Filed 5/26/21 P. v. Nguyen CA3
NOT TO BE PUBLISHED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
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or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(San Joaquin)
----
THE PEOPLE, C087717
Plaintiff and Respondent, (Super. Ct. No. MAN-CR-
FECOD-2017-0014636)
v.
LOM NGUYEN,
Defendant and Appellant.
Defendant Lom Nguyen was convicted by jury of three counts of identity theft,
one count of conspiracy to commit identity theft, three counts of check forgery, one count
of forgery of a driver’s license, one count of acquiring personal identifying information
of at least 10 individuals, one count of conspiracy to acquire such information, one count
1
of misdemeanor mail theft, and one count of misdemeanor receiving stolen property.1 In
a bifurcated proceeding, defendant was found to have served three prior prison terms.
The trial court sentenced defendant to an aggregate determinate prison term of 10 years
8 months.
On appeal, defendant contends: (1) the evidence is insufficient to support one of
his identity theft convictions and a related check forgery conviction (counts 10 & 12)
involving the same victim; (2) we must reverse his conviction for conspiracy to acquire
personal identifying information (count 9) because, as that offense was pleaded in the
information, it is the same offense as conspiracy to commit identity theft (count 3), for
which defendant was also convicted; (3) the sentence imposed on one of defendant’s
check forgery convictions and a related conviction for forgery of a driver’s license
(counts 4 & 5) should have been stayed because these offenses were part of the same
continuous course of conduct supporting one of his identity theft convictions (count 1)
involving the same victim; (4) we must strike defendant’s one-year prior prison term
enhancements because Senate Bill No. 136 (2019-2020 Reg. Sess.) (Senate Bill 136)
applies retroactively to cases not yet final on appeal and eliminates such enhancements
for defendant’s crimes; and (5) the trial court violated defendant’s constitutional right to
due process by imposing a restitution fine, parole revocation fine, and other mandatory
assessments without determining his ability to pay.
We conclude the evidence is more than sufficient to support defendant’s
convictions on counts 10 and 12. With respect to counts 3 and 9, we conclude defendant
was improperly convicted of two counts of conspiracy based on a single agreement to
commit multiple substantive crimes. Defendant’s conviction in count 9 must therefore be
1 The jury was unable to reach a unanimous verdict with respect to three additional
counts. These counts were dismissed in the interest of justice.
2
vacated. Turning to defendant’s claims of sentencing error, we conclude the trial court
erred in declining to stay execution of the sentences imposed on counts 4 and 5 pursuant
to Penal Code section 654.2 Defendant’s one-year prior prison term enhancements must
also be stricken. Finally, the trial court did not violate defendant’s constitutional rights
by imposing the challenged fines and assessments. We shall therefore vacate defendant’s
conviction in count 9, strike the sentence imposed thereon, further strike defendant’s one-
year prior prison term enhancements, and remand the matter to the trial court for
resentencing with directions to impose and stay full term sentences on counts 4 and 5
pursuant to section 654.
FACTS
On the night of October 24, 2017, defendant picked up Jeanne Mendoza at her
cousin’s house in Stockton. He arrived in a U-Haul truck that Mendoza had loaned to
him a few days earlier. Mendoza told her cousin, Kimi Matsuno, that she and defendant
were going “mailboxing” in Elk Grove, by which she meant breaking into other people’s
mailboxes to steal checkbooks, credit cards, and anything else that might have value.
Matsuno will also play a role in the larcenous events supporting defendant’s convictions
in this case.3
Defendant and Mendoza went to a friend’s house, where they stayed up all night
drinking alcohol and doing drugs. They began their mailbox operation the following
afternoon. Mendoza drove into various neighborhoods in Elk Grove and defendant got
out to break into the target mailboxes using a key he possessed for that purpose. Each
2 Undesignated statutory references are to the Penal Code.
3 Mendoza and Matsuno were charged as codefendants in this case. They each
entered a negotiated plea agreement and testified against defendant at trial.
3
time he got out to do so, he returned with a stack of mail. After about an hour, they drove
to a gas station in Tracy and went through the mail. Three envelopes contained credit
cards; they also secured two books of checks. Defendant and Mendoza then drove to
Lathrop, where they tried to use all three of the credit cards at a Target store. Each was
declined. At this point, they returned to the truck and Mendoza called her cousin
Matsuno.
