Opinion
D074944
01-13-2020
THE PEOPLE, Plaintiff and Respondent, v. ERIC DEWAYNE NICHOLSON, Defendant and Appellant.
Bruce L. Kotler, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Joy Utomi, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCN389175) APPEAL from a judgment of the Superior Court of San Diego County, Harry M. Elias, Judge. Affirmed in part, modified in part, and remanded with directions. Bruce L. Kotler, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Joy Utomi, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
Defendant Eric Dewayne Nicholson (Carter) unsuccessfully attempted to cash a forged check containing another person's personal identifying information. Carter was charged with felony identity theft (Pen. Code, § 530.5, subd. (a); count 1) and felony forgery (§ 470, subd. (d); count 2). At his preliminary hearing, Carter moved to reduce both charges to misdemeanors under Proposition 47 (the Safe Neighborhoods and Schools Act; § 1170.18) and Section 17, subdivision (b). The trial court granted the motion as to the forgery count and denied the request to reduce the violation of section 530.5 to a misdemeanor, reasoning it was not the class of theft crime contemplated by Proposition 47. A jury subsequently found Carter guilty of one felony count of using personal identifying information of another (§ 530.5, subd. (a); count 1) and one misdemeanor count of forgery (§ 470, subd. (d)).
The defendant was booked under his legal name, Eric Dwayne Nicholson. During motions in limine, the defendant's attorney explained that the defendant goes by an AKA of Eric Carter, and he is referenced by both names throughout the trial. For clarity and continuity, we refer to him as Eric Carter throughout this opinion.
Section references are to the Penal Code unless otherwise specified.
Carter challenges his convictions on three grounds. First, he contends that the trial court erred, and his section 530.5 conviction (count 1) should be reclassified as a misdemeanor pursuant to Proposition 47 and section 459.5, subdivision (a), because his conduct constituted shoplifting. Second, Carter contends his sentence on the forgery offense (count 2) should have been stayed under section 654. Finally, Carter argues that the sentencing enhancement he received under section 667.5, subdivision (b) should be struck because Senate Bill No. 136, effective January 1, 2020, disqualifies his prison priors for one-year prison terms.
Until the issue is resolved by the Supreme Court, we follow the analysis of our court in People v. Sanders (2018) 22 Cal.App.5th 397, 400, review granted July 25, 2018, S248775 (Sanders), holding a violation of section 530.5, subdivision (a) is not a theft offense eligible for reclassification under Proposition 47. Consequently, only Carter's challenges to his sentence for count 2 and the one-year enhancement under section 667.5, subdivision (b) have merit. We will order the judgment modified to stay the sentence on count 2 and to strike the one-year enhancement and otherwise affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On April 25, 2018, Eric Carter entered a Moneytree with what appeared to be a payroll check issued by a moving company, "Two Will Move You." He approached the teller counter and presented the check to the teller. Based on her training in identifying fraudulent checks, the teller became suspicious of the check's validity when she noticed that the maker of the check was inconsistent with the business name on the uniform Carter wore, "Two Men Will Move You."
To dispel her suspicions, the teller performed an internet search for the company listed on the check and asked Carter questions about his work. He showed her pictures and videos of himself working with a moving company. The teller found Carter's demeanor and behavior in response to her questions unusual. The teller's internet search returned with a business named, "Two Men Will Move You." She noticed the address matched the address on the check, but the phone numbers listed were different. After speaking with her supervisor, the teller contacted the maker of the check using the phone number listed on the internet search. While the teller was on the phone, Carter walked out of the store and left the check behind. The teller spoke with the receptionist at "Two Men Will Move You," who informed her that the check number provided was not in the company's system.
At trial, the business owner, Kathleen Nutter, testified that Eric Carter worked for "Two Men Will Move You" part-time for approximately one year. As of the date of the incident in April 2018, he was a current employee. He left the job in May 2018.
Nutter testified that her company had not issued the check Carter presented to the teller. Most of the information on the check was incorrect; however, the forged check reflected the business's correct address, banking account routing and transit numbers, and the payroll number the company previously assigned to Carter. The banking institution's name and address were also correct, as was the assistance phone number of the company which prints the payroll checks.
A jury convicted Carter of one count of use of personal identifying information of another (§ 530.5, subd. (a); count 1) and one count of forgery (§ 470, subd. (d); count 2). Carter also admitted two prison prior convictions (§§ 667.5, subd. (b), 668) and one strike prior conviction (§§ 667, subds. (b)-(i), 1170.12, 668.) Defense counsel asked the court to strike the prior strike conviction for purposes of sentencing, and the court denied the request. The court dismissed one of the prior prison convictions.
