People v. SHABTAY

42 Cal. Rptr. 3d 227, 138 Cal. App. 4th 1184, 2006 Cal. Daily Op. Serv. 3400, 2006 Daily Journal DAR 4965, 2006 Cal. App. LEXIS 572

• Court: California Court of Appeal
• Decided: April 25, 2006
• Docket: B179520
• Status: Published

Opinions

Opinion

KRIEGLER, J.

Penal Code section 484e, subdivision (b)¹ defines an offense of grand theft where a person “within any consecutive 12-month period, acquires access cards issued in the names of four or more persons which he or she has reason to know were taken or retained” with the intent to defraud. The narrow issue in this appeal is whether a defendant may be convicted of more than one violation of section 484e, subdivision (b) within any 12-month consecutive period, when a defendant acquires eight or more access cards. We conclude that the plain language of section 484e, subdivision (b) precludes multiple convictions where the prosecution alleges that the defendant acquired access cards within any consecutive 12-month period.

A jury convicted defendant and appellant Yerev Shabtay of multiple offenses arising from a sophisticated identity theft scheme he operated in 2001, including three counts of grand theft of personal property (§ 487, subd. (a)), two counts of grand theft by possession of access card numbers of 11 other persons (§ 484e, subd. (b)), one count of receiving stolen property (§ 496, subd. (a)), and one count of conspiracy to commit grand theft (§§ 182, subd. (a)(1), 487, subd. (a)). The jury found that the victim of grand theft in count 1 sustained a loss exceeding $50,000 within the meaning of section 12022.6, subdivision (a).

Defendant argues he could only be convicted of a single count of violating section 484e, subdivision (b), because the prosecution alleged and proved that defendant acquired 11 access cards within a single 12-month period. The Attorney General argues that because the prosecution established that defendant acquired access cards in the names of eight or more persons in a consecutive 12-month period, defendant was properly convicted of two violations of section 484e, subdivision (b). In other words, the Attorney General interprets the statute as allowing for a separate charge during any consecutive 12-month period whenever a defendant acquires enough access cards to reach an ascending multiple of four. For the reasons that follow, we agree that only one conviction within any consecutive 12-month period is permissible, and therefore reverse one of the convictions under section 484e, subdivision (b).

Counts 7 and 8 of the information both alleged in part: “On and between February 6, 2001 and May 8, 2001 ... the crime of THEFT, in violation of PENAL CODE SECTION 484e[, subdivision] (b), a Felony, was committed by YEREV SHABTAY, who did, within a consecutive 12-month period, acquire access cards issued in the names of four and more persons with reason to know they were taken and retained under circumstances which constitute a violation of the other subdivisions of this section.” We review the testimony and extensive documentary evidence in the light most favorable to the judgment. (Jackson v. Virginia (1979) 443 U.S. 307, 319 [61 L.Ed.2d 560, 99 S.Ct. 2781]; People v. Osband (1996) 13 Cal.4th 622, 690 [55 Cal.Rptr.2d 26, 919 P.2d 640]; Taylor v. Stainer (9th Cir. 1994) 31 F.3d 907, 908-909.) Our focus will be on the evidence pertinent to counts 7 and 8—the two grand theft counts defendant argues can only be the subject of a single conviction. All facts are from the case of the prosecution, as no defense witnesses were presented.

Defendant operated an Internet-based electronic sales business in 2001 called “Simply Discount.” An employee, Sharon Israel, was instructed by defendant to order electronics equipment on the Internet, using customer information including credit card numbers. Ms. Israel directed that the electronics equipment ordered with customers’ credit card information be shipped to one of nine public mailboxes, which had been rented by defendant. At defendant’s direction, Ms. Israel picked up packages at defendant’s nine public mailboxes. On a “fairly frequent” basis throughout 2001, Ms. Israel took the packages from the public mailboxes to the residence from which defendant operated his Internet electronics sales venture.

Detectives, armed with a search warrant, searched defendant’s place of business, seizing approximately 270 items, the majority of which were computers, digital cameras, and camcorders. Investigators established that some of the electronic equipment had been purchased during 2001 using the credit cards of the 11 victims. That equipment was shipped to the mailboxes where defendant regularly sent Ms. Israel to pick up packages. Eight different victims testified their credit card numbers were used in 2001 without their permission to purchase electronic equipment ultimately found in defendant’s place of business. It was stipulated that three other victims did not authorize the use of their credit card numbers to make purchases in 2001 of electronic equipment which was found in defendant’s place of business.