Mendoza called her cousin because Matsuno knew about an internet café in
Stockton that also provided various illegal services, including the creation of fraudulent
DMV documents. Mendoza gave Matsuno the identifying information from the
checkbooks she and defendant stole from the mailboxes and asked her to use the
information to obtain temporary driver’s licenses. Matsuno agreed. Mendoza’s plan was
to write checks using the stolen checks and present the fraudulent DMV documents as
identification. She also planned to rent another truck at a U-Haul location in Manteca
later in the evening and then pick up Matsuno and the fraudulent DMV documents in
Morada, at which point Matsuno would take over driving because Mendoza was tired
from having been up for a few days.
Defendant dropped Mendoza off near the U-Haul location in Manteca, but she was
unable to rent the new truck, so she called defendant and asked him to pick up Matsuno.
In the meantime, Matsuno obtained the requested DMV documents. Apparently,
defendant was on his way to Stockton after dropping off Mendoza. He agreed to pick up
Matsuno and then double back to Manteca to pick up Mendoza. Mendoza also called her
cousin to let her know about the change in plans.
Defendant picked up Matsuno at around 8:00 p.m. She immediately took over
driving because defendant was also tired. When they got to Mendoza’s location in
Manteca, Matsuno gave her cousin a folder containing the requested fraudulent DMV
documents. During the drive, Matsuno noticed the truck was almost out of gas. She
pointed this out, but no one had money for gas. Mendoza suggested going to the mall in
4
Modesto to “try to get some money” there. Matsuno understood this to mean either
writing a check for merchandise that could be returned for money or returning
merchandise she already had in her possession. She was correct. Mendoza testified that
she intended to return items she previously bought by fraudulent means at Victoria’s
Secret.
They arrived at the mall just before it closed. Mendoza went inside to attempt the
return.4 Matsuno and defendant initially stayed in the truck, but Matsuno decided to go
inside to check on her cousin. Inside the mall, Mendoza told her cousin “it didn’t work”
and that she wanted to leave. When they returned to the parking lot, defendant had
moved the truck. It was now parked in front of J.C. Penney. Inside the truck, defendant
was in the driver’s seat with two bags from that store. Matsuno asked where the bags
came from. Defendant responded: “I smacked, don’t trip.” Matsuno understood this to
mean that defendant was able to buy items from J.C. Penney with someone else’s credit
card. He put the bags behind the seat and Matsuno went back inside the mall to again
locate her cousin, who had gone into Forever 21 to try to make a purchase using one of
the stolen checks.
When all members of the group had reconvened at the truck, Matsuno’s focus
turned to getting gas. She drove to the nearest gas station, but it was closed. Defendant
and Mendoza were more focused on “making money” with their stolen items. They were
“bickering back and forth” about where to go to do so. Matsuno became frustrated
because, as she put it, “there was no gas, they didn’t know what they were doing, they’d
4 As we set forth in greater detail later, Mendoza also tried to pass a stolen check in
the amount of $1,012.13 for additional merchandise, but “[t]hat check did not go
through.” This check was part of a checkbook that was stolen from a mailbox in
Stockton around October 12.
5
been up for days and I just couldn’t do it.” Matsuno decided to go home and started
driving northbound on Highway 99. Around this time, Mendoza realized she had a few
dollars on a prepaid card that could be used to buy gas. Matsuno pulled off of the
freeway in Ripon and used that card to put some gas in the truck. At the gas station,
Mendoza told her cousin she wanted to use one of the stolen checks to buy food, alcohol,
and a gas card at a nearby SaveMart grocery store. Defendant was in the truck when this
suggestion was made and did not object.
Matsuno drove the threesome to the store and Mendoza went inside to make the
fraudulent purchase. It was now around 10:30 p.m. According to the store clerk,
Mendoza seemed confused when she entered, walking through her check stand and then
turning around to ask where the shopping carts were located; they were directly in front
of her when she asked. After taking a cart, Mendoza proceeded to shop and then returned
to the check stand to check out. She also asked the clerk for a Visa gift card, but was told
she could not buy one if she was using a check to pay. The clerk then rang up the items
Mendoza sought to purchase and Mendoza wrote a check for the total amount, using one
of the stolen checks and the fraudulent temporary driver’s license for identification
purposes. The transaction was denied, causing the register to print out a slip of paper
with a phone number for the customer to call. The clerk informed Mendoza of the
situation and handed her the paper. Mendoza said she needed to use the restroom and
would make the call to “have it fixed.” She inadvertently left the fraudulent temporary
driver’s license at the register when she went to the restroom. The clerk looked more
closely at the document and then called her manager because “it didn’t feel right.”
Meanwhile, out in the truck, defendant and Matsuno became concerned when
Mendoza did not return for what seemed to be “a long time, 30 minutes.” Defendant
went inside to look for her. Asking the clerk if she knew where his friend was, defendant
was directed to the restroom as Mendoza was coming back out. Defendant and Mendoza
6
left the store. As they did so, the clerk called the police, providing their description as
well as the truck’s license plate number.
