Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 09F02775.
HOCH, J.
A jury found defendant, John Nguyen, guilty of numerous felonies, including felony vandalism (Pen. Code, § 594), felony identity theft (§ 530.5, subd. (c)(1)), and burglary (§ 459). Defendant raises three issues on appeal: (1) his conviction for identity theft should be reduced to a misdemeanor; (2) his burglary conviction should be reversed because the trial court erred in instructing the jury; and (3) the sentences imposed on his burglary and identity theft convictions should be stayed pursuant to section 654.
Undesignated statutory references are to the Penal Code.
Finding each of defendant’s claims to have merit, we remand the matter for further proceedings consistent with this opinion.
BACKGROUND
Defendant and Glenn Castillo started dating in December 2008. In the first month of their relationship, defendant began showing signs of jealousy. Then, in March 2009, defendant and Castillo were in Castillo’s bedroom when they began arguing. During the argument, Castillo tried to leave the room but defendant grabbed him by the throat, pushed him back six feet, and wrestled him to the bed. Castillo was able to break free, but there were red marks on his neck where defendant grabbed him. Castillo repeatedly asked defendant to leave and eventually defendant did, but not before defendant told Castillo that he would “ruin” him if Castillo broke up with him.
A few weeks later, Castillo ended the relationship. Defendant continued to call Castillo and show up at Castillo’s house unannounced. So, out of fear, Castillo continued to be friendly with defendant. Despite Castillo’s efforts to “defuse the situation, ” defendant threatened Castillo with physical harm on two more occasions.
Then, in April 2009, Castillo went to his neighbors’ house for a barbeque. Defendant called Castillo on his cell phone and said he wanted to talk. Believing defendant would show up regardless, Castillo invited him to the neighbors’ house. Defendant arrived at the barbeque, but after less than an hour, defendant and Castillo went to Castillo’s house so they could talk in private.
At Castillo’s house, the discussion turned into a heated argument, during which defendant accused Castillo of cheating on him. Fearing for his safety, Castillo tried to leave the room but defendant grabbed his arm. Castillo pulled free and ran through the kitchen into the backyard and called for his neighbor. Defendant then calmed down and Castillo asked him to leave. Defendant left, but he took Castillo’s cell phone with him.
Castillo shut off service to his and defendant’s phones; both phones were on Castillo’s account. Castillo then returned to his neighbors’ house and told them he was leaving; that he was planning to stay at a hotel. Castillo’s neighbors, however, invited him to stay with them. Five minutes later, Castillo went home to gather his personal belongings. At his house, Castillo saw that fence boards had been ripped off the fence and screens were removed. After gathering his personal belongings, Castillo locked all the doors and windows and returned to his neighbors’ house.
Approximately one or two hours later, defendant returned to Castillo’s house and sat on the front porch. Castillo hid in the neighbors’ house while one of his neighbors went over to talk to defendant. They spoke for approximately 45 minutes before defendant left.
The following morning, Castillo received a phone call from a friend, Shirley Scriven. Shirley had a voicemail message for Castillo from defendant. In the message, defendant told Castillo “something happened” to defendant’s house. Feeling threatened again, Castillo called the police.
Castillo returned home with the police. Castillo’s cell phone was found near the back door, cut with pruning shears. Screens had been removed from the windows and cut with pruning shears, and a board was missing from the fence. The electrical line to Castillo’s spa was also cut with pruning shears and the contents of his outside freezer were thrown into the hot tub along with plants and dirt.
Inside the house, the officers found several notes written in defendant’s handwriting. In one note, defendant wrote: “I hope you had a good time last night, slut. By the way, I got all that I need; passport, safety box, checks, and your i.d.’s. Some stuff out of your work area. You wanted to treat me like shit. How does it feel? Well you went and turned off the phone, you cheap mother fucker asshole, laughing out loud. Look, I see very bad credit coming. [Castillo’s] info. Social security number [xxx-xx-xxx].”
The note went on, “You put me through hell. I hate you so much. I was your nigger. That’s all. You can have it all, asshole.” The note included Castillo’s birth date and his driver’s license number.
Castillo’s television had been doused with “personal lubricant used for sex.” Notes and condoms (packaged and unpackaged) were taped to the television. Castillo’s hardwood floors had been damaged by personal lubricant soaking into the floor and broken liquor bottles.
Some of Castillo’s personal property, including a $600 camera, was missing. Videotapes worth approximately $300 were destroyed. Also missing was a safe in which Castillo stored his personal documents, including his passport, his social security statements, and documents related to the house. Gold ingots worth approximately $750, which Castillo stored in a cottage on his property, were taken along with loose gem stones and a gold band.
Police officers later searched the apartment where defendant lived with his mother. Inside defendant’s bedroom, the officers found the safe that was stolen from Castillo’s house. Inside the safe, the officers found Castillo’s passport and the other personal documents he reported missing. Also found in defendant’s room were the loose gems and gold ingots taken from Castillo’s house.
Defendant was charged with making criminal threats (§ 422), false imprisonment (§ 236), misdemeanor battery against a person with whom defendant had a dating relationship (§ 243, subd. (e)(1)), burglary (§ 459), felony vandalism (§ 594), and felony identity theft (§ 530.5, subd. (c)(1)).
A jury found defendant guilty as charged. Defendant was sentenced to an aggregate term in prison of six years and eight months: four years for the burglary conviction; one-third the middle term of eight months for the remaining four felony convictions; and a concurrent six-month term for the misdemeanor battery. The court ordered defendant to pay numerous fines and fees and awarded him 309 days of custody credit (207 actual days and 102 days for conduct).
