Opinion
B225219
12-15-2011
THE PEOPLE, Plaintiff and Respondent, v. WILBERT HICKS, Defendant and Appellant.
Susan Morrow Maxwell, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan Sullivan Pithey and David Zarmi, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. NA084539)
APPEAL from a judgment of the Superior Court of Los Angeles County. Charles D. Sheldon, Judge. Affirmed.
Susan Morrow Maxwell, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan Sullivan Pithey and David Zarmi, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Wilbert Hicks of two counts of felony theft of access card information (Pen. Code § 484e, subd. (d).) On appeal, Hicks contends: (1) He should have been prosecuted under section 484e, subdivision (c), petty theft of an access card; (2) the trial court erred in failing to sua sponte instruct the jury on the corpus delicti rule; and (3) the trial court prejudicially modified an instruction on the sufficiency of the testimony of one witness. Hicks also asks us to review the trial court's determination on Pitchess discovery that took place in an in camera hearing. We affirm the judgment.
All further statutory references are to the Penal Code.
Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).
FACTS
We summarize the facts in accordance with the usual rules on appeal. (People v. Virgil (2011) 51 Cal.4th 1210, 1263.) On January 4, 2010, Rafael Avalos accidentally left his wallet at a gas station convenience store. When he returned to the store a short time later, his wallet was gone. The wallet contained two credit cards issued to him. Avalos cancelled both cards.
Hicks found the credit cards at the gas station and picked them up. He tried to use the cards to buy gas at two different gas stations, but was unable to enter the correct zip code at the gas pump. On January 19, 2010, police stopped Hicks in a car after noticing the car's registration was expired. Hicks gave the police a photocopy of a driver's license. The name on the driver's license was Herbert Mannery. Police found traffic citations issued to Hicks in his wallet. A search of DMV records revealed that Hicks was not Mannery. Hicks was arrested. While searching the car, police found Avalos's two credit cards. Hicks later told police he had tried to use the cards to buy gas. He gave the police a copy of his brother's driver's license because he thought there was an outstanding warrant for his arrest and he did not want to be identified.
Mannery was Hicks's brother.
A jury convicted Hicks of two counts of felony theft in violation of section 484e, subdivision (d). Hicks admitted suffering four prior convictions within the meaning of section 667.5, subdivision (b), and one strike within the meaning of the Three Strikes law (§§ 1170.12, subds. (a)-(d), 667(b)-(i)). The trial court sentenced Hicks to a total prison term of 5 years.
DISCUSSION
I. Hicks Was Properly Prosecuted Under Penal Code Section 484e, subdivision (d)
Hicks contends he should have been prosecuted under section 484e, subdivision (c), instead of section 484e, subdivision (d). Section 484e, subdivision (c) provides: "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." Section 484d, subdivision (2) defines access card as "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." Under section 484e, subdivision (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." The statute does not define "access card account information."
Hicks argues section 484e, subdivision (c), applies to one who acquires or retains a credit card with fraudulent intent, while section 484e, subdivision (d), should apply to one who possesses credit card account information, but not the card itself. Our colleagues in Division 5 of this appellate district rejected this argument in People v. Molina (2004) 120 Cal.App.4th 507 (Molina). In that case, the victim cancelled and discarded a credit card. The defendant was later found in possession of the cancelled credit card and was convicted of violating section 484e, subdivision (d). (Id. at p. 511.) On appeal, the defendant argued "mere fraudulent possession of an access card," a misdemeanor under section 484e, subdivision (c), "may not also constitute fraudulent possession of access card account information in violation of . . . section 484e, subdivision (d), a wobbler." (Id. at p. 517.) The defendant contended " 'access card account information' . . . should be construed as meaning 'something other than the access card itself,' in order to give effect to legislative intent." (Id. at p. 518.)
The Molina court noted the defendant "fraudulently possessed an access card validly issued to another person without consent. An access card account number is both an access card [citation] and access card account information. Thus, defendant by his fraudulent possession of [the victim's] credit card probably violated both subdivisions (c) and (d) of Penal Code section 484e. However, it is not the case that a violation of subdivision (c) is also always a violation of subdivision (d). Subdivision (d) applies only to an access card validly issued to another. A defendant may violate subdivision (c) by possession of an incomplete, blank, or counterfeit card. [Citation.] Incomplete, blank or counterfeit cards would not have been validly issued to another person. Thus, the two subdivisions are not coextensive." (Molina, supra, 120 Cal.App.4th at p. 517.)