Section 484e, subdivision (b) states: “Every person, other than the issuer, who within any consecutive 12-month period, acquires access cards issued in the names of four or more persons which he or she has reason to know were taken or retained under circumstances which constitute a violation of subdivision (a), (c), or (d) is guilty of grand theft.”² The term “access card” does not merely refer to credit or automatic teller machine cards; it also includes credit card information. Section 484d, subdivision (2) defines the term access card as follows: “ ‘Access card’ means 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.” As noted, the term “access card” includes an account number which can be used to obtain “goods ... or any other thing of value.” Hence, if four or more victims’ credit card numbers are used within any consecutive 12-month period to commit a crime as specified in section 484e, subdivision (a), (c), or (d), a grand theft has occurred.

There was substantial evidence defendant used the credit card numbers of 11 victims within a single, consecutive 12-month period to purchase electronic equipment without their permission. Defendant’s acquisition of the 11 victims’ credit card numbers for a fraudulent use violated section 484e, subdivision (d). (See fn. 2, ante; People v. Molina (2004) 120 Cal.App.4th 507, 516 [15 Cal.Rptr.3d 493] [applying § 484e, subd. (d)]; People v. Smith (1998) 64 Cal.App.4th 1458, 1470 [76 Cal.Rptr.2d 75] [applying predecessor to § 484e, subd. (d)].) The crime of grand theft was committed because defendant acquired access cards issued in the names of four or more persons within a consecutive 12-month period, which he had reason to know were retained by him under circumstances which constitute a violation of section 484e, subdivision (d). (People v. Butler (1996) 43 Cal.App.4th 1224, 1233 [51 Cal.Rptr.2d 150] [applying predecessor to § 484e, subd. (b)].)

The issue in this case is whether section 484e, subdivision (b) can be violated more than once in any consecutive 12-month period. As noted earlier, the information alleged that defendant committed two violations of section 484e, subdivision (b), each on or between February 6, 2001, and May 8, 2001.

The rules of statutory interpretation are well settled. “Our fundamental task in construing a statute is to ascertain the intent of the lawmakers so as to effectuate the purpose of the statute. [Citation.] We begin by examining the statutory language, giving the words their usual and ordinary meaning. [Citation.]” (Day v. City of Fontana (2001) 25 Cal.4th 268, 272 [105 Cal.Rptr.2d 457, 19 P.3d 1196] (Day).) We construe the words of a statute in context, and to the extent possible, harmonize provisions relating to the same subject matter. (People v. Shabazz (2006) 38 Cal.4th 55, 67 [40 Cal.Rptr.3d 750, 130 P.3d 519]; People v. Robles (2000) 23 Cal.4th 1106, 1114 [99 Cal.Rptr.2d 120, 5 P.3d 176]; Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735 [248 Cal.Rptr. 115, 755 P.2d 299].) We do not give statutory language a literal construction if it is contrary to the legislative intent apparent in the statute. (People v. Robles, supra, 23 Cal.4th at p. 1114.) “If the language is clear and unambiguous there is no need for construction, nor is it necessary to resort to indicia of the intent of the Legislature (in the case of a statute) or of the voters (in the case of a provision adopted by the voters).” (Lungren v. Deukmejian, supra, 45 Cal.3d at p. 735.) A statutory interpretation that renders related provisions nugatory must be avoided. (People v. Shabazz, supra, 38 Cal.4th at p. 67; People v. Craft (1986) 41 Cal.3d 554, 561 [224 Cal.Rptr. 626, 715 P.2d 585].) If a statute is amenable to two alternative interpretations, the one that leads to the more reasonable result will be followed. (Lungren v. Deukmejian, supra, 45 Cal.3d at p. 735.) “If there is no ambiguity, then we presume the lawmakers meant what they said, and the plain meaning of the language governs.” (Day, supra, 25 Cal.4th at p. 272.) “Ambiguous means ‘susceptible to more than one reasonable interpretation.’ ” (Coburn v. Sievert (2005) 133 Cal.App.4th 1483 [1495, 35 Cal.Rptr.3d 596].)

In our view, the language of section 484e, subdivision (b) is clear and unambiguous, and leads to the inescapable conclusion that there can be only one violation of the statute within any consecutive 12-month period. First, the language of the statute specifically defines the time period in which a violation of the statute may occur as “within any consecutive 12-month period.” The Legislature has therefore unambiguously set forth the span of time in which to measure whether a defendant has committed felony grand theft by unlawfully acquiring access card information. The Legislature’s determination that a specific period of time—here, any consecutive 12-month period—shall be used to determine whether an offense is a felony grand theft is not unique to section 484e, subdivision (b). (See § 484g [if value of goods obtained by fraudulent use of an access card “exceeds four hundred dollars ($400) in any consecutive six-month period, then the same shall constitute grand theft”]; § 484h, subds. (a), (b) [a retailer commits grand theft by participating in fraudulent access card transactions where the amount in question “exceeds four hundred dollars ($400) in any consecutive six-month period”].)

