Opinion
C080517
08-15-2018
THE PEOPLE, Plaintiff and Respondent, v. TYRICE WHITFIELD, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 15F01292)
In 2014, someone broke into Danny A.'s car and took various items, including Danny's checkbook, billing statements, and a payroll check from his employer. Danny subsequently learned that without his authorization, his personal information and password had been changed for his banking account, various credit accounts had been opened in his name, and deductions had been made from his employer's payroll account.
A jury convicted defendant Tyrice Whitfield on multiple counts of felony identity theft and a misdemeanor count of methamphetamine possession. The trial court sentenced defendant to 18 years in prison on the felony convictions, plus a consecutive one year in county jail on the misdemeanor.
Defendant now contends (1) the evidence that he possessed a credit union statement does not support the count 9 conviction for possessing personal identifying information with intent to defraud; (2) he may not be convicted on multiple counts for obtaining the same victim's personal identifying information and using it for an unlawful purpose; (3) the evidence does not support two separate convictions for possessing personal identifying information with intent to defraud because it is a continuing offense; (4) the trial court did not specify whether the sentence on the misdemeanor conviction was consecutive or concurrent; and (5) defendant is entitled to additional presentence credit.
We conclude (1) there is sufficient evidence that the credit union statement constituted personal identifying information and that defendant intended to defraud; (2) convicting defendant on multiple counts of identity theft with respect to the named victims did not violate the rule against fragmenting a single offense; (3) the evidence supports a determination that defendant separately possessed the personal identifying information charged in the separate counts; (4) the sentence on the misdemeanor conviction is concurrent by operation of law; and (5) defendant is entitled to additional presentence credit.
We will modify the judgment to award defendant 421 days of presentence credit and affirm the judgment as modified.
BACKGROUND
In December 2014, someone broke into Danny's car and took his insurance card, registration card, backpack, checkbook, bills, and a payroll check from his employer. Soon after the break-in, someone changed Danny's personal information and password on his credit union account. Danny obtained a credit report, which showed a changed phone number and address for him. He called the phone number and someone answered but immediately hung up. Danny drove to the changed address and saw defendant outside a house. He drove within about five feet of defendant, rolled down his window, and asked defendant if he was "Danny." Defendant said he did not understand the question.
Danny received letters from ten or more companies that credit accounts were opened in his name. Those companies included a phone company, Sears, Best Buy, Macy's, Amazon, Pay Pal, Target, Walmart, and Chase bank. Danny had not applied for those credit accounts.
Someone also made unauthorized deductions from the payroll account of Danny's employer. Those deductions included checks to Target with defendant's name on them.
In a search of defendant's home, the Sacramento Police Department found Danny's backpack and various documents with Danny's name on them, including his credit union checkbook. Almost two months later, when officers responded to a call regarding a dispute involving defendant, they found defendant possessed a credit union statement in Danny's name reflecting the balance in Danny's account. Defendant also possessed methamphetamine and a social security card in the name of another person, Y.W.
A jury convicted defendant of the following crimes:
Count 1: possessing another person's personal identifying information with intent to defraud, with a previous identity-theft conviction. (Pen. Code, § 530.5, subd. (c)(2).)
Undesignated statutory references are to the Penal Code. --------
Count 2: obtaining Danny's personal identifying information and using it for an unlawful purpose at his credit union. (§ 530.5, subd. (a).)
Count 3: obtaining Danny's personal identifying information and using it for an unlawful purpose at Target. (§ 530.5, subd. (a).)
Count 4: obtaining Danny's personal identifying information and using it for an unlawful purpose at Walmart. (§ 530.5, subd. (a).)
Count 5: obtaining Danny's personal identifying information and using it for an unlawful purpose at Amazon. (§ 530.5, subd. (a).)
Count 6: obtaining Danny's personal identifying information and using it for an unlawful purpose at Chase bank. (§ 530.5, subd. (a).)
Count 7: obtaining the personal identifying information of Danny's employer and using it for an unlawful purpose. (§ 530.5, subd. (a).)
