Opinion
F059682 Fresno Sup. Ct. No. F08904959
09-07-2011
THE PEOPLE, Plaintiff and Respondent, v. BRETT RONALD MATTESON, Defendant and Appellant.
Cliff Gardner, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Marcia A. Fay, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from a judgment of the Superior Court of Fresno County. Ralph Nunez, Judge. (Retired Judge of the Fresno Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
Cliff Gardner, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Marcia A. Fay, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
Working with confederates in Fresno-area restaurants, appellant Brett Ronald Matteson unlawfully obtained debit and credit card account information of numerous restaurant customers, resulting in a first amended information charging 110 counts of identity theft, the manufacture of deceptive identification documents, and theft of access card account information.
STATEMENT OF THE CASE
On January 11, 2010, the Fresno County District Attorney filed a first amended information in superior court charging appellant Brett Ronald Matteson, as follows:
Counts 1-49 — identity theft (Pen. Code, § 530.5, subd. (a));
All further statutory citations are to the Penal Code, unless otherwise indicated.
Counts 50-58 — manufacture of deceptive identification documents (§ 483.5, subd. (a)); and
Counts 59-110 — theft of access card account information (§ 484e, subd. (d)). The district attorney specially alleged appellant sustained a prior serious felony conviction (§ 667, subd. (a)), sustained a prior strike conviction (§§ 667, subds. (c)-(j), 1170.12, subds. (a)-(e)), and served two prior prison terms (§ 667.5, subd. (b)).
On the same date, appellant pleaded not guilty to the substantive counts and denied the special allegations. On January 12, 2010, appellant admitted the truth of the prior prison term allegations.
During the jury trial, the court dismissed counts 49, 63, 73, 75, and 84 of the first amended information on motion of the prosecution.
On January 29, 2010, the jury returned verdicts finding appellant guilty of all of the remaining counts.
On March 4, 2010, the court sentenced appellant to a total term of 37 years and 8 months in state prison. The court imposed the upper term of three years on count 1; consecutive terms of eight months (one-third of the middle term) on counts 2 through 48, counts 50 and 59; concurrent upper terms of three years on counts 51 through 58, counts 60 through 62, counts 64 through 72, count 74, counts 76 through 83, and counts 85 through 110. The court imposed a consecutive term of two years for the prior prison term enhancement.
On March 4, 2010, appellant filed a timely notice of appeal.
On June 1, 2011, the clerk of the superior court prepared and filed a new abstract of judgment to address counts 22 through 36, which had been omitted from the abstract of judgment filed March 8, 2010.
STATEMENT OF FACTS
Summary of Facts Relating to Identity Theft (Counts 1-48)
The prosecution presented evidence to show that debit and/or credit card information for 47 individual victims was set forth on documents found at appellant's home. Appellant did not obtain their permission to acquire the information, and there were unauthorized charges on their credit accounts. Those unauthorized charges were made between April and September 2007.
Twenty-six of the victims had used their credit cards at the Red Robin Restaurant in the River Park area of Fresno prior to the dates of the unauthorized charges. Nine of the victims had used their credit cards at Goldfield's Restaurant at Chukchansi Casino.
Conceded Error (Count 47)
Appellant contends and the People concede that count 47 is not supported by substantial evidence. Jill Gonzales identified her credit card number on documents found in appellant's possession. However, Gonzales did not testify that there were unauthorized charges on her account. The People agree the judgment of conviction should be reversed as to this count.
Summary of Facts Relating to Manufacture of Deceptive Identification Documents
(Counts 50-58)
A number of witnesses testified they had gone to appellant's home and had obtained "fake" or false identifications from him.
Summary of Facts Relating to Theft of Access Card Account Information
(Counts 59-110)
The court dismissed counts 63, 73, 75, and 84 on motion of the prosecution and facts relating to those offenses are not included in the statement of facts.
The prosecution presented evidence to show that debit and/or credit card information for the victims of these counts was set forth on documents found at appellant's home. Appellant did not obtain their permission to acquire the information, and there were unauthorized charges on their credit accounts. Those unauthorized charges were made between April and September 2007.
Facts Applicable to All Charged Counts
Testimony of Patrick Adolph
In December 2007, Patrick Adolph went to appellant's home to get a fake identification. Adolph said he was 20 years old, going on a trip and wanted an identification that stated he was 21 years of age so that he could get into bars. Adolph said appellant "was a pretty popular individual by word of mouth around the local high schools at the time. So it was pretty easy to get in contact with him." Adolph obtained appellant's phone number and made an appointment to meet at appellant's home just south of Palm and Herndon Avenues. Appellant opened his garage, and Adolph accompanied him to an area with a computer, printer, and a cabinet with a backdrop for taking pictures. Appellant used Adolph's driver's license to calculate the false date of birth. As appellant processed the picture for the false identification, Adolph mentioned he worked as a server at the Sequoia Brewery Restaurant and had done so for two and one-half years. Appellant told Adolph he was involved in credit card theft, showed him a wallet filled with numerous credit cards, and explained how the process worked. Adolph said, "He showed me how you can have a person's name on the front, but the information that he gets from the different credit cards is completely different on the back, so it will say your name on the front but then it will be somebody else's credit card on the back."
Appellant took Adolph inside his house and showed him items he had purchased using the credit card numbers of other individuals. The purchased items included a flat screen television in appellant's family room. Appellant gave Adolph a list of stores "That were a-okay to shop at that you would not get in trouble for." Appellant then told Adolph he had unnamed servers and bartenders working for him at Red Robin and Campagna restaurants. According to appellant, these restaurant employees would swipe the credit cards of patrons through "a little black scanner" to collect credit card account information. Appellant said he was then able to place that information "on the credit cards he has available."
Appellant asked Adolph whether he would be interested in doing similar work for appellant in exchange for "an allowance," in an unspecified sum. Appellant also offered to take Adolph on a Christmas shopping trip if he agreed to participate. Adolph told appellant he would get back to him later. Adolph took the fake identification and paid appellant. Appellant called Adolph later and asked whether he was interested in his proposition. Adolph told appellant he would get back to him. Adolph then contacted Fresno Police Detective Ken Dodd, gave him a statement, and then showed Dodd the location of appellant's residence. At some point Dodd told Adolph he could be arrested on criminal charges for being in possession with a false identification. However, Dodd did not threaten Adolph with prosecution. Testimony of Kristen Brandon Marie Larsen
Larsen testified a mutual friend referred her to a man nicknamed "Casper" who knew someone who could get her a fake I.D. because she was under age 21. Larsen picked up Casper and he guided her to a home. Larsen and Casper entered the garage of the home. Larsen said there was "[a] computer by a door and that was it." Larsen said appellant was alone in the garage when she and Casper arrived. Appellant set up a hanging blue screen, took her picture, and entered her information into a computer. She instructed appellant that she wanted her birth information to reflect that she was 21 years of age. She paid appellant $150 for the false identification and left the home. Larsen said a bouncer at a Clovis establishment later took the false identification away from her. Larsen contacted Casper again, he gave her appellant's phone number, and Larsen contacted appellant directly. She went to his home alone the second time and took another photograph for a second false driver's license.
On the second occasion, she and appellant had "an engaging conversation" and he asked her whether she knew anyone working in the restaurant business. He explained how "he would swipe [credit] cards and somehow put it on gift cards." He also asked whether she knew anyone in the restaurant trade who would be willing to do that for him. Larsen went a third time to appellant's garage in the company of her friend Megan and Megan's friend. Megan and her friend went to get false identification cards. Larsen went to appellant's garage a fourth time in the company of her friend, Johnny Juarez, who also had a false identification made. Testimony of Mitchell Alexander Isaak
Isaak testified his friend, Alyssa Whited, was conducting promotions at local bars. Whited was not yet 21 years of age when her agent arranged for her to obtain a false identification in 2007. Isaak was 19 or 20 years of age at the time and he, too, wanted a false identification to obtain alcohol. A man named Casper put Whited in touch with appellant. Whited, Isaak, and one Derek Welch went to appellant's home and entered through the garage. A blue backdrop was hanging from the garage ceiling. Whited, Welch, and Isaak each stood in front of the backdrop and had their photographs taken. Appellant put the photographs on a laptop computer, which was set up in the garage next to a large printer. Isaak said appellant asked the trio for information, including name, address, and birth date. The computer generated an identification card, which Isaak subsequently lost while riding an ATV in the desert. Testimony of Rammel Gabriel Del Mundo
Rammel Del Mundo testified he had a false identification made in 2007 so that he could go to bars and drink. Del Mundo said Johnny Amparano, a friend from high school, had a false identification and said he could arrange for Del Mundo to obtain one also. Amparano took Del Mundo to a home in the area of Bullard and West Avenues, and they entered through the open garage. Del Mundo stood in front of a light blue background, placed his feet against some duct tape markings on the ground, and had his picture taken.
Del Mundo said the photographer took down some personal information and said the identification would be ready in 90 minutes. Del Mundo returned at the appointed time, paid the photographer around $150, and obtained the identification card. Del Mundo said there was an error on the card, and the photographer said he would fix it. They agreed to meet in the parking lot of the Save Mart store at Bullard and West Avenues, and the photographer gave Del Mundo the corrected card at that location.
While at the garage, Del Mundo and the photographer spoke about another aspect of the latter's business. The photographer said people would stop by his mailbox at night and deposit information in the box. The photographer would retrieve that information in the morning and then make credit cards that would enable the people to buy television sets and other merchandise. Del Mundo could not identify the photographer in court but did identify him to Detective Dodd after viewing a photo lineup on June 24, 2008. Del Mundo said he threw away the false identification when he turned age 21. Testimony of Nolan Fitzpatrick
Nolan Fitzpatrick testified he was currently on felony probation in Madera County for violating section 484e, subdivision (d), acquiring access card information of others with intent to defraud. Fitzpatrick said he wanted to get a fake identification when he was age 20 because he had friends over age 21 and wanted to "hang out" with them at a nightclub. Fitzpatrick and his roommate, Hans, had a friend named Phong Tran who lived next door to appellant. Tran and Fitzpatrick worked at Chukchansi Casino. Tran was a bartender or "bar back" and Fitzpatrick was a waiter. In 2007, Fitzpatrick went to Tran's home for dinner and spoke about the possibility of obtaining a false identification. Tran called appellant, made arrangements, and Fitzpatrick went next door to appellant's home and obtained the fake identification. Fitzpatrick entered appellant's garage, stood in front of a large blue cardboard, and appellant took his picture. Appellant uploaded the photograph into a laptop computer and generated "a California-looking driver's license."
Appellant asked where he worked, and Fitzpatrick said he worked as a waiter at Goldfield's Restaurant in Chukchansi Casino. Appellant noted that Fitzpatrick was already breaking the law by getting a fake I.D. Appellant then asked whether Fitzpatrick would be willing to "card read," i.e., run credit cards through a black scanning device at his workplace. Appellant explained the information would be used to make gift or credit cards to purchase items. Fitzpatrick agreed to the arrangement and took the scanner to work. He scanned the credit cards of customers in the device after properly running their cards through the restaurant's cash register. A few weeks after taking the scanner, Fitzpatrick brought the device back to appellant's home, and appellant connected the scanner to his laptop computer. Fitzpatrick saw bank routing numbers appear on appellant's computer screen.