As to count 1, the trial court sentenced Carter to the middle term of two years, doubled to four years for the strike prior conviction, plus an additional year for one prison prior, totaling five years in prison. As to count 2, the court denied probation and granted Carter credit for time served.
Carter timely appealed.
DISCUSSION
I
IDENTITY THEFT COUNT
Carter first contends that because his conviction for felony identity theft was premised on his attempt to cash a forged check in the amount of $583, the act may be prosecuted only as misdemeanor shoplifting. Recognizing a split in authority on the question of whether identity theft must be reclassified as misdemeanor shoplifting pursuant to Proposition 47 and section 459.5, Carter specifically argues that because his conduct amounted to shoplifting as defined by section 459.5, it precludes a charge for felony identity theft based on the same conduct. We disagree and conclude that Carter's misuse of personal identifying information falls outside the scope of Proposition 47.
A.
Legal Principles
Because the facts of the offense are not in dispute, we independently review the legal issue regarding whether Proposition 47 applies to section 530.5. (Sanders, supra, 22 Cal.App.5th at p. 404, rev. granted.)
In 2014, California voters passed Proposition 47, known as the Safe Neighborhoods and Schools Act, which reduced penalties for certain theft and drug offenses by amending existing statutes. (People v. Gonzales (2017) 2 Cal.5th 858, 863.) Accordingly, "[s]ection 1170.18 now permits a defendant serving a sentence for one of the enumerated theft or drug offenses to petition for resentencing under the new, more lenient, provisions." (Id. at p. 863.) If the felony offense committed "by an eligible defendant would have been a misdemeanor under [Proposition 47], resentencing is required unless 'the court, in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety.' " (Ibid., fn. omitted.)
Section 459.5 is one of the new provisions added by Proposition 47, which created the crime of shoplifting. Section 459.5, subdivision (a), provides in pertinent part: "Notwithstanding Section 459, shoplifting is defined as entering a commercial establishment with intent to commit larceny while that establishment is open during regular business hours, where the value of the property that is taken or intended to be taken does not exceed nine hundred fifty dollars ($950). Any other entry into a commercial establishment with intent to commit larceny is burglary. Shoplifting shall be punished as a misdemeanor. . . ." Further, 459.5, subdivision (b), provides: "Any act of shoplifting as defined in subdivision (a) shall be charged as shoplifting. No person who is charged with shoplifting may also be charged with burglary or theft of the same property."
As a result, even if the elements of a separate burglary or theft offense could be met by an act that also meets the definition of shoplifting under subdivision (a) of section 459.5, then subdivision (b) prohibits the prosecution from charging the defendant with that separate offense instead of, or in addition to, the offense of shoplifting. Here, Carter was not charged with another burglary or theft offense, but with violation of section 530.5, commonly referred to as " 'identity theft.' " (People v. Truong (2017) 10 Cal.App.5th 551, 561 (Truong)). The issue of whether an offense under section 530.5 can be reclassified under Proposition 47 is currently under review by the California Supreme Court. (See People v. Jimenez (2018) 22 Cal.App.5th 1282 (review granted July 25, 2018, S249397 (Jimenez); Sanders, supra, 22 Cal.App.5th 397, rev. granted; People v. Brayton (2018) 25 Cal.App.5th 734, review granted Oct. 10, 2018, S251122.)
B.
Unauthorized Use of Personal Identifying Information Not Eligible for Reclassification
Under Proposition 47
Pending further guidance from our Supreme Court, we must decide whether Carter's violation of section 530.5, subdivision (a), amounted to shoplifting within the meaning of section 459.5, subdivision (a). As we will explain, a conviction under section 530.5 is not a theft offense, and therefore, it is not eligible for reclassification under section 459.5 nor any other provision created by Proposition 47.
While commonly referred to as "identity theft," a violation of section 530.5, subdivision (a), is more accurately termed "unauthorized use of personal identifying information." (CALCRIM No. 2040; see Truong, supra, 10 Cal.App.5th at p. 561, rev. granted [violation of section 530.5 "is not a theft offense"].) 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 pursuant to subdivision (h) of Section 1170."
