Opinion
B161830.
7-29-2003
THE PEOPLE, Plaintiff and Respondent, v. LaDANIEL HANKINS, Defendant and Appellant.
Steven A. Torres, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Scott A. Taryle and James William Bilderback II, Deputy Attorneys General, for Plaintiff and Respondent.
We affirm some counts, reverse some counts, and remand for resentencing.
BACKGROUND
In May of 2002, defendant and a woman (Danisha Young) went into a Wal-Mart store and purported to purchase a substantial amount of merchandise. Defendant identified Young to the sales clerk as his wife. The sales clerk rang up nearly $ 1,500 worth of merchandise. Young swiped a credit card through the card reader. The clerk asked to see the card and a drivers license. Young held out the two items in such a manner as to try to hide part of the credit card. Young claimed the credit card was a Wal-Mart card. The clerk thought the card was the wrong color to be a Wal-Mart card. The drivers license (bearing Youngs picture and the name "Christen Moore") did not look authentic. The receipt produced by the transaction indicated something was wrong.
The clerk asked for the credit card. Young refused. Defendant angrily accused the clerk of racism. Young became angry and defensive, saying the card was a bank card. She planned to contact her bank.
A customer service manager responded to the clerks call. Young refused his request to see the credit card. Young wanted the receipt. The manager said he would give her a copy and that she could not yet take away the merchandise. As the manager went to make a copy, he called for a security agent.
Defendant and Young started to leave the store. An agent confronted them and said they needed to talk about the transaction. Young said she would talk to her bank. Defendant and Young walked quickly out of the store, followed by the agent. Outside, Young gave her purse to defendant, turned and yelled at the agent, then turned and walked away. Defendant told the agent he did not know anything about what was going on. Between cars in the parking lot, defendant fished the drivers license out of Youngs purse and threw it under a car. The agent retrieved it.
A police officer arrived and took defendant into custody. Young ran away from the scene. Defendant denied knowing Young. The number on the drivers license belonged to a man named Cisneros.
A jury convicted defendant of burglary (count 1), possession of a forged drivers license (count 2), theft of access card information (count 3), attempted grand theft by use of a fraudulent access card (count 4), and destruction or concealment of evidence (count 5). The trial court struck sufficient prior convictions to leave defendant with two strikes under the three strikes law. The court imposed a doubled sentence of 7 years, 4 months.
DISCUSSION
I
Defendant argues and the People concede that counts 1, 3, and 4 must be reversed because of the improper admission of hearsay evidence. We agree as to counts 3 and 4, but disagree as to count 1.
Over objection, the store manager testified that she had called the Wal-Mart fraud hotline. She was told that the credit card belonged to Mr. LeGrant of Spokane, Washington, and had been reported lost or stolen. Defendants objection should have been sustained.
Count 3 charged a violation of Penal Code section 484e. As applicable here, guilt requires a showing that the card was validly issued to someone other than defendant or Young and that the account information from the card was acquired or retained without the cardholders consent. Defendant claims both elements were established only by the inadmissible hearsay.
All statutory references are to the Penal Code.
Even without the hearsay evidence, it was clearly established by defendants and Youngs conduct that they had not validly acquired the card and had no permission to use it. They tried to use the card with a phony drivers license and when confronted immediately went into escape mode. However, there is no proper evidence showing that the card was validly issued to LeGrant or anyone else. With this element missing, count 3 must fall.
Count 4 alleged an attempted grand theft in violation of section 484g, namely the use of a card obtained via a violation of section 484e. If count 3 falls, so must count 4.
We find no impact by the improper evidence on the count 1 burglary conviction. The jury was told that the specific intent requirement could be met if the panel found either that defendant entered the store intending to steal or intending to fraudulently use the card. It does not matter whether the card was ever validly issued. Defendant and Young went to the store intending to walk out with a large amount of merchandise using a card that (if the scam was successful) meant they would never have to pay for the merchandise and the store would have to absorb the loss. Whether the card was once valid or not had nothing to do with defendants intent to illicitly deprive the store of its property. Despite the failure of counts 3 and 4, the evidence overwhelmingly demonstrated that defendant entered the store with both the intent to steal and the intent to defraud the store via use of the card.
