Opinion
A156457
05-27-2020
THE PEOPLE, Plaintiff and Respondent, v. JEFFREY ARTHUR CHOATE, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Mateo County Super. Ct. No. 18NF011601)
Jeffrey Arthur Choate was convicted following a jury trial of false personation and unauthorized use of personal identifying information (identity theft). On appeal, he contends (1) Senate Bill No. 136 applies retroactively to his case and requires reversal of the one-year prior prison term enhancement the trial court imposed under Penal Code section 667.5, subdivision (b); (2) the court erred when it failed to stay his sentence on the identity theft count, pursuant to section 654; and (3) the abstract of judgment and minute order related to the fines and fees imposed contain clerical errors that must be modified to reflect the court's oral pronouncement at sentencing; and (4) the parole revocation restitution fine must be corrected to match the restitution fine. We find, and respondent agrees, that appellant's first, third, and fourth contentions have merit, and we shall therefore modify the judgment to strike the one-term imposed pursuant to former section 667.5, subdivision (b) and to correct the sentencing-related errors. We further find that the two-year concurrent sentence for identity theft must be stayed, pursuant to section 654. As so modified, we shall affirm the judgment.
All further statutory references are to the Penal Code unless otherwise indicated.
PROCEDURAL BACKGROUND
Appellant was charged by second amended information with false personation (§ 529, subd. (a)(3)—count 1); identity theft (§ 530.5, subd. (a)—count 2); petty theft (§ 490.2—count 3); possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)—count 4); and possession of a controlled substance (Health & Saf. Code, § 11350, subd. (a)—count 5). The information alleged as to counts 1 and 2 that appellant had suffered two prior strikes (§§ 667, subds. (b)-(j), 1170.12), and had served a prior prison term within the meaning of section 667.5, subdivision (b).
A jury subsequently found appellant guilty as charged and, in a bifurcated proceeding, the court found the prior strike and prison term allegations true.
On February 1, 2019, the court sentenced appellant to a total term of five years in prison, which included a two-year middle term on count 1, doubled to four years due to the prior strike, with a consecutive one-year term on the prior prison term enhancement; and a concurrent two-year middle term on count 2, doubled to four years due to the prior strike.
On February 4, 2019, appellant filed a notice of appeal.
FACTUAL BACKGROUND
Prosecution Case
Sterling Staudenmaier, a loss prevention detective at a Marshall's department store in Colma, testified that around 5:42 p.m. on September 25, 2018, a sales associate alerted him to appellant's suspicious behavior. Staudenmaier began watching appellant, who eventually removed multiple items from a shopping cart and exited through a fire escape door in the back of the store. Staudenmaier followed appellant, yelling at him to drop the merchandise and return to the store. Appellant dropped the merchandise, but kept running. Staudenmaier continued following appellant while also calling his boss and then the police on his cell phone. A short time later, Staudenmaier saw police officers arrive and arrest appellant. Staudenmaier approached and told the officers that appellant was the person he had called about.
Colma Police Officer Joshua Moreno testified that he and Officer Mark Francisco responded to a call for service regarding a suspected theft from the Marshall's department store in Colma. As he and Francisco approached, he saw Sergeant Jordan contacting appellant. When Moreno and Francisco arrived at the scene, Jordan detained appellant. Moreno asked appellant for identification and appellant said he had none with him. He said his name was Jason E., gave a date of birth in July 1984, and provided a partial driver's license number. Based on the information appellant provided, Moreno asked dispatch to perform a records check on him. Moreno then searched appellant and found what he suspected was heroin and methamphetamine in the front pocket of appellant's pants. Appellant claimed that the pants were not his and that a friend had let him borrow them because his own pants were bloody. Appellant later told Moreno that he is a heroin user.
The parties stipulated at trial that both the heroin and the methamphetamine found constituted usable quantities.
When he arrived at the scene, Officer Francisco asked dispatch to send him Jason E.'s photo from a Department of Motor Vehicles database. The man in the photo looked similar to appellant. Francisco later discovered that appellant had previously identified himself as Jason E. during a police contact in San Bruno.