The court rejected the defendant's legislative intent argument with the following analysis:
"Although access card account information is not defined in the statute, the plain and commonsense meaning of the phrase includes the name of the cardholder, the account number, the expiration date and the magnetic stripe on the back of the card. (See, e.g., Pen. Code, § 484i, subd. (b) ['access card account information on any part of an access card, including information encoded in a magnetic stripe'].) Thus, possession of a validly issued access card of another necessarily means possession of account information with respect to an access card validly issued to another. As we have previously discussed, there is some overlap between subdivision (c) and subdivision (d), although they are not coextensive. We conclude Penal Code section 484e is clear and unambiguous in this regard." (Molina, supra, 120 Cal.App.4th at p. 518.)
The court also concluded there was no contrary legislative intent. Following an analysis of the history of section 484e, subdivision (d)'s enactment in 1994, and subsequent amendments, the court concluded: "Thus, confronted with a clear choice, the Legislature expressly provided that fraudulent possession of account information with respect to an access card validly issued to another would continue to constitute grand theft. [¶] . . . A construction of Penal Code section 484e, subdivision (d) to include the information which appears on a validly issued access card of another is consistent with the plain language of the statute and the legislative intent." (Molina, supra, at p. 519.)
Hicks disagrees with the Molina decision. He argues the Legislature must have intended section 484e, subdivision (d) to address "sophisticated, planned criminal activity," "a pattern of criminal activity involving theft of identity and goods," or the "criminal who has painstakingly acquired someone else's access card account information." We, like the Molina court, must reject this argument based on the plain language of the statute, as well as the legislative history. Hicks does not address the Molina court's analysis that when a criminal possesses a validly issued access card - at least when that card is a credit or debit card - he or she also possesses access card account information in the form of the information on the card itself. Here, Hicks had access card account information contained on Avalos's credit cards, including information encoded in the magnetic stripe. Hicks attempted to use that information when he tried to purchase gas with the cards.
We note that "access card" has a broad definition, and includes "means of account access" other than tangible cards. Molina, like this case, concerned credit cards. But in People v. Butler (1996) 43 Cal.App.4th 1224, 1244 (Butler), the court concluded a cloned cellular phone constituted an "access card." That court was not called upon to determine whether the defendant possessed both an access card and access card account information.
Moreover, as the Molina court also noted, the Legislature chose to enact a broad provision prohibiting theft of access card account information. The legislative history reveals that the Legislature's concern in enacting the provision was a crime in which criminals took information from the magnetic stripe of one credit card, and used it to modify another card. Thus, when a person used the altered card, charges were accrued on an innocent victim's account. Yet while this was the motivating problem, the Legislature did not limit the provision to the magnetic stripe crime, and instead enacted the provision applying to any fraudulent use of access card account information. (Molina, supra, 120 Cal.App.4th at pp. 518-519.) Despite modifications to the original language of the bill introducing the provision, and subsequent amendments to section 484e in 1998, the Legislature did not add language to the account information provision limiting it to conspiracies, patterns of criminal activity, or other more "sophisticated" criminal behavior.
Hicks also argues he could not be prosecuted under section 484e, subdivision (d) because of the principle of statutory interpretation often referred to as the Williamson rule. "Under the Williamson rule, if a general statute includes the same conduct as a special statute, the court infers that the Legislature intended that conduct to be prosecuted exclusively under the special statute. In effect, the special statute is interpreted as creating an exception to the general statute for conduct that otherwise could be prosecuted under either statute. [Citation.]" (People v. Murphy (2011) 52 Cal.4th 81, 86 (Murphy).)
In re Williamson (1954) 43 Cal.2d 651 (Williamson).