Count 8: obtaining the personal identifying information of Danny's employer and using it for an unlawful purpose. (§ 530.5, subd. (a).)
Count 9: possessing Danny's personal identifying information with intent to defraud, with a previous identity-theft conviction. (§ 530.5, subd. (c)(2).)
Count 10: possessing Y.W.'s personal identifying information with intent to defraud, with a previous identity-theft conviction. (§ 530.5, subd. (c)(2).)
Count 11: misdemeanor possession of methamphetamine. (Health & Saf. Code, § 11377, subd. (a).)
The trial court found that defendant had a prior serious felony conviction (§ 1192.7, subd. (c)) and two prior prison terms (§ 667.5, subd. (b)). It denied defendant's motion to dismiss the prior strike allegation and sentenced defendant as follows: the middle term of four years on count 1, consecutive 16-month terms on counts 2 through 10, consecutive one-year terms for each prior prison term, and a one-year jail term on count 11.
We provide additional background in the discussion as relevant to the contentions on appeal.
DISCUSSION
I
Defendant was convicted on count 9 of possessing another person's personal identifying information with intent to defraud based on his possession of Danny's credit union statement. The crime also requires that the defendant have a prior conviction for identity theft. (§ 530.5, subd. (c)(2).) Defendant contends the evidence was insufficient because the credit union statement did not constitute personal identifying information to support a conviction under section 530.5, subdivision (c)(2), and the evidence did not support an inference defendant intended to defraud.
About two months after the search of defendant's home, Officer Lori Clatterbuck of the Sacramento Police Department responded to call regarding a dispute involving defendant. The officer searched defendant's backpack and found a credit union statement in Danny's name, along with other items. The credit union statement was not introduced as evidence, but the officer described it as a bank statement that provides the account balance.
"In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578; see also Jackson v. Virginia (1979) 443 U.S. 307, 319-320 .) Reversal on this ground is unwarranted unless it appears 'that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].' (People v. Redmond (1969) 71 Cal.2d 745, 755.)" (People v. Bolin (1998) 18 Cal.4th 297, 331.) We draw every reasonable inference in favor of the jury's verdict. (People v. Crittenden (1994) 9 Cal.4th 83, 139, fn. 13.)
Section 530.5, subdivision (c)(2) provides: "Every 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, and who has previously been convicted of a violation of this section, upon conviction therefor shall be punished . . . ."
The definition of personal identifying information in section 530.55, subdivision (b) includes "any name, address, telephone number, . . . demand deposit account number, savings account number, checking account number, PIN (personal identification number) or password . . . ." (Italics added.)
Defendant does not dispute he had a prior identity-theft conviction when he possessed Danny's credit union statement. He argues only that a bank statement, as shown by the evidence in this case, is not personal identifying information and there was insufficient evidence he intended to defraud.
Officer Clatterbuck's testimony established that Danny's name was on the credit union statement. Therefore, defendant possessed Danny's personal identifying information. Defendant observes that the testimony did not reveal that there was an account number or name of a particular bank on the credit union statement. But the broad definition of personal identifying information includes a person's name, and that is sufficient when combined with a prior identity-theft conviction and intent to defraud.
Defendant's intent to defraud Danny was evident from the totality of the evidence. Defendant obtained Danny's personal identifying information and actively used it to access Danny's accounts and open new accounts. The jury reasonably inferred that defendant possessed the credit union statement for the same purpose, to defraud.
II
Defendant contends the evidence supported only one conviction under section 530.5, subdivision (a) for the various items of personal identifying information stolen from Danny. While he acknowledges precedent establishing that a violation of section 530.5, subdivision (a) is committed each time an offender uses personal identifying information for any unlawful purpose (People v. Mitchell (2008) 164 Cal.App.4th 442, 455 (Mitchell)), he claims that convicting him on multiple counts violates the rule against fragmenting or splintering a single offense, which Mitchell did not consider.
