Opinion
G054973
09-24-2018
THE PEOPLE, Plaintiff and Respondent, v. MITCHELL AUGUSTINE PEKSON MARIANO, Defendant and Appellant.
Richard Power, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Susan Miller, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 16NF1886) OPINION Appeal from a judgment of the Superior Court of Orange County, John S. Adams, Judge. Affirmed. Richard Power, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Susan Miller, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
INTRODUCTION
A jury convicted Mitchell Augustine Pekson Mariano of one count of identity theft of 10 or more persons in violation of Penal Code section 530.5, subdivision (c)(3) (count 1) and nine counts of identity theft with a prior conviction in violation of section 530.5, subdivision (c)(2) (counts 2-10). The trial court sentenced Mariano to the midterm of two years on count 1 with concurrent two-year sentences each on counts 7, 8, and 10. The court suspended execution of sentence and placed Mariano on formal probation for three years with terms and conditions. The court stayed execution of sentence on counts 2, 3, 4, 5, 6, and 9 pursuant to section 654.
Undesignated code references are to the Penal Code unless otherwise stated.
Mariano makes three contentions on appeal: (1) the evidence was insufficient to support the convictions for possession of the personal identifying information of another person with the intent to defraud; (2) the jury was not correctly instructed on the meaning of possession; and (3) the trial court erred by taking judicial notice of evidence that Mariano had a prior conviction for theft of personal identifying information.
We affirm. First, we conclude, based on the totality of the circumstances, sufficient evidence was presented to support a finding that Mariano was in possession of personal identifying information with intent to defraud. Second, we conclude the trial court accurately and completely instructed the jury on the meaning of possession. Finally, we conclude the trial court did not err by taking judicial notice and informing the jury of the prior conviction evidence to show intent and knowledge.
FACTS
On June 27, 2016 at 2:00 a.m., Buena Park Police Officer Christopher Nyhus was on patrol at the Radisson Hotel located on Beach Boulevard, a known high crime area. While on patrol, Nyhus checked vehicle registrations in the hotel parking lot and found a Mitsubishi Gallant having an expired 2015 registration, but displaying a 2016 registration sticker. Nyhus received a separate alert from the computer system in his patrol car indicating a person with outstanding warrants was associated with the vehicle.
Nyhus contacted the hotel desk clerk and learned the vehicle with the expired registration was associated with room 126, a suite, which had been booked to Nazanin Sananoian. Nyhus learned that Sananoian was on probation for identity theft and was subject to search at any time. Other police officers arrived at the scene, and Nyhus, the other officers, and the hotel security guard went to room 126.
Nyhus knocked on the door of room 126, but no one answered. The officers announced their presence and received no response. The hotel security guard then used his master key to open the door. As the door opened, Nyhus saw a man, later identified as Mariano, standing in the front room of the suite. Mariano walked quickly to the back of the suite. Sananoian and Tony Tena also were at the back of the suite. Nyhus and his fellow officers entered the suite and ordered Mariano, Sananoian, and Tena to the front of the suite. While Mariano, Sananoian, and Tena were seated in the front of the suite, the officers conducted a probation search of the entire hotel suite.
Nyhus searched the bedroom area, located towards the back of the suite, and found a large amount of "paperwork" on a nightstand. The paperwork appeared to be stolen mail and personal identifying information, none of which matched Mariano, Sananoian, or Tena. Nyhus then searched the bedroom closet where he found a large cardboard box containing dozens of pieces of paper with the same type of information. Nyhus testified some of the papers in the large cardboard box belonged to Sananoian and Tena, but he did not find anything belonging to Mariano.
Fellow Buena Park Police Officer Patrick Carney, who assisted in the search of the suite, found three more pieces of mail in a trash can in the front room. None of this mail belonged to Mariano, Sananoian, or Tena. The officers did not find any suitcases or toiletries in the suite but did find a few pieces of clothing hanging in the closet. Four cell phones were seized during the search. One cell phone belonged to Mariano, but it could not be searched because it was passcode protected.