Appellant told Fitzpatrick he would use the scanned credit card information to make some gift cards for Fitzpatrick. Appellant pulled some gift card blanks from his wallet, ran them through the scanning device, and gave the coded gift cards to Fitzpatrick. Appellant and Fitzpatrick followed the same procedures on four additional occasions. Fitzpatrick used the gift cards to purchase items. He said he knew the gift cards bore stolen credit card information. Fitzpatrick said he scanned customer credit cards from the beginning of April 2007 until he was caught in June 2007. Fitzpatrick said he targeted customers who were mean or rude to him. Fitzpatrick estimated he made between 2,000 and 4,000 purchases using the credit cards. The purchasers were at such stores as Best Buy and Sears.
On an early morning in June 2007, deputies from the Madera County Sheriff's Department went to Fitzpatrick's apartment on Nees Avenue in Fresno and took the scanner and the items he had purchased with the gift cards, including a helmet, jacket, gloves, a camera, and an iPod. The deputies also took an identification card bearing the name "Craig Shane Smith." Fitzpatrick told deputies he had the identification made so that he could go to bars with Phong and Hans. He falsely told deputies the identification card was made in Kaiser Park. He later falsely told deputies the identification card was made in the front seat of a truck. Fitzpatrick also denied knowing appellant or where he lived. The deputies did not place Fitzpatrick under arrest. A day or two after the deputies went to Fitzpatrick's apartment, appellant contacted him and nervously told Fitzpatrick not to tell anyone his name or address. Fitzpatrick and appellant had gone shopping together on at least one occasion, and appellant used the gift cards to buy an iPod at Best Buy and some clothing at Sears. Fitzpatrick said appellant accompanied him on at least one shopping trip to show Fitzpatrick how to use the gift cards. Appellant also advised Fitzpatrick to wait at least a month before using a gift card with third party account information so that the account holder would not be able to trace the location where the credit card was compromised.
Fitzpatrick testified he was fired from his job at Chukchansi Casino because of the card reading. Phong Tran was also fired, but Fitzpatrick did not know when or the reasons for the firing. Fitzpatrick did tell the security supervisor at Chukchansi that Tran was his contact to appellant. Testimony of Jessica Wiggs Foster Baldwin
In June 2007, Jessica Wiggs Foster Baldwin was a waitress at the Red Robin Restaurant in the River Park area of Fresno. She had worked at Red Robin since October 2005. She met appellant through a mutual friend named Casper. She had met Casper at a fraternity and learned he was a photographer. Baldwin went to Casper's home, and he took some lingerie pictures of her. Their mutual friends, J.J. and Tasha, were also present. Baldwin went back to Casper's home a week or two later to look at the photographs on a computer. Appellant was present at Casper's home when Baldwin arrived. Casper introduced appellant, said he had fake identifications, mentioned that Baldwin was under age 21, and asked her if she wanted a false identification so that she could go into bars. He also asked whether Baldwin knew of anyone who wanted to obtain a false identification. Appellant spoke to Baldwin about false identifications. Baldwin said she was not interested in getting one because she would be turning 21 in several months. However, she told the two men she would ask people she knew whether they were interested in getting false identifications. After speaking about false identifications, Casper agreed to place Baldwin's lingerie photographs on a compact disk.
One week later Baldwin returned to Casper's home to pick up the CD. Appellant was present again and asked whether she wanted a false identification but she declined. Appellant nevertheless gave her a gift card and encouraged her to recruit other people to come to him for fake identifications. Baldwin used the gift card at Wal-Mart and Mervyn's stores, even though it was a Sierra Vista Mall gift card with a Visa logo.
On cross-examination, Baldwin said she had a false identification at one time, but that appellant did not make that identification card.
Appellant was aware that Baldwin was a restaurant server and worked all the time. Appellant asked Baldwin whether she would be willing to scan customer credit cards with a card reader but Baldwin said she was not interested. Baldwin received the CD from Casper and walked outside to her car. Appellant followed her outside with a similar CD in his hand. Appellant then told Baldwin she would have to scan customer cards "for a week or so," otherwise her lingerie pictures would be posted from the CD to the Internet. Baldwin testified, "I didn't want to do it but I didn't want my pictures all over the Internet." Appellant gave Baldwin a scanner/reader device. She said there was a button on the side of the device and appellant instructed her to wait for the button to turn green and then scan the credit cards of customers. He also told her he would call in a week, meet with her, and then give back her CD with the lingerie pictures.
Baldwin said she used appellant's device to scan the credit cards of her Red Robin customers. At some point, appellant contacted her and said he wanted to collect the credit card numbers she had scanned. Baldwin said she met appellant at a parking lot in the River Park shopping center and she got into his vehicle, a small, light-brown Toyota truck. Appellant hooked up the scanner to his laptop computer, and he downloaded the card information. After taking the information, appellant told Baldwin she did not have enough credit card information and that she had to scan more credit cards in order to get her pictures back. She complied, but he did not return the CD. Appellant promised Baldwin a laptop computer in exchange for scanning credit cards, and he made the purchase with her at a Best Buy store in the summer of 2007. She did not understand that appellant used stolen credit card numbers to make the purchase. After appellant bought Baldwin the laptop computer, he said she would have to scan more cards. She continued to scan customer credit cards. Baldwin said she did not go to the police because she was scared.
Detective Dodd testified that officers found evidence of an unauthorized credit card purchase of a Best Buy laptop on August 18, 2007.
At one point, Baldwin attempted to stop scanning customer cards, but appellant threatened to kill her mother and sister if she did so. Baldwin said appellant had also threatened to kill his girlfriend, Susan, and her children if Susan said anything about his activities. He also visited the Red Robin restaurant to speak with her during work hours because she would not return his phone calls. Baldwin said she scanned customer cards and returned the device to appellant for downloading somewhere between six and ten times. On one of those occasions, Baldwin and appellant met in the parking lot of a Raley's grocery store. Baldwin said she ultimately tried to ignore appellant's phone calls and "was trying just to get away from the situation." At some point in October, 2007, someone broke into Baldwin's truck. She testified that appellant had threatened to cut her brake lines if she did not do what he wanted, i.e., if she did not scan enough credit cards. On October 31, 2007, Baldwin finally quit her job at Red Robin so she would no longer have to scan customer credit cards for appellant. She explained, "[T]hat's the only way I could figure out to stop everything without having to get into trouble." When she quit her job, she still had appellant's card scanner in her possession. She had last met with appellant a couple of weeks earlier.
Baldwin began employment at another restaurant. Appellant found out where she was working, stopped at the restaurant, and tried to talk to her and get the scanner. She lied to appellant and said she was managing rather than serving in the new restaurant. She claimed she did not have any contact with credit cards and could not get any more account information for him. Baldwin said appellant was arrested in December 2007 and that he sent her a text message about his incarceration. Upon his release from jail, appellant contacted Baldwin and advised her not to contact him because the police were tapping or bugging his phone.
Baldwin said Detective Dodd contacted her by telephone on April 14, 2008. She lied to Detective Dodd at appellant's behest. Appellant had told her that if she claimed she did not know anything, then the police could not prosecute her or get her into trouble. Baldwin and her mother voluntarily went to police headquarters and had a conversation with Dodd on April 17, 2008. Baldwin was not truthful during this interview, telling the detective she had skimmed cards for someone named "Randy" rather than for appellant. Detective Dodd asked whether Baldwin had been threatened and she broke down in tears and said she was fearful to give a statement. She nevertheless declined to disclose everything that went on and denied that she skimmed credit cards. At trial, Baldwin said she never skimmed credit cards before she met appellant and did not skim cards between the time she left Red Robin and the time Detective Dodd interviewed and arrested her on August 4, 2008.
Baldwin testified she had skimmed a Red Robin manager's access card that allowed her entry into the Red Robin system. She said appellant told her not to skim credit cards under her own employee number so that she would avoid detection. On August 4, 2008, Baldwin was arrested for 26 felony counts of identity theft. She said she threw the skimming device over a fence into a field on the day of her arrest. She testified she was scared, stupid, young, nine months pregnant, and did not know what to do with the device. She later tried to retrieve the device using metal detectors but could not find it. Testimony of Detective Ken Dodd
Fresno Police Detective Ken Dodd testified he was assigned to the Financial Crimes Unit of the Department. He began investigating appellant after receiving the information from Kris Arnold, whose late father had been a Fresno Police Detective. Arnold's information led to Patrick Adolph, who supplied a cellular telephone number and an address on West Browning Avenue in Fresno. Dodd drove by the residence and looked for a white truck but did not see such a vehicle. He ran the cell number through the Fresno Police Department Records Management System (RMS) and Computer-Aided Dispatch System (CAD). Dodd determined that the number was associated with appellant and the address on West Browning Avenue. Dodd drove by the home a second time and saw a white truck. He ran the license number of the truck and found the vehicle was registered to Suzette Jumper. Dodd ran Suzette Jumper's name through the RMS system and found appellant listed as her boyfriend. Dodd and Adolph subsequently drove down West Browning Avenue, and Adolph identified appellant's home at the southeast corner of West Browning and West Avenues, a duplex with two separate residences conjoined at the middle. Dodd also determined the other residence was occupied by Phong Tran.
On December 13, 2007, Dodd and other law enforcement officers searched appellant's residence. Phong Tran occupied the other, adjoining half of the duplex. Approximately 8 to 15 people participated in the search, including one investigator from the Department of Motor Vehicles. Appellant was present with a teenage girl, the daughter of Suzette Jumper. Jumper came to the duplex and picked her daughter up. During the search of appellant's portion of the duplex, officers found rectangular tape marks on the garage floor. They also found a blue backdrop, multiple tripods, a Fargo card printer for printing plastic cards, an unopened Xbox 360 gaming device in a Best Buy shopping bag, and a motorcycle. In response to police questioning. Suzette Jumper told officers that the Xbox had been fraudulently purchased. Officers found packs of blank plastic cards with magnetic strips on the kitchen refrigerator and in the garage. The officers located appellant's wallet on the kitchen counter. The wallet contained appellant's commercial driver's license, his crane operator's certification card, a blank card, numerous credit cards bearing appellant's name, three Target store receipts, a scrap of paper bearing a 16-digit credit card code, appellant's social security card, a business card for Best Buy customer service manager Justin Cruz, and a Subway rewards and cash card. Detective Dodd determined that account numbers encoded on the magnetic strips of the various credit cards were actually associated with accounts for people other than appellant.
Officers searched the master bedroom and found a laptop computer on the south wall. They also found several USB thumb drives, a camera with case, an encoder, a signature digitizer, and a disk entitled, "Halloween Party 2007." The disk contained a number of photographs, including a picture of a woman with blonde hair whom Dodd identified as Suzette Jumper. They also found a Sony Cybershot camera, a Motorola cell phone, and a shredder containing shredded paper. Appellant was placed under arrested on December 13, 2007. The following day, Detective Mike Carrillo received a telephone call from a female who said police had overlooked a crucial piece of evidence. Dodd and Detective Heather Ground went to Suzette Jumper's place of employment, picked up Jumper, and went to the Browning Avenue home, which Jumper shared with appellant. They recovered a Toshiba laptop computer concealed inside a video cassette recorder (VCR). The VCR was located in an entertainment center in the master bedroom. They also found a Sunpak 7500TM tripod and a Vanguard Pro K tripod at the residence, along with three thumb drivers in the master bedroom. Someone used a Visa card belonging to Kevin Hurley to purchase the Sunpak 7500 TM on November 7, 2007, without his permission. The detectives gave the laptops, cell phones, thumb drives, and a case of compact disks (CDs) to James Lutter of the Fresno Police Department for analysis. One of the flash drives had two sets of credit card numbers linked to Jessica Baldwin, and the concealed laptop had credit card numbers linked to Nolan Fitzpatrick.