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. (People v. Tillotson (2007) 157 Cal.App.4th 517, 533.) Thus, it is the use of the identifying information for an unlawful purpose that completes the crime and each separate use constitutes a new crime. (Mitchell, supra, 164 Cal.App.4th at p. 455.) Unlawful uses of personal identifying information include obtaining, or attempting to obtain, credit, goods, services, real property, or medical information without consent. (§ 530.5, subd. (a).)
A person may be convicted of more than one crime arising out of the same act or course of conduct. (§ 954; People v. Reed (2006) 38 Cal.4th 1224, 1226.) However, "[a] single crime cannot be fragmented into more than one offense." (People v. Rouser (1997) 59 Cal.App.4th 1065, 1073 (Rouser).) Defendant argues the counts charging use of Danny's personal identifying information must be treated as only one offense rather than being fragmented into multiple offenses. He claims the statutory listing of different unlawful uses implies that each use regarding the same victim does not constitute a separate crime but instead describes different ways the crime can be committed.
In support of his argument, defendant cites Rouser. In that case, the defendant possessed methamphetamine and heroine in prison. Convicted on two counts of possession of a controlled substance by a prisoner in violation of section 4573.6, defendant appealed, arguing that because the statute prohibits possession of "any controlled substances" in prison, he was guilty of only one count because he possessed methamphetamine and heroine at the same time. (Rouser, supra, 59 Cal.App.4th at pp. 1067-1068.) This court agreed because the statute was ambiguous, using the plural "substances," thus implying that contemporaneous possession of more than one substance constituted only one violation of the statute, and defendant was entitled to the benefit of any ambiguity. (Id. at pp. 1069-1073.) This court also noted that a single crime cannot be fragmented into more than one offense. (Id. at p. 1073.)
But here, unlike in Rouser, there is no ambiguity. Section 530.5, subdivision (a) refers to any unlawful purpose (singular), not to any unlawful purposes (plural). And while the defendant in Rouser possessed the controlled substances at the same time, here defendant used Danny's personal identifying information in various unlawful ways. Thus, even if defendant obtained Danny's personal identifying information all at once, he committed a separate, completed violation of section 530.5, subdivision (a) when he used that information at Danny's credit union (count 2), Target (count 3), Walmart (count 4), Amazon (count 5), and Chase bank (count 6). Because each was a separate unlawful purpose, each was a separate violation of the statute. Convicting defendant on five separate counts did not constitute fragmenting a single crime.
Defendant makes the same fragmenting contention with regard to his convictions in counts 7 and 8, under section 530.5, subdivision (a), relating to Danny's employer's personal identifying information. For the reasons we have already explained, the contention lacks merit.
III
Defendant was convicted on count 1 of violating section 530.5, subdivision (c)(2) based on his possession of Danny's personal identifying information found at defendant's home. He was convicted in count 9 of violating section 530.5, subdivision (c)(2) based on his possession of Danny's credit union statement found in defendant's backpack two months later. Defendant claims he cannot be convicted on both counts because his possession and retention of Danny's personal identifying information was a continuing offense.
A continuing offense is one that occurs over a period of time. (People v. Lewis (1978) 77 Cal.App.3d 455, 462.) In Lewis, the defendant was convicted of four separate counts of pimping. Each count involved the same prostitute and differed only as to the date of the charged transaction. The Court of Appeal held that the defendant had been improperly convicted on multiple counts for only one criminal act. (Ibid.)
Here, however, defendant's contention fails because even if a violation of section 530.5, subdivision (c)(2) is a continuing offense as to an item or items of personal identifying information possessed over a particular period of time, there is no evidence the credit union statement found in defendant's backpack was in defendant's possession earlier, when his home was searched. Because defendant possessed the credit union statement two months after the search of his home, the jury could have reasonably inferred that he obtained the credit union statement after the search, either from the credit union or from some other source.
Defendant was properly convicted on both count 1 and count 9.
IV
Defendant next contends the trial court did not specify whether the sentence on the misdemeanor conviction was consecutive or concurrent.
