Opinion
E051927Super.Ct.No. BLF004410
08-24-2011
THE PEOPLE, Plaintiff and Respondent, v. JULIAN MONTEZ, Defendant and Appellant.
Richard Power, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and James D. Dutton and Michael T. Murphy, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 the Superior Court of Riverside County. James S. Hawkins, Judge. Affirmed with directions.
Richard Power, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and James D. Dutton and Michael T. Murphy, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Julian Montez was convicted of 29 counts, including conspiring with other persons to obtain access card information, committing identity theft, false impersonation, and possessing stolen property; he also was found guilty of possession of stolen property, identity theft, and obtaining credit card information on his own.
Defendant now claims as follows:
1. There was insufficient evidence of two counts of conspiracy to obtain access card information (Pen. Code, §§ 182, subd. (a)(1), 484e, subd. (d)) and one count of conspiracy to commit identity theft (§§ 182, subd. (a)(1), 530.5, subd. (a)).
2. He is entitled to additional presentence conduct credits pursuant to section 4019.
All further statutory references are to the unless otherwise indicated.
I
PROCEDURAL BACKGROUND
Defendant was convicted of conspiracy to obtain access card information (§§ 182, subd. (a)(1), 484e, subd. (d)) (count 1) and conspiracy to commit identity theft (§§ 182, subd. (a)(1), 530.5, subd. (a)) (count 2) against victim Jean Cluster; conspiracy to obtain access card information (§§ 182, subd. (a)(1), 484e, subd. (d)) (count 3) and conspiracy to commit identity theft (§§ 182, subd. (a)(1), 530.5, subd. (a)) (count 13) against victim Larry O'Connell; conspiracy to obtain access card information (§§ 182, subd. (a)(1)), 484e, subd. (d)) (count 18) and conspiracy to commit identity theft (§§ 182, subd. (a)(1), 530.5, subd. (a)) (count 19) against victim Kim Green; conspiracy to obtain access card information (§§ 182, subd. (a)(1), 484e, subd. (d)) (count 22) against victims Jean and Emerson Beckstead; two counts of conspiracy to commit false impersonation (§§ 182, subd. (a)(1), 529, subd. (3)) (counts 23 & 25), five counts of conspiracy to commit identity theft (§§ 182, subd. (a)(1), 530.5, subd. (a)) (counts 24, 26, 27, 28, & 29), five counts of conspiracy to possess stolen property (§§ 182, subd. (a)(1), § 496) (counts 31, 33, 37, 38, & 39), two counts of obtaining access card information (§ 484e, subd. (d)) (counts 40 & 41), identity theft (§ 530.5, subd. (a)) (counts 51 & 54), and false impersonation (§ 529, subd. (3)) (count 55) against victim Dennis Roubideaux; obtaining access card information (§ 484e, subd. (d)) (count 52); and four misdemeanor counts of possession of stolen property (§ 496, subd. (a)) (counts 57, 60, 61, & 62).
Defendant was charged with several other offenses, but the People dismissed several of the charges after the presentation of evidence. Further, the jury found defendant not guilty of several of the charges.
The trial court sentenced defendant to three years on count 2, the principal count. On counts 19, 24, 25, 26, 37, 51, 52, and 54, the trial court imposed eight months on each count. All the sentences were ordered to run consecutive to each other. Sentences on the remaining felony counts were stayed, and the misdemeanor counts were ordered to run concurrently with the sentence. Defendant received a total sentence of eight years four months.
II
FACTUAL BACKGROUND
A. Credit Card Numbers Taken from Reynolds RV Resort
Windy Holt lived in Blythe. In October 2006 she began working for Reynolds RV Resort (the RV resort). Holt was able to gain access to credit card information when customers made reservations at the RV resort. She wrote the credit card numbers and personal identification numbers on scraps of paper that she took home. She kept the scraps of paper on her desk in plain view.
Prior to defendant's trial, Holt pleaded guilty to a violation of conspiracy to commit credit card fraud. (§§ 182, subd. (a)(1), 484, subd. (c).)
The resort was also known as Riviera Marina.
Customers from whom Holt obtained credit card information included Jean Cluster, Kim Green, Emerson and Jean Beckstead, Larry O'Connell, and Harold Kwan. Holt did not have permission from any of the above referenced individuals to take their credit card information and use it to make purchases.
Harold Kwan stayed at the RV resort in December 2006. Kwan did not give anyone at the resort permission to use his address, name, or credit card. Kwan did not know defendant. The Becksteads also stayed at the RV resort. The Becksteads did not give Holt or anyone else permission to use their credit card.