Even if the latter theory were somehow fatally infected by the failure of counts 3 and 4, no rational juror could have doubted that defendant entered the store intending to steal. Had the jury been instructed only on the intent to steal alternative, it would have still found defendant guilty of burglary.
II
Defendant says the trial court failed to fully instruct the jury as to the count 2 possession of a forged drivers license. Section 470b makes it a crime to possess a phony drivers license with the intent to use it "to facilitate the commission of any forgery . . . ." Section 470b refers to section 470a which provides that "every person who alters, falsifies, forges, duplicates or in any manner reproduces or counterfeits any drivers license or identification card issued by a governmental agency . . ." with requisite intent is guilty of a crime.
Defendant says the trial court "failed to instruct the jury that the drivers license had to be altered in some way, within the meaning of Penal Code section 470a, and completely failed to instruct the jury on the legal definition of forgery."
We agree with the People that these matters were not at issue during the trial. It was uncontested that the license was phony. The evidence overwhelmingly showed that the license was being used in an attempt to consummate a fraudulent transaction. Young was going to use a license with a number belonging to Cisneros as a means to forge the name Moore on the credit slip. The instructions defendant seeks would have made no difference. Any error in failure to fully instruct was harmless by any standard.
Either the name "Christen Moore" as shown on the drivers license or the name "Christine Moore" as shown on the Wal-Mart receipt.
III
For the count 2 possession of the forged drivers license, the trial court imposed a sentence consecutive to that imposed for the burglary in count 1. Defendant says the court should have stayed punishment on that count. We agree.
"Under section 654, courts are generally precluded from imposing multiple punishment where a defendant engages in a course of conduct which violates more than one statute and comprises an indivisible transaction punishable under more than one statute. [Citations.] The focus of this rule is whether the defendant acted pursuant to a single intent and objective. [Citation.]" (People v. Avalos (1996) 47 Cal.App.4th 1569, 1583.)
"Whether a course of conduct is indivisible depends upon the intent and objective of the actor. [Citation.] If all the offenses were incident to one objective, the defendant may be punished for any one of such offenses 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, he may be punished for the independent violations committed in pursuit of each objective even though the violations were parts of an otherwise indivisible course of conduct. [Citations.]" (People v. Perez (1979) 23 Cal.3d 545, 551-552, 153 Cal. Rptr. 40, 591 P.2d 63, fn. omitted.)
"A defendants criminal objective is determined from all the circumstances and is primarily a question of fact for the trial court, whose findings will be upheld on appeal if there is any substantial evidence to support it. [Citation.]" (People v. Braz (1997) 57 Cal.App.4th 1, 10.)
Possession of a phony drivers license violates section 470b only if accompanied by the intent to facilitate the commission of a forgery. Aside from the question of how long defendant may have possessed the license before or after the attempted theft, the only evidence of the requisite intent comes from the attempt to use the credit card. The illicit possession thus took place during a single course of conduct and with the single objective of trying to take away Wal-Mart property without paying for it.
The People argue that the events show defendant and Young hoped to get away with the scam without having to use the drivers license. Young swiped the credit card, hoping nothing more would be required than signing the credit receipt. To the contrary, we agree with defendant that the evidence shows the license was carried precisely because it might be needed.
We also reject the Peoples argument that defendants possession in the parking lot after he and Young left the store justified a consecutive sentence. While this possession involved an independent criminal objective (concealment/destruction of evidence as sustained in count 5), defendants mere possession of the license at that point was no longer violative of section 470b. The license was no longer possessed for the purpose of facilitating a forgery, but instead for the purpose of facilitating a clean getaway.
DISPOSITION
The judgment is reversed as to counts 3 and 4. The matter is remanded for the trial court to enter a judgment of acquittal as to those counts and for resentencing. Per Penal Code section 654, the trial court is to stay sentence on count 2. In all other respects, the judgment is affirmed.
VOGEL (Miriam A.), J., MALLANO, J., we concur.