Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, No. SCS224711, Ana L. Espana, Judge.
O'ROURKE, J.
A jury convicted Marilyn Clamour Labios of burglary (Pen. Code, § 459; count 1) and unlawful use of personal identifying information of another (§ 530.5, subd. (a); count 3). The jury deadlocked on the charge of forgery (§ 470, subd. (d); count 2), and the court dismissed it. A poll of the jurors indicated that the count had been 11 to 1 in favor of guilt.
All statutory references are to the Penal Code.
The court sentenced Labios to 16 months in state prison on the burglary conviction and stayed the sentence on the other count under section 654.
Labios contends section 530.5 subdivision (a) is unconstitutionally vague as applied to her because it does not specify under what circumstances a defendant acts with an "unlawful purpose" when using another's personal identifying information to obtain goods or services and the court prejudicially erred in failing to instruct sua sponte on the definition of "unlawful purpose" as used in CALCRIM No. 2040. We affirm.
FACTUAL AND PROCEDURAL SUMMARY
On December 4, 2008, Otis Henderson wrote a check for $100 payable to Chevron, enclosed it in an envelope, and his girlfriend deposited it in a postal box in San Diego. Without Henderson's permission, someone subsequently altered the check by changing its amount to "$900" and changing the payee to "Labios, Clamour Marilyn."
On December 5, 2008, Labios entered a branch of the bank on which Henderson's check was drawn. She did not have an account with that bank; therefore, Angel Hicks, the service manager, sought to verify the check's authenticity. Hicks noticed the check was altered, as noted, and became suspicious. She telephoned Henderson, who stated the correct payee and amount of the check he had written. She called the police and reported the incident; meanwhile, Labios was pacing in the lobby and appeared nervous and fidgety and later sat on a bench outside the bank.
As National City Police Department Officer Robert Gonzalez approached the bank, Labios was walking away, and he arrested her.
Defense case
Labios testified at trial that on December 5, 2008, she was unemployed and she ran into a friend and former neighbor, who she identified only as Erlinda, and requested repayment of a $1,500 loan she had made to Erlinda approximately 10 years earlier. Erlinda gave Labios a check. At that time, Labios did not verify the check amount, the payor or the payee. Labios signed the check in the teller's presence and for the first time noticed the surprisingly high amount of $900, and her last name was listed first.
She admitted she had pleaded guilty to burglary for entering a bank to deposit a stolen check in 2000 and burglary and possessing a forged check in 2001.
DISCUSSION
Section 530.5, subdivision (a) 's Intent Element
Labios contends that section 530.5, subdivision (a) is vague as applied to her because it did not specify the unlawful purpose she was required to intend when using the personal identifying information of another to obtain goods or services. She adds that the error was prejudicial because the jury had deadlocked on the count 2 charge, which required a finding that she intended to defraud by passing a forged check. She further contends that the trial court failed to remedy the error by instructing the jury sua sponte that in this case the "unlawful conduct" contemplated by the statute is "the intent to defraud by passing a forged check;" accordingly, both her section 530.5, subdivision (a) conviction and the burglary conviction that was based on it should be reversed.
Section 530.5, subdivision (a) makes it a crime for someone to "willfully obtain[] personal identifying information... of another person, and use[] that information for any unlawful purpose, including obtaining or attempt to obtain credit, goods, services, real property, or medical information without the consent of that person." Section 530.55, subdivision (b) includes within the definition of "personal identifying information" an individual person's name, address, telephone number, social security number and checking account number. As stated in People v. Tillotson (2007)157 Cal.App.4th 517, 533, "Thus, to be guilty under section 530.5, subdivision (a), the defendant must (1) willfully obtain personal identifying information of another person, and (2) use the identifying information for an unlawful purpose without the person's consent."
" 'An as applied challenge [to the constitutional validity of a statute] may seek... relief from a specific application of a facially valid statute... to an individual or class of individuals who are under allegedly impermissible present restraint or disability as a result of the manner or circumstances in which the statute... has been applied.... It contemplates analysis of the facts of a particular case or cases to determine the circumstances in which the statute... has been applied and to consider whether in those particular circumstances the application deprived the individual to whom it was applied of a protected right. [Citations.] When a criminal defendant claims that a facially valid statute... has been applied in a constitutionally impermissible manner to the defendant, the court evaluates the propriety of the application on a case-by-case basis to determine whether to relieve the defendant of the sanction.' " (People v. Hagedorn (2005) 127 Cal.App.4th 734, 744-745 (Hagedorn.)
