Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Appeal from a judgment of the Superior Court of Orange County No. 05HF0385, Gregg L. Prickett, Judge.
Anita P. Jog, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Sharon L. Rhodes and Sabrina Y. Lane-Erwin, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
BEDSWORTH, J.
Dat The Pham was convicted of 12 distinct crimes stemming from his use of false identification to purchase expensive items from Neiman Marcus on 3 separate occasions. He was sentenced by the court for each of those counts, with some of the sentences running concurrently and others running consecutively. He argues that pursuant to Penal Code section 654 , the court was obligated to stay all of the sentences other than those imposed in count 1 (commercial burglary on the first occasion), count 7 (commercial burglary on the second occasion), and counts 9 and 12 (commercial burglary and false personation on the third occasion). According to Pham, the acts he was found guilty of in the other counts are merely part of the same 3 “courses of conduct” for which he was already punished in counts 1, 7 and 9, and thus the court could not properly impose separate punishments for those crimes.
All further statutory references are to the Penal Code.
The Attorney General concedes Pham is correct in part, and we agree, although our analysis of the issue is not entirely consistent with that of the Attorney General. We agree with the Attorney General that a proper application of section 654 requires the court to stay execution of the sentences for counts 2, 8, and 10, each of which alleges a grand theft or attempted grand theft which is the product of a single intent already punished in connection with one of the 3 counts alleging commercial burglary (counts 1, 7, and 9, respectively).
However, we disagree with the Attorney General’s contention section 667, which governs sentencing in “Three Strikes” cases, creates an exemption to section 654 and prohibits its application to the other counts in this case. Section 654 does not restrict which sentences may be imposed in a particular case; instead, it requires only that certain sentences, even when properly imposed, must be stayed. It thus does not conflict with section 667.
And when we apply section 654 to the remaining counts in this case, we conclude the sentences imposed for some of them must be stayed. Specifically, the court was required to stay the sentences on 2 of the 3 crimes alleged in counts 3 through 5, because although the trial court could properly conclude the crimes alleged in those counts reflected a distinct objective from burglary and theft crimes alleged in counts 1 and 2, it could not conclude they also reflected a separate objective from each other. The sentence for count 6 should likewise have been stayed, because the charge alleged therein was necessarily the product of either the same objective as counts 1 and 2, or the same objective as counts 3 through 5. And finally, the court was required to stay execution of the sentence imposed for count 11, because the evidence supporting that crime was not sufficient to demonstrate Pham’s objective in committing it was distinguishable from his intent to steal the Cartier watches, for which Pham was already being punished in count 9. We consequently reverse the judgment and remand the case for the limited purpose of resentencing.
FACTS
On May 4, 2006, the prosecution filed an amended information charging Pham with 12 criminal counts. Pham waived his right to a jury, his right to confront and cross-examine witnesses, his right to call witnesses on his own behalf and his right to testify. The parties agreed to submit the case to the court for adjudication based upon the record of the preliminary hearing.
The facts constituting Pham’s crimes are undisputed for purposes of this appeal. On February 16, 2005, Pham went to a Neiman Marcus store. He applied for instant credit, using a driver’s license identifying him as Trong L. Luu, and a credit card bearing the same name. Luu is a real person, and it was later established he did not know Pham and had not given anyone permission to use his identification to make purchases. Pham obtained the instant credit, and then used it, backed by the driver’s license identifying himself as Luu, to purchase a Louis Vuitton purse worth $2,380. In connection with that incident, Pham was charged with the following counts: count 1, commercial burglary (§ 459); count 2, grand theft (§ 487); count 3, making a false financial statement (§ 532a); count 4, fraudulently using an access card (§ 484g); count 5, identity theft, (§ 530.5, subd. (a)); and count 6, possession of a forged driver’s license and identification card to facilitate forgery (§ 470b).
Section 532a provides in pertinent part: “(1) Any person who shall knowingly make or cause to be made, either directly or indirectly or through any agency whatsoever, any false statement in writing, with intent that it shall be relied upon, respecting the financial condition, or means or ability to pay, of himself, or any other person, firm or corporation, in whom he is interested, or for whom he is acting, for the purpose of procuring in any form whatsoever, either the delivery of personal property, the payment of cash, the making of a loan or credit, the extension of a credit, the execution of a contract of guaranty or suretyship, the discount of an account receivable, or the making, acceptance, discount, sale or indorsement of a bill of exchange, or promissory note, for the benefit of either himself or of such person, firm or corporation shall be guilty of a public offense. [¶] (2) Any person who knowing that a false statement in writing has been made, respecting the financial condition or means or ability to pay, of himself, or a person, firm or corporation in which he is interested, or for whom he is acting, procures, upon the faith thereof, for the benefit either of himself, or of such person, firm or corporation, either or any of the things of benefit mentioned in the first subdivision of this section shall be guilty of a public offense.”