On April 22, 2008, Detective Dodd obtained a court order directing Red Robin to provide him with all credit card transactions involving Jessica Foster between June 1, 2007 and November 5, 2007. Dodd obtained the report and testified the victims indentified in counts 1, 2, 4-18, 20, 233-24, 39-45, 47-48, 59-63, 65, 68, 77, 79-81, 85-88, 90-106, and 110 had accounts that were included on a list of transactions reflecting Jessica Baldwin's service at the River Park Red Robin Restaurant. Detective Dodd testified that more than 600 names were included on the Red Robin list of Jessica Baldwin's customer transactions. Dodd also testified that James Lutter prepared a photo lineup of suspects, and Rammel Del Mundo identified the photograph of appellant as the individual who prepared his false identification card. Although Patrick Adolph supplied a description of appellant to Detective Dodd, Dodd said he did not show Adolph a photo lineup of suspects until after appellant's arrest. Dodd further testified that Lutter supplied him with a list of names and credit card numbers but that he was unable to contact every single person on the list. Dodd also said he attempted to obtain videotapes from retail stores involved in this case but he learned that smaller convenience stores keep their tapes for just one day, large stores keep them for one week, and "about 90 days is the most that I found, where they will keep it."
Dodd said appellant was initially arrested on December 13, 2007, but the District Attorney's office did not file charges immediately after that arrest. Appellant was released from custody and re-arrested in early August 2008. Officers found a number of text messages between Casper and appellant on the latter's cell phone. The messages implied a conversation about the skimming of credit cards. Adolph told Dodd that when appellant created his false identification, Adolph saw headshots of approximately 60 other people on the laptop screen. James Lutter provided Dodd with a report containing more than 60 headshots, including that of Adolph. Testimony of James Lutter
James Lutter, a civilian computer forensic examiner with the Fresno Police Department, analyzed various pieces of equipment seized from appellant's residence, including cell phones, USB drives, digital cameras, an identification card printer ribbon, Exeba software for operating an encoder, compact disks, a Gateway CPU, a Magcard reader/writer, Topaz Systems SigLite for digitizing signatures, flatbed scanner, laptop computer, Evidence Eliminator program for wiping/deleting computer data, and a ribbon compatible with Zebra, Eltran, and Fargo I.D. printers. He explained how certain pieces of equipment could be used for card skimming and production. He also identified exhibits containing stolen account information and explained how he had retrieved that information from the equipment. Testimony of Sharise J. Reimer
Sharise Reimer testified she had a false driver's license made in 2007 in order to go drinking at bars. She said her friend, Megan Beltz, had already obtained a false identification, and Beltz contacted the person who manufactured her card. Beltz and Reimer went to a home at Browning and West Avenues around Halloween and entered through the open garage. Reimer and Beltz saw Kristin Larsen in the garage. Larsen had lost her first identification card and was having another one made. Larsen and Reimer talked about Las Vegas, and Larsen said her identification did not work there. The person who made the card asked Reimer a couple of questions about what she wanted on her identification, such as name, address, and swiping capability. The man had her stand in front of a blue board and he took her picture. She signed her name and the man generated an identification card that resembled a California driver's license. Reimer said she no longer had the card because her parents disposed of it. She could not identify the man from a photo lineup or in the courtroom. Testimony of Derek C. Welch
Derek Welch testified he had a false driver's license made in 2007 so that he could buy alcohol even though he was underage. Welch said he accompanied Alex Isaak and Alyssa Whited to a home with an open garage. Welch did not remember too much about the manufacturing process for the false identification card but did recall a blue backdrop hanging from the garage roof, and the presence of a computer and printer. Welch said he paid approximately $100 for the false identification, but it was confiscated in San Diego. He said the false identification appeared to be a California driver's license. Welch could not identify the residence where the false identification was manufactured or the person who manufactured it. Testimony of Johnathan Ross
Johnathan Ross testified he had a false identification made in 2007 in order to buy alcohol even though he was underage. Ross learned about a local manufacturer of false identification cards through his high school friends. Ross went alone to a home in the Bullard and West area of Fresno. He entered the home through an open garage door and saw a man waiting for him. The man took down Ross's personal information and then took his photograph. The man manufactured two identification cards because the first card was damaged when it came out of the printer. Ross paid the man about $150 for the false identification cards and kept both of them. Ross could not identify the maker of the cards at trial. Testimony of Leonard Aguilar
Leonard Aguilar testified he had a false identification made in 2007 "[t]o have 21-and-over privileges." He learned about the manufacturer of false identification cards through a friend. Aguilar and his friend went to the manufacturer's home and entered the garage. The man who manufactured identification cards was present in the garage. He took Aguilar's photograph and generated a card for about $150. The card was later confiscated at a bar. At trial, Aguilar could not identify the man who manufactured the card. Testimony of John J. Amparano
John Amparano testified he obtained a fake identification in 2007 "to get in the clubs" at a time he was under age 21. Amparano said he was a friend of Kirsten Larsen, and Larsen showed an identification to get beer at a restaurant. Amparano knew that Larsen was also underage and he asked her about the card. Larsen told Amparano, "Oh, I know this person, this guy, and he does this." Larsen eventually took Amparano to a home in northwest Fresno. A blonde-haired friend of Larsen also went with them. Larsen called ahead and the trio parked near the house. They entered the open garage of the home and met the man who manufactured false identifications. Amparano described the garage as "a little miniature DMV setup," including a blue background for picture-taking, a camera, and computer. Amparano paid $150 or $200 for his false identification, and the man generated a card.
Amparano said he went to the home a second time with his friends, "Mike 'Antaneno' and 'Vermel.' " The two friends struck up a conversation with the man about his other activities, including false social security and credit cards. Amparano said the man "didn't want us to know about that stuff. We're too young." Amparano said a detective showed him a six-photo lineup in June 2008 and Amparano selected a picture of the man who manufactured his identification card. At trial, Amparano said appellant was the maker of his false identification card. Testimony of Firebaugh Police Officer Magda Martinez
Firebaugh Police Officer Magda Martinez testified a Gabriel Bautista contacted her at 2:12 p.m. on November 29, 2007. Bautista reported there had been unauthorized charges on his credit card and one of those charges had been made at the Wal-Mart store in Clovis. Officer Martinez's assisting officer, Officer Valdez, had previously worked at Wal-Mart and was aware that security videos were kept for a period of time. Martinez contacted the assistant manager of the Clovis Wal-Mart, advised her of the investigation, and Martinez and Valdez were able to retrieve the video for the time of the transaction. The Firebaugh officers turned that video over to the Fresno Police Department, where Detective Dodd later retrieved it. The prosecution played the Wal-Mart video for the jury, and the court admitted a still photograph from that video.
Martinez reviewed her report at trial and said that someone had made five unauthorized purchases using Bautista's credit card information. Those purchases took place between 1:21 and 2:46 p.m. on November 27, 2007. The purchases occurred at Best Buy, Wal-Mart, Starbucks, Subway, and PetSmart. Testimony of Fresno Police Detective George Irmerian
Fresno Police Detective George Irmerian testified he assisted in the service of the search warrant in appellant's Browning Avenue home on December 13, 2007. Detective Irmerian searched the dining room area, found a shredder in the dining room, and saw shredded documents inside the machine. Irmerian pointed out the material to Detective Dodd, and Dodd asked him to collect the shredded paper. Testimony of Fresno Police Detective David P. Passmore
Fresno Police Detective David Passmore testified he assisted in the service of the search warrant at appellant's Browning Avenue home on December 13, 2007. Passmore searched the master bedroom and found multiple USB thumb drives on the post of a four-poster bed. Testimony of Fresno Police Detective Terry A. Terry
Fresno Police Detective Terry Ann Terry testified she worked in the Financial Crimes Unit and assisted in the search of appellant's home on December 13, 2007. Detective Terry and her colleague, Detective Castillo, searched the garage area of the home and found one tripod inside the garage and one tripod outside the garage. She also found a wallet on a countertop in the kitchen. Testimony of Fresno Police Detective Heather Ground
Fresno Police Detective Heather Ground testified she worked in the Financial Crimes Unit and assisted in the search of appellant's home on December 13, 2007. She returned on December 14, 2007, with Detective Ken Dodd and Suzette Jumper. The trio went to the master bedroom and looked for a laptop computer that was concealed inside of a video cassette recorder (VCR). The detectives found and seized the item. Appellant was not present at his home during the search on December 14, 2007. Detective Ground understood that Suzette Jumper and her children also lived in the home. Ground said that Detective Dodd recovered an Xbox game console because Jumper said that was one of the items purchased with a stolen credit card number during a shopping trip that Jumper shared with appellant. Jumper said she accompanied appellant on other shopping trips where he used other people's credit card numbers to purchase household items. Testimony of Correctional Officer Joe Papagni
Joe Papagni testified he was a correctional officer with the Fresno County Sheriff's Department and was familiar with the phone system in the Fresno County jail. Officer Papagni said inmates are allowed to place outgoing phone calls from the jail and that such calls are recorded. At the beginning of each call, the parties are admonished that the call is being recorded and the receiving party must accept the charges. Inmates are assigned a jail identification number (JID) and an inmate who makes an outgoing call must enter his or her JID to make the call. Appellant's JID was 0282026 and a printout indicated his JID was used to make outgoing calls on August 7, 2008, at 4:53 p.m., August 11, 2008, at 6:34 p.m., and August 12, 2008, at 5:11 p.m. Detective Dodd, who had spoken with both appellant and Suzette Jumper, believed the recordings contained the voices of appellant and Suzette Jumper. Testimony of Jerica Means
Jerica Means testified she had a false California driver's license made in 2007 to go out to bars even though she was under age 21. A friend had a false identification and gave Means the phone number of the person who manufactured it. Means called the individual and then went to his home with her friend, Bob Sullivan. Means and Sullivan entered the man's garage. Means stood in front of a blue backdrop and had her picture taken. The man generated two false identification cards, and Means paid him for the cards. She gave one of the cards to a Fresno police detective in 2008. During her conversation with the detective, Means identified the man who made her identification cards from a photo lineup. She was unable to identify that person at trial. Detective Dodd testified he spoke with Means in June of 2008, showed her a photo lineup, and said she picked appellant's photograph. Testimony of Senior Investigator Linda Sue Brock
Linda Sue Brock testified she was a senior investigator with the Fresno County District Attorney's Office. She testified that appellant was arrested on December 13, 2007, and released the next day. He was taken into custody a second time on or about August 4, 2008. Investigator Brock testified that Detective Dodd brought her a box of shredded documents that was seized at appellant's home pursuant to a warrant in December 2007. Brock testified, "[I]t was decided that I would look at pretty much every single piece of paper in this bag to see if I could find anything of evidentiary value to it." She said the district attorney's office had the records of victims listed in the amended information and a list of unauthorized credit card charges. She looked through the shredded paper for receipts that might match the unauthorized charges. In doing so, she realized certain store receipts had unique characteristics, such as the font color and style of wording. Brock was able to compare and match information on shredded partial receipts with the names of victims in the amended information and unauthorized charges on the list of such charges.
Brock testified she investigated Suzette Jumper and her four then-minor children. She said the children were born in Fresno County and their certificates of birth listed the mother's maiden name as "Suzette Marie Allan." Brock explained that all births are registered in the mother's name.
Brock confirmed the office of the district attorney made plea deals with Jessica Baldwin and Nolan Fitzpatrick for their truthful testimony. She said the district attorney's office made no other deals with witnesses. Brock said she had multiple conversations with Phong Tran and recorded at least one of them.