On December 31, 2006, a wire transfer was attempted through Western Union Financial Services to one Donna Diaz from a credit card number belonging to Green. The transfer was stopped by Western Union because it appeared fraudulent. Holt and Diaz had been friends for a long period of time. Diaz had access to the desk in Holt's home.
Holt denied she was involved in a wire transfer from Green's credit card to Diaz. Holt had met defendant one time, sometime during 2006, while he was with Diaz at a gas station. Holt had already entered a guilty plea prior to testifying. Holt believed Diaz lived at 1611 East 14th Avenue in Blythe.
B. Items Taken from Dennis Roubideaux
In July 2006, Dennis Roubideaux lived on 14th Avenue in Blythe. He lived across the street from 1611 East 14th Avenue. Roubideaux never ordered items (including a computer) and had them delivered to the 1611 East 14th Avenue address. Roubideaux did not know defendant.
In July 2006, Roubideaux was hospitalized and left his home unoccupied for two weeks. When he returned to his home, he discovered several items were missing, including a safe. Inside the safe were his passport, discharge papers from the Navy (DD-214 form), and his birth certificate. Roubideaux did not give defendant permission to take these items. Roubideaux did not have a California identification card and did not give anyone permission to obtain one. He had applied for one in 2005 (but never received one), and the application papers had been taken from his home. Roubideaux did not have an account at Union Bank and never applied for a credit card at that bank.
On January 4, 2007, defendant used a credit card at the Blythe Union Bank ATM to withdraw $302.50. The credit card used at the ATM was obtained on December 22, 2006. The card was issued in the name of Dennis Roubideaux, and the application listed the home address as 1611 East 14th Avenue. In addition, a purchase was made at an online computer store in the amount of $648.90 on January 8, 2007, using the same credit card. The credit card had a total of $2,761.05 charged on it.
C. Defendant's Apprehension
Riverside County Deputy Sheriff Matthew Morelock was working patrol on January 11, 2007. He observed a vehicle with expired registration tags. Ziporah Paxtonwas driving the vehicle, and defendant was in the passenger seat. Defendant was searched. He had Roubideaux's DD-214 form and a memory disk for a computer in one of his pockets. Defendant told Deputy Morelock that his friend Roubideaux left the items at his house, and he was trying to return them.
Paxton pleaded guilty prior to defendant's trial to possession of stolen property (§ 496) for the computer. Holt claimed to have first met Paxton while in jail on the current charges.
A search of the car revealed Roubideaux's passport, a laptop computer, and a compact disc (CD) case with paperwork inside. Roubideaux's passport was on the floorboard of the passenger side. Paxton claimed the computer belonged to her. In the CD case, there was a receipt in Roubideaux's name for the computer and a receipt for the computer memory stick found in defendant's pocket.
Riverside County Sheriff's Detective Jon Miles took over the case. Inside the CD case, Detective Miles also recovered credit card information belonging to Kwan, Cluster, and the Becksteads.
Information and credit card numbers for several other person not involved in the instant case were also found in the CD case. Three letters addressed to Roubideaux at 1611 East 14th Avenue from HSBC bank, Union Bank, and GE Money Bank refusing to issue a credit card were also in the CD case.
Detective Miles went to 1611 East 14th Avenue. Diaz was at the location. Diaz produced utility bills in her name and in Roubideaux's name.
Defendant presented no evidence.
III
SUFFICIENCY OF THE EVIDENCE
Defendant claims on appeal that the evidence was insufficient to support his conviction for conspiracy to obtain access card information and conspiracy to commit identify theft (counts 18 & 19) against victim Green. He additionally claims there was insufficient evidence that he committed conspiracy to obtain access card information (count 22) against the Becksteads.
Counts 18 and 19 involved the taking of Green's credit card number from the RV resort and the attempt by Diaz to have a wire transfer of money to her. Count 22 involved the possession by defendant when he was apprehended by police of a scrap of paper bearing Kwan's name and the Becksteads' credit card number.
"In reviewing a claim [regarding the] sufficiency of the evidence, we must determine 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 or special circumstance beyond a reasonable doubt. We review the entire record in the light most favorable to the judgment below to determine whether it discloses sufficient evidence—that is, evidence that is reasonable, credible, and of solid value—supporting the decision, and not whether the evidence proves guilt beyond a reasonable doubt. [Citation.] We neither reweigh the evidence nor reevaluate the credibility of witnesses. [Citation.] We presume in support of the judgment the existence of every fact the jury reasonably could deduce from the evidence. [Citation.] If the circumstances reasonably justify the findings made by the trier of fact, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citation.]" (People v. Jennings (2010) 50 Cal.4th 616, 638-639.)