Section 484g provides: “Every person who, with the intent to defraud, (a) uses, for the purpose of obtaining money, goods, services, or anything else of value, an access card or access card account information that has been altered, obtained, or retained in violation of Section 484e or 484f, or an access card which he or she knows is forged, expired, or revoked, or (b) obtains money, goods, services, or anything else of value by representing without the consent of the cardholder that he or she is the holder of an access card and the card has not in fact been issued, is guilty of theft. If the value of all money, goods, services, and other things of value obtained in violation of this section exceeds four hundred dollars ($400) in any consecutive six-month period, then the same shall constitute grand theft.”
Section 530.5, subdivision (a), provides: “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.”
Section 470b provides: “Every person who displays or causes or permits to be displayed or has in his possession any driver’s license or identification card of the type enumerated in Section 470a with the intent that such driver’s license or identification card be used to facilitate the commission of any forgery, is punishable by imprisonment in the state prison, or by imprisonment in the county jail for not more than one year.”
On February 17, 2005, Pham went back to the same Neiman Marcus store and sought to purchase another purse, worth in excess of $400. He again used the driver’s license identifying him as Luu, and attempted to charge the purse to the same instant credit account he had opened the day before. However, he was unsuccessful in completing the purchase, because the instant credit account had been “flagged” and further purchases were prohibited. Based upon this incident, Pham was charged with count 7, commercial burglary (§ 487), and count 8, attempted grand theft (§ 664/487, subd. (a).)
The Attorney General’s brief suggests Pham was using a different identification during the February 17 incident than he had on the prior day “[o]n February 17, 2005, appellant went to the same Neiman Marcus store and tried to buy a Gucci purse with yet another driver’s license that bore his photograph and a different person’s identifying information” but the record seems to us to establish he was using the same Trong Luu identification he had used the day before.
On March 5, 2005, Pham again went to the same Neiman Marcus store, and purchased two Cartier watches for a total price of $7,700. These purchases were charged to a credit account opened in the name of Hewie Ly, and Pham signed Ly’s name to the charge receipt. As Pham left the counter with the merchandise, he was detained by security.
When the police arrived at the Neiman Marcus store after Pham had been detained on March 5, he identified himself to them as Tuan Phan, and gave his birth date as July 5, 1970. However, Pham’s fingerprints were taken, and later used to ascertain his true identity. In connection with the incidents of March 5, Pham was charged with the following counts: count 9, commercial burglary (§ 487); count 10, attempted grand theft (§ 664/487, subd. (a)); count 11, forging an access card (§ 484f, subd. (a)); and count 12, false personation (§ 529, subd. (d).)
Section 484f provides: “(a) Every person who, with the intent to defraud, designs, makes, alters, or embosses a counterfeit access card or utters or otherwise attempts to use a counterfeit access card is guilty of forgery. [¶] (b) A person other than the cardholder or a person authorized by him or her who, with the intent to defraud, signs the name of another or of a fictitious person to an access card, sales slip, sales draft, or instrument for the payment of money which evidences an access card transaction, is guilty of forgery.”
Pham was convicted on all counts, and the court sentenced him to a total of 13 years and 8 months in prison. Specifically, the court imposed terms of 6 years (double the middle term) on count 1 (commercial burglary); concurrent 4-year terms (double the middle term) on counts 2 through 4 (grand theft, making a false financial statement, and fraudulent use of an access card); a consecutive 16 months (one-third the middle term doubled) on count 5 (identity theft); a concurrent 2 years on count 6 (possession of a forged identification); a consecutive 16 months (one-third the middle term doubled) on count 7 (commercial burglary); a concurrent 2 years (double the middle term) on count 8 (attempted grand theft); a consecutive 16 months (one-third the middle term doubled) on count 9 (commercial burglary); a concurrent 2 years (double the middle term) on count 10 (attempted grand theft); a consecutive 16 months (one third the middle term doubled) on count 11 (forging an access card); a consecutive 16 months (one third the middle term doubled) on count 12 (false personation.); and a consecutive one year on the prior prison enhancement.
Pham’s sole contention on appeal is that pursuant to section 654, the court was required to stay the sentences for all of his counts, other than the ones imposed on counts 1, 7, 9 and 12.