At the conclusion of Brock's testimony, the prosecution played for the jury a number of recordings of phone calls appellant made after his arrest and incarceration in Fresno County jail. The recordings included one conversation between appellant and his girlfriend/wife, Suzette Jumper. The court admitted the tape recordings into evidence.
Defense Evidence
Testimony of B.J.
Appellant's stepdaughter testified Detective Dodd and other officers served a search warrant at her house on December 13, 2007. The officers entered the house and asked whether appellant was present. She told officers she did not know because she had just awakened. She said Detective Dodd jammed his flashlight into her chest, pushed her against the wall, told her not to touch her dog, and ordered her to stay against the wall. They later seated her in the kitchen. She said Dodd did not show her a warrant before officers searched the residence.
The stepdaughter testified that Phong Tran had frequently entered appellant's home with permission and had used appellant's computer and paper shredder. He entered the house several times a week and was sometimes alone in the house. She said Tran always had a flash drive in his possession. Tran's flash drive was black with white lettering. She said appellant always had one of his flash drives on a lanyard with his keys. He had another flash drive that was not on a lanyard. She never saw Tran shred documents in her home but did hear the shredder operating while he was on the premises.
The stepdaughter said she lived with appellant and her mother beginning in 2004 or 2005. At that time, he worked as an on-call driver for a towing company and later became a crane operator. She was unaware that appellant was making false identifications in the family garage for underage drinkers. She said she did not see a blue backdrop or other photographic paraphernalia in the garage. She said her mother and appellant went shopping for household items, but she did not see appellant going on spending sprees and buying and bringing home lots of items. She said she did not pay attention to how appellant paid for items when she went shopping with him. She testified she was unaware that money was being paid in the family garage for false identifications. Testimony of Suzette Marie Jumper
Suzette Jumper initially testified she was living with appellant during the period in question. After conferring with independent counsel, she invoked her privilege against self-incrimination under the Fifth Amendment and declined to testify as a defense witness. Testimony of Detective Ken Dodd
Testifying during the defense case, Detective Dodd said he did not conduct any scientific analysis of the jailhouse recordings and said in his opinion the voice of appellant was on the jailhouse phone recordings. Detective Dodd testified that a majority of the officers wore gloves during the search but no one took fingerprints or photographed evidence found in its original state. Dodd acknowledged he did not have training in credit card data, such as information on a magnetic strip. Dodd acknowledged that officers seized credit and debit cards and certain cards that had both debit and credit features. Dodd said he did not take the credit cards from appellant's wallet to a specific examiner to verify that a particular encoding machine had been used to encode cards.
Dodd confirmed that the Visa card of Kevin Hurley was used at a Best Buy store without his authorization on November 7, 2007, to purchase a Sunpak 7500 TM and that a similar tripod was found at appellant's home. Dodd also testified that a credit card of the late Patricia Peterson was used at a Best Buy store without her authorization on August 18, 2007 to purchase an MT 3422 laptop computer and that Jessica Baldwin surrendered a similar laptop to Dodd. Baldwin told Dodd the laptop was the computer that appellant purchased for her. In Dodd's opinion, appellant either acquired third party credit card numbers and then made unauthorized charges or aided and abetted others by creating credit card gift cards so that those others could use them to make unauthorized purchases.
Dodd testified the Fresno Police Department has a credit card reader that analyzes the magnetic strip on a card and sets out the account number on a screen. Several credit cards were in appellant's wallet, and Dodd slid them through the reader. One of the cards had an encoded account number that matched the number embossed on the front of the card. Other cards bore appellant's embossed name but yielded account information for three Red Robin customers of Jessica Baldwin.
Detective Dodd testified that appellant's cell phone contained incoming text messages from Tran and Casper. In Dodd's opinion, those messages were consistent with someone engaging in credit card skimming. Testimony of Rick Barclay
Barclay testified he was a licensed private investigator working for the defense. Barclay said Detective Dodd's references at trial to a residence at 1465 West Browning Avenue were inaccurate because no such address existed.
Barclay said he had made efforts to locate Phong Tran. He also testified a website known as "FresnoSheriff.org" sets forth jail identification numbers for inmates and that the public has access to such information. Barclay acknowledged the Fresno County jail issued a printout of calls made from the jail and the phone numbers to which calls were made. Barclay said he did not investigate the phone number called under appellant's jail identification number. Barclay said he generally called Suzette Jumper on her cell phone and not a home phone. Testimony of Arnold Martinez
Arnold Martinez testified he had been the manager of the Red Robin restaurant in River Park for five years. Martinez said he had employed Jessica Baldwin for between eight months and one year. Martinez said he carries a magnetic card that allows the holder to provide "comps or voids or [to] look up tables in a restaurant." He also said the card would enable the holder to reprint a guest's check. Martinez said he never gave Jessica Baldwin permission to have a manager's access card. He said magnetic cards are not given to team members. A team member with such a card could manipulate the work clock and add more hours for payroll purposes. Martinez had no evidence that Baldwin used a manager's access card to steal money or over report work hours. To the best of Martinez's recollection, Baldwin failed to report for work and "typically if we don't hear from a team member or an employee in a certain amount of time, they terminate themselves by not coming into work or calling." Martinez did not know the reason why Baldwin failed to report for work. Testimony of Anthony Sciola
Anthony Sciola, the owner of Campagnia Restaurant, testified that Tran and his brother, Bay Tran, worked for him as servers. Phong Tran worked for him for three to five years. He fired Tran and his brother after customers reported suspicious activities on their credit accounts after using their credit cards at Campagnia. Sciola said he reprinted the bills of the two customers, noticed that the servers were Phong and Bay, and received a few calls after those incidents. Sciola said those facts "kind of throw a red flag up," and Sciola thought something suspicious was going on. The two brothers were terminated, and the restaurant had no other problems with fraudulent activity. Sciola did not know whether Phong skimmed credit cards at the request of appellant. Sciola did not know appellant or know that he was Phong's neighbor. Testimony of Sherri Ann Persons
Appellant's sister, Sherri Ann Persons, testified she gave appellant permission to use her Target Visa card to purchase bedroom furniture and big screen television. She further testified she gave appellant permission to use the card to place a deposit on a Harley Davidson motorcycle. She said appellant made monthly payments on the card for these purchases. Persons said the big screen was purchased legally at Best Buy and that she was present at the time of purchase. Persons said she had twice been to the Browning Avenue home that appellant shared with Suzette Jumper. On one occasion, Persons attended a Halloween party in the garage and there were between 20 and 25 guests present. She said the guests had access to all of the rooms of the house.
Persons said her credit card had a limit of $9,000, and the highest balance that appellant incurred was between $5,000 and $7,500. Persons said her credit card number was changed after appellant's arrest because the card company considered her a victim based on evidence that appellant had possession of her card. Testimony of Phong Tran
After conferring with independent counsel, Tran invoked his privilege against self-incrimination under the Fifth Amendment and declined to testify as a defense witness.
Rebuttal Evidence
Linda Brock testified she ran appellant's name through a secured law enforcement website called Accurint. According to Accurint, the two recorded outgoing calls at the Fresno County jail were made to a telephone number associated with appellant.
DISCUSSION
I. THE VERDICTS ON 39 COUNTS OF IDENTITY THEFT ARE AFFIRMED
Appellant contends 39 of the first 48 counts charged in the information must be reversed because "the unauthorized use charges required the state to prove (1) defendant acquired account information, (2) actually used the information to defraud (3) without consent" and that the prosecution failed to prove the second element as to those counts.
A. Specific Contention
Appellant specifically argues:
"Mr. Matteson concedes that the evidence was sufficient to sustain convictions as to the first group of charges-counts 7, 9, 14, 19, 21, 41, 42, 43 and 44. But . . . the evidence was insufficient to sustain a conviction as to the remaining two groups of charges-counts 1, 2, 3, 4, 5, 6, 8, 10, 11, 12, 13, 15, 16, 17, 18, 20, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 45, 46, 47 and 48-because the state did not prove beyond a reasonable doubt that Mr. Matteson was connected to the unauthorized charges. Reversal of these counts is required."
B. Section 530.5, subdivision (a)
Counts 1 through 48 of the first amended information charged appellant with separate violations of "Penal Code Section 530.5(a), a felony." Section 530.5, subdivision (a) states:
"Every person who willfully obtains personal identifying information, as defined in subdivision (b) of Section 530.55, of another person, and uses that information for any unlawful purpose, including to obtain, or attempt to obtain, credit, goods, services, real property, or medical information without the consent of that person, is guilty of a public offense, and upon conviction therefor, shall be punished by a fine, by imprisonment in a county jail not to exceed one year, or by both a fine and imprisonment, or by imprisonment in the state prison."
To violate section 530.5, subdivision (a), a defendant must both (1) obtain personal identifying information and (2) use that information for an unlawful purpose. Thus, it is the use of the identifying information for an unlawful purpose that completes the crime. Each separate use constitutes a new crime. (People v. Mitchell (2008) 164 Cal.App.4th 442, 455.) Nevertheless, section 530.5, subdivision (a) does not require an intent to defraud. (People v. Hagedorn (2005) 127 Cal.App.4th 734, 744.)
C. Law of Substantial Evidence
In reviewing a judgment of conviction, the Supreme Court has stated the applicable standard for assessing the sufficiency of evidence:
"In assessing a claim of insufficiency of evidence, the reviewing court's task is to review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence - that is, evidence that is reasonable, credible, and of solid value - such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578.) The federal standard of review is to the same effect: Under principles of federal due process, review for sufficiency of evidence entails not the determination whether the reviewing court itself believes the evidence at trial establishes guilt beyond a reasonable doubt, but, instead, whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 317-320.) The standard of review is the same in cases in which the prosecution relies mainly on circumstantial evidence. (People v. Stanley (1995) 10 Cal.4th 764, 792.) ' "Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court[,] which must be convinced of the defendant's guilt beyond a reasonable doubt. ' "If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment." ' [Citations.]" ' (Id. at pp. 792-793.)" (People v. Rodriguez (1999) 20 Cal.4th 1, 11.)The "sufficiency of the evidence" standard of review is the same whether the evidence is direct, circumstantial, or a mixture of the two. (People v. Towler (1982) 31 Cal.3d 105, 118; see People v. Akins (1997) 56 Cal.App.4th 331, 336.)
D. Analysis
In this case appellant concedes there was "ample evidence casting suspicion on him." He acknowledges he possessed an encoder, had the necessary software, had the victims' names and account numbers, and had a list of local stores including many of the stores at which unauthorized purchases were made. He further concedes this "may have been sufficient to prove he had illegal access to the account information, and the opportunity to commit the charged crimes." However, he maintains it was insufficient to prove the unauthorized use charges beyond a reasonable doubt. Appellant submits there was no evidence linking the unauthorized charges to himself, to accomplices Nolan Fitzpatrick or Jessica Baldwin, or to his girlfriend Suzette Jumper or her children.
We consider the entire record in the light most favorable to the judgment below and presume the existence of every fact that could reasonably be deduced from the evidence to support it. (People v. Perez (1992) 2 Cal.4th 1117, 1124.) It is the trier of fact's exclusive province to assess the credibility of witnesses, resolve conflicts and weigh the evidence. (People v. Sanchez (2003) 113 Cal.App.4th 325, 330.) Absent impossibility or inherent improbability, the testimony of a single witness is sufficient to prove a disputed fact. (People v. Young (2005) 34 Cal.4th 1149, 1181.) The test is whether substantial evidence supports the jury's conclusion, not whether the evidence proves guilt beyond a reasonable doubt (People v. Crittenden (1994) 9 Cal.4th 83, 139). Thus, an appellant who attacks the sufficiency of the evidence bears an enormous burden. (Sanchez, supra, 113 Cal.App.4th at p. 330.)