The truck was pulled over a short distance from the store. The officer who
initiated the vehicle stop spoke with the driver, Matsuno, who provided her name but did
not have identification. The officer informed her that someone tried to pass a fraudulent
check at SaveMart. Defendant was seated between Matsuno and Mendoza. A second
officer who arrived to assist in the vehicle stop spoke with Mendoza. She provided two
false names and claimed a friend had given her a check to use to buy groceries. Each
occupant of the truck was removed from the vehicle.
During a search of defendant, officers found the key he used to open the
mailboxes earlier in the day, as well as an identification card, Social Security card, and
several credit cards issued to multiple individuals. After defendant was searched,
Matsuno informed the officer that defendant and Mendoza had broken into several
mailboxes.
Various items of incriminating evidence were also found inside the truck,
including shopping bags containing merchandise and a garbage bag filled with mail and
packages. Officers also found several checkbooks, credit cards, and identification cards
belonging to various individuals, a methamphetamine pipe, notebooks containing the
personal identifying information of numerous individuals, and the folder containing
fraudulent DMV documents Matsuno brought for Mendoza earlier in the night.
Because defendant does not challenge the sufficiency of the evidence supporting
most of his convictions, we decline to recount the testimony of the many victims who
testified generally that their mail was stolen, items such as checkbooks or credit cards
were taken, these items were used to purchase or attempt to purchase merchandise, and
they neither knew defendant nor gave him permission to possess their mail, use their
checks or credit cards to make purchases, obtain temporary driver’s licenses on their
behalf, or possess any of the personal identifying information contained in the notebooks
7
found in the U-Haul truck. Defendant does challenge the sufficiency of the evidence
supporting one count of identity theft (count 10) and one count of check forgery (count
12). We discuss the evidence supporting these counts in greater detail immediately
below.
DISCUSSION
I
Sufficiency of the Evidence
Defendant contends the evidence is insufficient to support his convictions for
identity theft (count 10) and check forgery (count 12) committed against R.P. He is
mistaken.
A.
Legal Principles
“ ‘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. [Citations.]’ [Citations.] All conflicts in
the evidence and questions of credibility are resolved in favor of the verdict, drawing
every reasonable inference the jury could draw from the evidence. [Citation.] Reversal
on this ground is unwarranted unless ‘ “upon no hypothesis whatever is there sufficient
substantial evidence to support [the conviction].” ’ [Citation.] This standard applies
whether direct or circumstantial evidence is involved. [Citation.]” (People v. Cardenas
(2015) 239 Cal.App.4th 220, 226-227.)
The crime of identity theft is defined in section 530.5, subdivision (a) as follows:
“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
8
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.”5
In order to convict a defendant of this crime, the prosecution must prove the
following elements: “(1) that the person willfully obtain[ed] personal identifying
information belonging to someone else; (2) that the person use[d] that information for an
unlawful purpose; and (3) that the person who use[d] the identifying information [did] so
without the consent of the person whose personal identifying information [was] used.”
(People v. Sanders (2018) 22 Cal.App.5th 397, 405.) Thus, “[i]dentity theft is not
actually a theft offense,” but rather “seeks to protect the victim from the misuse of his or
her identity.” (Ibid.; see also People v. Valenzuela (2012) 205 Cal.App.4th 800, 808
[“ ‘identity theft in the electronic age is an essentially unique crime, not simply a form of
grand theft’ ”].)
The crime of check forgery is defined in section 470, subdivision (d). This
subdivision provides in relevant part: “Every person who, with the intent to defraud,
falsely makes, alters, forges, or counterfeits, utters, publishes, passes or attempts or offers
5 Section 530.55, subdivision (b) defines “ ‘personal identifying information’ ” to
mean “any name, address, telephone number, health insurance number, taxpayer
identification number, school identification number, state or federal driver’s license, or
identification number, social security number, place of employment, employee
identification number, professional or occupational number, mother’s maiden name,
demand deposit account number, savings account number, checking account number,
PIN (personal identification number) or password, alien registration number, government
passport number, date of birth, unique biometric data including fingerprint, facial scan
identifiers, voiceprint, retina or iris image, or other unique physical representation,
unique electronic data including information identification number assigned to the
person, address or routing code, telecommunication identifying information or access
device, information contained in a birth or death certificate, or credit card number of an
individual person, or an equivalent form of identification.”
9
to pass, as true and genuine, any of the following items, knowing the same to be false,
altered, forged, or counterfeited, is guilty of forgery: any check . . . .” (§ 470, subd. (d).)
