime used the card one time in 2008 to purchase a camcorder at the Best Buy in Cerritos. Dulguime was notified that the card was used at the Best Buy in the City of Industry. Dulguime did not know either defendant or Vincent.
The Los Angeles County Sheriff's Department traced the license number to defendant at an address in La Habra. After obtaining a search warrant, on December 10, 2009, sheriff's deputies went to defendant's house, arrested him, and searched the house. Deputies recovered 103 blank cards with magnetic tapes; these cards are of the type eventually made into legitimate credit cards. At defendant's house, they did not recover an embosser or encoder, which would have permitted the recordation of information on the magnetic strip. Defendant's Camry was parked outside the residence and inside deputies found a photocopy of an approximately 1986 driver's license with the name "Nicholas Sims," and a GPS system that had three different Best Buy stores programmed into it.
After trial, some of the trial exhibits, including the Best Buy card and driver's license used at the Best Buy on September 29, 2009, were inadvertently destroyed.
Sheriff's deputies recovered a debit card with the name "Michael Popiolek" on it at defendant's house. In 2009, Popiolek requested a credit report for himself, and discovered an address where he had never lived at which was defendant's address in La Habra. He had not applied for the credit card found in defendant's residence, and did not give defendant permission to possess a credit card in his name.
Sheriff's deputies interviewed defendant after giving him Miranda advisements at the Industry station. Defendant admitted driving to the Best Buy store on September 29, 2009 with Vincent to purchase merchandise with a fraudulent Best Buy card. Defendant had not made the card. When defendant got to the store with Vincent, he saw the card. Defendant believed the card was "crap" because it was "too smooth." Defendant believed the cashiers would notice the card was not genuine, so he left the store. Regarding the cards found at his residence, defendant told deputies "I thought I [had thrown] all of that stuff away" because he did not want to make credit cards anymore, he wanted to put that behind him. Defendant admitted using the blank cards to make fraudulent credit cards using other people's identities.
Miranda v. Arizona (1966) 384 U.S. 436.
The prosecution put on evidence of a prior incident pursuant to Evidence Code section 1101, subdivision (b), to prove defendant's intent on the charged occasion. With respect to the prior incident, on November 25, 2000, defendant attempted to purchase a computer worth $3500 from a Best Buy in West Covina. Defendant seemed "nervous" to the store's clerk, and his identification "was without a doubt [a] fake" because the name on the identification was "Lam," and defendant was Caucasian, while "Lam" was an Asian name. Defendant attempted to pay with a presigned business check that also seemed fake because it was folded and did not look normal. The check was declined, as was a personal check defendant attempted to tender. Defendant attempted to "argue" his way through the transaction. The cashier contacted police, but defendant left the store before they arrived. Defendant was arrested in a West Covina hotel. Police recovered a driver's license with the name "Foreman Lam" with defendant's picture on it from defendant. Defendant, while in jail, told police that he made the card for his own personal use.
PROCEDURAL HISTORY
Defendant was charged in a two-count information filed March 4, 2010 for the 2009 conduct with one count of second degree commercial burglary in violation of Penal Code section 459, and one count of theft in violation of section 484e, subdivision (d). The information further alleged seven prior felony convictions, six of which were convictions for fraud or theft-related offenses; out of those, three were federal offenses. (§ 1203, subd. (e)(4).) The information also further alleged two prior prison terms for fraud or theft-related offenses. (§ 667.5, subd. (b).) The People filed a motion to admit evidence of defendant's prior conduct at the November 2000 incident pursuant to Evidence Code section 1101, subdivision (b) to establish defendant's intent. The court granted the motion.
All statutory references are to the Penal Code unless otherwise indicated.
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The jury convicted defendant on count one, and found him not guilty on count two. After finding true defendant served two prior prison terms pursuant to section 667.5, subdivision (b), the trial court sentenced defendant to the upper term of three years on count one, with two one-year enhancements on account of the prior prison terms, to be served consecutively.
We appointed counsel to represent defendant on appeal. After examination of the record, counsel filed an opening brief raising no issues and asking this court to independently review the record. On July 20, 2011, we advised defendant he had 30 days within which to personally submit any contentions or issues he wished us to consider. To date, we have received no response. We have examined the entire record and are satisfied that defendant's attorney has fully complied with her responsibilities and that no arguable issues exist. (People v. Kelly (2006) 40 Cal.4th 106, 109-110; People v. Wende (1979) 25 Cal.3d 436, 441.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
JOHNSON, J. We concur:
MALLANO, P. J.
CHANEY, J.