An appellant who contends some particular finding is not supported is required to set forth in his brief a summary of the material evidence upon that issue. A recitation of only defendants' evidence is not the demonstration contemplated under this rule. The reviewing court is not called upon to make an independent search of the record where this rule is ignored. A claim of insufficiency of the evidence is entitled to no consideration when it is apparent that a substantial amount of evidence was received on behalf of the respondents. When defendants contend some particular issue of fact is not sustained, they are required to set forth in their brief all of the material evidence on the point and not merely their own evidence. Unless this is done, the error is deemed to be waived. (People v. Dougherty (1982) 138 Cal.App.3d 278, 282.)
In this case, appellant concedes the first element of section 530.5, subdivision (a), i.e., "the state presented evidence showing that the account numbers of all 48 victims' account[s] were found in Mr. Matteson's possession" and further concedes "jurors could reasonably find the third element satisfied-that the victims did not consent to certain charges." Appellant then goes on to challenge the evidence underlying the second element of section 530.5, subdivision (a) - "that it was defendant who actually used the account numbers." Without summarizing the record, appellant divides the counts into three different groups, based on the nature of "the state's evidence."
1. The First Group of Counts
The first group consists of counts 7, 9, 14, 19, 21, 41-44. As to those counts appellant concedes "the prosecutor presented evidence which-. . . under the deferential rules of appellate review-if believed was sufficient to link the unauthorized charges to Mr. Matteson. [Citations.]"
2. The Second Group of Counts
The second group consists of counts 26 and 32 (regarding purchases relating to motorcycles) and counts 1, 2, 4, and 34-36 (regarding purchases relating to Halloween or party supply stores). As to these counts, appellant contends "the prosecutor presented evidence of purchases which the prosecutor claimed were sufficiently linked to Mr. Matteson through less probative circumstantial evidence. [Citations.]"
Counts 26 and 32 alleged unauthorized purchases using the account information of John Metcalf and Alevia Hatfield. To establish these counts, the prosecutor presented testimony to show unauthorized charges on their accounts at several motorcycle stores. The prosecutor also presented testimony from other witnesses who had seen a motorcycle in appellant's garage.
As to counts 26 and 32, appellant acknowledges the evidence showed that credit card numbers belonging to Metcalf and Hatfield had been used to make unauthorized purchases at Biker Design in Daytona Florida, Golden Valley Harley in Los Banos, and Fresno Motor Sports. During argument, the prosecutor pointed out that appellant had a list with 78 different entries, and that 60 of the stores on that list matched unauthorized purchases alleged in this action. The prosecutor acknowledged that some of the stores on the list were "very common," but pointed out that the "Harley Davidson, Los Banos store only, which is the Golden Valley Harley Davidson listed, it says Los Banos location on one of our victim's credit card accounts. That is exactly where the unauthorized purchase was. It is on his [appellant's] list. Not a common store." Appellant contends the fact that Golden Valley Harley Davidson was part of his list was "too attenuated a link to prove that Mr. Matteson made the unauthorized charges alleged in counts 26 and 32." Circumstantial evidence may constitute substantial evidence of guilt. (See People v. Kraft (2000) 23 Cal.4th 978, 1053; People v. Millwee (1998) 18 Cal.4th 96, 132; People v. Bean (1988) 46 Cal.3d 919, 932-933.) Here, the jury could infer from the appellant's list and the unauthorized charges that appellant used, or aided and abetted the use of, the personal identifying information of Metcalf and Hatfield at the Golden Valley Harley store in Los Banos.
As to counts 1, 2, 4, and 34-36, appellant acknowledges the allegations of the first amended information "charged Mr. Matteson with unauthorized use based on purchases made at Halloween or party supply stores." He further concedes the record shows that unauthorized charges were made at those stores. At argument, the prosecutor noted "a lot of unauthorized charges at these Halloween stores, these seasonal Halloween stores and party stores, all in . . . September, October, leading up to Halloween." She further noted that the jurors would have the opportunity to review "approximately 58 photos of some extremely intricate Halloween decorations that clearly were expensive." Appellant submits this connection is "too tenuous to show beyond a reasonable doubt that it was Mr. Matteson who made the unauthorized purchases in connection with these counts." "Substantial evidence includes circumstantial evidence and any reasonable inferences drawn from that evidence." (In re Michael D. (2002) 100 Cal.App.4th 115, 126.) " '[W]hile substantial evidence may consist of inferences, such inferences must be "a product of logic and reason" and " must rest on the evidence" [citation]; inferences that are the result of mere speculation or conjecture cannot support a finding [citations].' " (In re Savannah M. (2005) 131 Cal.App.4th 1387, 1393-1394, italics omitted.) Here, the jury could reasonably and fairly infer from the Halloween party photographs and the unauthorized charges at various Halloween stores that appellant used, or aided and abetted the use of, the personal identifying information of the victims named in counts 1, 2, 4, and 34 through 36.
3. The Third Group of Counts
As to the remaining counts, the appellant argues:
"Of course the prosecutor was fully entitled to proceed on an aiding and abetting theory. But she was also required to prove her theory beyond a reasonable doubt. As to counts 3, 5, 6, 8, 10, 11, 12, 13, 15, 16, 17, 18, 20, 22, 23, 25, 27, 28, 29, 30, 31, 33, 37, 38, 39, 40, 45, 46, and 48 there simply was no evidence linking the unauthorized charges to Mr. Matteson. Nor was evidence presented to link any specific purchase to accomplices Nolan Fitzpatrick or Jessica Baldwin, or to Mr. Matteson's girlfriend Suzette Jumper or her children. Convictions may not be had on these counts based on mere suspicion or speculation. (People v. Tran [1996] 47 Cal.App.4th [759,] 771-772; People v. Johnson, supra, 26 Cal.3d at pp. 576-577.)"
Aiding and abetting is a theory upon which a person may be held accountable for an offense committed by another. (People v. Keovilayphone (2005) 132 Cal.App.4th 491, 497.) " '[A]n aider and abettor is a person who, "acting with (1) knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of committing, encouraging, or facilitating the commission of the offense, (3) by act or advice aids, promotes, encourages or instigates, the commission of the crime." ' " (People v. Hickles (1997) 56 Cal.App.4th 1183, 1193.) Appellant correctly contends that the prosecutor could proceed on an aiding and abetting theory and that suspicion and speculation are insufficient bases for conviction. However, the very settled rule of appellate review is a trial court's judgment is presumed to be correct, error is never presumed, and the appealing party must affirmatively demonstrate error on the face of the record. (People v. Davis (1996) 50 Cal.App.4th 168, 172.) Appellant's summary contention is not supported by a summary of the material evidence - favorable and unfavorable - on this issue. Under California law, it is incumbent upon appellants to state fully, with transcript references, the evidence claimed to be insufficient to support the findings. (People v. Dougherty, supra, 138 Cal.App.3d at p. 283.) "An appellant must fairly set forth all the significant facts, not just those beneficial to the appellant." (In re S.C. (2006) 138 Cal.App.4th 396, 402.) The burden to provide a fair summary of the evidence grows with the complexity of the record. (Myers v. Trendwest Resorts, Inc. (2009) 178 Cal.App.4th 735, 739.)
Here, the appellant has supplied numerous transcript references but not a complete statement of the evidence claimed to be insufficient to support the findings. Moreover, the trial court received more than 150 documentary and other exhibits into evidence. However, appellant has not designated those exhibits for transmittal to or consideration by this court (Cal. Rules of Court, rule 8.224). A claim of insufficiency of the evidence is entitled to no consideration when it is apparent that a substantial amount of evidence was received on behalf of the respondents. A reviewing court will not engage in an independent review of the record where, as here, this rule is ignored. (People v. Dougherty, supra, 138 Cal.App.3d at p. 282.) Appellant's contention is deemed waived.
II. FAILURE TO INSTRUCT ON THEFT OF ACCOUNT INFORMATION DOES NOT REQUIRE REVERSAL OF THE VERDICTS ON 39 COUNTS OF UNAUTHORIZED USE OF CREDIT CARD INFORMATION
Appellant contends the 39 counts of unauthorized use of credit card information must be reversed because the trial court failed to instruct the jury on theft of account information (§ 484e, subd. (d)) as a lesser included offense of identity theft (§ 530.5, subd. (a)).
A. Specific Contention
He specifically argues:
"[I]n the context of a case like this, both offense[s] require the state to prove defendant acquired another person's credit card information. Both require the state to prove it was without the person's consent. And both require the state to prove the theft was not an accident, phrase[d] either as a willful acquisition or one with improper intent. The difference . . . is that the unauthorized use charges [(§ 530.5, subd. (a))] require the state to also prove that the defendant use[d] the information for an unlawful purpose. Under this circumstance, the theft of account information is indeed a lesser included offense to the unauthorized use charges."
B. The Statutes at Issue
Section 484e, subdivision (d) states:
"Every person who acquires or retains possession of access card account information with respect to an access card validly issued to another person, without the cardholder's or issuer's consent, with the intent to use it fraudulently, is guilty of grand theft."
Section 530.5, subdivision (a) states:
"Every person who willfully obtains personal identifying information, as defined in subdivision (b) of Section 530.55, of another person, and uses that information for any unlawful purpose, including to obtain, or attempt to obtain, credit, goods, services, real property, or medical information without the consent of that person, is guilty of a public offense, and upon conviction therefor, shall be punished by a fine, by imprisonment in a county jail not to exceed one year, or by both a fine and imprisonment, or by imprisonment in the state prison."
C. The General Law of Lesser Included Offenses
A trial court must instruct the jury on a lesser included offense when the evidence raises a question whether all of the elements of the charged crime are present, and the evidence would support a conviction of the lesser offense. (People v. Bradford (1997) 14 Cal.4th 1005, 1055.) "[A] lesser offense is necessarily included in a greater offense if either the statutory elements of the greater offense, or the facts actually alleged in the accusatory pleading, include all the elements of the lesser offense, such that the greater cannot be committed without also committing the lesser." (People v. Birks (1998) 19 Cal.4th 108, 117.)
D. Analysis
Setting aside the accusatory pleading test, appellant contends "[t]heft of account information [(§ 484e, subd. (d))] is a lesser offense of unauthorized charges [§ 530.5, subd. (a)] under the statutory elements test." Section 484e, subdivision (d) is part of a comprehensive scheme that punishes a variety of fraudulent practices involving access cards. (People v. Butler (1996) 43 Cal.App.4th 1224, 1232 (Butler))The crime set forth in subdivision (d) "is possession of access card account information with a fraudulent intent." (People v. Molina (2004) 120 Cal.App.4th 507, 516.) In contrast, section 530.5, subdivision (a) does not require an intent to defraud. (People v. Hagedorn, supra, 127 Cal.App.4th at p. 744.) Since section 484e, subdivision (d) includes an element not present in section 530.5, subdivision (a), the statutory elements of the purported greater offense do not include all the elements of the lesser offense. (People v. Birks, supra, 19 Cal.4th at p. 117.) Therefore, the statutory elements test is not satisfied, section 484e, subdivision (d) is not a lesser included offense of section 530.5, subdivision (a), and the trial court was not required to instruct sua sponte on a lesser included offense.
III. THE TRIAL COURT DID NOT ERRONEOUSLY GIVE CALCRIM NO. 359 [CORPUS DELICTI—INDEPENDENT EVIDENCE OF A CHARGED CRIME]
Appellant contends the trial court erroneously gave the CALCRIM No. 359 instruction because several witnesses, some of them accomplices, testified to statements he purportedly made.