Nyhus advised Mariano of his rights under Miranda v. Arizona (1966) 384 U.S. 436. Mariano waived those rights and spoke with Nyhus. Mariano denied any knowledge or ownership of the papers found in the hotel suite and claimed he was only there to see Tena. Mariano claimed he was helping Tena change rotors on one of Tena's vehicles. Nyhus found no tools or car parts. Mariano, who was wearing a white t-shirt, showed no signs of dirt, oil, or grease. More papers appearing to contain personal identifying information were found in a search of the two vehicles. All the stolen mail and other materials found during the search of the hotel suite and vehicles were booked into evidence and written up in Nyhus's police report. After reviewing the materials found in the hotel suite, Nyhus concluded most of them were possessed for a fraudulent purpose.
At trial, 12 victims whose personal information was found in the hotel suite testified. All testified they did not know Mariano and he did not have permission to possess or use their personal information. The trial court took judicial notice of Mariano's 2011 guilty plea to identity theft.
The 12 were Nadeen Nakhoul, Carl Guerra, Patricia Guerra, Hien Nguyen, Jamie Apolinar, Arthur Boren, Elizabeth Boren, Cesar Pabros, Fred Sidhom, Mehat Seif, Hoda Seif, and Taghrid Sidhom.
DISCUSSION
I.
The Evidence Was Sufficient to Support
the Conviction for Identity Theft.
A. Standard of Review
Mariano was charged with identity theft in counts 1 through 10 in violation of section 530.5, subdivision (c)(2) or (3). Mariano contends there was insufficient evidence to show he was in possession and control of the victims' personal information found in the hotel suite. Because Mariano challenges the sufficiency of the evidence to support his convictions, "'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.'" (People v. Steele (2002) 27 Cal.4th 1230, 1249.) "Reversal on this ground is unwarranted unless it appears 'that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].'" (People v. Bolin (1998) 18 Cal.4th 297, 331.)
Section 530.5, subdivision (c) states, in relevant part: "(2) Every person who, with the intent to defraud, acquires or retains possession of the personal identifying information, as defined in subdivision (b) of Section 530.55, of another person, and who has previously been convicted of a violation of this section, upon conviction therefor shall be punished . . . . [¶] (3) Every person who, with the intent to defraud, acquires or retains possession of the personal identifying information, as defined in subdivision (b) of Section 530.55, of 10 or more other persons is guilty of a public offense, and upon conviction therefor, shall be punished . . . ."
B. The Evidence Was Sufficient to Prove Possession.
To violate section 530.5 subdivision (c)(2) or (3), a person "with the intent to defraud" must "acquire[] or retain[] possession of . . . personal identifying information." (Ibid.) "Actual or constructive possession is the right to exercise dominion and control over the contraband or the right to exercise dominion and control over the place where it is found. [Citation.] Exclusive possession is not necessary." (People v. Rushing (1989) 209 Cal.App.3d 618, 622.) "A defendant does not avoid conviction if his [or her] right to exercise dominion and control over the place where the contraband was located is shared with others." (Ibid.)
In Armstrong v. Superior Court (1990) 217 Cal.App.3d 535, 539, the court held: "[T]he terms 'control' and 'right to control' are aspects of a single overriding inquiry into when the law may punish an individual who is exercising such a degree of intentional direction over contraband that he can be justifiably and fairly punished in the same manner as if he were indeed in actual physical possession of a controlled substance. Implementation of this policy necessarily encompasses a potentially wide variety of conduct in a wide variety of settings, all directed by such factors as the alleged offender's capacity to direct the illicit goods, the manifestation of circumstances wherein it is reasonable to infer such capacity exists and the degree of direction being exercised by the accused over the contraband." As Armstrong explains, "the totality of circumstances will determine whether a defendant has exercised the requisite control over contraband in the hand of another." (Ibid.)