The elements of identity theft include: "(1) that the person willfully obtain personal identifying information belonging to someone else; (2) that the person use that information for any unlawful purpose; and (3) that the person who uses the personal identifying information do so without the consent of the person whose personal identifying information is being used." (People v. Barba (2012) 211 Cal.App.4th 214, 223 (Barba).) Thus, the "gravamen of the section 530.5, subdivision (a) offense is the unlawful use of a victim's identity," and does not require theft as a necessary element to support a conviction. (Sanders, supra, 22 Cal.App.5th at p. 400, rev. granted.)
In Sanders we concluded that violations of section 530.5 are not eligible for reclassification under Proposition 47. (Sanders, supra, 22 Cal.App.5th at pp. 405-406, rev. granted.) In that case, the defendant found another person's credit card on the ground and used it to purchase items from a 7-Eleven and obtain cash from a Burger King, totaling $174.61 in charges. (Id. at p. 400.) We explained that theft is not an element of the section 530.5 offense. Rather, it is the use of the personal identifying information that forms the basis for a section 530.5 charge, not the intent to commit theft. (Sanders, at p. 400.) In reaching this conclusion, we rejected the argument that the use of a cardholder's information to steal from merchants amounts to a theft from a cardholder. (Id. at p. 403.) While the merchant may be victim to shoplifting under section 495.5, the cardholder is harmed only by the unlawful use of his or her card and does not become a victim to the theft itself as a result. (Sanders, at p. 403; see Truong, supra, 10 Cal.App.5th at p. 561 ["Although commonly referred to as 'identity theft' [citation], the Legislature did not categorize the crime as a theft offense."].) To be sure, we noted that section 530.5 "seeks to protect the victim from the misuse of his or her identity." (Sanders, at p. 405.) Identity theft crimes were created because " ' "the harm suffered by identity theft victims went well beyond the actual property obtained through the misuse of the person's identity. Identity theft victims' lives are often severely disrupted. . . . [I]dentity theft in the electronic age is an essentially a unique crime, not simply a form of grand theft." ' " (Ibid., quoting People v. Valenzuela (2012) 205 Cal.App.4th 800, 808.) We found that the cardholder's property rights were not implicated by the crime of shoplifting as defined in section 459.5, only that her identity was unlawfully used. (Sanders, at p. 406.) Accordingly, we concluded Proposition 47 does not encompass the identity theft offense as defined by section 530.5, subdivision (a). (Sanders, at pp. 405-406.)
Our court similarly concluded convictions under section 530.5, subdivisions (c)(1) and (2) for acquiring and retaining possession of personal identifying information with the intent to defraud are not theft offenses and are not eligible for reclassification under Proposition 47 as misdemeanor petty thefts under section 490.2. (People v. Weir (2019) 33 Cal.App.5th 868, 871, review granted June 26, 2019, S255212.)
Accordingly, Carter was properly charged and convicted under section 530.5 for using the personal identifying information of another by attempting to cash a forged check. The misdemeanor offense of shoplifting as defined by section 459.5 does not apply to this conviction.
We recognize other courts have reached a different conclusion. For example, in Jimenez, supra, 22 Cal.App.5th 1282, Division Six of the Court of Appeal, Second Appellate District, concluded a defendant's convictions for identity theft arising from his use of stolen checks valued at less than $950 each constitute misdemeanor shoplifting under section 459.5. (Jimenez, at p. 1285, rev. granted.)
The Supreme Court has granted review of both Sanders and Jimenez and will ultimately resolve the split in authority. In the interim, we see no compelling reason to depart from our prior opinion in Sanders. (See People v. Bolden (1990) 217 Cal.App.3d 1591, 1598 ["[D]espite the inevitable differences among justices of appellate courts, stare decisis remains a vital principle. We hesitate to overrule a decision rendered by another panel of this court except for compelling reasons."].)
II
FORGERY MISDEMEANOR
Carter's convictions for forgery and identity theft arise out of his attempt to cash a single forged check containing another person's personal identifying information. Carter contends that section 654 barred imposition of sentence on the forgery misdemeanor count. The Attorney General argues the acts resulted from separate intents and objectives, and section 654 does not apply. We agree with Carter.
A.
Additional Background Information
During closing argument, the prosecutor explained to the jury the basis of each count charged against Carter and the evidence showing his intent as to both charges. First, the prosecutor argued the factual basis as to count 1 was the act of willfully forging a check containing the company's personal identifying information, going into the Moneytree store and attempting to pass it. In arguing Carter's purpose for committing the offense, the prosecutor stated: "Well, ask yourself what other purpose is there for someone to walk into a Moneytree with a forged check and attempting to cash it, right? The only purpose is that you're attempting to unlawfully gain money that doesn't belong to you. [¶] . . . [¶] And how else do we know what further corroborates the fact that he did this? Well, again, going back to [the teller's] testimony when she actually helped the defendant think about the ways, the great lengths he took to try to convince her to cash this check, to convince her that this check was real when in fact it was not."