A. Appellant's Specific Contention
According to appellant, the prosecution tried his case on the theory that he (1) solicited restaurant servers Jessica Baldwin, Nolan Fitzpatrick, Patrick Adolph, and Kristen Larsen to "skim" credit card numbers from their customers; (2) described making fraudulent credit cards for Patrick Adolph, John Amparano, and Rammel Del Mundo; and (3) made statement to his girlfriend, Suzette Jumper, evidencing his knowledge of Baldwin's arrest and a consciousness of guilt. Appellant contends he did not dispute that the crimes occurred; rather, he maintained the evidence did not show beyond a reasonable doubt that he was the individual who committed each of the alleged offenses.
B. The Instructions at Issue
The court instructed the jury in modified CALCRIM No. 335 [accomplice testimony: no dispute whether witness is accomplice] as follows:
"[I]f the crimes charged in Counts 1 through 48 and Counts 59 through 110 were committed, then Nolan Fitzpatrick and Jessica Foster Baldwin were accomplices to those crimes. You may not convict the defendant of the crimes in Counts 1 through 48 and 59 through 110 based on the statements or testimony of an accomplice alone. You may use those statements or the testimony of an accomplice to convict the defendant only if: The accomplice's statements or testimony is supported by other evidence that you believe; two, that supporting evidence is independent of the accomplice's statements or testimony; and three, the supporting evidence tends to connect the defendant to the commission of the crimes.
"Supporting evidence, however, may be slight. It does not need to be enough by itself to prove that the defendant is guilty of the charged crimes and it does not need to support every fact mentioned by the accomplice in the statements or about which the witness testified. On the other hand, it is not enough if the supporting evidence merely shows that a crime was committed or the circumstances of its commission. The supporting evidence must tend to connect the defendant to the commission of the crime.
"The evidence needed to support the statement or testimony of one accomplice cannot be provided by the statement or testimony of another accomplice.
"Any statement or testimony of an accomplice that tends to incriminate the defendant should be viewed with caution. You may not, however, arbitrarily disregard it. You should give that statement or testimony the weight you think it deserves after examining it with care and caution and in light of all the other evidence."
The court also instructed the jury in CALCRIM No. 359 [corpus delicti: independent evidence of a charged crime] as follows:
"The defendant may not be convicted of any crime based on his out-of-court statements alone. You may only rely on the defendant's out-of-court statements to convict him if you conclude that the other evidence shows that the charged crime was committed. That other evidence may be slight and need only be enough to support a reasonable inference that a crime was committed.
"The identity of the person who committed the crime may be proved by the defendant's statement alone.
"You may not convict the defendant unless the People have proved his guilt beyond a reasonable doubt."
C. Appellant's Specific Contention
Appellant contends CALCRIM No. 359 created two fundamental problems under the unique facts of this case. First, appellant maintains CALCRIM No. 359 conflicted with and undercut the corroboration requirement of CALCRIM No. 335 where "several of defendant's purported statements had been testified to by acknowledged accomplices." Second, appellant contends his statements alone were insufficient to prove the state's case and "telling the jury they could rely on these statements alone to conclude defendant was the guilty party undercut the state's burden of proof beyond a reasonable doubt."
D. Analysis
CALCRIM No. 359 correctly states the law. (People v. Reyes (2007) 151 Cal.App.4th 1491, 1498.) Generally, the failure to request clarification of an instruction that is otherwise a correct statement of law forfeits an appellate claim of error based upon the instruction given. Appellant does not cite to a request for clarification in the trial court. Of course, despite a criminal defendant's failure to preserve such an issue for appeal, an appellate court may review his or her claim of instructional error to the extent his or her substantial rights were affected. (§ 1259; see People v. Rundle (2008) 43 Cal.4th 76, 151, disapproved on another point in People v. Doolin (2009) 45 Cal.4th390, 421, fn. 22.)
"In determining the correctness of jury instructions, we consider the instructions as a whole. [Citation.] An instruction can only be found to be ambiguous or misleading if, in the context of the entire charge, there is a reasonable likelihood that the jury misconstrued or misapplied its words. [Citation.]" (People v. Campos (2007) 156 Cal.App.4th 1228, 1237.) "On review, we examine the jury instructions as a whole, in light of the trial record, to determine whether it is reasonably likely the jury understood the challenged instruction in a way that undermined the presumption of innocence or tended to relive the prosecution of the burden to prove defendant's guilt beyond a reasonable doubt." (People v. Paysinger (2009) 174 Cal.App.4th 26, 30.)
Under the corpus delicti rule, "every conviction must be supported by some proof of the corpus delicti aside from or in addition to [defendant's extrajudicial] statements, and . . . the jury must be so instructed." (People v. Alvarez (2002) 27 Cal.4th 1161, 1165, italics in original.) The purpose of this rule is "to ensure that one will not be falsely convicted, by his or her untested words alone, of a crime that never happened. [Citations.]" (Id. at p. 1169.) "There is no requirement of independent evidence 'of every physical act constituting an element of an offense,' so long as there is some slight or prima facie showing of injury, loss, or harm by a criminal agency. [Citation.] In every case, once the necessary quantum of independent evidence is present, the defendant's extrajudicial statements may then be considered for their full value to strengthen the case on all issues. [Citations.]" (Id. at p. 1171.)
CALCRIM No. 359 accurately informs the jury that it must take a preliminary step before considering whether the prosecution has proven guilt beyond a reasonable doubt. If the necessary quantum of independent evidence is present, then the defendant's extrajudicial statements can be considered for their full value on all issues. Such extrajudicial statements may be sufficiently persuasive to prove the identity of the perpetrator beyond a reasonable doubt. However, the jurors cannot convict the defendant unless the People have proven his or her guilt beyond a reasonable doubt. " 'The crucial assumption underlying our constitutional system of trial by jury is that jurors generally understand and faithfully follow instructions.' " (People v. Smith (2007) 40 Cal.4th 483, 517, quoting People v. Mickey (1991) 54 Cal.3d 612, 689, fn. 17.)
One passage in CALCRIM No. 359 provides that the identity of the perpetrator may be proved by extrajudicial statements alone. This sentence does not reduce the People's burden of proof on identity to less than guilt beyond a reasonable doubt. Rather, it merely constitutes a statement that the corpus delicti rule does not preclude reliance on the defendant's out-of-court statements to prove identity beyond a reasonable doubt. Moreover, the introductory sentence to CALCRIM No. 359 clearly states: "The defendant may not be convicted of any crime based on his/her out-of-court statement[s] alone." The concluding sentence of CALCRIM No. 359 stated: "You may not convict the defendant unless the People have proved his/her guilt beyond a reasonable doubt." In addition, the court in this case instructed the jury with CALCRIM 220 [reasonable doubt]. CALCRIM No. 220 defines reasonable doubt, informs the jury that it must consider all the evidence, and instructs that the jury that the defendant is entitled to an acquittal unless the evidence proves him guilty beyond a reasonable doubt.
Appellant's challenge fails because reasonable jurors would have understood from the entirety of the jury charge that accomplice testimony could be used to convict only if the accomplice's statement was supported by evidence independent of the accomplice's testimony and only where such supporting evidence tended to connect the defendant to the commission of the crimes. Reasonable jurors would have also understood from the entirety of the charge that the People were required to prove identity beyond a reasonable doubt after examination of all of the evidence. CALCRIM No. 359 was not misleading, did not create confusion with respect to CALCRIM No. 335, and did not reduce the People's burden of proof on identity.
The trial court did not err by instructing the jury in CALCRIM No. 359.
IV. THE TRIAL COURT DID NOT COMMIT REVERSIBLE ERROR BY PLACING APPELLANT IN SHACKLES DURING TRIAL
Appellant contends he was "routinely shackled throughout these proceedings," in violation of his state and federal constitutional rights to counsel and to due process.
A. Chronology of Proceedings
Appellant represented himself at trial. On January 12, 2010, the first day of trial, the prosecutor noted that appellant was shackled in the courtroom and the court observed, "[t]hat would be a problem" in an anticipated six-week trial. The court asked a deputy sheriff in the courtroom whether there was a need to keep appellant shackled. The deputy responded, "Yes, that is the standard operating procedure, your Honor. The defendant or the Court can request that [the shackles be removed] and I have to run it through chain of command to run his background to clear him . . . ." The court indicated it was unaware of anything in appellant's criminal record that would suggest a reputation for violence or similar behavior. The court also suggested that two deputies might be assigned to the courtroom and asked the deputy who was present to look into that possibility. The court, prosecutor, and appellant discussed the defense's use of the "Elmo" overhead machine in the courtroom, and the court suggested that appellant's courtroom assistant, Rick Barclay, could operate the machine so that appellant would not have to move and reveal his shackles to the jury.
On the afternoon of January 12, 2010, the court addressed appellant's in-custody status, noting: "We normally try not to give that information to the jury. In a six-week trial, it may become obvious to them that you are in custody. I don't know if you want to disclose that information to them, let them know it." Appellant asked whether it would be easier if he simply disclosed his in-custody status. The court replied, "Sometimes attorneys think it is better to let them know. They're going to figure out anyway, probably. They never see you walk outside. You are always going to be seated." Appellant said he was trying to keep his feet under the desk "but you can still see." The court advised "we're going to remove the restraining device." As to disclosure of in-custody status, the court said, "I will leave it up to you, sir." Appellant said, "I will work it in, not right at the beginning, but I will, I will work it in." The court then said, "Okay. Need to do it during the voir dire, sir." The court explained he did not want appellant "to be in the middle of the trial then bring it in for some reason."
During a recess in the voir dire, the court held proceedings outside the presence of the prospective jurors. Deputy Cristo of the Fresno County Sheriff's Office said his office had checked appellant's background and determined appellant's past crimes were property crimes that did not involve violence. Cristo said his office was not opposed to having appellant "quietly covered." The court explained that appellant wanted to be "undone" once the trial itself started. Cristo said, "[W]e are not going to oppose him being completely unrestrained." However, Cristo did ask the court to impose "some sort of restrictions on movement." The court suggested the only movement would occur when appellant "has to come up to the bench at all." Cristo asked that appellant "not approach the well, the clerk, and limited approach on the jury." The court suggested, "He would just come up here so we can discuss whatever issues might come up, but we would not step outside the courtroom."
Deputy Cristo then said, "Well, we would ask if he does approach, if he comes close to the bench, that a deputy sheriff be right with him for the obvious security reasons." The court observed:
"Sure, I thought you would say that. That creates some issues themselves. [¶] It may be better [that] if an issue arises that I ask the jury to step out and we can address the issues and come back in, otherwise, I think it is too cumbersome and it would probably be prejudicial, because it would appear that he is somewhat dangerous, and that is the last thing I want. [¶] Mr. Matteson, I think we will have to leave you shackled, sir, and if we have an issue come up, I will have to ask the jurors to leave."
Appellant then asked the court whether he could have just one leg shackled, rather than two, "because it creates the issue of them being able to see behind me . . . . " Deputy Cristo did not oppose that solution and the court said, "We can do that for the trial." The court said, "We can do that. Why don't we go ahead and unshackle one leg and seal the shackle." Cristo said, "Judge, if the issue does come up where Mr. Matteson needs to move around, present evidence, he would just ask and we would provide another deputy sheriff in the courtroom for extra security." Cristo also reiterated, "Let me make sure I understand you correctly. He will be covered. If he needs to move, we will bring out an extra body?" The court answered in the affirmative.