At sentencing, the trial court imposed a term of four years (middle term, doubled) for count 1. It added a consecutive term of 16 months (one-third the middle term, doubled) each for counts 2 through 10. The trial court then added: "As to count 11 in this case, that is the misdemeanor, the defendant is ordered to serve one year in the jail."
After the trial court imposed the term for the misdemeanor count, the trial court asked the court clerk whether defendant had presentence credit. The clerk responded: "204 days." The trial court said: "He'll also receive 204 days of good-time work-time." The clerk inquired: "Towards county jail I guess." And the trial court replied: "Yes." The minute order from the sentencing hearing and the abstract of judgment both indicate a consecutive term on count 11.
Section 669, subdivision (a) provides, in part: "When a person is convicted of two or more crimes, whether in the same proceeding or court or in different proceedings or courts, and whether by judgment rendered by the same judge or by different judges, the second or other subsequent judgment upon which sentence is ordered to be executed shall direct whether the terms of imprisonment or any of them to which he or she is sentenced shall run concurrently or consecutively." Subdivision (b) of section 669 provides, in part: "Upon the failure of the court to determine how the terms of imprisonment on the second or subsequent judgment shall run, the term of imprisonment on the second or subsequent judgment shall run concurrently." (See also People v. Rogers (1967) 252 Cal.App.2d 1015, 1020.)
Because the trial court did not state whether the misdemeanor term for count 11 was to be served concurrently or consecutively, it is concurrent by operation of law. (§ 669, subd. (b); People v. Rogers, supra, 252 Cal.App.2d at p. 1020.) The indication in the minute order and abstract of judgment that the misdemeanor term is consecutive does not change the term to a consecutive term. A discrepancy between the oral pronouncement and the minutes is resolved in favor of the oral pronouncement. (People v. Mesa (1975) 14 Cal.3d 466, 471.)
The Attorney General argues the misdemeanor term is consecutive because (1) it appears that the trial court intended to impose a consecutive term, even if it did not say so, and (2) defendant forfeited the contention by failing to object to the trial court's failure to determine whether the misdemeanor term would run consecutively or concurrently. Neither argument has merit.
In support of the argument that the trial court intended to impose a consecutive sentence on count 11, the Attorney General observes: (1) the trial court imposed consecutive terms for the other counts, (2) the trial court said that the presentence custody credits would be credited to the county jail term, and (3) both the minute order and the abstract of judgment reflect a consecutive term. But the Attorney General offers no authority for the argument, and in any event, the trial court's intent is irrelevant. The question is whether the trial court actually imposed a consecutive term, which it did not. The trial court's failure to designate the misdemeanor term associated with count 11 as a consecutive term means the term is concurrent. (§ 669, subd. (b); People v. Rogers, supra, 252 Cal.App.2d at p. 1020.)
The argument that defendant forfeited this contention also lacks merit. Because the trial court imposed a concurrent term by operation of law, the contrary indications in the minute order and abstract of judgment are clerical errors that must be corrected. (People v. Mitchell (2001) 26 Cal.4th 181, 185.)
V
Defendant further contends he is entitled to additional presentence credit. The Attorney General agrees, and so do we.
At sentencing, the trial court awarded 204 days of presentence custody credit and 204 days of conduct credit, for a total of 408 days of presentence credit. That number, however, is the result of an incorrect sentencing date in the probation report.
The probation report shows that defendant was in custody from March 3, 2015 to October 2, 2015, which is 204 days. But the sentencing hearing was held on October 9, 2015, and defendant was still in custody. Therefore, his actual presentence time in custody was 211 days. And under section 4019, defendant is entitled to 210 days of conduct credit, for a total of 421 days of presentence credit.
DISPOSITION
The judgment is modified to award defendant 421 days of presentence credit. As modified, the judgment is affirmed. The trial court is directed to correct and amend the minute order and abstract of judgment to reflect that defendant was sentenced to a concurrent term on count 11 and that he is awarded 421 days of presentence credit.
/S/_________
MAURO, J. We concur: /S/_________
HULL, Acting P. J. /S/_________
BUTZ, J.