Opinion
C085348 C085513
09-07-2018
THE PEOPLE, Plaintiff and Respondent, v. LORENZA MAKSIMOW, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. S16CRF0070) (Super. Ct. No. P12CRF0007)
A jury found defendant Lorenza Maksimow guilty of identity theft (Pen. Code, § 530.5, subd. (a); count 1), receiving stolen property valued at more than $950 (§ 496, subd. (a); count 2), and misdemeanor fraudulent use of an access card or account information (§ 484g; count 4). The court imposed an aggregate sentence of 16 months in state prison.
Undesignated statutory references are to the Penal Code in effect at the time of the charged offenses.
The charge on count 4 is described in the charging document as a "misdemeanor" but also includes the following special allegation: "It is further alleged that the value of all money, goods, services and other things of value so obtained exceeded $950.00 in a consecutive twelve-month period." The jury verdict forms, however, do not include a special finding that the value of the property taken exceeded $950.00, nor did the prosecutor argue the value of the property taken exceeded $950.00. It thus appears defendant was charged with and ultimately convicted of misdemeanor fraudulent use of an access card. (§ 484g.)
In count 3, defendant was charged with misdemeanor possession of a controlled substance (Health & Saf. Code, § 11350, subd. (a)), but that charge was apparently dismissed; it did not go to the jury.
Defendant contends the trial court erred in failing to instruct the jury sua sponte that defendant could not be convicted of receiving stolen property if she was convicted of theft of that same property. The People concede the issue and we agree.
We reverse the receiving stolen property conviction.
We have also noticed the following sentencing errors: the trial court failed to impose a sentence on defendant's conviction for count 4, and failed to impose mandatory court security fees (§ 1465.8) and mandatory criminal conviction assessments (Gov. Code, § 70373) on each of defendant's convictions. Accordingly, we remand the matter to the trial court to impose sentence on count 4, impose the mandatory fees on each conviction, and amend the abstract of judgment. We otherwise affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant appeals from two, unrelated cases: El Dorado County Superior Court case Nos. P12CRF0007 and S16CRF0070. She raises a single issue on appeal that relates only to case No. S16CRF0070. Accordingly, we omit any discussion of El Dorado County Superior Court case No. P12CRF0007.
Trial Evidence
In May 2016, the victim was living in his home together with two roommates, defendant and a man identified as "John." They had been roommates for about five months. The victim maintained a home office in the residence.
Sometime in May 2016, the victim received a call from Discover Card, alerting him to unusual transactions on his account. The victim kept the card in a desk drawer in his home office, but never used it. The victim also had a Sears Chase Mastercard (Sears card) that he kept in his desk. His office door usually was open. He suspected defendant may have been using his Discover card and reported the matter to the sheriff's department.
On May 6, 2016, Deputy Sheriffs Damien Frisby and Matthew Harwood made contact with defendant. Frisby saw what appeared to be the outline of a credit card in one of her rear pockets. He asked her to empty her pocket and when she did, she handed him a Sears card in the victim's name. The card still had the activation sticker on it and the account number was different than the victim's other Sears card. The victim had not applied for a new card and did not know the bank sent him one.
Defendant denied using the victim's cards, although she admitted to intercepting the Sears card when it arrived in the mail. She denied going into the victim's home office. She said her boyfriend, who occasionally stayed with her, would only have access to the office while she was in the shower.
On May 31, 2016, Detective Harwood went to defendant's residence to interview her. As he was parking his car, defendant was walking out toward her vehicle. Harwood told defendant that the victim had been "ripped off" and he wanted to discuss her potential involvement. Harwood looked inside defendant's car and found a purse, which he opened. Inside the purse he found a number of items that belonged to the victim, including: books of blank checks from different banks; the victim's bank statements; a newly issued Macy's credit card; a newly issued Sears card; the victim's mortgage statement; a pay stub in the victim's name; a cashier's check stub in the victim's name; a gas bill in the victim's name; two pre-approved credit card applications in the victim's name; and the victim's AAA card.
Later, Harwood went to a supermarket to review surveillance footage of defendant using the victim's Discover card. In the footage, he saw a man and woman walking through the store with a grocery cart. He took still photographs of the couple from the video and showed the photographs to defendant. Defendant admitted it was her and the man was her former boyfriend, Dan Cumpston.
Defendant acknowledged using the victim's credit card to get cash at a casino, but said Cumpston gave her the card and she did not know it was the victim's. She said she used it twice to take out $80. When she found out it was the victim's card, she developed a plan to pay him back, but had not done so. Investigation revealed that the victim's Discover card was used at seven different locations over four days and more than $1,900 was charged on the card. Defendant admitted she had a gambling problem.
Hardwood could not find these transactions in the reports given to him.
Defendant testified at trial and said she never knowingly used the victim's credit cards. She also denied using his checks or applying for additional credit cards in his name.