We conclude that the recent amendments to the statutes involving custody credits apply to defendant’s appeal. (See In re Estrada (1965) 63 Cal.2d 740, 745 [amendment to statute lessening punishment for crime applies “to acts committed before its passage provided the judgment convicting the defendant of the act is not final”]; People v. Doganiere (1978) 86 Cal.App.3d 237 [applying Estrada to amendment involving conduct credits]; People v. Hunter (1977) 68 Cal.App.3d 389, 393 [applying the rule of Estrada to amendment allowing award of custody credits].) However, the record on appeal reflects that defendant is among the prisoners excepted from the additional accrual of credit because he was committed for a serious felony, making criminal threats. (§ 4019, subds. (b)(2), (c)(2), as amended by Stats. 2009, 3d Ex. Sess. 2009-10, ch. 28, § 50; § 2933, as amended by Stats. 2010, ch. 426, § 1, eff. Sept. 28, 2010.) Consequently, defendant is not entitled to additional presentence custody credit.
Defendant appeals.
DISCUSSION
On appeal, defendant contends his conviction for felony identity theft must be reduced to a misdemeanor because he was charged and convicted of violating section 530.5, subdivision (c)(1), a misdemeanor, not section 530.5, subdivision (a), a “wobbler, ” which could be charged as either a felony or a misdemeanor. The People concede the conviction must be reduced. Having reviewed the law and the facts of this case, we accept the People’s concession.
Defendant also contends his conviction for burglary must be reversed because the trial court improperly instructed the jury on the target offenses. We agree.
To convict defendant of burglary, the People were required to prove that defendant entered a building “with intent to commit grand or petit larceny or any felony....” (§ 459.) On the charge of burglary, the jury was instructed as follows: “To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant entered a building; [¶] and [¶] 2. When he entered a building, he intended to commit the crimes charged in Count 5 or Count 6 of the Information –- Vandalism causing at least $400 in damage or Identity theft. [¶]... [¶]... The defendant does not need to have actually committed those crimes as long as he entered with the intent to do so.... [¶]... [¶]... You may not find the defendant guilty of burglary unless you all agree that he intended to commit one of those crimes at the time of the entry. You do not all have to agree on which one of those crimes he intended.”
As discussed above, the crime of identity theft with which defendant was charged and convicted is a misdemeanor –- not a felony. Accordingly, it was error for the trial court to instruct the jury that they could rely on that crime as a target offense for the burglary charge.
The People argue on appeal that misdemeanor identity theft qualifies as a target offense for burglary because it is another form of “larceny.” The People rely on section 490a, which states: “Wherever any law or statute of this state refers to or mentions larceny, embezzlement, or stealing, said law or statute shall hereafter be read and interpreted as if the word ‘theft’ were substituted therefor.” Thus, the People contend the definition of “grand or petit larceny” should be read to include the crime of misdemeanor identity theft. We are not persuaded.
Theft is a crime requiring that something be taken in order for the crime to be committed. Grand theft is committed “[w]hen the money, labor, or real or personal property taken is of a value exceeding four hundred dollars ($400).” (Former § 487.) “Theft in other cases is petty theft.” (§ 488 .)
Identity theft is a crime that cannot be committed only by taking something. Section 530.5, subdivision (c)(1), states in relevant part that “[e]very person who, with the intent to defraud, acquires or retains possession of the personal identifying information, as defined in subdivision (b) of Section 530.55, of another person is guilty of a public offense....” (Italics added.)
Thus, to commit the crime of identity theft, one must take personal identifying information and intend to use it to defraud the victim. (See People v. Mitchell (2008) 164 Cal.App.4th 442, 455 [discussing section 530.5, subd. (a): “it is the use of the identifying information for an unlawful purpose that completes the crime”].) We, therefore, reject the People’s argument that identity theft is a form of larceny.
The People also contend the erroneous instruction is harmless because defendant was convicted of felony vandalism, one of the target offenses. We disagree.
Proving defendant committed the crime of felony vandalism does not also prove defendant entered the building with the intent to vandalize the property. It is equally possible defendant entered the building with the intent to commit the misdemeanor identity theft, in which case, he would not be guilty of burglary. Because the jury was instructed that they need not agree on which crime defendant intended to commit when he entered the building, there may have been disagreement as to which crime defendant intended to commit when he entered the building. Accordingly, we cannot say the People proved the burglary charge beyond a reasonable doubt. We reverse the burglary conviction and remand the matter for further proceedings.
Defendant also argues that the sentences on his convictions for felony vandalism and identity theft must be stayed pursuant to section 654. The People concede the issue. These two convictions were the underlying offenses defendant intended to commit when he entered the victim’s house. Accordingly, section 654 permits punishment for burglary, but not the underlying offenses. We thus accept the People’s concession.
DISPOSITION
Defendant’s conviction for identity theft is reduced to a misdemeanor, defendant’s conviction for burglary is reversed due to instructional error, and defendant’s remaining convictions are affirmed. The People have six months from the date the remittitur issues to retry defendant on the burglary charge. If no retrial occurs, the trial court shall resentence defendant without the burglary conviction. After defendant has been resentenced consistent with this decision, the trial court is directed to prepare an amended abstract of judgment and forward the amended abstract of judgment to the Department of Corrections and Rehabilitation.
We concur: HULL, Acting P.J., BUTZ, J.