People v. Alvarado CA4/3 ( 2020 )

Filed 9/22/20 P. v. Alvarado CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, G057507
v. (Super. Ct. No. 18CF2886)
JOHN ANTHONY ALVARADO, OPINION
Defendant and Appellant.
Appeal from a judgment of the Superior Court of Orange County, Larry
Yellen, Judge. Affirmed in part and reversed in part.
Denise M. Rudasill, under appointment by the Court of Appeal, for
Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Zee Rodriguez and
Wyatt E. Bloomfield, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
Defendant John Anthony Alvarado appeals from his conviction on seven
counts related to his possession of bank statements, identification, checks, and other
documents relating to 18 different people. The Attorney General concedes, and we agree,
with defendant’s contention that possession of multiple blank checks constitutes a single
offense, and we reverse the two relevant counts.
Defendants’ remaining arguments relate to the applicability of Proposition
47 and two other issues of statutory interpretation. For the reasons stated below, we
disagree with each of defendant’s assertions on these points and affirm the judgment on
the remaining counts.
I
FACTS
In October 2018, Detective Michael Gibbons of the Santa Ana Police
Department was driving when he saw a Toyota pickup truck without a front license plate
or a current registration sticker on its rear plate. He followed the vehicle, and once it
stopped, Gibbons pulled up next to it. A male passenger exited the vehicle and left the
scene. A registration check revealed the vehicle’s registration was expired.
Gibbons approached defendant, the vehicle’s driver, who had exited the
vehicle and was standing at the rear of the truck. Gibbons asked defendant for
identification, but he could not produce any. Gibbons arrested defendant pursuant to
Vehicle Code section 40302, subdivision (a), which permits an arrest for a Vehicle Code
violation if the individual cannot provide evidence of their identification.
When asked about the registration, defendant told Gibbons that he thought
the vehicle was properly registered and the paperwork was in the vehicle. Gibbons
opened the driver’s side door to look for the paperwork.
Gibbons found a backpack between the driver’s seat and passenger seat and
an accordion-type folder underneath the driver’s seat. The backpack contained a small,
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waterproof case which contained a driver’s license, which was not in defendant’s name,
and a credit card that was also not in his name. The accordion file had several sections
with marked plastic dividers and envelopes inside them. One of the envelopes was
marked with information about the vehicle’s make, model, and license plate number, and
the notation “traffic stop info.” Inside the envelope was an expired one-day moving
permit issued by the DMV. One of the identification cards Gibbons found in the
backpack had defendant’s name and photograph on it.
A second envelope was marked “wrong mailing address.” Inside, among
other things, were a driver’s license and passport, credit cards, and a social security card.
Gibbons also found a checkbook and some mail. None of the cards were in defendant’s
name. Together, Gibbons ultimately found personal information for 18 different
individuals, which included various membership cards, forms of government-issued
identification, checkbooks, credit and debit cards, and health insurance cards. The
majority of cards were bound together with a hair band.
Defendant was ultimately charged with 11 counts: one count of felony
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identity theft of 10 or more victims (Pen. Code, § 530.5, subd. (c)(3), count one); two
counts of felony unlawful acquisition of access card information (§ 484e, subd. (d),
counts two and three); three counts of misdemeanor possession of a blank bank bill and
note (§ 475, subd. (b), counts four, five, and six); one count of misdemeanor receipt of
stolen property (§ 496, subd. (a), count seven); and four counts of misdemeanor identity
theft (§ 530.5, subd. (c)(3), counts eight through eleven). Defendant pleaded not guilty.
Prior to trial, the four misdemeanor identity theft counts were dismissed.
The court denied defendant’s section 1538.5 motion to suppress evidence.
At trial, the jury heard testimony from numerous individuals who owned or
were otherwise associated with the cards and other documents found in defendant’s
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Subsequent statutory references are to the Penal Code unless otherwise indicated.
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vehicle. As relevant here, among the items recovered were two Target credit cards in the
name of Celina S., and two letters from Target related to activating the cards. Celina S.
testified that she had a Target credit card that she did not use. Several years ago, another
Target credit card had been opened in her name, and she had received bills for charges
she had not made. She had never seen the two Target cards in her name recovered from
the vehicle.
John K. testified that a letter to his life insurance company appeared to be a
document he had written to the insurance company. The letter, which included
information about his policy and a loan payment, was among the items found in
defendant’s truck. The letter included his name and home address, and believed he had
placed it in the usual location for outgoing mail in his office. Two items found in the
vehicle appeared to be checks connected to one of his credit card accounts that the bank
had sent to him. He did not recall receiving these checks and stated his usual practice
was to destroy them.
The jury convicted defendant on all seven counts. The court granted a
defense motion to reduce counts two and three to misdemeanors, suspended imposition of
sentence on the remaining counts, and ordered defendant placed on formal probation for
three years. One of the terms of probation was 364 days in county jail. Defendant now
appeals.