During his opening statement, appellant said of the prosecutor:
"And she's only got to convince one of you that I'm guilty. I've got to convince all 12 of you that I'm not guilty. And her statements are-everything is supposed to be that you are presumed innocent until you are proven guilty. But the true fact is, you are guilty and you must prove your innocence. If that theory was true, what you hear, would I not be seated, chained to the desk right now, if I was already proven innocent and then guilty from there (indicating)?"
The prosecutor interposed an objection and the court advised the jury:
"Ladies and Gentlemen, I will have to say something here. Mr. Matteson has just let you know that he is presently in custody, and that is true. I mean, he obviously is shackled. His choice was to let you know early on that he has not made bail, he has not been released on his own recognizance. And if he wants to let you know at this time, for whatever reasons, it may benefit him.
"Another thing, too, is he is absolutely wrong about the District Attorney convincing one person and that is the end of the case. The People have to convince all 12 of you that he is guilty of any particular charge. And if they can't do that, that is the end of it. And he is presumed innocent. He is not presumed guilty. That is the law. Mr. Matteson is absolutely wrong on those accounts."
At the conclusion of the opening statements, the court further advised the jury:
"I have to say something else about Mr. Matteson's custodial status. It was discussed earlier outside your presence, it's always a concern when
someone is in custody and can't freely move around the courtroom. We discussed a way to free Mr. Matteson. Since he has not posted bail, he is in custody, obviously. We would have two deputies here. That is mandated by the sheriff's office, that we have to have two deputies if someone is in custody. And Mr. Matteson was gracious enough to say, you know, that is okay, he can remain like this. At some point, he let you know he was in custody. I had not anticipated it would come up this way. His custody status is not relevant to the issue of guilt or innocence. It is just a reality that some people can't make bail. And he couldn't make bail. But I don't want it to reflect on one side or the other. It is just reality. He is in custody, and you have learned he is in custody and that is just the way it is. And, again, I said he was gracious in agreeing to that, because otherwise we would have to have another deputy here. And I guess you are aware of the sheriff's office situation, they're having budget problems, and it is helpful that someone agrees to just do what he did."
Appellant concluded his closing argument, by stating: "[W]hen you leave this courtroom after all the decisions have been made, you go back to your families, you go back to your jobs, life as usual, everything goes on. The prosecutor goes on to her next case, her next commission. When I walk out of this courtroom, I'm looking at 77 years in prison." The court admonished appellant and advised the jury: "[S]entencing is strictly for the court. You are not to consider the question of punishment."
At the conclusion of all the evidence and arguments, the court instructed the jury in CALCRIM No. 204 [defendant physically restrained] as follows:
"The fact that physical restraints have been placed on the defendant is not evidence. Do not speculate about the reason. You must completely disregard this circumstance in deciding the issues in this case. Do not consider it for any purpose or discuss it during your deliberations."
After the jury rendered its verdicts, Juror No. 27 advised the court: "[I]t is just very hard to issue the verdict. And I would plead for you to have leniency on the amount of time the defendant has to serve." The court responded, "I know Mr. Matteson made a comment that he ought not to have made when he was arguing. As I remind you, sentencing is for the Court."
B. Law Governing Shackling
To avoid potential impediments to a fair trial, a defendant may not be required to wear physical restraints (even if not visible to the jury) during trial, unless there is a manifest need for such restraints. (People v. Mar (2002) 28 Cal.4th 1201, 1216, 1219; see People v. Duran (1976) 16 Cal.3d 282, 290-291.) "Such a showing, which must appear as a matter of record [citation], may be satisfied by evidence, for example, that the defendant plans to engage in violent or disruptive behavior in court, or that he plans to escape from the courtroom [citation]. A shackling decision must be based on facts, not mere rumor or innuendo." (People v. Anderson (2001) 25 Cal.4th 543, 595.)
A manifest need for shackling may arise from a showing that the defendant might engage in violent, disruptive, or other nonconforming conduct. (People v. Anderson, supra, 25 Cal.4th at p. 595; see People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1031-1032.) The fact a defendant is charged with a violent crime does not, without more, justify the use of physical restraints. Rather, the court must make the decision whether to use physical restraints on a case-by-case basis. (People v. Mar, supra, 28 Cal.4th at p. 1218.) When physical restraints are used, they " 'should be as unobtrusive as possible, although as effective as necessary under the circumstances.' " (Id. at p. 1217.) Generally, the imposition of restraints in the absence of a showing of a threat of violence or other nonconforming conduct constitutes an abuse of discretion. (Id. at p. 1221.)
Error in the use of restraints, however, is harmless if there is no evidence the jury was aware that a defendant was shackled during trial, and no evidence the shackles impaired or prejudiced the defendant's right to testify or participate in his or her defense. (People v. Anderson, supra, 25 Cal.4th at p. 596; People v. Tuilaepa (1992) 4 Cal.4th 569, 583-584.) Moreover, a jury's brief observation of physical restraints is generally viewed as nonprejudicial. (People v. Cleveland (2004) 32 Cal.4th 704, 740.) The key concerns are that the defendant not be placed in unjustified restraints visible to the jury for a protracted period during trial, that the defendant not be deterred from taking the stand on his own behalf because of restraints, and that the defendant's mental faculties or ability to communicate not be impaired by embarrassing or uncomfortable restraints. (See People v. Cunningham (2001) 25 Cal.4th 926, 988-989; People v. Anderson, supra, at p. 596.) A reviewing court will uphold the decision of the trial court to shackle a defendant, however, absent an abuse of discretion . (People v. Pride (1992) 3 Cal.4th 195, 231-232 (Pride))
C. Analysis
Appellant contends the trial court abused its discretion by shackling him "despite a specific finding of no manifest need and without consideration of less restrictive alternatives." (Initial capitalization omitted.) Respondent concedes the trial court "failed to base its decision on 'manifest need' to shackle appellant in particular," although the court did conduct an individualized analysis of appellant's situation and determined he did not have a history of violence. The trial court ultimately directed the unshackling of one of appellant's legs after appellant noted "it [shackling of both legs] creates the issue of [the jurors] being able to see behind me[.] At least [with] one [leg shackled], I can take one leg, one leg tucked back."
The Supreme Court has "consistently held that courtroom shackling, even if error, was harmless if there is no evidence that the jury saw the restraints, or that the shackles impaired or prejudiced the defendant's right to testify or participate in his defense." (People v. Anderson, supra, 25 Cal.4th at p. 596.) The record on appeal does not indicate that the jurors knew appellant was restrained prior to his informing them of the single leg restraint during the course of his opening statement. Nor does the record suggest that the jurors were otherwise prejudiced against him. As respondent points out, "a party cannot profit by his or her own wrongdoing," i.e., in this case appellant's mentioning of the leg restraint to the empanelled jurors after the court and court security personnel took numerous precautions and steps to enable him to present his defense in propria persona without revealing any physical restraints. (In re Hamilton (1999) 20 Cal.4th 273, 305.)
Although the trial court erred in failing to find a "manifest need" for the shackling of appellant, as set forth in Pride, that error was not prejudicial where there is no evidence that the jury was aware of the restraint prior to appellant's opening statement, the court explained the presence of the restraint immediately after appellant made his opening statement, and the court admonished the jury - at the conclusion of the evidence - not to consider the presence of the restraint for any purpose.
The trial court did not commit reversible error by allowing appellant to be shackled in the presence of the jury.
V. CLAIM OF CUMULATIVE ERROR DOES NOT COMPEL REVERSAL
Appellant contends cumulative error deprived him of a fair trial. Appellant has asserted a handful of errors, and we have found each claimed error to be either unfounded or harmless when considered separately. Considering them together, we likewise conclude that their cumulative effect does not warrant reversal of the judgment. (People v. Bolden (2002) 29 Cal.4th 515, 567-568.)
VI. PENAL CODE SECTION 484e, SUBDIVISION (b) DOES NOT PRECLUDE PROSECUTION OF APPELLANT FOR SECTION 484e, SUBDIVISION (d) VIOLATIONS ALLEGED IN COUNTS 59 THROUGH 110
Appellant contends section 484e, subdivision (b) specifically treats the acquisition of information of four or more persons as a single offense. Therefore, he contends the district attorney could not prosecute appellant for a violation of section 484e, subdivision (d) as to each individual victim named in counts 59 through 110.
A. Appellant's Contention
Appellant initially notes that he was charged with 110 counts of fraud, divided into three sets of offenses. The third set of offenses (counts 59-110) alleged 52 separate violations of section 484e, subdivision (d), improper acquisition of access card information. The state dismissed four of those counts for insufficient evidence and 48 counts went to the jury. Appellant contends the judgment of conviction must be vacated as to counts 59 through 110. He explains in his supplemental opening brief:
"[S]ection 484e[, subdivision (b)] - which specifically proscribes improper acquisition of access card information of four or more persons within a 12-month period-explicitly treats this offense as a single instance of grand theft. Because specific statutes prevail over general statutes, the state could not alternatively prosecute Mr. Matteson under a statute generally proscribing the separate acquisition of access card information based on this same conduct. Counts 59-110 must be vacated."
B. The Information
In counts 59 through 110 of the first amended felony information, the district attorney alleged violations of section 484e, subdivision (d), setting forth the counts in alphabetical order by the name of each victim. For purposes of illustration, count 110 stated in relevant part:
"On or about December 14, 2007, in the above named judicial district, the crime of ACQUISITION OF ACCESS CARD ACCOUNT INFORMATION, in violation of PENAL CODE SECTION 484e(d), a felony, was committed by Brett Ronald Matteson Jr[.], who acquired and retained possession of access card account information with respect to an access card validly issued to Adam Ybarra, without his or her consent, with intent to use it fraudulently."
Counts 59 through 109 used identical language, with the exception of the victims' names.
C. Filing of First Amended Information and Defense Arguments Prior to Trial and at Sentencing
On January 11, 2010, the district attorney filed a first amended information. The prosecutor explained "the changes to the Information were that we did delete 26 counts. So from 136 counts [in the original information] to 110, due to witness unavailability. We have added two prison priors, and we changed the date on one of the counts." The prosecutor went on to advise the court, "Separate victims, Your Honor, separate counts." In response, appellant argued: "She [the prosecutor] said that she has not charged this as separate counts, but this all falls under Bailey doctrine [referring to People v. Bailey (1961) 55 Cal.2d 514 (Bailey)]. Between Counts 69 through 110 fit under [the Bailey]doctrine as continuous crime spree." The court replied: "Well, it is a discretionary call on the part of the District Attorney as to how they are going to charge it, charge it with discrete counts, or lump them altogether, victim 1, victim 2, victim 3. I guess you got the benefit of exercising her discretion deciding not to charge discrete charges [but, instead,] only one per victim."
At the March 4, 2010, sentencing hearing, appellant asserted that "Counts 59 through 109, fit under the category of [the Bailey] doctrine." Appellant also asserted that his conduct constituted a "continuous crime spree" for section 654 purposes. The court noted that section 654 did not apply because "[w]e have different victims here, different intents."
D. The Statute and Relevant Case Law
Section 484e states:
"(a) Every person who, with intent to defraud, sells, transfers, or conveys, an access card, without the cardholder's or issuer's consent, is guilty of grand theft.
"(b) Every person, other than the issuer, who within any consecutive 12-month period, acquires access cards issued in the names of four or more persons which he or she has reason to know were taken or retained under circumstances which constitute a violation of subdivision (a), (c), or (d) is guilty of grand theft.
"(c) Every person who, with the intent to defraud, acquires or retains possession of an access card without the cardholder's or issuer's consent, with intent to use, sell, or transfer it to a person other than the cardholder or issuer is guilty of petty theft.