Second, by defining grand theft as acquiring access cards of “four or more” persons (italics added), section 484e, subdivision (b) makes explicitly clear that no matter how many cards are accessed in excess of four, there is only one offense within any consecutive 12-month period. An interpretation of section 484e, subdivision (b), which allowed for more than one prosecution within any single consecutive 12-month period, would effectively delete the “or more” language from of the statute, thereby running afoul of the rule requiring us to avoid an interpretation of a statute that would render a provision nugatory.

Had the Legislature intended to allow for multiple prosecutions under section 484e, subdivision (b) for conduct within any consecutive 12-month period, it would have had no reason to include the words “or more” after the word “four.” The Legislature could have defined grand theft as each time a defendant acquired four access cards within any consecutive 12-month period, thereby allowing for a new prosecution when another four access numbers were acquired. Instead, the Legislature created a grand theft offense when, within the prescribed period, four or more access cards were acquired. The words “four or more” cannot fairly be interpreted to mean that another violation of the statute occurs when the number of access cards acquired reaches eight, or any higher multiple of four.

The Attorney General makes the procedural argument that defendant’s failure to demur to the information pursuant to section 1004³ constitutes a waiver of the multiple-conviction issue. We disagree. While a demurrer does lie to challenge an improper charging of more than one offense under section 954, the failure to demur does not justify a multiple conviction that is improper as a matter of law. A demurrer would have prevented a trial on two counts of violating section 484e, subdivision (b). Having failed to demur, defendant cannot complain about any prejudice he may have suffered from facing trial on a count that should not have been prosecuted, because the failure to demur waives the issue. (People v. Kemp (1961) 55 Cal.2d 458, 473-475 [11 Cal.Rptr. 361, 359 P.2d 913]; People v. Alvarez (2002) 100 Cal.App.4th 1170, 1176-1177 [122 Cal.Rptr.2d 859].) However, the lack of a demurrer does not mean defendant waives any objection to an unwarranted multiple conviction.

If a defendant is improperly convicted of multiple counts of grand theft where only one grand theft conviction is proper, we have held that the appropriate disposition is to reverse the unauthorized convictions. (People v. Packard (1982) 131 Cal.App.3d 622, 626-627 [182 Cal.Rptr. 576].) Where, as here, we conclude as a matter of law that multiple convictions are not authorized, the issue may be raised on appeal even in the absence of an objection in the trial court. (See, e.g., People v. Scott (1994) 9 Cal.4th 331, 354 [36 Cal.Rptr.2d 627, 885 P.2d 1040] [appellate court may consider issue of an unauthorized sentence even in the absence of an objection in the trial court where the sentence could not be imposed under any circumstance in the case].)

For these reasons, we conclude defendant should only have been convicted of one violation of section 484e, subdivision (b) for acquiring access cards in the names of four or more persons within the period on and between February 6, 2001, and May 8, 2001. The conviction in count 8 must be reversed.

DISPOSITION

The conviction in count 8 is reversed, and upon issuance of the remittitur, the trial court shall dismiss count 8. In all other respects, the judgment is affirmed.

Mosk, J., concurred.

1 All statutory references in this opinion are to the Penal Code, unless otherwise indicated.

2 Section 484e, subdivisions (a), (c), and (d) provide: “(a) Every person who, with intent to defraud, sells, transfers, or conveys, an access card, without the cardholder’s or issuer’s consent, is guilty of grand theft, [ft] ... [ID (c) Every person who, with the intent to defraud, acquires or retains possession of an access card without the cardholder’s or issuer’s consent, with intent to use, sell, or transfer it to a person other than the cardholder or issuer is guilty of petty theft, [ft] (d) Every person who acquires or retains possession of access card account information with respect to an access card validly issued to another person, without the cardholder’s or issuer’s consent, with the intent to use it fraudulently, is guilty of grand theft.”

3 Section 1004 provides in pertinent part as follows: “The defendant may demur to the accusatory pleading at any time prior to the entry of a plea, when it appears upon the face thereof either: [IQ ... [ID 3. That more than one offense is charged, except as provided in Section 954.”