We disagree with Hicks's assumption that section 484e, subdivision (d) is a general statute, and section 484e, subdivision (c) is a more specific, or "special" statute. Both provisions address specific forms of access card-related fraud crimes. Although the two provisions have significant areas of overlap, section 484e, subdivision (d) does not encompass a broader range of conduct than section 484e, subdivision (c). The two provisions are not comparable to a general statute prohibiting the offering of a false instrument for filing in a public office and a specific statute prohibiting the filing of a false report of vehicle theft (Murphy, supra, 52 Cal.4th at pp. 84-85), or a general statute prohibiting theft and a specific statute dealing with welfare fraud. (People v. Gilbert (1969) 1 Cal.3d 475, 481). The Williamson rule does not apply if one statute is not more specific than the other. (Turner v. Association of American Medical Colleges (2011) 193 Cal.App.4th 1047, 1065; People v. Parrish (1985) 170 Cal.App.3d 336, 345-346; People v. Bertoldo (1978) 77 Cal.App.3d 627, 633.)
Indeed, one could argue section 484e, subdivision (c) is the more general provision, particularly in light of the statute's broad definition of "access card." We also note that since a 1967 amendment to the then credit card crimes statute, courts have held the general/specific rule does not prevent a defendant from being prosecuted under a "general" statute, where either the general or specific statute is one of the offenses identified under now section 484d, et seq. The 1967 amendment included an uncodified provision (section 8) that explicitly stated the act was not to be construed to preclude the applicability of any other provision of the criminal law applying then, or in the future, to a transaction violating the act. This clear statement of legislative intent rendered the general/specific rule inapplicable, at least when applied to compare section 484d, et seq. and other penal code statutes. (Butler, supra, 43 Cal.App.4th at pp. 1243-1244; People v. Liberto (1969) 274 Cal.App.2d 460, 464; cf. People v. Gingles (1973) 32 Cal.App.3d 1030, 1038 ["The fact that section 8 may be construed to permit only overlapping with statutes not embraced within chapter 1395 of the 1967 statutes and not overlapping within the provisions of that chapter, does not require a different conclusion."].)
In Butler, supra, 43 Cal.App.4th 1224, the court noted that "in expressly authorizing prosecutions under section 484d et seq. even where conduct could also be charged under other penal statutes, the Legislature revealed a manifest purpose that because the access card statutes are broadly worded, they are to be important weapons against fraudulent consumer and business practices, no matter how technologically adept the perpetrator may be." (Id. at p. 1245.) We agree and conclude Hicks could properly be prosecuted under section 484e, subdivision (d).
II. Corpus Delicti
Hicks also contends the trial court erred in failing to instruct the jury on the corpus delicti rule. Although this was error, we find it harmless.
In People v. Alvarez (2002) 27 Cal.4th 1161, 1168-1169 (Alvarez), the California Supreme Court explained the corpus delicti rule: "In every criminal trial, the prosecution must prove the corpus delicti, or the body of the crime itself - i.e., the fact of injury, loss, or harm, and the existence of a criminal agency as its cause. In California, it has traditionally been held, the prosecution cannot satisfy this burden by relying exclusively upon the extrajudicial statements, confessions, or admissions of the defendant." Because of this rule, when a defendant's extrajudicial statements are part of the prosecution's evidence at trial, the trial court must sua sponte instruct that a finding of guilt cannot be based on the defendant's statements alone. (Id. at pp. 1168-1169.)
Here, Hicks asserts the court should have instructed the jury with CALJIC No. 2.72, which provides, in relevant part: "No person may be convicted of a criminal offense unless there is some proof of each element of the crime independent of any [confession] [or] [admission] made by [him] [her] outside of this trial."
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However, "the modicum of necessary independent evidence of the corpus delicti, and thus the jury's duty to find such independent proof, is not great. The independent evidence may be circumstantial, and need only be 'a slight or prima facie showing' permitting an inference of injury, loss, or harm from a criminal agency, after which the defendant's statements may be considered to strengthen the case on all issues. [Citations.] If, as a matter of law, this 'slight or prima facie' showing was made, a rational jury, properly instructed, could not have found otherwise, and the omission of an independent-proof instruction is necessarily harmless." (Alvarez, supra, 27 Cal.4th at p. 1181.)
Hicks asserts that absent his statements to police, there was no evidence he attempted or intended to use Avalos's credit cards. We conclude a slight or prima facie showing of independent evidence was made in this case that Hicks had the requisite fraudulent intent. Avalos left his wallet at a gas station, and when he returned a short time later, it was gone. The gas station attendant knew nothing about the wallet. There is an inference that the wallet and the credit cards inside were stolen. When police stopped Hicks, he gave a false name and produced identification that was not his. Police found the cards in Hicks's car over two weeks after Avalos left his wallet at the gas station. One card was in each of the car's front door pockets. These circumstances suggested Hicks did not have an innocent purpose in possessing the cards. This independent evidence of the corpus delicti was sufficient. The court's failure to give an independent proof instruction was harmless.