Thus, as relevant here, check forgery has the following elements: (1) the false making or
passing of a check as true and genuine; (2) knowledge of the check’s falsity; and (3)
intent to defraud. (See People v. Gaul-Alexander (1995) 32 Cal.App.4th 735, 741.)
Finally, we note that “[a]ll persons concerned in the commission of a crime . . .
whether they directly commit the act constituting the offense, or aid and abet in its
commission . . . are principals in any crime so committed.” (§ 31.) “[A]ider and abettor
liability requires proof in three distinct areas: (a) the direct perpetrator’s actus reus—a
crime committed by the direct perpetrator, (b) the aider and abettor’s mens rea—
knowledge of the direct perpetrator’s unlawful intent and an intent to assist in achieving
those unlawful ends, and (c) the aider and abettor’s actus reus—conduct by the aider and
abettor that in fact assists the achievement of the crime.” (People v. Perez (2005) 35
Cal.4th 1219, 1225.)
With these legal principles in mind, we now describe the evidence supporting the
challenged convictions.
B.
Relevant Testimony
R.P. testified that her mailbox in Stockton was broken into around October 12,
2017. A checkbook was stolen during the break in. Eight checks were later signed in her
name and used to attempt purchases at various stores. Mendoza admitted signing these
checks and attempting to pass them. A check in the amount of $1,012.13 was written at
Victoria’s Secret in the mall in Modesto on October 25, possibly during the same
transaction in which Mendoza unsuccessfully attempted to return previously purchased
merchandise in order to obtain gas money. This check “did not go through.”
The remaining seven checks were written between October 20 and 24. A check in
the amount of $1,379 was written at Nordstrom. A check in the amount of $2,707.64 was
10
written at Home Depot. A check in the amount of $287.04 was written at SaveMart. A
check in the amount of $120.85 was written at Safeway. A check in the amount of
$138.76 was written at Big Lots. A check in the amount of $130.08 was written at
Safeway. A check in the amount of $189.48 was written at Raley’s. The record is
unclear with respect to whether any of these checks went through or were also rejected.
Mendoza testified that defendant gave her R.P.’s stolen checkbook about a week
before their arrest, explaining: “He stole them and brought them for me to try and write.”
R.P. testified that she did not know defendant or Mendoza, did not give them permission
to possess her checks, and did not give them permission to attempt to pass them. During
R.P.’s testimony, she was shown a deposit slip that came from her stolen checkbook; her
Social Security number was written on the deposit slip. R.P. was also shown a temporary
driver’s license that was obtained using her name, address, and date of birth. R.P. did not
give defendant or anyone else permission to possess her identifying information or use
this information to obtain a temporary driver’s license. These items of evidence were
found in Mendoza’s purse after the U-Haul was pulled over on October 25.
Finally, one of the notebooks found in the U-Haul contained R.P.’s name, maiden
name, Social Security number, current address, a previous address, current and prior
phone numbers, and an e-mail address she did not recognize. R.P. did not give
defendant, Mendoza, or Matsuno permission to possess any of this information.
C.
Analysis
We begin by noting defendant does not dispute the crimes of identity theft and
check forgery were committed against R.P. We therefore decline to proceed element-by-
element in analyzing the evidence supporting these crimes. Defendant does dispute his
involvement. He argues the evidence is insufficient to support a conclusion that he aided
and abetted Mendoza in her commission of these crimes. We are not persuaded.
11
First, while defendant is technically correct that “[t]here is no evidence that [he]
was with Ms. Mendoza when that mailbox theft occurred,” his suggestion that Mendoza
broke into the mailbox without him is belied by Mendoza’s testimony. As recounted
above, she denied stealing R.P.’s checkbook and claimed defendant gave her the
checkbook so that she could try to pass the checks. This testimony alone is sufficient to
support defendant’s conviction for check forgery on an aiding and abetting theory.
Again, defendant does not dispute Mendoza committed this crime. If Mendoza’s
testimony is believed, defendant gave her R.P.’s checkbook with knowledge of
Mendoza’s unlawful intent, intended to assist her in achieving those unlawful ends, and
assisted her by giving her the means to do so. (See People v. Perez, supra, 35 Cal.4th at
p. 1225.)
Second, although defendant is also correct that the fraudulent temporary license
that was obtained using R.P.’s information was found in Mendoza’s purse and was likely
obtained from Matsuno prior to the night the three of them were arrested, this says
nothing about whether defendant was aware of Mendoza’s intent to use R.P.’s identifying
information for an unlawful purpose, intended to assist her in doing so, and actually
assisted her by giving her the stolen checkbook containing the personal identifying
information.