Next, the prosecutor argued that "a lot of the evidence from Count 1 also proves Count 2" in this case. As to count 2, she argued the factual basis and Carter's purpose of committing the offense was that "[t]he defendant went into that Moneytree. The Moneytree is a check cashing business. He went there for only one purpose, right? To pass that check as genuine so that he could cash it. [¶] And his only purpose was to defraud. I apologize. So his purpose was to pass a forged check to deceive, to get money, to cause a loss of money. So that's what the intent is when the defendant goes there."
B.
Legal Principles
Section 654 prohibits punishment for two crimes arising from a single, indivisible course of conduct. (People v. Latimer (1993) 5 Cal.4th 1203, 1208.) This is "to ensure that a defendant's punishment will be commensurate with his culpability." (People v. Correa (2012) 54 Cal.4th 331, 341.) "If all the offenses are incidental to one objective, the defendant may be punished for any one of them, but not for more than one. [Citation.]." (People v. DeVaughn (2014) 227 Cal.App.4th 1092, 1112, citing People v. Centers (1999) 73 Cal.App.4th 84, 98.) Whether a course of conduct is indivisible for purposes of section 654 depends on the intent and objective of the defendant, not the temporal proximity of the offenses. (People v. Hicks (1993) 6 Cal.4th 784, 789.) If all the criminal acts were incident to one objective, then punishment may be imposed only as to one of the offenses committed. (People v. Rodriguez (2009) 47 Cal.4th 501, 507.) "We have traditionally observed that if all of the offenses were merely incidental to, or were the means of accomplishing or facilitating one objective, defendant may be found to have harbored a single intent and therefore may be punished only once." (People v. Harrison (1989) 48 Cal.3d 321, 335 (Harrison).)
Whether a defendant entertained a single or multiple criminal objectives is determined from all the circumstances and is a question of fact for the trial court, whose determination will be sustained on appeal if it is supported by substantial evidence. (People v. Coleman (1989) 48 Cal.3d 112, 162; People v. Sok (2010) 181 Cal.App.4th 88, 99.) If the court makes no express finding on the section 654 issue, a finding that the crimes were divisible inheres in the judgment and must be upheld if supported by substantial evidence. (People v. Nelson (1989) 211 Cal.App.3d 634, 638; People v. Osband (1996) 13 Cal.4th 622, 730-731.)
C.
Carter's Acts Were Incident to One Criminal Objective
Here, there was no reference to section 654 by the trial court or the parties during sentencing. Thus, there is only an implicit determination that Carter had separate intents or objectives in committing forgery and identity theft. (See People v. Mejia (2017) 9 Cal.App.5th 1036, 1045, citing People v. Tarris (2009) 180 Cal.App.4th 612, 626-627 [when there is no "explicit ruling by the trial court at sentencing, we infer that the court made the finding appropriate to the sentence it imposed, i.e., either applying section 654 or not applying it"].) This is not supported by substantial evidence.
The Attorney General argues that Carter harbored two separate criminal intents when committing forgery and identity theft. He contends the evidence of criminal intent for forgery is that Carter "wrote the fake check with the intent of passing it off as a real payroll check from the company." He further contends that Carter's additional conduct of walking into the Moneytree wearing a company shirt and attempting to convince the teller that he represented the company as a current employee evidences a separate intent for identity theft. Thus, the Attorney General argues, "[t]he extra steps [Carter] took to ensure that he would be able to successfully cash the fake check separate the forgery and identity theft intents."
We are not persuaded by the Attorney General's argument because personation is not an element of section 530.5. (Barba, supra, 211 Cal.App.4th at p. 227.) As we noted in Barba, "[N]othing in section 530.5, subdivision (a) suggests a requirement that the defendant have falsely personated another person. Neither the words 'identity theft' nor any similar phrase appears in the statute. Rather, the terms of the statute prohibit a much wider range of conduct than the personation of another using his or her personal identifying information. The statutory language is clear and unambiguous and contains no requirement that the defendant have held himself out as someone else. The plain language of the statute thus does not support the trial court's interpretation of the statute as requiring that defendant have personated another. Rather, the statute clearly provides that anyone who obtains personal identifying information and uses it for an unlawful purpose without that person's consent has violated section 530.5, subdivision (a)." (Id. at pp. 223-224.)