II
DISCUSSION
A. Proposition 47 (Count One)
Defendant’s first argument is that his conviction for felony identity theft
(§530.5, subd. (c)(3)) should be reduced to a misdemeanor because the trial court failed
to instruct the jury that the value of the property exceeding $950 was an element of the
offense, pursuant to Proposition 47. Further, defendant argues, there was not sufficient
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evidence of the property’s value exceeding $950. The Attorney General argues that
while framed as an argument about instructional error and sufficiency of the evidence, the
threshold question is whether Proposition 47 applies to section 530.5. The Attorney
General is correct, and defendant essentially conceded as much by arguing the point
directly in his reply brief.
In November 2014, the voters approved Proposition 47, the “Safe
Neighborhood and Schools Act.” Proposition 47 reclassified certain offenses from
felonies to misdemeanors. (§ 1170.18; People v. Rivera (2015) 233 Cal.App.4th 1085,
1091-1093.) Since its approval, there have been many cases which have attempted to sort
out the precise contours of the new statute.
After this matter was fully briefed, the California Supreme Court settled
one of those issues. The court concluded that section 530.5, subdivision (a), the crime of
obtaining and using personal identifying information for an unlawful purpose, is not
subject to reclassification as a misdemeanor. (People v. Jimenez (2020) 9 Cal.5th 53, 59
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(Jimenez).) Section 530.5, subdivision (a), states: “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 defendant in Jimenez had, on two occasions, entered a check cashing
store and cashed two checks under $950 made payable to himself from a company that
did not issue the checks to defendant. (Jimenez, supra, 9 Cal.5th at p. 59.) In
2
We asked the parties to provide supplemental letter briefs on Jimenez and any
subsequent authority. They did so, and we have considered their arguments.
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determining whether identity theft could be reduced to misdemeanor theft, the court
explained section 530.5, subdivision (a), “makes no mention of theft,” adding, “by its
very terms, the offense of misuse of personal identifying information can be
accomplished by acquiring the information with valid consent, using it for an unlawful
purpose, and returning it.” (Jimenez, at p. 63.) The court reasoned identity theft and
misdemeanor theft, which is essentially a shoplifting offense, “are fundamentally
different, and they reflect different legislative rationales.” (Id. at p. 65.) The Jimenez
court therefore concluded identity theft could not be reduced to petty theft. (Id. at p. 70.)
The language of section 530.5, subdivision (c)(3), is slightly different from
subdivision (a), the subdivision at issue in Jimenez. Subdivision (c)(3) states: “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 10 or more
other persons 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.”
Thus, while subdivision (a) addresses obtaining and using personal identifying
information for an unlawful purpose, subdivision (c)(3), addresses the crime of acquiring
or retaining such information with the intent to defraud.
Although defendant asserts otherwise, for purposes of Proposition 47, this
distinction is not relevant. As the Supreme Court stated in Jimenez, although commonly
called “identity theft,” such offenses are not considered theft offenses. (Jimenez, supra, 9
Cal.5th at pp. 64-65.) On its face, such offenses address “harms reaching well beyond
theft, implicating issues of privacy and control of personal data.” (Id. at p. 65.) Another
court has reached the same conclusion, relying on Jimenez, determining that offenses
under section 530.5, subdivision (c), are not theft offenses and are not subject to
Proposition 47. (People v. Harrell (2020) 53 Cal.App.5th 256.) Defendant contends
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Harrell was wrongly decided, but we disagree, again, finding no meaningful distinction
between these two subdivisions for the purposes of Proposition 47.
Accordingly, we find that because Proposition 47 does not apply to section
530.5, subdivision (c), the trial court did not err in its instructions to the jury, nor was
there insufficient evidence regarding the value of the documents and cards. Proposition
47 simply does not apply to this crime, and therefore, no error was committed.
B. Validly Issued Access Cards (Counts Two and Three)
Defendant’s next argument relates to counts two and three, the credit cards
issued In Celina S.’s name. Defendant asserts that because section 484e, subdivision (d),
requires that such cards be “validly issued to another person,” he argues there was
insufficient evidence of this element of the offense because the accounts were opened
fraudulently.
Despite defendant’s framing of the issue as entirely one of the sufficiency
of the evidence, this is an issue of statutory interpretation, which we review de novo.
(People v. Singleton (2007) 155 Cal.App.4th 1332, 1337.)
We begin with the statutory framework. Section 484e, subdivision (d),
states: “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.”
Setting aside the irony of the implied contention that card accounts opened
fraudulently are somehow not theft, the authority defendant relies on undercuts his
argument. He cites People v. Molina (2004) 120 Cal.App.4th 507 (Molina), and attempts
to distinguish it, but he ignores much of its language. As Molina notes, section 484e is “a
‘comprehensive statutory scheme which punishes a variety of fraudulent practices
involving access cards.’” (Molina, pp. 512-513.) In enacting the statutory scheme in
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which section 484e is a part, “[t]he Legislature intended to provide broad protection to
innocent consumers.” (Molina, at p. 519.) An access card “is defined 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.’” (Id. at p. 512.)