However, other evidence establishes these aiding and abetting elements. Again,
Mendoza testified that defendant gave her R.P.’s checkbook so that she could attempt to
pass the checks. R.P.’s personal identifying information was contained on these checks.
Additional personal identifying information was also written on a deposit slip in the
checkbook and in one of the notebooks found in the truck. These notebooks also
contained the personal identifying information of numerous other victims. Finally,
defendant was with Mendoza when she contacted Matsuno about creating fraudulent
temporary driver’s licenses using the personal identifying information from the
checkbooks they stole in Elk Grove. A reasonable inference arising from this evidence is
12
that an integral part of the scheme to steal mail and pass stolen checks was obtaining
fraudulent temporary driver’s licenses in the name of the person whose checks were to be
passed in order to use these documents as identification. Indeed, as the Attorney General
points out in the respondent’s brief, defendant “does not challenge the sufficiency of the
evidence for his convictions related to [the other] victims, whose identifying information
was also found in the red notebook and had fraudulent checks passed by Mendoza from
their accounts on October 24 and 25, 2017.” We agree with the Attorney General’s
assessment that the same reasonable inference arises with respect to R.P. as with these
other victims.
The evidence is more than sufficient to support defendant’s convictions for check
forgery and identity theft involving R.P.
II
Propriety of Defendant’s Conspiracy Convictions
Defendant also claims we must reverse his conviction for conspiracy to acquire
personal identifying information (count 9) because, as that offense was pleaded in the
information, it is the same offense as conspiracy to commit identity theft (count 3), for
which defendant was also convicted. The Attorney General disagrees, arguing these
counts do not charge the same criminal act because defendant was charged in count 3
with conspiracy to commit identity theft in violation of section 530.5, subdivision (a) by
conspiring with Mendoza and Matsuno to use the identifying information of one of the
victims, L.S., to attempt to pass one of her checks at the SaveMart on the night they were
arrested, whereas he was charged in count 9 with conspiracy to commit identity theft in
violation of section 530.5, subdivision (c)(3) by conspiring with Mendoza and Matsuno
to acquire the personal identifying information of 10 or more people with the intent to
defraud.
While we agree with the Attorney General that each count alleges a conspiracy to
commit a different substantive offense, the question we must resolve is whether this
13
amounts to two separate conspiracies, or rather one conspiracy to commit two substantive
offenses. The answer is the latter.
“[W]hen a single agreement to commit one or more substantive crimes is
evidenced by an overt act, as the statute requires, the precise nature and extent of the
conspiracy must be determined by reference to the agreement which embraces and
defines its objects. Whether the object of a single agreement is to commit one or many
crimes, it is in either case that agreement which constitutes the conspiracy which the
statute punishes. The one agreement cannot be taken to be several agreements and hence
several conspiracies because it envisages the violation of several statutes rather than
one.” (Braverman v. United States (1942) 317 U.S. 49, 53 [87 L.Ed. 23] (Braverman).)
“The single agreement is the prohibited conspiracy, and however diverse its objects it
violates but a single statute.” (Id. at p. 54; see People v. Lopez (1994) 21 Cal.App.4th
1551, 1557 (Lopez).)
In Braverman, the defendants were charged with multiple counts of conspiracy
based on an agreement that would entail violating statutory restrictions on the
manufacture, transportation, and distribution of liquor. (Braverman, supra, 317 U.S. at
pp. 50-51.) It was conceded that all of the statutory violations were pursuant to a single
agreement. The United States Supreme Court determined that under such circumstances,
it was improper to find “that even though a single agreement is entered into, the
conspirators are guilty of as many offenses as the agreement has criminal objects.” (Id. at
p. 53.)
In Lopez, the defendant was found guilty by jury of three conspiracy counts:
conspiracy to illegally dispose of hazardous substances, conspiracy to manufacture
methamphetamine, and conspiracy to possess methamphetamine for sale. (Lopez, supra,
21 Cal.App.4th at pp. 1553-1554.) The charges were based on an agreement the
defendant made with an undercover sheriff’s deputy to receive a large quantity of
ephedrine from him in return for a portion of the methamphetamine the defendant
14
planned to manufacture using the ephedrine. (Ibid.) The appellate court held: “[A]ll
three of the charged crimes were for one ultimate purpose, sale of methamphetamine for
financial gain. All of the acts in each of the three target crimes were incidental to this
objective, and many acts were a direct part of more than one of the crimes. Under these
circumstances, but one count of conspiracy can be sustained.” (Id. at pp. 1558-1559.)