Prosecution Closing Argument
Defendant was not charged with separate counts of receiving stolen property for each item or any group of items of the victim's property found in her possession; nor did the prosecutor elect specific items of property the jury should consider only in connection with the receiving count. The prosecutor argued to the jury that defendant could be found guilty of receiving stolen property in multiple ways: (1) using the Discover card, (2) possession of the credit card found inside her pocket, or (3) "all the stuff inside her purse." The prosecutor also explained the jury then would have to determine whether the value of the stolen property she received exceeded $950. The prosecutor also argued defendant could only be found guilty of fraudulent use of an access card if they all agreed she "acquired or retained" the Discover card "without permission."
In the argument, the prosecutor conflated the receiving and theft charges. In discussing the unanimity instruction, the prosecutor told the jury: "So the Defendant's charged in Count 2 with receiving stolen property. There's a couple of ways I think you can find the Defendant guilty. [¶] The Discover card. When you look at the evidence in this case, do you believe that she was the one that used the Discover card? That's one way you can find the Defendant guilty. [¶] The second way is the credit card that was found inside her pocket. Do you believe that she stole that credit card? That's the second way you can find the Defendant guilty. [¶] Third was all the stuff inside her purse. Do you believe that she found that or stole it? [¶] All of you can agree on any one of those three on which act. If you all agree, you can find the first one, you can find the second one, you can find all three. You just have to be unanimous about which act she committed. Consider that in the deliberations." (Italics added.)
Verdicts and Sentencing
The jury found defendant guilty as charged. The jury also found the value of the stolen property received by defendant exceeded $950.
The trial court sentenced defendant to 16 months in state prison on defendant's conviction for identity theft and imposed a term of 16 months on defendant's conviction for receiving stolen property, but stayed execution of that sentence pursuant to section 654. As to the count for fraudulent use of an access card, the trial court stayed the sentence pursuant to section 654 without orally imposing a specific sentence. The court awarded defendant 58 days of custody credit and ordered her to pay various fines and fees, including a single court security fee (§ 1465.8) and a single criminal conviction assessment (Gov. Code, § 70373).
DISCUSSION
I. Instructional Error—Failure to Give CALCRIM No. 3516
Defendant contends the trial court committed reversible error by failing to instruct the jury, sua sponte, with CALCRIM No. 3516, which prohibits a conviction of both stealing and receiving the same property. The People concede, and we agree.
During discussion of the jury instructions, neither counsel brought CALCRIM No. 3516 to the trial court's attention.
"Courts have long held that one cannot be convicted of theft and receipt of the same property." (People v. Love (2008) 166 Cal.App.4th 1292, 1298, citing section 496, subd. (a), & People v. Garza (2005) 35 Cal.4th 866, 871 (Garza).) The Legislature codified this common law rule in section 496, subdivision (a), which states in pertinent part: "A principal in the actual theft of the property may be convicted pursuant to this section. However, no person may be convicted both pursuant to this section and of the theft of the same property." This court has previously held that section 496, subdivision (a), applies where a defendant is convicted of fraudulent use of an access card because that offense is a theft offense. (Love, at p. 1299.)
Here, defendant was charged with misdemeanor fraudulent use of the victim's access card and a single count of felony receiving stolen property. The jury found true the allegation that the stolen property defendant received exceeded $950 in value. The only stolen property that exceeded $950 was the property obtained with the stolen Discover card, which defendant used to charge more than $1,900. There was no evidence as to the value of the other stolen property, the credit card she had in her pocket, or the items found in defendant's purse.
The prosecution made no effort to establish the fair market value of the credit card found in her pocket or the credit cards found in her purse. (See People v. Romanowski (2017) 2 Cal.5th 903, 915.)
Additionally, as the prosecutor argued, the evidence only established that defendant fraudulently used the Discover card. Accordingly, the "property" that forms the basis of the conviction of the receiving stolen property charge with a value over $950 is the same as the property that was the subject of count 4, misdemeanor fraudulent use of an access card: the victim's Discover card. And thus, the court had a sua sponte duty to instruct the jury that it may convict the defendant of one, but no more than one, of these alternative offenses. (Garza, supra, 35 Cal.4th at p. 873; CALCRIM No. 3516.) Also, the jury should have been instructed to reach a verdict on the theft offense first and not return a verdict on the receiving charge if it found defendant guilty on the theft offense. (People v. Ceja (2010) 49 Cal.4th 1, 10 (Ceja); CALCRIM No. 3516.) Because the court failed to do so, defendant was improperly convicted of both theft and receipt of the same stolen property.