Colma Reserve Officer Tejinder Arurkar testified that when she arrived at the scene, she saw appellant in handcuffs next to a patrol car. After Arurkar read appellant his Miranda rights, appellant said he had not done anything wrong and did not know why the loss prevention officer had chased him. Arurkar transported appellant to the police station and brought him into a room used for processing arrestees. She began filling out an online form using information from a printout that had been provided to her by dispatch, which contained details from the time of appellant's arrest and which identified him as Jason E. The information provided by appellant at the police station was already in the system and Arurkar was going through it with him step by step.
Miranda v. Arizona (1966) 384 U.S. 436.
As Arurkar was about to remove the handcuffs to take appellant's fingerprints, he mentioned that he also had an alias, which was Jeffrey Arthur Choate, and gave a date of birth in April 1985. He also said he had been booked into San Francisco County Jail under the name Jason E. 18 to 20 times. When asked what his birth name was, appellant said, " 'Jeffrey Arthur Choate.' " Officers then ran a record check using his real name and date of birth, saw that a Department of Motor Vehicles photo matched his current appearance, and learned he had an active, no-bail felony warrant under his real name, Jeffrey Arthur Choate.
Defense Case
Appellant testified that he had been homeless for two years. The methamphetamine and heroin found in his pocket belonged to him. Because of his drug habit, he had committed numerous theft-related offenses, including four convictions for bank robbery. On September 25, 2018, appellant went with his friend Bob to steal clothes, both to replace his pants, which had been bloodied the night before when someone had robbed and beaten him, and to get jackets for other people on the street who were cold. After injecting some methamphetamine and heroin in a bathroom at the Colma BART station, appellant gave his backpack to Bob and said he would go get some clothes and be right back. Appellant then went to a nearby store, where he took some clothes and left through an emergency exit. When he saw someone he assumed was a loss prevention officer behind him, he dropped the clothes and kept going.
Shortly thereafter, appellant was stopped by several police officers, who asked him his name. He gave them the name and date of birth of Jason E. After he was searched and the drugs were found in his pocket, appellant told officers that he was a heroin addict and that the heroin was his, but the methamphetamine was not. He was stressed about coming down off the heroin because he knew that "in this county jail, they don't give you anything for it, and it sends you into withdrawals." Later, when he was in a patrol car, an officer said that because he was "being so cool," the police would cite and release him.
Once at the police station, appellant was taken into a room with a fingerprint machine. When he realized that the citation would be issued in Jason E.'s name, he decided to give Officer Arurkar his real name because he did not want to harm Jason E. He recalled using the word, "alias," but did not remember the context. After appellant gave officers his real name and date of birth and the information was called in, he was handcuffed again. When he asked an officer if he had a parole warrant, she confirmed that he did. He was then transported to the county jail.
He had used Jason E.'s name initially because he "was panicked." He was worried both about his friend Bob and about coming off of the heroin. Appellant did not mean any penal harm to Jason E., who had been a close friend from childhood until appellant went to prison in 2013. Appellant had not talked to Jason E. since then, and Jason E. did not give appellant permission to use his name. Appellant believed the police would release him after they learned that Jason E. did not have a criminal record. He had given Jason E.'s name to police officers more than once in the past so that they would not harass him for being on parole, but had never before been booked under Jason E.'s name. He was panicked when he gave Jason E.'s name in the present case because he had been arrested once before in San Mateo County, and knew that the county jail did not give heroin addicts medication to help with withdrawal symptoms. Appellant was also worried about not being able to get back to Bob, who was not in great shape when appellant left him.
Rebuttal
William Taylor, a clinical services manager for San Mateo County Correctional Health Services, supervised nursing services at the county jails. Every inmate who is brought into a jail is screened by a registered nurse as part of the intake process. Nurses have standard procedures they implement for anyone who is suspected of withdrawing from any substance, including giving inmates medication to help with the withdrawal process. If an inmate is still going through withdrawal after five days, the nurse will arrange an appointment with a nurse practitioner or a doctor.