Similarly, in People v. Patrick (1981) 126 Cal.App.3d 952, the defendant was
convicted of two counts of conspiracy concerning the same victim: conspiracy to kidnap
and conspiracy to falsely imprison. Noting the defendant was charged with the same
overt acts for each conspiracy, the appellate court struck one of the conspiracy
convictions because “the instructions given to the jury allowed them to convict [the
defendant] of two conspiracy offenses based on exactly the same conduct.” (Id. at
p. 965.)
Comparable circumstances underlie defendant’s conspiracy convictions. The
same overt acts were charged as to each count of conspiracy. No evidence was presented
to support findings of two separate agreements, one with respect to using L.S.’s personal
identifying information for the unlawful purpose of passing one of her checks at
SaveMart and another with respect to acquiring the personal identifying information of
10 or more individuals with the intent to defraud. To the contrary, the evidence suggests
there was one overarching agreement among the conspirators to steal checks and credit
cards from mailboxes, use the personal identifying information from these items to create
fraudulent DMV documents in order to enable them to fraudulently use the credit cards
and pass the checks. While this agreement envisages violation of several criminal
statutes, we cannot conclude on these facts that there were two separate agreements, and
therefore two criminal conspiracies.
We must therefore vacate one of the conspiracy convictions.
15
III
Section 654
Defendant further asserts the sentence imposed on his convictions for check
forgery (count 4) and forgery of a driver’s license (count 5) should have been stayed
because these offenses were part of the same continuous course of conduct supporting
one of his identity theft convictions (count 1). We agree.
A.
Legal Principles
“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.” (§ 654, subd. (a).) “The purpose of this statute is to prevent multiple
punishment for a single act or omission, even though that act or omission violates more
than one statute and thus constitutes more than one crime. Although these distinct crimes
may be charged in separate counts and may result in multiple verdicts of guilt, the trial
court may impose sentence for only one of the separate offenses arising from the single
act or omission―the offense carrying the highest punishment.” (People v. Hutchins
(2001) 90 Cal.App.4th 1308, 1312; People v. Mendoza (1997) 59 Cal.App.4th 1333,
1345.)
“Whether a defendant may be subjected to multiple punishment under section 654
requires a two-step inquiry, because the statutory reference to an ‘act or omission’ may
include not only a discrete physical act but also a course of conduct encompassing several
acts pursued with a single objective.” (People v. Corpening (2016) 2 Cal.5th 307, 311.)
Where “different crimes were completed by a ‘single physical act[]’ . . . the defendant
may not be punished more than once for that act.” (Ibid.) For example, “the forceful
taking of a vehicle on a particular occasion is a single physical act under section 654”
16
despite the fact that this act amounts to both a robbery and a carjacking. (Id. at p. 313;
see id. at p. 314.)
Where, as here, there is more than one physical act, the following rule applies:
“Whether a course of criminal conduct is divisible and therefore gives rise to more than
one act within the meaning of section 654 depends on the intent and objective of the
actor. If all of the offenses were incident to one objective, the defendant may be
punished for any one of such offenses but not for more than one.” (Neal v. State of
California (1960) 55 Cal.2d 11, 19, disapproved on another point in People v. Correa
(2012) 54 Cal.4th 331, 338; People v. Rodriguez (2009) 47 Cal.4th 501, 507.) “In such a
case, the defendant’s single intent and objective are treated as a single act. For example,
a defendant who enters a building with the intent to commit theft and then takes
something of value cannot be sentenced for both burglary and theft. Although the
defendant committed two criminal acts (entering the building and taking the property),
the two acts ‘were parts of a continuous course of conduct and were motivated by one
objective, theft; the burglary, although complete before the theft was committed, was
incident to and a means of perpetrating the theft.’ [Citation.]” (In re Jose P. (2003) 106
Cal.App.4th 458, 469, disapproved on another point in People v. Prunty (2015) 62
Cal.4th 59, 78, fn. 5; see also People v. Latimer (1993) 5 Cal.4th 1203, 1216 [defendant
convicted of kidnapping and rape; separate punishment for kidnapping not permitted
because the sole objective of the kidnapping was to facilitate the rape].)
However, if the “defendant harbored ‘multiple criminal objectives,’ which were
independent of and not merely incidental to each other, he may be punished for each
statutory violation committed in pursuit of each objective, ‘even though the violations
shared common acts or were parts of an otherwise indivisible course of conduct.’
[Citation.]” (People v. Harrison (1989) 48 Cal.3d 321, 335.)