All three charges of which defendant complains involve convictions for conspiracy. "A conviction of conspiracy requires proof that the defendant and another person had the specific intent to agree or conspire to commit an offense, as well as the specific intent to commit the elements of that offense, together with proof of the commission of an overt act 'by one or more of the parties to such agreement' in furtherance of the conspiracy. [Citations.]" (People v. Morante (1999) 20 Cal.4th 403, 416.) The formation and existence of a conspiracy may be inferred from all circumstances tending to show the common intent and proved by both direct and circumstantial evidence. (People v. Calhoun (1958) 50 Cal.2d 137, 144.)
"[I]t is not necessary to demonstrate that the parties met and actually agreed to undertake the unlawful act or that they had previously arranged a detailed plan. The evidence is sufficient if it supports an inference that the parties positively or tacitly came to a mutual understanding to commit a crime. Therefore, conspiracy may be proved through circumstantial evidence inferred from the conduct, relationship, interests, and activities of the alleged conspirators before and during the alleged conspiracy." (People v. Prevost (1998) 60 Cal.App.4th 1382, 1399.)
Both counts 18 and 22 charged defendant with conspiracy to acquire access card information under section 484, subdivision (e). "Section 484e, pertains to crimes in which a person 'acquires' (§ 484e, subds. (b)-(d)), 'retains' (§ 484e, subds. (c) & (d)), 'sells, transfers, or conveys' (§ 484e, subd. (a)) an access card." (People v. Cordell (2011) 195 Cal.App.4th 1564, 1578.) Count 19 involved identity theft under section 530.5, subdivision (a). Section 530.5, subdivision (a) provides, in pertinent part: "Every person who willfully obtains personal identifying information . . . 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 . . . ." "In order 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. [Citation.]" (People v. Mitchell (2008) 164 Cal.App.4th 442, 455.)
Defendant does not complain that the elements of the resulting crimes were not shown by the evidence. Rather, he insists that he was not a party to an agreement with either Holt or Diaz with respect to the taking and use of the credit card numbers of Green and the Becksteads.
The People argued in closing that defendant's intent for all of the crimes was shown by all of the evidence. The People admitted it did not know who started the conspiracy or the flow of information between defendant, Diaz, Holt, and Paxton. The People relied upon the connection between defendant and Diaz. Holt testified she had seen them together. Diaz and defendant were both using the same stolen information (Roubideaux's). Diaz had access to the credit card numbers, but defendant ended up with them in his possession. The People only had to prove a conspiracy between defendant and Diaz.
The evidence supports defendant's convictions on counts 18, 19, and 22. Holt obtained the credit card information from Green when Green reserved a spot at the RV resort. Holt wrote Green's name and credit card number on a scrap of paper and took it home. She put the piece of paper on her desk. Diaz had access to the desk. On December 31, 2006, there was an attempt to make a wire transfer from Green's credit card to Diaz.
The People in their argument admitted that defendant was not in possession of Green's credit card number when stopped by police. However, Diaz attempted to use the credit card for a wire transfer. The People argued that the wire transfer occurred "well after the Diaz/[defendant] conspiracy had been already in operation with the use of the Roubideaux information, the opening of the Chase Card on 12-22." Under the conspiracy they had together, defendant was guilty.
As noted by the People, the conspiracy between Diaz and defendant to use Roubideaux's information had already begun when Diaz attempted to wire transfer money to herself from Green's credit card. Prior to this, defendant had obtained the credit card in Roubideaux's name and had used Diaz's address. Defendant was caught in possession of other scraps of paper (presumably written by Holt since no conflicting evidence was presented) that contained other credit card numbers and names of persons who stayed at the RV resort. Based on the circumstantial evidence, the jury could reasonably conclude that defendant and Diaz had entered into an agreement to use the credit card numbers in their possession to obtain goods and money. All the People had to prove through circumstantial evidence was that a conspiracy existed and it could be "inferred from the conduct, relationship, interests, and activities of the alleged conspirators before and during the alleged conspiracy." (People v. Prevost, supra, 60 Cal.App.4th at p. 1399.) Diaz and defendant clearly knew each other and were working together in using Roubideaux's information. "'[I]t is not necessary that a party to a conspiracy shall be present and personally participate with his co-conspirators in all or any of the overt acts.' [Citation.]" (People v. Morante, supra, 20 Cal.4th at p. 417.) The evidence supports that defendant and Diaz were involved in a large-scale scheme together, and this reasonably included acquiring and retaining Green's credit card and the attempted wire transfer of money between Green's credit card and Diaz.