DISCUSSION
I. Senate Bill No. 136
Appellant contends Senate Bill No. 136 applies retroactively to his case and requires reversal of the one-year prior prison term enhancement the trial court imposed under Penal Code section 667.5, subdivision (b). Respondent agrees.
Under the version of section 667.5 that was in effect when appellant was sentenced, subdivision (b) required trial courts to impose a one-year enhancement for each prior prison term served for any felony. In 2019, the Legislature passed Senate Bill No. 136, which took effect on January 1, 2020, and which made this enhancement applicable only to a prior prison term served " 'for a sexually violent offense as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code.' " (§ 667.5, subd. (b); Legis. Counsel's Dig., Sen. Bill No. 136 (2019-2020 Reg. Sess.) ch. 590; see People v. Matthews (2020) 47 Cal.App.5th 857, 862 (Matthews).)
"Absent evidence of a contrary legislative intent, when an act of the Legislature lessens or eliminates the prescribed punishment for a criminal offense or a sentencing enhancement, such a penalty reduction must be applied retroactively to all judgments not yet final on appeal. (In re Estrada (1965) 63 Cal.2d 740, 745-748; [citations].) '[F]or the purpose of determining retroactive application of an amendment to a criminal statute, a judgment is not final until the time for petitioning for a writ of certiorari in the United States Supreme Court has passed.' [Citation.]" (Matthews, supra, 47 Cal.App.5th at pp. 864-865.)
Recently, in Matthews, a panel of this court addressed the identical question raised in this case: whether Senate Bill No. 136 applies retroactively to a one-year enhancement imposed pursuant to subdivision (b) of section 667.5 before the amendment to that section took effect. We held that "the Legislature's change to section 667.5, subdivision (b) is a reduction in punishment that applies retroactively to nonfinal judgments." (Matthews, supra, 47 Cal.App.5th at p. 865.)
Here, the judgment in appellant's case was not final on January 1, 2020, when the amendment to section 667.5 took effect. Moreover, the one-year term was imposed for a prior prison term for an offense that was not sexual in nature. For these reasons, Senate Bill No. 136 applies retroactively to the term imposed pursuant to section 667.5, subdivision (b). That one-year term must therefore be stricken. (See Matthews, supra, 47 Cal.App.5th at pp. 864-865.)
II. Section 654
The trial court treated count 1, false personation, as the principal offense and imposed a concurrent term for count 2, identity theft. Appellant contends the court erred when it failed to stay his sentence on the identity theft count, pursuant to section 654.
Section 654, subdivision (a) provides in relevant part: "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."
"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. [Citations.] We first consider if the different crimes were completed by a 'single physical act.' [Citation.] If so, the defendant may not be punished more than once for that act. Only if we conclude that the case involves more than a single act—i.e., a course of conduct—do we then consider whether that course of conduct reflects a single 'intent and objective' or multiple intents and objectives. [Citations.]" (People v. Corpening (2016) 2 Cal.5th 307, 311-312 (Corpening).)
"If all of the crimes were merely incidental to, or were the means of accomplishing or facilitating one objective, a defendant may be punished only once. [Citation.] If, however, a defendant had several independent criminal objectives, he may be punished for each crime committed in pursuit of each objective, even though the crimes shared common acts or were parts of an otherwise indivisible course of conduct. [Citation.] The defendant's intent and objective are factual questions for the trial court, and we will uphold its ruling on these matters if it is supported by substantial evidence. [Citation.]" (People v. Perry (2007) 154 Cal.App.4th 1521, 1525; see also People v. Alford (2010) 180 Cal.App.4th 1463, 1468 ["the imposition of concurrent terms is treated as an implied finding that the defendant bore multiple intents or objectives, that is, as a rejection of the applicability of section 654"].)
In the present case, appellant claims his two felony convictions resulted from a single physical act because the record shows that he falsely told the police his name was Jason E. only once, when officers first contacted him after he left Marshall's. According to appellant, neither his testimony nor that of Officer Arurkar demonstrates that he in fact directly gave Jason E.'s name to officers a second time, while officers were processing him at the police station. Respondent argues that, on the contrary, the trial testimony makes clear that appellant gave Jason E.'s name to police twice and that, therefore, the different crimes were not "completed by a 'single physical act.' " (Corpening, supra, 2 Cal.5th at p. 311.)
