Opinion
C084472
08-13-2018
THE PEOPLE, Plaintiff and Respondent, v. LISA MARIE CHRISTMAN, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 62141390)
Defendant Lisa Marie Christman appeals a judgment entered following her no contest plea after the trial court indicated her maximum split term, which was later imposed by the court. We understand defendant's argument to be that the trial court's failure to stay 13 of the 14 identity theft convictions violated Penal Code section 654 and due process.
Undesignated statutory references are to the Penal Code.
We affirm.
I. BACKGROUND
We derive the background from the factual basis for defendant's plea as recited by the People and found in the probation report.
"[O]n or about or in between June 15th, 2015, and August 29 of 2015, the Defendant . . . committed the crime of embezzlement over $400 in violation of [section] 508, a felony, when she unlawfully, while acting as an agent of [her employer], fraudulently appropriated money, which came into her control by virtue of her employment.
"On or about or in between June 15, 2015, and August 29th, 2015, the Defendant committed the crime of grand theft by embezzlement in violation of [section 487, subdivision (a)], a felony, when within one year, and while she was an employee of [her employer], she willfully and unlawfully took from the victim money in the amount of $26,619.71."
On or about June 15th and 23rd of 2015; July 3rd, 10th, 15th, 22nd, and 29th of 2015; August 5th, 13th, 19th, 24th, 28th, and 31st of 2015; "and September 4th of 2015, the Defendant . . . committed a crime of identity theft in violation of [section 530.5, subdivision (a)] when she willfully obtained personal identifying information of [her employer], specifically [the victim], and used that information to obtain money without the victim's consent." Counts three through sixteen reflect individually enumerated identity theft offenses for these dates.
Defendant pleaded no contest to the above enumerated offenses after the trial court indicated it would likely impose a seven-year sentence, which it could split for three years of custody time and four years of mandatory supervision. The matter was referred to probation for a sentencing report.
Thereafter, the trial court sentenced defendant to seven years with three years of custody time and four years of mandatory supervision under a suspended sentence. The court reached this sentence by setting count three as the base term and imposing the upper term of three years. The court then imposed concurrent terms of two years each for counts four, six, eight, ten, twelve, fourteen, and sixteen. All concurrent terms were imposed "because the objectives were part of a single period of aberrant behavior and part and parcel with each other." The court also imposed consecutive terms of eight months each for counts five, seven, nine, eleven, thirteen, and fifteen. The court imposed, but then stayed pursuant to section 654, the sentences for counts one and two (embezzlement and grand theft).
Defendant did not object to the sentence and did not request a certificate of probable cause with her notice of appeal.
II. DISCUSSION
We understand defendant's argument to be that the trial court's failure to stay 13 of the 14 identity theft convictions violated section 654 and due process. We are unpersuaded.
We recognize defendant's counsel framed the issue as "Sentencing Appellant Separately On All 14 Identity Theft Convictions Violates Section 654 and Due Process of Law." However, under section 654, it is not the imposition of a sentence, but the failure to stay that sentence which is at issue. Defendant's requested relief shows her understanding of this distinction (requesting this court stay counts four through sixteen), and thus, we will address whether the trial court properly failed to stay the terms associated with counts four through sixteen. --------
Here, the trial court only stayed enforcement of counts one and two pursuant to section 654, thus impliedly determining defendant had separate intents and objectives for counts three through sixteen. We find this decision supported by substantial evidence.
Section 654 prohibits multiple punishments for offenses arising from a single act or an indivisible course of conduct. (People v. Latimer (1993) 5 Cal.4th 1203, 1208.) It provides: "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. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other." (§ 654, subd. (a).) "[T]he purpose of section 654 'is to insure that a defendant's punishment will be commensurate with his culpability.' [Citation.]" (Latimer, at p. 1211.)
As we explained in People v. Andra (2007) 156 Cal.App.4th 638, 640: " 'Under section 654, "a course of conduct divisible in time, although directed to one objective, may give rise to multiple violations and punishment. [Citations.]" [Citations.] This is particularly so where the offenses are temporally separated in such a way as to afford the defendant opportunity to reflect and to renew his or her intent before committing the next one, thereby aggravating the violation of public security or policy already undertaken. [Citation.]' [Citation.] [¶] The defendant's intent and objective present factual questions for the trial court, and its findings will be upheld if supported by substantial evidence. [Citation.]" (See also People v. Brents (2012) 53 Cal.4th 599, 618 [trial court's implied determination that crimes were separate with separate objectives is reviewed for substantial evidence].)
As in People v. Andra, supra, where the crimes spanned several weeks (156 Cal.App.4th at pp. 641-642), here, the factual basis for defendant's plea shows defendant committed 14 separate acts of identity theft occurring between June and September of 2015, from which the trial court could have reasonably inferred defendant had sufficient time to reflect and renew her intent for each individual crime. Defendant concedes these crimes were separated in time, but argues Andra is distinguishable because she only victimized one person.
We find this distinction unpersuasive. Case law has repeatedly and consistently applied section 654 to instances of multiple completed crimes against the same person. (See, e.g, People v. Peyton (2014) 229 Cal.App.4th 1063, 1080 [§ 654 inapplicable to sentences for identity theft and receiving stolen property where the two crimes were committed a few hours and 20 miles apart].)
Nor are we convinced by defendant's argument that her generalized objective to take the money to meet "her economic and psychological need for funds" should result in a different conclusion. Like the court in People v. Neder (1971) 16 Cal.App.3d 846, 853-854, which rejected that section 654 should be applied to offenses sharing "the fundamental objective of taking goods from Sears by use of the credit card and by forging sales slips," here, each of defendant's thefts arose from divisible transactions, each instance seeking to obtain more money from the victim; these separate thefts were not dependent of each other and inflicted distinct harms on the victim. (See Neder, at p. 854 [noting crimes were "three separate forgeries, each directed to the obtaining of different property and none playing a part in the accomplishment of the end of the others"].) Section 654 does not prohibit punishment for successive and individually completed crimes merely because a defendant may articulate an overarching criminal purpose spanning those crimes. (Neder, at pp. 853-855; see also People v. Gangemi (1993) 13 Cal.App.4th 1790, 1800-1801 [applying Neder and rejecting the applicability of § 654 to sentences for multiple convictions of filing of false deeds of trust with the same objective of protecting defendant's property from creditors].)
Finally, the trial court's decision to exercise leniency and impose some sentences on a concurrent, rather than consecutive basis "because the objectives were part of a single period of aberrant behavior and part and parcel with each other" does not invalidate its implied determination that each act of identity theft was separate for purposes of section 654. We have already determined substantial evidence supports that decision. Having found no section 654 error, defendant's due process claim dependent upon that error necessarily fails.
III. DISPOSITION
The judgment is affirmed.
/S/_________
RENNER, J.
We concur:
/S/_________
BLEASE, Acting P. J.
/S/_________
MAURO, J.