"(d) Every person who acquires or retains possession of access card account information with respect to an access card validly issued to another person, without the cardholder's or issuer's consent, with the intent to use it fraudulently, is guilty of grand theft."
Section 484e is part of a comprehensive statutory scheme contained within sections 484d through 484j, which punishes a variety of fraudulent practices involving access cards. (Butler, supra, 43 Cal.App.4th at p. 1232; see also People v. Molina, supra, 120 Cal.App.4th at pp. 512-513.) The statutes originally addressed criminal conduct involving a "credit card." In 1986, the statutes were amended to replace "credit card" with the broader term of "access card," expand the coverage of the statutes, and address newer types of banking and credit transactions. (Butler, supra, 43 Cal.App.4th at pp. 1235-1236.)
"Access card" is defined broadly to include "any card, plate, code, account number, or other means of account access that can be used, alone or in conjunction with another access card, to obtain money, goods, services, or any other thing of value, or that can be used to initiate a transfer of funds, other than a transfer originated solely by a paper instrument." (§ 484d, subd. (2).) "Although the term itself uses the word 'card,' its definition is broad in scope and covers intangible information as well as tangible objects. The term 'access card' is found in every other part of the statutory scheme, and it is unlawful activity associated with an access card that triggers criminal prosecution under the various statutes." (Butler, supra, 43 Cal.App.4th at p. 1232.)
Section 484e, subdivision (b) defines an offense of grand theft where a person "within any consecutive 12-month period, acquires access cards issued in the names of four or more persons which he or she has reason to know were taken or retained under circumstances which constitute a violation of subdivision (a), (c), or (d)," i.e., taken with the intent to defraud. In People v. Shabtay (2006) 138 Cal.App.4th 1184, 1187, Division Five of the Second Appellate District addressed the question of "whether a defendant may be convicted of more than one violation of section 484e, subdivision (b) within any 12-month consecutive period, when a defendant acquires eight or more access cards." The court concluded "the plain language of section 484e, subdivision (b) precludes multiple convictions where the prosecution alleges that the defendant acquired access cards within any consecutive 12-month period." (Ibid.)
The appellate court explained its reasoning:
"[B]y defining grand theft as acquiring access cards of 'four or more' persons . . . section 484e, subdivision (b) makes explicitly clear that no matter how many cards are accessed in excess of four, there is only one offense within any consecutive 12-month period. An interpretation of section 484e, subdivision (b), which allowed for more than one prosecution within any single consecutive 12-month period, would effectively delete the 'or more' language from . . . the statute, thereby running afoul of the rule requiring us to avoid an interpretation of a statute that would render a provision nugatory.
"Had the Legislature intended to allow for multiple prosecutions under section 484e, subdivision (b) for conduct within any consecutive 12-month period, it would have had no reason to include the words 'or more' after the word 'four.' The Legislature could have defined grand theft as each time a defendant acquired four access cards within any consecutive 12-month period, thereby allowing for a new prosecution when another four access numbers were acquired. Instead, the Legislature created a grand theft offense when, within the prescribed period, four or more access cards were acquired. The words 'four or more' cannot fairly be interpreted to mean that another violation of the statute occurs when the number of access cards acquired reaches eight, or any higher multiple of four." (People v. Shabtay, supra, 138 Cal.App.4th at p. 1191.)
E. Analysis
Appellant contends section 484e, subdivision (b) explicitly treats multiple acquisitions of access card information as a single offense, subdivision (b) constitutes a specific statute while subdivision (d) constitutes a general statute, and the state could not prosecute him under a statute "generally proscribing the separate acquisition of access card information based on this same conduct." He explains:
"The language of section 484e(b) stands in sharp contrast to section 484e(d). Section 484e(d) generally proscribes (1) acquisition of access card information with (2) intent to use it fraudulently. (Pen. Code[,] § 484e, subd. (d).) By comparison, and as its terms make clear, section 484e(b) is a special statute designed and intended to address the same activity proscribed by 484e(d), but in the narrow situation involving four or more
instances within a 12-month period. (Pen. Code[,] § 484e(b).) See also People v. Shabtay[, supra,]138 Cal.App.4th [at p.] 1190.)" (Fn. omitted.)
A careful reading of appellant's contentions in his supplemental opening brief on appeal reveals that he is asserting three main points: (1) that counts 59 through 110 of the first amended information violated the Bailey doctrine; (2) that the district attorney erroneously charged him under the more general provisions of section 484e, subdivision (d) rather than the more specific provisions of section 484e, subdivision (b); and (3) that the superior court could not sentence him on the guilty verdicts rendered on counts 59 through 110 because of section 654. We address each of these contentions.
1. The Bailey Doctrine
In Bailey, the defendant was found guilty of grand theft in unlawfully taking more than $3,000 in public assistance monies from the County of Santa Clara following an undisclosed change in her marital status. Defendant successfully moved for a new trial on the grounds the facts did not constitute a crime and the court misinstructed the jury. On the People's appeal to the Supreme Court, the question arose whether the defendant was guilty of grand theft or of a series of petty thefts, since she obtained a number of public assistance payments, each less than the statutory minimum of $200 required for grand theft but aggregating more than that sum. The Supreme Court concluded:
"Whether a series of wrongful acts constitutes a single offense or multiple offenses depends upon the facts of each case, and a defendant may be properly convicted upon separate counts charging grand theft from the same person if the evidence shows that the offenses are separate and distinct and were not committed pursuant to one intention, one general impulse, and one plan." (Bailey, supra, 55 Cal.2d at p. 519.)The Supreme Court ultimately reversed the order granting new trial, holding the material facts of defendant's case were not in dispute and the jury had been properly instructed.
In People v. Mitchell (2008) 164 Cal.App.4th 442, a case involving multiple counts of forgery, receiving stolen property, and wrongful use of personal identifying information (§ 530.5), the Third District Court of Appeal found Bailey "distinguishable," stating:
"In deciding whether a defendant commits a series of thefts pursuant to a single intent or plan, we do not use a single, broad objective of stealing property. A defendant who steals from multiple victims over a lengthy crime spree may have a single objective of obtaining as much money or property as possible. However, he has still committed multiple offenses. . . . [¶] By parity of reasoning, a single theft of personal identifying information and use of that information to obtain property will not immunize the thief from prosecution for subsequent uses of the information to obtain other property." (People v. Mitchell, supra, 164 Cal.App.4th at p. 456.)
In In re David D. (1997) 52 Cal.App.4th 304, 306 (David D.), the Madera County Juvenile Court adjudicated minor a ward of the court, after finding, among other things, that he committed one count of vandalism consisting of "thirty-four instances of defacing property with graffiti, with damages totaling between $5,000 and $50,000." The minor appealed, contending the wardship petition erroneously alleged felonies by improperly aggregating separate misdemeanor offenses, contrary to the Bailey doctrine. This court reversed the dispositional order, finding each tagging incident clearly represented a separate offense affecting a different victim. In reaching its conclusion, this court determined "the Bailey doctrine does not apply here." (David D., supra, at p. 311.) We stated:
"Application of People v. Bailey has been limited not only to the crime of theft, but generally to thefts involving a single victim. [Citations.] Although never expressly cited as an element of its doctrine, Bailey itself implies aggregation may occur only when the offense was committed against one victim. '[W]here as part of a single plan a defendant makes false representations and receives various sums from the victim the receipts may be cumulated to constitute but one offense of grand theft. . . .' (People v. Bailey, supra, 55 Cal.2d at p. 518, italics added.) The authorities upon which Bailey relies to reach its conclusion describe offenses against a single victim, and the court later notes aggregation is inappropriate, even though the thefts occurred against a single person, if the facts fail to establish one plan or intention. (55 Cal.2d at p. 519.) This observation presupposes a single victim. [¶] ... [¶] [O]ne limitation of the Bailey doctrine is its inapplicability to offenses involving multiple victims." (David D., supra, 52 Cal.App.4th at pp. 309-310, fn. omitted.)
In the instant case, counts 59 through 110 each entailed separate victims. In view of our holding in David D., appellant's invocation of the Bailey doctrine must be rejected.
2. Charging of the Offenses
Appellant contends the crime set forth in section 484e, subdivision (b) was more specific than that set forth in subdivision (d). Therefore, he maintains "the prosecutor here was not free simply to ignore the specific statute governing improper acquisition of access card information on 'four or more' instances within a 12-month period."
"[P]rosecutorial discretion is basic to the framework of the California criminal justice system. [Citations.] This discretion, though recognized by statute in California, is founded upon constitutional principles of separation of powers and due process of law." (People v. Jerez (1989) 208 Cal.App.3d 132, 137; see also Gov. Code, § 26501; People v. Wallace (1985) 169 Cal.App.3d 406, 408-411.) The prosecuting authorities, exercising executive functions, generally have the sole discretion to determine whom to charge with public offenses and what charges to bring. The discretion to choose the actual charges from potentially available charges arises from " ' "the complex considerations necessary for the effective and efficient administration of law enforcement." ' " (Manduley v. Superior Court (2002) 27 Cal.4th 537, 552, citing People v. Birks, supra, 19 Cal.4th at p. 134.) Charging discretion includes a determination of whether the evidence warrants prosecution, a determination of the appropriate charges, and a determination of whether there is an alternative to formal criminal prosecution. (People v. Jerez, supra, at pp. 137-138.)
When an act violates more than one criminal statute, the government may prosecute under either so long as it does not discriminate against any class of defendants. Even if two statutes encompass exactly the same conduct, there is no constitutional infirmity when the prosecution decides to charge the harsher statute. (People v. Molina, supra, 120 Cal.App.4th at pp. 517-518, citing United States v. Batchelder (1979) 442 U.S. 114, 123-125.) Even if we assume section 484e, subdivision (b) and subdivision (d) are co-extensive, there was no constitutional prohibition to the charging of appellant under section 484e, subdivision (d), rather than subdivision (b), in counts 59 through 110.
3. Section 654
Section 654, subdivision (a) states:
"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."
Section 654 is intended to ensure that punishment is commensurate with a defendant's criminal culpability. (People v. Alvarado (2001) 87 Cal.App.4th 178, 196.) Whether a course of criminal conduct is divisible, depends upon the intent and objective of the actor. If all the offenses were incidental to, or the means of accomplishing one objective, the defendant may be found to have harbored a single intent and objective and may be punished only once. If the defendant harbored multiple or simultaneous objectives - independent of and not merely incidental to each other - the defendant may be punished for each violation committed in pursuit of each objective. This is true even though the violations share common acts or were parts of an indivisible course of conduct. Whether section 654 applies to a given case is a question of fact for the trial court. The trial court is vested with broad latitude in making its determination and its findings will not be reversed on appeal if there is any substantial evidence to support them. An appellate court reviews the trial court's determination in the light most favorable to the respondent and presumes the existence of every fact the trial court could reasonably deduce from the evidence. (People v. Jones (2002) 103 Cal.App.4th 1139, 1143.)
In the instant case, the sentencing court stated: "We have different victims here, different intents." The offenses charged in counts 59 through 110 involved separate victims, separate acts of acquiring and retaining possession of access card account information, and separate intents to use such information in a fraudulent manner. Given the broad latitude of the trial court in making a factual determination under section 654 and the presumption of correctness of that determination on appeal, we conclude the sentencing court's finding of different victims and intents was supported by substantial evidence.
DISPOSITION
The judgment of conviction is reversed as to count 47 and remanded for resentencing and preparation of an amended abstract of judgment. In all other respects, the judgment of conviction is affirmed.
Poochigian, J. WE CONCUR: Dawson, Acting P.J. Kane, J.