We need not resolve this dispute because we conclude that, even assuming appellant gave the false name to police twice, i.e., when first contacted and again at the police station, the evidence presented at trial shows that those two acts constituted a course of conduct "reflect[ing] a single 'intent and objective.' " (Corpening, supra, 2 Cal.5th at pp. 311-312.) As appellant observes, the evidence makes clear that his intent during the entirety of his encounter with the officers, both on the street and at the police station, was "to deceive the police into believing he was another man so that they would not discover that he had an outstanding warrant and take him into custody." The evidence further shows that once he realized he would be booked into jail as Jason E., he gave his real name, at which point the officers did learn he had an outstanding warrant and did book him into jail.
Respondent argues that appellant's supposed objective—to avoid being booked into jail in San Mateo County—"is too broad" and that his testimony "reflected a number of objectives, including acting out of panic, acting out of a concern for Bob, and acting out of a concern over going to jail in San Mateo and experiencing symptoms of withdrawal." We disagree.
All of the reasons appellant gave in his testimony for giving the false name do not alter the fact that, regardless of the various reasons why he did not want to be taken into custody, his single objective in giving Jason E.'s name from the moment he was contacted by police until he finally gave his real name, was to avoid being booked into the San Mateo County jail. (Cf. People v. Conners (2008) 168 Cal.App.4th 443, 458 [section 654 applied where crimes of receiving stolen property and money laundering were done with a single intent: to facilitate receipt of stolen funds, and defendant's intent to launder money to avoid detection was "clearly incidental to, not independent of" his "single criminal objective" of receiving stolen funds].)
Respondent next asserts that even if appellant committed both offenses pursuant to a single objective, they involved " ' "a course of conduct divisible in time," ' " which warranted imposition of separate punishment for the two offenses. (People v. Andra (2007) 156 Cal.App.4th 638, 640.) In Andra, which respondent seems to believe is analogous to this case, the court found, with respect to identity theft offenses and other offenses that were committed weeks later, that, "[g]iven the temporal separation between these crimes, defendant had substantial opportunity to 'reflect' on her conduct and then 'renew' her intent to commit yet another crime. [Citation.] She chose, repeatedly to continue on in her crime spree." (Id. at p. 642.) Here, unlike in Andra, which involved crimes against different victims that were committed weeks apart, the time between appellant's two uses of Jason E.'s name was minutes, not weeks, and during that entire time he remained detained by Colma police officers. Hence, appellant plainly did not have a substantial opportunity to reflect on his conduct before renewing his intent to commit yet another crime. Rather, both times he gave the false name to the police, he was in the midst of a single effort to keep the police from learning of his outstanding warrant to avoid being taken into custody.
We also observe, as appellant points out, that neither the trial court in instructing the jury nor the prosecutor in his closing argument differentiated between the two charged offenses by stating that one use of Jason E.'s name constituted false personation and the other constituted identity theft. Indeed, in discussing each count during closing argument, the prosecutor referred to the use of Jason E.'s name and date of birth during both the initial police contact and the subsequent processing at jail, without any suggestion that either instance pertained to only one of the two counts.
In conclusion, because substantial evidence does not support the court's implied finding that appellant committed the two offenses with separate intents and objectives, the four-year concurrent sentence imposed on count 2 must be stayed, pursuant to section 654. (See People v. Perry, supra, 154 Cal.App.4th at p. 1525; People v. Alford, supra, 180 Cal.App.4th at p. 1468; see also People v. Butler (1996) 43 Cal.App.4th 1224, 1248-1249 ["Where multiple punishment has been improperly imposed, . . . 'the proper procedure is for the reviewing court to modify the sentence to stay imposition of the lesser term' "].)
III. Fines and Fees
Appellant contends the abstract of judgment and minute order related to fines and fees imposed contain clerical errors that must be modified to reflect the court's oral pronouncement at sentencing. He also contends the parole revocation restitution fine must be corrected to match the restitution fine. Respondent agrees.