Despite Labios's arguments to the contrary, the reasoning in Hagedorn disposes of her arguments on appeal. The defendant in Hagedorn was convicted of violating section 530.5, subdivision (a) for obtaining and using the personal identifying information of another person, Pettet, to cash a check made payable to Pettet. The check represented payment for work that the defendant performed in Pettet's name. The defendant argued that his conviction violated his due process rights because section 530.5, subdivision (a) was unconstitutionally vague as applied to his conduct and had to be construed as requiring an intent to defraud. (Hagedorn, supra, 127 Cal.App.4th at pp. 739-741, 744.)
The Hagedorn court rejected the defendant's vagueness claim, concluding that section 530.5, subdivision (a) "clearly and unambiguously" does not require an intent to defraud anyone. (Hagedorn, supra, 127 Cal.App.4th at pp. 741, 744-747.) The court reasoned the statute clearly made defendant's conduct criminal, even though he did not necessarily intend to cause harm or loss to anyone, including Pettet, the issuer of the check, or the check cashing store. The court said the statute is broad enough to encompass identity theft which does not involve an intent to defraud or cause financial loss or harm. (Id. at pp. 743-744, 747.)
The Hagedorn court also noted that section 530.5, subdivision (a) "contemplates misleading the person or entity from whom the goods, services, etc. are obtained." (Hagedorn, supra, 127 Cal.App.4th at p. 747.) The court explained: "What the statute contemplates and proscribes is using someone else's personal identifying information, without consent and for purposes that include obtaining credit or goods. It does not require an intent to defraud the person whose identity is assumed. The wording of the statute contemplates misleading the person or entity from whom the goods, services, etc. are obtained." (Ibid.)
We conclude the statute was not vague, but rather sufficiently clear to put Labios on notice that she was using Henderson's personal information for an "unlawful purpose, " in violation of the statute's terms. Specifically, Labios willfully obtained the check. Further, without Henderson's consent, she used the check, which contained his personal identifying information, including his name and bank account number, to attempt to obtain funds from his bank account. She needed no further intent to run afoul of the statute. Labios's argument regarding prejudice based on the jury having deadlocked on the count 2 charge is unavailing because that charge included an element lacking in the count 530.5, subdivision (a) charge, namely an intent to defraud. (Lewis v. Superior Court (1990) 217 Cal.App.3d 379, 397.)
Jury Instruction Was Proper
Here, the court instructed the jury with CALCRIM 2040: "The defendant is charged in Count Three with the unauthorized use of someone else's personal identifying information in violation of Penal Code section 530.5(a). [¶] To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant willfully obtained someone else's personal identifying information; [¶] 2. The defendant willfully used that information for an unlawful purpose; [¶] AND [¶] 3. The defendant used the information without the consent of the person whose identifying information (he/she) was using. [¶] Personal identifying information includes a person's name, address, and checking account number. [¶] Someone commits an act willfully when he or she does it willingly or on purpose. [¶] An unlawful purpose includes unlawfully obtaining or attempting to obtain credit, goods or services in the name of the other person without the consent of that person."
The trial court did not err in failing to instruct sua sponte that the intent required for commission of a crime under section 530.5, subdivision (a) is the intent to defraud. The statute contains no such intent, and we may not modify the statute by interpreting it to require that intent. When construing a statute it is not the function of a court " 'to insert what has been omitted.' " (People v. Jackson (2005) 129 Cal.App.4th 129, 169, and fn. 130.) The Hagedorn court noted that other subdivisions of section 530.5 include the requirement that the defendant act with "the intent to defraud;" therefore, "Obviously, if the Legislature meant for subdivision (a) to require an intent to defraud, it knew how to so provide." (Hagedorn, supra, 127 Cal.App.4th at p. 742.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: HALLER, Acting P. J., McDONALD, J.