III. The Court Did Not Prejudicially Err in its Modification of CALJIC No. 2.27
When instructing the jury with CALJIC No. 2.27 regarding the testimony of a single witness, the court modified the instruction. Hicks argues these modifications were prejudicial because they were tantamount to an instruction directing the jury to rely on a single witness's testimony. We disagree and find no prejudicial error.
CALJIC No. 2.27 in its unmodified form, reads: "You should give the [uncorroborated] testimony of a single witness whatever weight you think it deserves. Testimony concerning any fact by one witness, which you believe, [whose testimony about that fact does not require corroboration] is sufficient for the proof of that fact. You should carefully review all the evidence upon which the proof of that fact depends." The use note accompanying the instruction indicates the court should give the bracketed portions of the instruction when corroboration of a witness's testimony is required, "such as in Penal Code §§ 1103a (Perjury), 1108 (abortion or enticement for prostitution), 1111 (testimony of accomplice), and 653f (solicitation to commit felony)."
In this case, the trial court instructed the jury as follows:
"You should give the uncorroborated testimony -and there's no corroboration necessary here—of a single witness whatever weight you think it deserves. Testimony concerning any fact by one witness which you believe, whose testimony about the fact doesn't require corroboration -and there's none required here—is sufficient for the proof of the fact. Just carefully review all the evidence upon which the proof of the fact depends. [¶] You don't set yourself up and say well, I want two witnesses on something or I want two witnesses in this or that. You decide on every single witness what you believe and what's proved from whatever you accept and believe."
Defense counsel objected to the court's additions to the instruction and requested a curative instruction. The trial court denied the request, concluding it had properly instructed the jury.
Even when a trial court errs in its rendition of a jury instruction, the error will not be prejudicial unless, taking all of the instructions together, it is reasonably likely the court's modifications confused the jury or caused it to misconstrue or misapply the instruction. (People v. Harrison (2005) 35 Cal.4th 208, 251; People v. Snow (2003) 30 Cal.4th 43, 97.)
Here, the trial court read the bracketed portions of the unmodified instruction, then added language to clarify that the bracketed portions did not in fact apply. Although the instruction may have been more clear had the court simply omitted the bracketed portions altogether, we do not find it reasonably likely that the trial court's additions caused the jury to misconstrue the instruction or the law. The trial court's additions to the instruction were accurate. No corroboration of witness testimony was needed in this case. The bracketed portions of the instruction would naturally cause the jury to wonder if corroboration was needed. The court's statements answered that question in advance. It is not reasonably likely that the court's additions to the instruction led the jury to believe it could place greater weight on a single witness's testimony than it would otherwise. The instruction told the jury to give a single witness's testimony "whatever weight you think it deserves." The court's additions to the instruction did not negate this portion of the instruction. Further, the trial court instructed the jury with CALJIC No. 2.20, which informed the jurors they were "the sole judges of the believability of a witness and the weight to be given the testimony of each witness." CALJIC No. 2.20 also gave the jurors a list of factors they could consider in determining the believability of a witness, as well as anything else "that has a tendency reasonably to prove or disprove the truthfulness of the testimony of the witness."
In light of the instructions as a whole, we see no reasonable likelihood that the jury misconstrued the court's additions to CALJIC No. 2.27 to mean it should find Hicks guilty based on a single witness's testimony alone, or that any single witness's testimony was to be believed. Instead, the combined instructions informed the jury that it had to determine whether to believe each witness and how much weight to give each witness's testimony. We find no prejudicial error. IV. Pitchess Review
The trial court granted Hicks's Pitchess motion as to one of the police officers involved in the case. At the subsequent in camera hearing, counsel for the City of Long Beach submitted a declaration from a custodian of records for the police department's Internal Affairs department. The trial court reviewed the declaration and determined there were no files to be turned over to Hicks. On appeal, Hicks requests that this court review the sealed declaration. We have done so and find no error in the trial court's determination that no files were to be produced.
DISPOSITION
The judgment is affirmed.
BIGELOW, P. J. We concur:
RUBIN, J.
GRIMES, J.