As for count 22, the People argued that it involved the conspiracy to possess access card information with respect to the Becksteads' account information. Defendant was found in possession of the Becksteads' credit card information, even though it appeared under Kwan's name on the piece of paper in defendant's possession.
Defendant complains there is no connection between either Holt or Diaz and defendant in this crime. Holt had obtained the Beckstead's information but provided no connection between her and defendant. However, the People did not argue there was a connection between Holt and defendant. Rather, the People argued that Diaz obtained the information and gave it to defendant. Defendant ignores the fact that he was in possession of the scrap of paper containing the Becksteads' credit card number. Evidence was presented that Diaz obtained the credit card information and it was reasonable for the trier of fact to conclude that Diaz passed it on to defendant. The jury could reasonably conclude, based on the totality of the evidence showing a conspiracy between defendant and Diaz, that Diaz and defendant conspired together to acquire and retain the Becksteads' credit card information.
The evidence presented supported defendant's convictions in counts 18, 19, and 22.
IV
SECTION 4019 CREDITS
In his supplemental brief, defendant contends he is entitled to two additional days of conduct credits under amended section 4019 that became effective January 25, 2010.
Defendant committed the offenses in 2006 and 2007. On September 24, 2010, defendant was sentenced to eight years four months in state prison. Apparently relying on calculations recommended by the probation department, the trial court awarded defendant 79 days of actual custody credits. The trial court awarded defendant two days of section 4019 conduct credit for time (four days) spent in custody prior to January 25, 2010. Defendant was given enhanced credits for the time spent after January 25, 2010 (75 days), in the amount of 74 days. Hence, he received 76 days of conduct credit under both the former and amended section 4019.
When defendant's crimes were committed, section 4019 provided that a defendant was entitled to two days of conduct credit for every four days of presentence custody. (Former § 4019, amended by Stats. 1982, ch. 1234, § 7, p. 4553.) Effective January 25, 2010, however, section 4019 was amended so as to provide that a defendant is entitled to two days of conduct credit for every two days of presentence custody. (Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28, § 50, pp. 4427-4428.)
Sections 4019 and 2933 were amended again on September 28, 2010, by Senate Bill No. 76; the amendments were effective immediately. (Stats. 2010, ch. 426, § 5, pp. 2088-2089.) We refer to pre-January 25, 2010 section 4019 as former section 4019, and January 25, 2010, to September 27, 2010, section 4019 as amended section 4019.
This issue of retroactive application of the current version of section 4019 has caused a split of authority in the Courts of Appeal, and that question is currently before the Supreme Court. (People v. Brown (2010) 182 Cal.App.4th 1354, review granted June 9, 2010, S181963.) As it will have the last word on the subject, we discuss the issue only summarily.
The California Supreme Court granted review of People v. Brown, supra, 182 Cal.App.4th 1354, 1363-1365, which held that the amendments applied retroactively, and People v. Rodriguez (2010) 183 Cal.App.4th 1, 13, review granted June 9, 2010, S181808, which held that the amendments were not retroactive.
Under section 3, "'[a] new statute is generally presumed to operate prospectively absent an express declaration of retroactivity or a clear and compelling implication that the Legislature intended otherwise. [Citation.]' [Citation.]" (People v. Alford (2007) 42 Cal.4th 749, 753.) Neither the bill that amended section 4019 nor the legislative history contains any such clear and compelling implication.
Indeed, there is one indication that the Legislature did not intend the amendment to be retroactive. Section 2933.3, subdivision (d), as amended by the same bill, provides that for prison inmates who have completed training as firefighters after July 1, 2009, an enhanced credit for prison time will apply retroactively to July 1, 2009. (§ 2933.3, subds. (b), (c), amended by Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28, § 41, p. 4422.) Implicitly, but necessarily, all other enhanced credits for all other defendants are prospective only.
In any event, the issue here is not whether amended section 4019 should be applied retroactively or prospectively, but whether amended section 4019 applies to all presentence custody, even those that occurred prior to January 25, when a defendant is sentenced after the effective date of the amendment.