Here, the totality of the circumstances established that Mariano had the requisite control over the personal identifying information to be punished under section 530.5, subdivision (c)(2) and (3). At trial, Nyhus testified Mariano was found in the hotel suite with dozens of pieces of personal identifying information belonging to other individuals. Mariano was in the front of the suite, near a trash can holding several pieces of personal identifying information. Nyhus testified that, when the officers entered the suite, Mariano did not greet or acknowledge them but walked quickly to a room at the back of the suite. It was 2:00 a.m., yet Mariano was awake and alert. Mariano gave a less than credible explanation for being in the hotel suite at 2:00 a.m.: He claimed he was there to change the rotors on Tena's vehicle. But, as Nyhus testified, Mariano had no tools or auto parts with him and his clothing showed no signs of grease or dirt. The officers found no toiletries or personal items in the suite to suggest Mariano was residing there. In addition, evidence was presented at trial of Mariano's prior conviction for the same crime of identity theft.
The evidence was sufficient for the jury to find that Mariano had possession of the personal identifying information found in the hotel suite. It is true, as Mariano asserts, that Sananoian and Tena also were in the suite and the personal identifying information might have been in their possession. However, "exclusive possession or control is not necessary" (People v. Rice (1976) 59 Cal.App.3d 998, 1003) and the jury was instructed "two or more people may possess something at the same time" (CALCRIM No. 2304). All three—Mariano, Sananoian, and Tena—could have had possession of the personal identifying information at the same time and been subject to punishment under section 530.5, subdivision (c)(2) or (3).
Mariano cites many cases to support his argument that he was not in possession of the personal identifying information found in the hotel suite. (People v. Hunt (1971) 4 Cal.3d 231; People v. Redrick (1961) 55 Cal.2d 282; People v. Johnson (1984) 158 Cal.App.3d 850; People v. Glass (1975) 44 Cal.App.3d 772; People v. Stanford (1959) 176 Cal.App.2d 388; People v. Tabizon (1958) 166 Cal.App.2d 271; People v. Hancock (1957) 156 Cal.App.2d 305; United States v. Highsmith (9th Cir. 2001) 268 F.3d 1141; United States v. Ramirez (9th Cir. 1999) 176 F.3d 1179; United States v. Penagos (9th Cir. 1987) 823 F.2d 346; United States v. Reese (9th Cir. 1985) 775 F.2d 1066; United States v. Rodriguez (9th Cir. 1985) 761 F.2d 1339; United States v. Valenzuela (9th Cir. 1979) 596 F.2d 824.) Mariano argues these cases establish the principle that presence alone is insufficient to prove possession. (See People v. Stanford, supra, 176 Cal.App.2d at p. 391; People v. Tabizon, supra, 166 Cal.App.2d at pp. 273-274.) Comparison with the facts of other cases is of limited use in resolving issues of the sufficiency of the evidence because each case necessarily depends on its own facts. (People v. Thomas (1992) 2 Cal.4th 489, 516.) Although, as Mariano argues, dominion and control cannot be inferred merely from the defendant's proximity or access to the contraband, "the necessary additional circumstances may, in some fact contexts, be rather slight." (People v. Zyduck (1969) 270 Cal.App.2d 334, 336.)
Here, evidence was presented of additional circumstances beyond proximity or access to show Mariano had possession of the personal identifying information. Mariano did not acknowledge the police officers at the hotel suite and walked away from them and toward the back of the suite once they gained access. Mariano was alert and awake in the suite at 2:00 a.m. and gave a less-than-credible reason (replacing rotors) for being there. The lack of toiletries and luggage in the hotel suite suggested it was not being used for anything other than as a meeting point or storage place for contraband. The totality of the circumstances was sufficient to support a finding that Mariano was in possession of the personal identifying information found in the hotel suite.
II.
The Trial Court Correctly Instructed the Jury on the
Meaning of Possession.
On the element of possession, the trial court read this instruction to the jury: "A person does not have to actually hold or touch something to possess it. It is enough if the person has control over it or the right to control, either personally or through another person. [¶] Two or more people may possess something at the same time." Mariano argues this instruction is incomplete because it does not use the term "dominion and control."