Section 654 provides in pertinent part: “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.” As explained by our Supreme Court in People v. Miller (1977) 18 Cal.3d 873, “Section 654 does not preclude multiple convictions but only multiple punishments for a single act or indivisible course of conduct. (See People v. Beamon (1973) 8 Cal.3d 625.) ‘The proscription against double punishment . . . is applicable where there is a course of conduct which violates more than one statute and comprises an indivisible transaction punishable under more than one statute . . . . The divisibility of a course of conduct depends upon the intent and objective of the actor, and if all the offenses are incident to one objective, the defendant may be punished for any one of them but not for more than one.’ (People v. Bauer (1969) 1 Cal.3d 368, 376.) In People v. Beamon, supra, 8 Cal.3d 625, we stated that section 654 is applicable to ‘limit punishment for multiple convictions arising out of either an act or omission or a course of conduct deemed to be indivisible in time in those instances wherein the accused entertained a principal objective to which other objectives, if any, were merely incidental.’ (Id. at p. 639, italics added.)” (People v. Miller, supra, 18 Cal.3d at p. 885, overruled on another ground as noted in People v. Oates (2004) 32 Cal.4th 1048, 1068, fn. 8.)
The issue of whether the defendant harbored a single or multiple objectives during a course of criminal conduct is treated as a factual question for the trial court to decide (People v. Coleman (1989) 48 Cal.3d 112, 162), and the trial court’s conclusion will not be overturned on appeal unless unsupported by substantial evidence. (People v. Sandoval (1994) 30 Cal.App.4th 1288, 1299.)
In this case, Pham argues that all of the crimes alleged in counts 1 through 6 were incident to a single objective: i.e., obtaining the Louis Vuitton purse on February 16, 2005. He likewise argues that counts 7 and 8 were both incident to the objective of obtaining the purses he tried for on February 17, 2005, and that counts 9 through 11 were all incident to his objective of obtaining the Cartier watches on March 5, 2005.
The Attorney General expressly concedes the point with respect to the 3 grand theft and attempted grand theft counts (2, 8, and 10). He acknowledges that each of those counts was committed on the same occasion, arose out of the same set of operative facts, and was incident to the same objective (theft of an item or items in the store) as the burglary count alleged to have occurred on the same date – counts 1, 7 and 9, respectively. Under those circumstances, the Attorney General agrees the sentences for counts 2, 8 and 10 were subject to section 654, and should have been stayed. So do we, and we consequently conclude the trial court erred in failing to stay execution of those sentences.
See People v. Centers (1999) 73 Cal.App.4th 84, 98: “Burglary consists of entry into a house or other specified structure with the intent to commit a felony. (§ 459.) Thus, ordinarily, if the defendant commits both burglary and the underlying intended felony, . . . section 654 will permit punishment for one or the other but not for both.”
However, according to the Attorney General, the “identity theft offenses” (counts 5 and 11) did not arise out of the same operative facts as the burglary counts, and were not committed on the same occasion, and were thus required to be sentenced consecutively pursuant to the Three Strikes sentencing statute (§ 667, subd. (c)(6).) Relying on People v. Danowski (1999) 74 Cal.App.4th 815, the Attorney General urges us to conclude such counts are “exempt” from the operation of section 654. We cannot. In Danowski, the court merely notes “[i]t could be argued that” section 667’s requirement that the court must impose consecutive sentences “notwithstanding any other law” “creates a legislative exception to section 654.” (Id. at p. 823.)
The argument can be – and now has been – made. But we are not yet persuaded by it. As explained in People v. Deloza (1998) 18 Cal.4th 585, 594, “section 654 is irrelevant to the question of whether multiple current convictions are sentenced concurrently or consecutively. Rather, if a defendant commits two crimes, punishment for one of which is precluded by section 654, that section requires the sentence for one conviction to be imposed, and the other imposed and then stayed. [Citation.] Section 654 does not allow any multiple punishment, whether concurrent or consecutive. [Citation.] Thus, the question of whether sentences should be concurrent or consecutive is separate from the question of whether section 654 prohibits multiple punishment.” (Italics added.)
As Deloza reflects, section 654 has no impact on the determination of which sentences may properly be imposed in a given case. Instead, it requires only that in certain cases, some of the sentences which have been properly imposed must be stayed. And while section 667 does expressly prohibit the court from staying “execution or imposition of the sentence . . . for any prior offense,” (§ 667, subd. (c)(2)), it contains no such prohibition relating to “the current offense.” Thus, the operation of section 654 does not conflict with the requirements of section 667.