A defendant sentenced to state prison receives credit against the term of imprisonment for actual days spent in custody prior to sentencing. (§ 2900.5, subd. (a).) A defendant, who satisfactorily performs assigned labor (§ 4019, subd. (b)) and complies with all rules and regulations (id., subd. (c)) may also earn additional presentence credit. "'Conduct credit' collectively refers to worktime credit pursuant to section 4019, subdivision (b), and to good behavior credit pursuant to section 4019, subdivision (c). [Citation.]" (People v. Dieck (2009) 46 Cal.4th 934, 939, fn. 3.) As set forth, ante, under the former version of section 4019, a defendant earns two days of conduct credit for every four actual days served in local custody. In October 2009, the Legislature passed Senate Bill No. 18, which amended section 4019 to increase conduct credits for defendants who have no current or prior convictions for serious or violent felonies and who are not required to register as sex offenders. (§ 4019, subds. (b)(1), (c)(1).) Under the amendment, effective January 25, 2010, defendants are now eligible to earn two days of conduct credit for every two days of actual custody. (Ibid.)
The California Supreme Court has stated: "'[T]he court imposing a sentence' has responsibility to calculate the exact number of days the defendant has been in custody 'prior to sentencing,' add applicable good behavior credits earned pursuant to section 4019, and reflect the total in the abstract of judgment. (§ 2900.5, subd. (d) . . . .)" (People v. Buckhalter (2001) 26 Cal.4th 20, 30.) "The presentence credit scheme, section 4019, focuses primarily on encouraging minimal cooperation and good behavior by persons temporarily detained in local custody before they are convicted, sentenced, and committed on felony charges." (Id. at p. 36.) Section 4019 allows a defendant to accrue credits prior to being sentenced by performing assigned labor (§ 4019, subd. (b)(1)) or by his or her good behavior (id., subd. (c)(1)). Both types of presentence credits are collectively referred to as "conduct credit[s]." (People v. Dieck, supra, 46 Cal.4th at p. 939, fn. 3.)
"Everyone sentenced to prison for criminal conduct is entitled to credit against his term for all actual days of confinement solely attributable to the same conduct. [Citations.]" (People v. Buckhalter, supra, 26 Cal.4th at p. 30.) The previous version of section 4019 granted fewer presentence custody credits. The 2010 modified version of section 4019, which was in effect when defendant was sentenced, applies to those persons confined in a county jail or other equivalent specified facility for time served, "including all days of custody from the date of arrest to the date on which the serving of the sentence commences, under a judgment of imprisonment" (§ 4019, subd. (a)(1)) or, alternatively, to those confined in such institutions "following arrest and prior to the imposition of sentence for a felony conviction" (id., subd. (a)(4); accord, People v. Johnson (2004) 32 Cal.4th 260, 265). Assuming a person is not required to register as a sex offender and is not being committed to prison for, or have not suffered a prior conviction of, a serious felony as defined in section 1192.7 or a violent felony as defined in section 667.5, subdivision (c), he or she will be entitled to calculation credits as a term of four days will be deemed to have been served for every two days spent in actual custody. (§ 4019, subd. (f).)
The previous version of section 4019 provided for presentence custody credits for: "Persons detained in a specified city or county facility, or under equivalent circumstances elsewhere . . . 'prior to the imposition of sentence' may also be eligible for good behavior credits of up to two additional days for every four of actual custody. [Citations.] One such additional day is awarded unless the detainee refused to satisfactorily perform assigned labor, and a second such additional day is awarded unless the detainee failed to comply with reasonable rules and regulations." (People v. Buckhalter, supra, 26 Cal.4th at p. 30, fn. omitted.)
Here, defendant committed his crimes before the amendment to section 4019 became effective. He was sentenced after the amendment became effective. Accordingly, based on the foregoing, defendant was required to be awarded conduct credits under the amended statute. However, the trial court awarded defendant presentence credits based on the two different versions of section 4019. This was an error because section 4019 contains no provision for such a two-tiered division of the presentence custody credits. In addition, the previous version of section 4019 was no longer valid at the time of defendant's sentencing. Hence, the trial court could not apply the previous statute to defendant's sentence.
Accordingly, defendant is entitled to two additional days of conduct credit, for a total of 78 days of presentence conduct credit for his time spent in actual custody prior to sentencing.
V
DISPOSITION
The judgment is modified to award defendant an additional two days of presentence conduct credits, for a total of 78 days of presentence conduct credit. The trial court is directed to amend the minute order of September 24, 2010, and the abstract of judgment, to reflect 78 days of presentence credit and 157 total days of credit and to forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation. (§§ 1213, 1216.) The judgment as thus modified is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RICHLI
J.
We concur: RAMIREZ
P.J.
HOLLENHORST
J.