Here, it was not the attempts to make the bank teller believe he was a current employee that made Carter's conduct a crime. Rather, it was the use of the company's address, banking account routing and transit numbers, and a payroll number on the forged check without its consent that violated section 530.5. As the prosecutor noted in her closing argument, it is the attempt to use the information that made his conduct a crime, so it was not necessary that Carter was actually successful in cashing the check to violate the statute. (CALCRIM No. 2040)
Furthermore, the Attorney General's assertion that Carter took "extra steps" to ensure he would be able to successfully cash the check merely describes the two crimes. He fails to explain how these "extra steps" are separate and distinct, not merely incidental to, the overall criminal objective. (See Harrison, supra, 48 Cal.3d at p. 335 ["[w]e have traditionally observed that if all of the offenses were merely incidental to, or were the means of accomplishing or facilitating one objective, defendant may be found to have harbored a single intent and therefore may be punished only once."].) At most the Attorney General can say Carter intended to defraud the Moneytree by attempting to pass a forged check and used the company's personal identification to do so. But the latter is clearly incidental to, not independent of, the former. The act of forging the payroll check containing another person's personal identifying information was merely "the means of accomplishing or facilitating" a single criminal objective: to obtain cash with a forged check.
Moreover, the uncontroverted evidence reflects Carter's sole intent and objective in committing each crime was to obtain cash with the forged check, as the prosecutor argued in closing argument. Thus, separate and distinct criminal intents are not supported by substantial evidence.
Carter was sentenced to prison on count 1 to a five-year term and on count 2 to time served. The appropriate remedy is to stay the lesser sentences, count 2. (See, e.g., People v. Miller (1977) 18 Cal.3d 873, 886; accord, People v. Deloza (1998) 18 Cal.4th 585, 591-592.)
III
PRIOR PRISON ENHANCEMENT
Carter contends the one-year prison sentence for a prison prior should be struck due to a change in the law. The Attorney General agrees.
On October 8, 2019, the governor signed Senate Bill No. 136, which became effective January 1, 2020. (People v. Camba (1996) 50 Cal.App.4th 857, 865 [statute enacted at regular session of Legislature generally becomes effective on January 1 of the following year].) Prior to January 1, 2020, trial courts had discretion to strike a prior prison sentencing enhancement under section 1385, subdivision (a). (People v. Bradley (1998) 64 Cal.App.4th 386, 392-395; § 667.5, subd. (b).) However, under the new law, to qualify for the one-year enhancement, the prior prison sentence must be for a sexually violent offense, as defined in Welfare and Institutions Code section 6600, subdivision (b). (Stats. 2019, ch. 590, § 1; Cal. Const., art. IV, § 8, subd. (c); Gov. Code, § 9600, subd. (a); Camba, at p. 865.)
When the Legislature amends a statute to reduce the punishment, "[t]he amendatory act imposing the lighter punishment can be applied constitutionally to acts committed before its passage provided the judgment convicting the defendant of the act is not final." (In re Estrada (1965) 63 Cal.2d 740, 745.) Under this Estrada rule, " 'we will assume, absent evidence to the contrary, that the Legislature intended the amended statute to apply to all defendants whose judgments are not yet final on the statute's operative date.' " (People v. Hajeck and Vo (2014) 58 Cal.4th 1144, 1195-1196.) This rule applies to amendments that reduce penalties for enhancements or allow a court to strike them. (People v. Jennings (2019) 42 Cal.App.5th 664, 681-682.) A judgment is not final in this context as long as courts may still provide a remedy on direct review. (See People v. Vieira (2005) 35 Cal.4th 264, 306 [judgment not final during period in which appellant can seek certiorari in United States Supreme Court after California Supreme Court denies review]; In re Pine (1977) 66 Cal.App.3d 593, 594.)
The court here struck one of the prison priors but imposed a one-year sentence for a second prison prior. The prison prior for which Carter received a one-year sentence was not for a sexually violent offense. Moreover, the judgment in the matter is not final, as it is before us on direct appeal. Thus, pursuant to the amended law, we will strike the one-year section 667.5, subdivision (b) prison prior enhancement.
DISPOSITION
The judgment is modified to stay Carter's sentence for count 2 (misdemeanor attempting to pass a forged check) per section 654 and strike the one-year sentence enhancement imposed under section 667.5, subdivision (b). The court is directed to amend the abstract of judgment to reflect modification and to forward an amended abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
HUFFMAN, Acting P. J. WE CONCUR: IRION, J. GUERRERO, J.