Subdivision (c) of section 667 provides in pertinent part: “Notwithstanding any other law, if a defendant has been convicted of a felony and it has been pled and proved that the defendant has one or more prior felony convictions as defined in subdivision (d), the court shall adhere to each of the following: [¶] (1) There shall not be an aggregate term limitation for purposes of consecutive sentencing for any subsequent felony conviction. [¶] (2) Probation for the current offense shall not be granted, nor shall execution or imposition of the sentence be suspended for any prior offense. [¶] (3) The length of time between the prior felony conviction and the current felony conviction shall not affect the imposition of sentence. [¶] . . . [¶] (6) If there is a current conviction for more than one felony count not committed on the same occasion, and not arising from the same set of operative facts, the court shall sentence the defendant consecutively on each count pursuant to subdivision (e). [¶] (7) If there is a current conviction for more than one serious or violent felony as described in paragraph (6), the court shall impose the sentence for each conviction consecutive to the sentence for any other conviction for which the defendant may be consecutively sentenced in the manner prescribed by law.” (Italics added.)
By contrast, section 667.61, subdivision (h), does appear to prohibit the court from staying execution of a current sentence. It states that “[n]otwithstanding any other provision of law, probation shall not be granted to, nor shall the execution or imposition of sentence be suspended for, any person who is subject to punishment under this section.” That statute, however, is not applicable in this case.
But applying section 654 to the remaining counts in this case also does not require the court stay the execution of as many of the sentences imposed as Pham contends it does. Instead, we conclude the trial court could have properly concluded that the crimes alleged in counts 3 through 5 (making a false financial statement, fraudulent use of an access card, and identity theft) were not “merely incidental” to Pham’s principal goal of stealing the Louis Vuitton purse on February 16, 2005. The evidence supporting counts 3 through 5 was sufficient to demonstrate they were all based on Pham’s conduct in obtaining the fraudulent “instant credit” account he then used to obtain the purse. But according to the evidence, Pham also attempted to use that same account the very next day, to purchase two other purses at the same store. The evidence of Pham’s subsequent effort to utilize the same instant credit account was sufficient to support the trial court’s implicit conclusion the account was not merely intended to facilitate the theft of the first purse on February 16, 2005.
That being said, however, we cannot discern anything in the evidence supporting the crimes alleged in counts 3 through 5 that would support the conclusion they were carried out with any distinct objectives from each other. The evidence supporting those counts demonstrated that Pham used a driver’s license identifying him as Trong L. Luu, and a credit card bearing the same name, to fraudulently obtain an “instant credit” account in Luu’s name, without his permission, with the intent to use it as a means of obtaining goods from Neiman Marcus. The single objective of these crimes was to obtain the fraudulent credit account. Consequently, under section 654, Pham could be punished only once for those counts, and the court was required to stay execution of the sentence on 2 of those 3 counts.
However, under the terms of section 654, Pham is required to be punished “under the provision that provides for the longest potential term of imprisonment.”
The analysis for count 6, however, is slightly different. That count alleges a violation of section 470b, which applies to “[e]very person who displays or causes or permits to be displayed or has in his possession any driver’s license or identification card of the type enumerated in Section 470a with the intent that such driver’s license or identification card be used to facilitate the commission of any forgery . . . .” In this case, that count might relate to either Pham’s use of the false “Luu” driver’s license to obtain the instant credit, or his use of that driver’s license along with the instant credit, to obtain the Louis Vuitton purse. If it was the former, that crime was intended to facilitate the same objective (obtaining the instant credit account) as the other “identity theft” crimes (alleged in counts 3-5); if it was the latter, it was intended to facilitate the same objective (theft of the purse) as the burglary and theft crimes alleged in counts 1 and 2. Either way, execution of the sentence for count 6 should have been stayed pursuant to section 654.
The only remaining sentence in dispute is that imposed for count 11, which alleges a violation of section 484f, subdivision (a), forging an access card. That count applies to Pham’s use of a credit account in the name of “Hewie Ly” during his attempt to obtain the Cartier watches on March 5, 2005. As Pham points out, the prosecutor expressly acknowledged to the trial court that this count was based solely on that transaction: “The basis of that is his attempt to use the counterfeit access card, if you will, that he had, when he attempted to carry out the theft on that date. . . . [¶] . . . [¶] So in terms of what his actions are, it’s going up with a fraudulent access card in the name of Hugie Lai [sic] and using it in an attempt to purchase the watches.” That evidence demonstrates, as a matter of law, that the crime of forging an access card, alleged in count 11, was merely incident to Pham’s principal objective, which was to steal the Cartier watches. Because that objective was already punished in connection with count 9, section 654 obligated the court to stay execution of the sentence in count 11 as well.
The judgment is reversed, and the case is remanded to the trial court for the limited purpose of resentencing Pham in accordance with this opinion.
WE CONCUR: RYLAARSDAM, ACTING P. J., O’LEARY, J.