The Attorney General argues Mariano forfeited his claim of instructional error by failing to timely object. Because Mariano is arguing, in effect, the instruction is not correct in the law, he did not have to pose an objection to preserve his claim of error. (People v. Smithey (1999) 20 Cal.4th 936, 976-977, fn. 7.)
The instruction accurately and completely defines the possession element. It is true, as Mariano argues, courts have traditionally defined possession as requiring that a defendant exercise dominion and control over the contraband. (E.g., People v. Palaschak (1995) 9 Cal.4th 1236, 1242 ["the essential elements of possession of a controlled substance are 'dominion and control of the substance'"]; People v. Hunt, supra, 4 Cal.3d at p. 236 ["To establish unlawful possession, it must be shown that the accused exercised dominion and control over the drug"].)
The term "dominion and control" is, however, "merely a different way of saying the defendant possessed the substance physically or constructively." (People v. Montero (2007) 155 Cal.App.4th 1170, 1176.) "Actual or constructive possession is the right to exercise dominion and control over the contraband or the right to exercise dominion and control over the place where it is found. [Citation.] Exclusive possession is not necessary." (People v. Rushing, supra, 209 Cal.App.3d at p. 622.) "A defendant possesses a weapon when it is under his dominion and control. [Citation.] A defendant has actual possession when the weapon is in his immediate possession or control. He has constructive possession when the weapon, while not in his actual possession, is nonetheless under his dominion and control, either directly or through others." (People v. Pena (1999) 74 Cal.App.4th 1078, 1083-1084.) Because actual or constructive possession is the right to exercise dominion and control, then, conversely, the right to exercise dominion and control is actual or constructive possession.
The court's instruction informed the jury of the meaning of actual possession ("control over it") and constructive possession ("the right to control it, either personally or through another person"). Adding the term dominion and control would have been neither legally necessary nor helpful.
The trial court's instruction defining possession comes from CALCRIM No. 2302 (elements of possession for sale of controlled substance) and CALCRIM No. 2304 (elements of simple possession of a controlled substance). Both CALCRIM Nos. 2302 and 2304 include this definition of possession: "Two or more people may possess something at the same time. [¶] A person does not have to actually hold or touch something to possess it. It is enough if the person has (control over it/or the right to control it), either personally or through another person."
In People v. Montero, supra, 155 Cal.App.4th at pages 1176 to 1177, the Court of Appeal rejected the argument that CALCRIM No. 2302 erroneously defined possession by not requiring the jury to find the defendant exercised dominion and control. As quoted above, the Montero court concluded the phrase dominion and control is another way of saying actual or constructive possession. (Id. at p. 1176.) "The phrase [dominion and control] itself is redundant and archaic. The word 'dominion' is defined as 'Control; possession' [citation]; or 'rule; control; domination.' [Citation.] To 'dominate' is 'to rule over; govern; control.' [Citation.] The authors of CALCRIM No. 2302 were instructed to develop instructions that were legally accurate, understandable to the average juror, and written in plain English. (Preface to Judicial Council of Cal. Crim. Jury Instns. (2006-2007) p. ix.) They wisely decided not to perpetuate the redundancy. They did so by omitting the phrase in the instruction." (People v. Montero, supra, 155 Cal.App.4th at p. 1177.)
We agree with this assessment. By instructing on possession using the language of CALCRIM Nos. 2302 and 2304, the trial court conveyed the same concept as dominion and control but in plain, modern English.
III.
The Trial Court Did Not Err by Admitting Evidence of
the Prior Conviction for Identity Theft.
At the close of the prosecution's case-in-chief, the trial court, over defense objection, advised the jury that Mariano had been convicted in 2011 by guilty plea of identity theft in violation of section 530.5, subdivision (c)(3). The court instructed the jury with CALCRIM No. 375 that it could consider the prior conviction only for the limited purpose of deciding identity, intent, motive, knowledge, accident, or common plan or scheme. The court further instructed the jury; "Do not conclude from the evidence that the defendant has a bad character or is disposed to commit crime."