It is not sufficient to simply stay execution of the receiving stolen property sentence as the trial court did; a sentence may not be imposed on a count for which a defendant should have never been convicted. (People v. Jaramillo (1976) 16 Cal.3d 752, 757.) Under these circumstances, we must reverse the receiving conviction even though it is a felony conviction and the remaining conviction for fraudulent use of an access card a misdemeanor. (Ceja, supra, 49 Cal.4th at pp. 9-10 ["Maintaining the practice of reversing a receiving stolen property conviction when the defendant is also convicted of stealing the property harmonizes the terms of section 496(a) with the common law origins of the rule against dual convictions" and must be done even where the theft offense is a misdemeanor and the receiving stolen property offense is a felony]).)
We note there is disagreement about whether identity theft is a "theft" crime. In People v. Valenzuela (2012) 205 Cal.App.4th 800, the Division Four of the Court of Appeal, Second Appellate District, referred to the violation of section 530.5 as "a unique theft crime," "not a possession crime." (Valenzuela, at p. 808.) More recently, however, in People v. Sanders (2018) 22 Cal.App.5th 397, the court concluded that section 530.5 "is not actually a theft offense. Rather it seeks to protect the victim from the misuse of his or her identity." (Sanders, at p. 405.)
We can resolve this appeal based solely on defendant's convictions for fraudulent use of an access card (undoubtedly a theft offense) and receipt of stolen property. Accordingly, we need not address this apparent split in authority.
II. Section 654 and Amending the Abstract
At sentencing, after imposing a 16-month term on count 1, identity theft, the trial court stated the following in connection with count 2, receiving stolen property, and count 4, fraudulent use of an access card: "As to Count 2, I'll also impose the low term of 16 months and will stay that pursuant to Section 654 of the Penal Code. [¶] And then -- then as to Count 4, the Court will also stay the sentence under 654 of the Penal Code." Thus, unlike count 2, the court did not impose a specific sentence on count 4 before staying its execution. Neither party mentioned this matter in their briefing on appeal, but it must nevertheless be corrected.
Section 654, subdivision (a), provides in relevant part: "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." It is well settled that when a court determines that a conviction is subject to section 654, it must impose a sentence and then stay the execution of that sentence, the stay to become permanent upon defendant's service of the portion of the sentence not stayed. (People v. Duff (2010) 50 Cal.4th 787, 796; People v. Relkin (2016) 6 Cal.App.5th 1188, 1197-1198; People v. Alford (2010) 180 Cal.App.4th 1463, 1469 (Alford); People v. Salazar (1987) 194 Cal.App.3d 634, 640; People v. Niles (1964) 227 Cal.App.2d 749, 755-756.) "This procedure ensures that the defendant will not receive 'a windfall of freedom from penal sanction' if the conviction on which the sentence has not been stayed is overturned." (Salazar, at p. 640.) It is improper to simply stay the imposition of sentence. (Duff, at pp. 795-796; Alford, at p. 1468; 1 Couzens et al., Sentencing Cal. Crimes (The Rutter Group 2018) § 13:10, p. 13-51.) The trial court here imposed an unauthorized sentence by failing to impose a sentence on count 4 and then stay execution of that sentence. (People v. Crabtree (2009) 169 Cal.App.4th 1293, 1327.)
In Alford, this court concluded that the "futility and expense" of remand militated against sending the case back to the trial court for resentencing where this court could determine the sentence that the trial court, in the exercise of its discretion, "undoubtedly" would have imposed. (Alford, supra, 180 Cal.App.4th at p. 1473.) Here, however, it is not clear how the trial court would have sentenced defendant on this misdemeanor conviction. Accordingly, we must remand the matter to allow the trial court to impose sentence on defendant for her conviction on count 4, then stay execution of that sentence under section 654.
Additionally, the trial court failed to impose the mandatory $40.00 court security fee on each conviction and the mandatory $30.00 criminal conviction assessment on each conviction. (§ 1465.8, subd. (a)(1); Gov. Code, § 70373, subd. (a)(1).) The mandatory fees must be imposed even if the sentence is stayed pursuant to section 654. (People v. Crittle (2007) 154 Cal.App.4th 368, 370-371.) We are able to modify the judgment on appeal with respect to mandatory impositions (People v. Talibdeen (2002) 27 Cal.4th 1151, 1157); however, because we are remanding the matter for resentencing, we will direct the trial court to impose the mandatory fees on remand as well.
DISPOSITION
Defendant's conviction for receiving stolen property is reversed. The trial court is ordered to impose sentence on defendant for her misdemeanor conviction on count 4, fraudulent use of an access card, then stay execution of that sentence pursuant to section 654. The court also is ordered to impose a $40 court security fee on count 4 pursuant to section 1465.8 and a $30 criminal conviction assessment pursuant to Government Code section 70373. The clerk of the trial court is ordered to prepare an amended abstract of judgment and forward a certified copy to the Department of Corrections and Rehabilitation.
The judgment is otherwise affirmed.
s/ MURRAY, J. We concur: s/BLEASE, Acting P. J. s/HULL, J.