With respect to the meaning of “validly issued to another,” the Molina
court found the phrase “clear and unambiguous. It encompasses all access cards that
have at one time been validly issued to a person. Accordingly, it excludes counterfeit,
incomplete, and blank access cards. The purpose of the legislation adding subdivision (d)
to Penal Code section 484e was to protect innocent consumers. [Citation.] It was
intended to protect innocent consumers from the injury, expense and inconvenience
arising from the fraudulent use of their access card account information. In this respect,
the crime is to be distinguished from general access card fraud, which may injure only
banks and financial institutions or the general public. Thus, the phrase ‘validly issued to
another’ describes a particular type of access card and does not speak to the issue of the
validity of the card at the time of the fraudulent possession.” (Molina, supra, 120
Cal.App.4th at p. 516.)
Defendant would have us read the phrase “validly issued” to include only a
card that a consumer applied for and received legitimately. But the purpose behind the
law – to protect consumers – is not served by such a limitation. Whether a card is issued
to the consumer and later subsequently misused, or the criminal gathered enough
information to obtain the card directly from the issuer makes no difference to the
consumer. In both cases, the consumer’s credit is compromised. They are then subject to
“the injury, expense and inconvenience arising from the fraudulent use of their access
card account information.” (Molina, supra, 120 Cal.App.4th at p. 516.)
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The other case defendant cites in an attempt to distinguish it, People v.
Truong (2017) 10 Cal.App.5th 551, is simply not on point. The defendant in that case
attempted to argue there was no sufficient evidentiary link between the cards in her
possession had been issued to her neighbors. The court rejected this argument, finding
there was evidence that the victims had ordered cards that had never arrived, and the
cards in the defendant’s possession appeared to be theirs. There was no issue as to
whether the cards had been issued legitimately or fraudulently.
We agree with Molina’s well established and uncontradicted holding that a
validly issued card is one which the institution issues, regardless of whether it is issued
legitimately to the consumer or to a fraudster.
Having reached this conclusion, we now examine whether there was
sufficient evidence. “Our role in considering an insufficiency of the evidence claim is
quite limited. We . . . review the record in the light most favorable to the judgment
[citation], drawing all inferences from the evidence which supports the . . . verdict.”
(People v. Olguin (1994) 31 Cal.App.4th 1355, 1382.) Substantial evidence is “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. Rodriguez (1999) 20
Cal.4th 1, 11.) We presume the existence of every fact the trier of fact could have
reasonably deduced from the evidence. (People v. Kraft (2000) 23 Cal.4th 978, 1053-
1054.)
“In deciding the sufficiency of the evidence, a reviewing court resolves
neither credibility issues nor evidentiary conflicts.” (People v. Young (2005) 34 Cal.4th
1149, 1181.) Before a verdict may be set aside for insufficiency of the evidence, a party
must demonstrate “‘that upon no hypothesis whatever is there sufficient substantial
evidence to support [the conviction].’” (People v. Bolin (1998) 18 Cal.4th 297, 331-332.)
Here, there was sufficient evidence that the Target credit cards were validly
issued to Celina S. The letters accompanying the cards explained how to activate them,
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and the officer testified at trial that the documentation appears to be what one would
expect when opening a new account. She subsequently received bills for charges she had
not made. There was no evidence the cards were counterfeit. Thus, we find there was
sufficient evidence to support defendant’s conviction on counts two and three.
C. Multiple Checks and Multiple Counts (Counts Four, Five, and Six)
Defendant contends that he should only have been convicted of one count,
rather than three, of violating section 475, subdivision (b), by possessing three blank
checks. This is a question of statutory interpretation that we review de novo. Two of the
checks at issue in these three counts are the convenience checks issued to John K. (counts
4 and 5). Count six relates to a book of blank checks belonging to Karmeen V., who did
not testify at trial.
The Attorney General concedes that defendant should only have been
convicted of one count, not three, and we agree. (People v. Morelos (2008) 168
Cal.App.4th 758, 764-765; People v. Carter (1977) 75 Cal.App.3d 865, 871; People v.
Bowie (1977) 72 Cal.App.3d 143, 156-157.)
Because the trial court suspended sentence and placed defendant on
probation, we find no reason to remand for resentencing.
D. What Constitutes a Check (Counts Four and Five)
Defendant next claims there was insufficient evidence to convict him of
violating section 475, subdivision (b), possession of blank checks with the intent to
defraud. These counts, four and five, were based on the checks issued to John K., which
were commonly known as “convenience checks” issued on a credit card account.
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Because these counts will be reversed pursuant to defendant’s previous argument, we
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need not consider this point.
III
DISPOSITION
Defendant’s convictions on counts four and five are reversed. The clerk of
the trial court is directed to prepare an amended abstract of judgment. In all other
respects, the judgment is affirmed.
MOORE, ACTING P. J.
WE CONCUR:
ARONSON, J.
IKOLA, J.
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As the Attorney General points out, were we to find in defendant’s favor on the merits
of this issue (which, incidentally, we would not) then his prior argument about multiple
counts on multiple checks would not apply, and he would still find himself convicted on
count six.
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