The court told the jury: "Defense[] counsel has objected and I'm reading this to you pursuant to Evidence Code section 1101(b) over the objections of defense counsel which are duly noted at this time. [¶] Again, this is a document, a document entitled People of the State of California versus Mitchell Mariano who is the defendant in this case. It is a felony complaint, 11WF2309. In this case count 1 of that matter, on or about September 28th of 2011 in violation of section 530.5(c)(3) of the Penal Code which is commonly referred to as identity theft, retaining information on ten or more victims with the intent to defraud, the defendant in this case pled guilty to that charge in that case. [¶] I am taking judicial notice of that and advising you of that prior conviction. It is being entered into evidence for a very limited purpose and I will be discussing that limited purpose in terms of the jury instruction that I'm going to be reading to you a little bit later this morning."
Mariano argues the trial court prejudicially erred by admitting the evidence of his prior identity theft conviction because it placed improper character evidence before the jury. He argues evidence of the prior conviction had no use other than to show propensity or disposition to commit crime.
"The decision whether to admit other crimes evidence rests within the discretion of the trial court." (People v. Lindberg (2008) 45 Cal.4th 1, 23.) A decision is an abuse of discretion when it "'transgresses the confines of the applicable principles of law.'" (People v. Hendrix (2013) 214 Cal.App.4th 216, 239.) The trial court's decision to advise the jury of Mariano's prior conviction for identity theft fell within the applicable legal principles.
Evidence Code section 1101, subdivision (a) generally prohibits the admission of evidence of prior crimes to show the defendant had the propensity or disposition to commit the charged offense. Subdivision (b) of that section provides, however, that such evidence is admissible when relevant to prove some fact in issue, such as "'motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident.'" (See People v. Lindberg, supra, 45 Cal.4th at p. 22; People v. Ewoldt (1994) 7 Cal.4th 380, 393, fn. 1 (Ewoldt).)
"'[T]he admissibility of other crimes evidence depends on (1) the materiality of the facts sought to be proved, (2) the tendency of the uncharged crimes to prove those facts, and (3) the existence of any rule or policy requiring exclusion of the evidence.' [Citation.] The main policy that may require exclusion of the evidence is the familiar one stated in Evidence Code section 352: Evidence may be excluded if its prejudicial effect substantially outweighs its probative value. Because substantial prejudice is inherent in the case of uncharged offenses, such evidence is admissible only if it has substantial probative value." (People v. Kelly (2007) 42 Cal.4th 763, 783.)
The required degree of similarity between the charged offense and the prior conviction depends on the purpose for with the evidence is to be admitted. (Ewoldt, supra, 7 Cal.4th at p. 402.) The highest degree of similarity is required to prove identity: "For identity to be established, the uncharged misconduct and the charged offense must share common features that are sufficiently distinctive so as to support the inference that the same person committed both acts. [Citation.] 'The pattern and characteristics of the crimes must be so unusual and distinctive as to be like a signature.'" (Id. at p. 403.)
A lesser degree of similarity is required to prove the existence of a common design or plan: "To establish the existence of a common design or plan, the common features must indicate the existence of a plan rather than a series of similar spontaneous acts, but the plan thus revealed need not be distinctive or unusual." (Ewoldt, supra, 1 Cal.4th at p. 403.)
The least degree of similarity is required to prove intent: To be admissible to prove intent, the uncharged conduct must be sufficiently similar to the charged offense to support the inference that the defendant probably acted with the same intent in each instance. (People v. Lindberg, supra, 45 Cal.4th at p. 23; Ewoldt, supra, 7 Cal.4th at p. 402.) "We have long recognized 'that if a person acts similarly in similar situations, he probably harbors the same intent in each instance,' [citations] and that such prior conduct may be relevant circumstantial evidence of the actor's most recent intent. The inference to be drawn is not that the actor is disposed to commit such acts; instead, the inference to be drawn is that, in light of the first event, the actor, at the time of the second event, must have had the intent attributed to him by the prosecution." (People v. Robbins (1988) 45 Cal.3d 867, 879.)
