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People v. Horne

California Court of Appeals, Second District, Seventh Division
Sep 16, 2008
No. B196514 (Cal. Ct. App. Sep. 16, 2008)

Opinion

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Los Angeles County No. MA029880, Roger Ito, Judge.

William D. Farber, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lance E. Winters and Peggy Z. Huang, Deputy Attorneys General, for Plaintiff and Respondent.


ZELON, J.

Darla Horne was convicted of six criminal offenses arising out of her use of another person’s name and Social Security number. On appeal, she contends that count 3 should have been stayed under Penal Code section 654 and that the abstract of judgment is incorrect as to counts 1 and 2. We remand the matter for resentencing because the trial court failed to sentence Horne on an enhancement allegation found true by the jury.

All further statutory references are to the Penal Code.

FACTUAL AND PROCEDURAL BACKGROUND

Darla Horne used the Social Security number and credit of Darla Smith (nee Horne), a mail carrier in Arkansas, to purchase a Lincoln Navigator in Los Angeles. She later used the same identity to purchase a house in Lancaster. The police found her at the house and with the car, and she was arrested. From investigating, interviewing Horne, and searching her home, the police learned that Horne was engaged in a number of identity-related crimes, including obtaining a mortgage for her sister with falsified information and possessing two California driver’s licenses with different Social Security numbers.

Horne was charged with two counts of identity theft (§ 530.5, subd. (a)); grand theft auto (§ 487, subd. (d)(1)), two counts of grand theft of personal property (§ 487, subd. (a)); and perjury (§ 118, subd. (a)). An enhancement allegation pursuant to section 667.5, subdivision (b) was alleged as to all counts but the perjury count, and the two grand theft of personal property counts bore the additional allegation that they involved fraud and embezzlement, a pattern of related felony conduct, and the taking of more than $150,000 (§ 186.11, subd. (a)).

After a jury trial Horne was convicted as charged; the special allegations were found true. Horne was sentenced to six years in prison. She appeals.

DISCUSSION

I. Section 654

At sentencing, the trial court concluded that two of the six counts against Horne merged under section 654: one count of identity theft and the count of grand theft auto. Horne argues that like these two counts, the second count of identity theft (count 3) should merge with the count of grand theft (count 4). She asserts that the theft of personal identifying information was merely incidental to, and the means of accomplishing, the single objective of grand theft.

Section 654, subdivision (a) provides, “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. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other.” “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.” (People v. Gaio (2000) 81 Cal.App.4th 919, 935.)

The intent and objective of the defendant is a question of fact for the trial court, and we will sustain its determination on appeal if it is supported by substantial evidence. (See, e.g., People v. Coleman (1989) 48 Cal.3d 112, 162-163.) When, as here, the trial court makes no express factual findings on the issue, a finding that the crimes were divisible inheres in the judgment and must be upheld if supported by substantial evidence. (People v. Nelson (1989) 211 Cal.App.3d 634, 638.)

Substantial evidence supports the trial court’s determination in this case that the two crimes were divisible. The crime of identity theft requires that a defendant do two things: willfully obtain another’s personal identifying information; and use it for an unlawful purpose without the person’s consent. (§ 530.5, subd. (a); People v. Tillotson (2007) 157 Cal.App.4th 517, 533.) The statute specifies that unlawful purposes include “to obtain, or attempt to obtain, credit, goods, services, real property, or medical information, without the consent of that person” whose identity is being used. (§ 530.5, subd. (a).) Here, the act of identity theft was complete when Horne applied for a home loan from the lender—at that point, she had obtained Smith’s identifying information and then used it for the unlawful purpose of attempting to obtain loans. The victim of this crime was Darla Smith. Once Horne had caused Smith’s information to be submitted to the mortgage company for the home loans, regardless of what happened next, Horne had violated section 530.5, subdivision (a)—but she had not yet committed grand theft of the loan amount.

To commit the grand theft of the loan funds, Horne had to take additional steps beyond using Smith’s Social Security number and identifying information. The jury received evidence from which it could reasonably have concluded that Horne engaged in further acts to lead the mortgage company to approve and fund the loans, such as causing the mortgage company to receive fraudulent rental and employment verifications to support her loan application. Horne committed the grand theft of personal property in excess of $400 in value when the loans were funded and she obtained the funds for the purchase of the home. The victim of this crime was K. Hovnanian Mortgage Inc., which funded two loans on the home Horne bought in a total amount of $260,300.

Horne, then, committed acts of identity theft and grand theft against different victims at different times. She received punishment commensurate with her culpability. (People v. Perez (1979) 23 Cal.3d 545, 550-551.)

This contrasts with the evidence underlying the other identity theft charge and the grand theft auto conviction. There, there was evidence that the identity theft and the receipt of the car were the result of a single, indivisible transaction—that the identity theft, proposed and facilitated by an employee at the car dealership, was the means of obtaining the Navigator. With respect to the car-related counts, the evidence supported the trial court’s factual determination that the two offenses were indivisible and motivated by the same criminal intent and objective, and without the passage of time. With regard to counts 3 and 4, however, as discussed above, the evidence supports the trial court’s implicit determination that the crimes were not indivisible and simultaneous but were distinct and occurred over time.

II. Sentencing

The Attorney General has pointed out, and Horne agrees, that the trial court failed to sentence Horne on the enhancement under section 186.11, subdivision (a) that was found true by the jury with respect to counts 4 and 5. As Horne’s sentence is therefore unauthorized, we remand the matter to the trial court for resentencing. (People v. Navarro (2007) 40 Cal.4th 668, 681; People v. Burbine (2003) 106 Cal.App.4th 1250, 1259.) Contrary to the Attorney General’s assertion that we should remand solely to permit the trial court to impose sentence on the enhancement, we remand for a full resentencing in order to permit the trial court to exercise its sentencing discretion as to the appropriate total sentence for Horne. (Navarro, at p. 681; Burbine, at p. 1259.)

While we are aware that a new abstract of judgment will be prepared after resentencing, we note that the parties have identified three errors on the existing abstract of judgment. First, the trial court orally pronounced that it had selected the midterm sentence for count 1, which is two years. (§§ 18, 530.5, subd. (a).) The abstract of judgment, however, lists a three-year sentence for this count. Next, the court stated at sentencing that it was staying the sentence on count 2 pursuant to section 654, but the abstract of judgment shows a consecutive sentence of eight months and no stay. Finally, the abstract of judgment states that Horne was convicted by plea on all counts, when in fact she was tried by a jury. Each of these errors can be corrected at resentencing.

DISPOSITION

The matter is remanded to the trial court for resentencing. The clerk of the superior court is then directed to prepare a corrected abstract of judgment and to forward a certified copy of the abstract of judgment to the Department of Corrections. In all other respects, the judgment is affirmed.

We concur: WOODS, Acting P. J., JACKSON, J.


Summaries of

People v. Horne

California Court of Appeals, Second District, Seventh Division
Sep 16, 2008
No. B196514 (Cal. Ct. App. Sep. 16, 2008)
Case details for

People v. Horne

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. DARLA YVONNE HORNE, Defendant and…

Court:California Court of Appeals, Second District, Seventh Division

Date published: Sep 16, 2008

Citations

No. B196514 (Cal. Ct. App. Sep. 16, 2008)