Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County, No. INF056504 Lawrence W. Fry and David B. Downing, Judges.
H. Reed Webb, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Rhonda Cartwright-Ladendorf, Supervising Deputy Attorney General, and Deborah Latouche, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
RICHLI, J.
On May 15, 2007, a jury convicted defendant and appellant Scott Thomas King of 13 counts involving (1) commercial burglaries (Pen. Code, § 459), (2) forgeries (§ 470, subd. (d)), (3) invalid use of access cards (§ 484g), (4) possession of forged documents (§ 475, subd. (a)), (5) identity theft (§ 530.5, subd. (a)), (6) possession of stolen property (§ 496, subd. (a)), (7) possession of a gun (§ 12020, subd. (a)(1)), and (8) possession of an illegal firearm (§ 12021, subd. (a)(1)).
All further statutory references are to the Penal Code unless otherwise indicated.
The verdict forms read as follows: “violation of Section 484(g), subdivision (a) of the Penal Code.” The abstract of judgment indicates, “484g(a).” The correct statutory section is Penal Code section 484g (invalid use of an access card).
The verdict forms read as follows: “violation of Section 475a of the Penal Code.” The abstract of judgment indicates, “475(a),” which is correct. (§ 475, subd. (a) [possession of a forged document].)
Moreover, it was found true that defendant’s crimes involved planning, sophistication, and professionalism under California Rules of Court, rule 4.421(a)(8); that the crimes involved the attempted and actual taking of great monetary value under rule 4.421(a)(9); and that the crimes were committed while defendant was on probation or parole under rule 4.421(b)(4).
On August 6, 2007, defendant was sentenced to a total term of eight years in state prison.
On appeal, defendant contends that his felony convictions in counts 7 and 11 under section 484g, invalid use of access cards, must be fixed as misdemeanors because the jury failed to specify that the value of the property obtained constituted grand theft. For the reasons set forth below, we shall affirm the judgment.
I
FACTUAL AND PROCEDURAL HISTORY
This appeal only addresses counts 7 and 11; therefore, the facts will be limited to those two counts.
A. Count 7—Fraudulent Use of an Access Card—Violation of Section 484g
On August 6, 2006, defendant rented a one-bedroom suite at the Hyatt Regency in Palm Springs. The suite rented for $400 per night. At registration, defendant presented a prepaid Mastercard/Visa credit card as a form of payment. The documentation had Lisa Leighton’s account number imprinted on the form. The hotel manager on duty, who took the information from defendant, entered the imprinted credit card number presented from defendant into his computer. The computer gave the manager an authorization number, so the manager assumed the prepaid credit card was valid. Defendant stayed at the Hyatt Regency from August 6 to 11. During that time, defendant incurred charges of $33,486.41 at the Hyatt Regency. On August 11, defendant was told by hotel officials that the credit card number that he had presented for authorization was maxed out. Defendant then told the hotel officials that he would attempt to provide another method of payment. Defendant then disappeared and the hotel was forced to “write off” the entire $33,486.41.
Ms. Leighton did not authorize any of the Hyatt Regency charges. The total amount of those charges billed to her credit card number, which was the credit card number defendant presented to the hotel for payment at registration, amounted to a few thousand dollars; obviously, when at that time, her credit card was maxed out.
B. Count 11—Fraudulent Use of an Access Card—Violation of Section 484g
On October 22, 2006, Susan Harvey’s vehicle was burglarized in Palm Desert; Harvey’s purse and wallet were stolen, which included a cell phone, cash, a credit card, debit cards, two checkbooks, keys, and her identification. On November 29, 2006, there was an “[a]utomatic debit” for $1,280.07 payable to Time Warner, which was not authorized by Harvey.
II
ANALYSIS
The Jury Found Defendant Guilty of Fraudulently Using a Credit Card in Counts 7 and 11 as Felonies
Defendant contends that his convictions for fraudulently using access cards in violation of section 484g, as charged in counts 7 and 11, must be reduced to misdemeanors because the jury failed to specify a loss greater than $400 on the verdict forms.
Section 484g classifies the fraudulent use of an “access card” (i.e., a bank credit or debit card) or “account information” as a theft. (See § 484g.) “Theft is divided into two degrees, the first of which is termed grand theft; the second, petty theft.” (§ 486.) “Grand theft is theft committed in any of the following cases: [¶] (a) When the . . . personal property taken is of a value exceeding four hundred dollars ($400).” (§ 487.) “Theft in other cases is petty theft.” (§ 488.) Thus, crimes of theft, like murder, robbery, and burglary, are in a category of offenses that are divisible into degrees.
Defendant contends that because the jury failed to find whether the offenses in counts 7 and 11 were grand or petty thefts, and whether the value of the property was more than $400 in either count, his convictions must be deemed to have been for petty theft. He relies on section 1157, which states: “Whenever a defendant is convicted of a crime or attempt to commit a crime which is distinguished into degrees, the jury, or the court if a jury trial is waived, must find the degree of the crime or attempted crime of which he is guilty. Upon the failure of the jury or the court to so determine, the degree of the crime or attempted crime of which the defendant is guilty, shall be deemed to be of the lesser degree.” The purpose of section 1157 is to resolve ambiguities in the form of the verdict and to protect the defendant from having the degree of the crime increased after judgment. (People v. Lamb (1986) 176 Cal.App.3d 932, 935.)
In People v. Preciado (1991) 233 Cal.App.3d 1244, the information charged a “‘violation of Section 459/460.1/461.1 of the Penal Code (Residential Burglary—1st Degree).’” (Id. at p. 1247.) The verdict form stated that the defendant was guilty “‘of the crime of felony, to wit: Violation of Section 459 of the Penal Code of the State of California, (Residential Burglary) as charged in Count 1 of the Information.’” (Ibid.)
The court held section 1157 did not require reduction of the offense to second degree burglary even though the verdict form did not state whether the burglary was first or second degree: “The verdict described a first degree burglary in so many words, ‘residential burglary,’ and referred to the information which did specifically charge defendant with first degree burglary. There was no evidence defendant burglarized anything but an ‘inhabited dwelling house’ [citation]. And ‘residence’ and ‘inhabited dwelling house’ are interchangeable terms. [Citation.]” (Preciado, supra, 233 Cal.App.3d at pp. 1247-1248.)
The facts in this case are similar to the facts in Preciado, supra, 233 Cal.App.3d 1244. Here, the jury’s verdict forms characterized the crimes as felony violations of section 484g, and the court referred to the information, which alleged that the loss in both counts was greater than $400. The court stated that the information charged that defendant, in count 7, “committed a violation of [section 484g] of the Penal Code, a felony, in that on or about August 6, 2006, in the County of Riverside, State of California, he did willfully and unlawfully, with the intent to defraud, use for the purpose of obtaining money, goods, services and things of value whose value exceeded $400.” As to count 11, the court stated that the information charged that defendant “committed a violation of [section 484g] of the Penal Code, a felony, in that on or about November 29, 2006, in the County of Riverside, State of California, he did willfully and unlawfully with the intent to defraud use for the purpose of obtaining money, goods, services, and things of value whose value exceeded $400.” Hence, there was nothing ambiguous in the verdict forms. The forms clearly indicated that defendant was convicted of committing felony grand thefts, and there was ample evidence before the jury to support the felony charges.
Therefore, we hold that section 1157 does not require the reduction of the offenses on counts 7 and 11 to misdemeanors because the verdict forms adequately described that the loss in both counts was greater than $400.
III
DISPOSITION
The judgment is affirmed.
We concur: RAMIREZ P. J., HOLLENHORST J.