Evidence of Mariano's prior conviction for identity theft was admissible to prove intent and knowledge. An element of the offenses defined by section 530.5, subdivision (c)(2) and (3) is intent to defraud. (See CALCRIM No. 2041.) The prior offense—identity theft—was the same as the charged offenses. From evidence of the prior conviction, the trier of fact could draw the inference that Mariano knew the papers and materials found in the hotel suite contained stolen personal identifying information and intended to use them to defraud. (See People v. Peyton (2014) 229 Cal.App.4th 1063, 1078-1079 [evidence of prior conviction for theft of credit card and CD case admissible to prove the defendant knew he was in possession of stolen ATM card and CD case].)
Mariano contends intent was not in issue because he claimed he never had possession or control of the personal identifying information in the first place. But Mariano pleaded not guilty and by so doing, placed all of elements of the offenses, including intent, at issue. (People v. Lindberg, supra, 45 Cal.4th at p. 23.) To prove Mariano guilty, the prosecution bore the burden of presenting evidence Mariano acquired or retained possession of personal identifying information and did so with intent to defraud. (§ 530.5, subd. (c)(2), (3).) Mariano never stipulated to intent or took any other action to narrow the prosecution's burden of proof by removing intent as an issue from the case. (People v. Daniels (1991) 52 Cal.3d 815, 857-858.)
He asserts: "Appellant didn't claim that he possessed the contraband innocently. He claimed he never possessed it at all."
Mariano contends the prior conviction evidence was cumulative and unnecessary to prove intent because Nyhus testified by means of a hypothetical that Mariano possessed the personal identifying information with intent to defraud. The jury, as trier of fact, might have disbelieved Nyhus. Evidence is not rendered inadmissible merely because it is cumulative of testimonial evidence (People v. Scheid (1997) 16 Cal.4th 1, 19), and "the prosecution is entitled to prove its case by evidence of its own choice" (Old Chief v. United States (1997) 519 U.S. 172, 186).
The prosecution argued in closing that the evidence of Mariano's prior identity theft conviction was relevant to show identity: "Was Mr. Mariano the person who committed those offenses?" Mariano argues the prosecution erred in making that argument because the prior conviction lacked the highest degree of similarity to the charged offenses to prove identity, and the prosecution did not seek admission of the prior conviction evidence for that purpose.
We use the term prosecutorial error rather than prosecutorial misconduct because prosecutorial misconduct "'is somewhat of a misnomer to the extent that it suggests a prosecutor must act with a culpable state of mind.'" (People v. Centeno (2014) 60 Cal.4th 659, 666-667.) "'A more apt description of the transgression is prosecutorial error.'" (Id. at p. 667.)
The prosecution sought admission of evidence of Mariano's prior theft conviction on the ground the evidence was admissible to prove intent, motive, knowledge, and lack of mistake. The prosecution did not assert the evidence was admissible to prove identity, and Mariano's identity was never at issue. No evidence of the facts underlying the conviction were presented at trial.
The Attorney General argues the facts underlying the prior conviction were sufficiently similar to the charged offenses to establish identity. The only evidence at trial of the prior offense was the fact of conviction; no evidence was presented of the facts underlying the conviction. In asserting similarity sufficient to establish identity, the Attorney General relies on facts presented in the probation report, which was prepared postconviction and never presented to the jury. --------
"When attacking the prosecutor's remarks to the jury, the defendant must show that, '[i]n the context of the whole argument and the instructions' [citation], there was 'a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner. [Citations.] In conducting this inquiry, we "do not lightly infer" that the jury drew the most damaging rather than the least damaging meaning from the prosecutor's statements.'" (People v. Centeno, supra, 60 Cal.4th at p. 667.)
Any error by the prosecution in this case was harmless. The prior conviction evidence was admissible to prove intent and knowledge. Because there was no doubt Mariano was one of the persons in the hotel suite, the prosecution's comments would not have persuaded the jury adversely to Mariano on the issue of identity.
DISPOSITION
The judgment is affirmed.
FYBEL, ACTING P. J. WE CONCUR: IKOLA, J. THOMPSON, J.