At sentencing, the court declined to impose a $300 restitution fine pursuant to section 1202.4, stating, "the facts don't really support that here." It did, however, impose, and stay, a $300 parole revocation restitution fine pursuant to section 1202.45. The court also imposed an $80 court operations assessment fee and a $60 criminal conviction assessment.
The minute order after sentencing stated that the "[p]arole revocation restitution fine," pursuant to section 1202.45 was "[a]ctive." The minute order further stated, "The following financial obligations were imposed: [¶] "Imposed Fine $400 [¶] ** Criminal Violation Distribution $400 [¶] Grand Total of All Financial Obligations: $400."
The abstract of judgment listed a $300 restitution fine, pursuant to section 1202.4, subdivision (b), and a suspended $300 parole revocation restitution fine, pursuant to section 1202.45. The abstract of judgment did not include the imposition of either the $80 court operations assessment fee or the $60 criminal conviction assessment imposed at the sentencing hearing. But it did include the notation, under "Other orders": "Total Fine/Fees $400—Including 10% PC 1202.4(B) Admin Fee—To Be Collected by CDCR."
A. Clerical Errors in the Minute Order and Abstract of Judgment
"Where there is a discrepancy between the oral pronouncement of judgment and the minute order or the abstract of judgment, the oral pronouncement controls. [Citations.]" (People v. Zackery (2007) 147 Cal.App.4th 380, 385.) "The clerk cannot supplement the judgment the court actually pronounced by adding a provision to the minute order and the abstract of judgment. [Citation.]" (Id. at pp. 387-388.)
In this case, because the trial court declined to impose a restitution fine, the restitution fine referred to in both the abstract of judgment and minute order must be stricken. In addition, the references to $400 in total fines and fees contained in both the abstract of judgment and minute order must also be stricken because they do not reflect the court's oral pronouncement. Finally, the abstract of judgment and minute order must be modified to include the $80 court operations assessment fee and the $60 criminal conviction assessment imposed by the court at the sentencing hearing. (See People v. Zackery, supra, 147 Cal.App.4th at p. 385.)
B. Parole Revocation Restitution Fine
Under section 1202.45, subdivision (a), "In every case where a person is convicted of a crime and his or her sentence includes a period of parole, the court shall, at the time of imposing the restitution fine pursuant to subdivision (b) of Section 1202.4, assess an additional parole revocation restitution fine in the same amount as that imposed pursuant to subdivision (b) of Section 1202.4."
Here, the court declined to impose a restitution fine, finding that "the facts don't really support that here," by which it presumably meant that the facts of the case showed that appellant could not afford to pay the fine. (See § 1202.4, subd. (b) ["In every case where a person is convicted of a crime, the court shall impose a separate and additional restitution fine, unless it finds compelling and extraordinary reasons for not doing so and states those reasons on the record"].) The court did, however, impose a parole revocation restitution fine. (See § 1202.45, subd. (a).)
Because, under section 1202.45, subdivision (a), the amount of the parole revocation restitution fine must match the restitution fine, which in this case is zero, the $300 parole revocation restitution fine must likewise be reduced to zero. (See People v. Preston (2015) 239 Cal.App.4th 415, 425 [court's error in imposing a parole revocation restitution fine, the amount of which does not match amount of restitution fine, as required by section 1202.45, "constitutes an unauthorized sentence which may be corrected at any time"].)
DISPOSITION
The judgment is modified as follows: the one-year term imposed pursuant to section 667.5, subdivision (b) is stricken; the four-year concurrent sentence imposed on count 2 is stayed, pursuant to section 654; the abstract of judgment and minute order regarding sentencing fines and fees shall be corrected to match the trial court's oral pronouncements, as discussed in this opinion; and the $300 parole revocation restitution fine, imposed pursuant to section 1202.45, is stricken. The trial court is directed to prepare an amended minute order and abstract of judgment accordingly and forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.
/s/_________
Kline, P.J. We concur: /s/_________
Richman, J. /s/_________
Miller, J.