“ ‘Whether section 654 applies in a given case is a question of fact for the trial
court, which is vested with broad latitude in making its determination. [Citations.] Its
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findings will not be reversed on appeal if there is any substantial evidence to support
them. [Citations.] We review the trial court’s determination in the light most favorable
to the respondent and presume the existence of every fact the trial court could reasonably
deduce from the evidence.’ [Citation.]” (People v. Ortiz (2012) 208 Cal.App.4th 1354,
1378.)
B.
Analysis
Counts 1, 3, 4, and 5 involved the same victim, L.S. In count 1, defendant was
convicted of identity theft. In count 3, as explained more fully above, defendant was
convicted of conspiracy to commit identity theft. In count 4, defendant was convicted of
check forgery. In count 5, defendant was convicted of forgery of a driver’s license. The
trial court stayed execution of sentence on count 3 pursuant to section 654. The question
is whether the court should have done the same with respect to counts 4 and 5.
Defendant argues the answer is yes because each of these crimes was “part of a single
course of conduct with the objective of using one of [L.S.’s] checks to get money or
goods.” The Attorney General disagrees. Relying on People v. Neder (1971) 16
Cal.App.3d 846 (Neder), he argues the two forgeries “involved different documents with
different intents and objectives.”
In Neder, the defendant was convicted of three counts of forgery based on a single
trip into a Sears department store, during which his accomplice made three separate
purchases from three different salesclerks using the victim’s credit card and forging her
name on each of the sales slips. (Neder, supra, 16 Cal.App.3d at pp. 849-850.) The
appellate court held three separate punishable offenses were committed. Distinguishing
People v. Bailey (1961) 55 Cal.2d 514, in which our Supreme Court held a series of
takings constitutes a single theft offense “if the evidence shows that the offenses are . . .
committed pursuant to one intention, one general impulse, and one plan” (id. at p. 519),
the Neder court explained: “The essential act in all types of theft is taking. If a certain
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amount of money or property has been taken pursuant to one plan, it is most reasonable
to consider the whole plan rather than to differentiate each component part. [Citation.]
The real essence of the crime of forgery, however, is not concerned with the end, i.e.,
what is obtained or taken by the forgery; it has to do with the means, i.e., the act of
signing the name of another with intent to defraud and without authority, or of falsely
making a document, or of uttering the document with intent to defraud. Theft pursuant to
a plan can be viewed as a large total taking accomplished by smaller takings. It is
difficult to apply an analogous concept to forgery. The designation of a series of
forgeries as one forgery would be a confusing fiction.” (Neder, at pp. 852-853, fn.
omitted.) Turning to section 654, the court acknowledged each forgery was “incident to
the fundamental objective of taking goods from Sears by use of the credit card and by
forging the sales slips,” but explained that “each forgery was certainly not a means for the
accomplishment of any of the others.” (Neder, at pp. 853-854.) The court concluded:
“Each act of forgery was committed for the taking of certain goods, separate from and
unrelated to the goods taken by the other forgeries.” (Id. at p. 854.)
Neder is inapposite. In this case, we are not tasked with determining whether
defendant may be punished for both forgery offenses, vis-à-vis each other. Instead, we
must determine whether defendant may be separately punished for the forgery offenses,
or either of them, vis-à-vis the identify theft offense committed against the same victim.
In other words, were the forgery offenses committed pursuant to the same intent and
objective as the identity theft? We conclude they were. The evidence adduced in this
case establishes defendant’s sole intent and objective in committing each crime was to
obtain goods with the forged check. Defendant committed identify theft by obtaining and
using L.S.’s personal identifying information for an unlawful purpose, specifically to
attempt to obtain goods at SaveMart, as the prosecutor argued during her closing
argument. Defendant committed check forgery with the same objective in mind. And
while he arguably possessed a different intent in committing forgery of the temporary
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driver’s license, i.e., the intent to enable Mendoza to impersonate L.S., the only reason
Mendoza needed to impersonate L.S. was to enable her to pass the forged check. Thus,
even if there were multiple objectives, they were not “independent of [rather than] merely
incidental to each other . . . .” (People v. Harrison, supra, 48 Cal.3d at p. 335.)
The trial court should have stayed execution of the sentences imposed on counts 4
and 5. We strike the sentences originally imposed on those counts and direct the trial
court to impose and stay full term sentences on both counts on remand.
IV
Retroactive Application of Senate Bill 136
We also agree defendant’s prior prison term enhancements must be stricken.
Effective January 1, 2020, Senate Bill 136 amended section 667.5, subdivision (b),
to remove the one-year enhancement for prior prison terms, except when the offense
underlying the prior prison term was a sexually violent offense. (See § 667.5, subd. (b).)
Because Senate Bill 136 reduces sentences for a crime it applies retroactively to
convictions not final on appeal absent evidence of a contrary legislative intent. (See
People v. Brown (2012) 54 Cal.4th 314, 323-324; In re Estrada (1965) 63 Cal.2d 740,
745.) The enactment therefore applies to this case.
The offenses underlying defendant’s prior prison terms were not sexually violent
offenses. Accordingly, the prior prison term enhancements cannot stand. We shall
therefore modify the judgment to strike each of defendant’s one-year prior prison term
enhancements.
V
Imposition of the Restitution Fine and Other Mandatory Assessments
Finally, defendant argues the imposition of the following mandatory fines and
assessments violated his constitutional right to due process because the trial court did not
determine his ability to pay before imposing them: (1) a restitution fine of $9,000
(§ 1202.4), (2) a parole revocation fine of $300 (§ 1202.45), (3) a court operations
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assessment of $400 (§ 1465.8), (4) a court facilities assessment of $300 (Gov. Code,
§ 70373), and (5) a $900 surcharge (§ 1464). He asks this court to stay the fines and
vacate the assessments, or in the alternative, remand the matter to the trial court for an
ability to pay determination.
This argument relies primarily on People v. Dueñas (2019) 30 Cal.App.5th 1157,
which held “due process of law requires the trial court to conduct an ability to pay
hearing and ascertain a defendant’s present ability to pay before it imposes court facilities
and court operations assessments under . . . section 1465.8 and Government Code section
70373.” (Id. at p. 1164.) The Dueñas court also held “that although . . . section 1202.4
bars consideration of a defendant’s ability to pay unless the judge is considering
increasing the fee over the statutory minimum, the execution of any restitution fine
imposed under this statute must be stayed unless and until the trial court holds an ability
to pay hearing and concludes that the defendant has the present ability to pay the
restitution fine.” (Ibid.)
The Attorney General responds by arguing this claim is forfeited by failing to
object to the imposition of the challenged fines and assessments during the sentencing
hearing. Assuming, without deciding, that defendant’s challenge to the mandatory fines
and assessments have not been forfeited, we conclude Dueñas was wrongly decided and
reject defendant’s claim on that basis.
Our Supreme Court is now poised to resolve this question, having granted review
in People v. Kopp (2019) 38 Cal.App.5th 47, review granted November 13, 2019,
S257844, which agreed with the court’s conclusion in Dueñas that due process requires
the trial court to conduct an ability to pay hearing and ascertain a defendant’s ability to
pay before it imposes court facilities and court operations assessments under section
1465.8 and Government Code section 70373, but not restitution fines under section
1202.4. (Kopp, at pp. 95-96.)
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In the meantime, we join several other courts in concluding that the principles of
due process do not require determination of a defendant’s present ability to pay before
imposing the fines and assessments at issue in Dueñas and in this proceeding. (People v.
Kingston (2019) 41 Cal.App.5th 272, 279; People v. Hicks (2019) 40 Cal.App.5th 320,
329, review granted Nov. 26, 2019, S258946; People v. Aviles (2019) 39 Cal.App.5th
1055, 1069; People v. Caceres (2019) 39 Cal.App.5th 917, 928.) Having done so, we
reject defendant’s Dueñas challenge to the restitution fine and other mandatory
assessments imposed in this case.6
DISPOSITION
Defendant’s conviction in count 9 is vacated and the sentence imposed thereon is
stricken, as are the sentences on counts 4 and 5. Defendant’s one-year prior prison term
enhancements are also stricken. The matter is remanded to trial court for resentencing,
during which the trial court is directed to impose and stay full term sentences on counts 4
and 5 pursuant to Penal Code section 654 and impose all mandatory fines and
assessments in accordance with the statutes providing therefor. In all other respects, the
judgment is affirmed. Following resentencing, the trial court is directed to prepare an
6 The Attorney General also argues the trial court erred in neglecting to impose the
court operations and court facilities assessments on defendant’s two misdemeanor
convictions. Defendant offers no argument in response. These assessments apply to
“every conviction for a criminal offense” with exceptions not applicable here. (§ 1465.8,
subd. (a)(1); Gov. Code, § 70373, subd. (a)(1).) Because we are already remanding the
matter for resentencing, we shall simply direct the trial court to impose all mandatory
fines and assessments in accordance with the statutes providing therefor.
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amended abstract of judgment and to forward a certified copy thereof to the Department
of Corrections and Rehabilitation.
/s/
HOCH, J.
We concur:
/s/
BLEASE, Acting P. J.
/s/
DUARTE, J.
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