P. v. Datu

Filed 9/7/07 P. v. Datu CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

On July 15, 2005, defendant pleaded no contest to one felony count of grand theft (Pen. Code, 484, 487, subd. (a), count one),[1] one felony count of access card forgery ( 484f, subd. (b), count two), three felony counts of unauthorized use of personal identifying information of another person ( 530.5, subd. (a), counts three, seven and eight), one felony count of vehicle theft (Veh. Code, 10851, subd. (a), count four), one felony count of issuing a check with insufficient funds ( 476a, count five), two felony counts of forgery ( 470, subd.(a), counts six and 11), one felony count of petty theft with a prior ( 484/666, count nine), one felony count of obtaining telephone or telegraphic services by fraud ( 502.7, subd. (a)(1), count 10), and two misdemeanor counts of falsely reporting a crime ( 148.5, subd. (a), counts 12 and 13). Defendant admitted that she had a prior strike conviction ( 667, subds. (b)-(i), 1170.12), and had served two prior prison terms ( 667.5, subd. (b)).

In exchange for her no contest pleas, defendant was promised her maximum sentence would be 12 years in state prison. However, the court would consider a Romero motion at the time of sentencing.[2]

On December 12, 2006, the court heard and denied defendant's Romero motion. Thereafter, the court sentenced defendant to 12 years in state prison consisting of the following: the mid-term of two years doubled because of the prior strike for the grand theft count, six consecutive 16 month sentences (one third the mid-term doubled) for the vehicle theft, two counts of forgery, two counts of unauthorized use of personal identifying information and one count of unauthorized charging of another credit card.

Defendant filed a timely notice of appeal.

We appointed counsel to represent defendant in this court. Counsel filed an opening brief that stated the facts, but raised no specific issues.[3] On May 18, 2007, we notified defendant of her right to submit written argument on her own behalf within 30 days. To date, we have not received a response from defendant.

Pursuant to People v. Wende (1979) 25 Cal.3d 436, we have reviewed the entire record and have concluded there is no arguable issue on appeal, including appellate counsel's possible issue referred to pursuant to Anders v. California (1967) 386 U.S. 738 (87 S.Ct. 1396).[4] Pursuant to People v. Kelly (2006) 40 Cal.4th 106, we provide "a brief description of the facts and procedural history of the case, the crimes of which the defendant was convicted, and the punishment imposed." (Id. at p. 110.)

Facts[5]

Count Six (Forgery), Eight (Using Personal Identifying Information Without Authorization), Nine (Petty Theft With a Prior) and Eleven (Forgery)

On January 21, 2004, defendant opened two accounts with Citibank with a check from a closed account in the amount of $250,000. While opening the accounts she disclosed that she had purchased a home on Nevada Avenue worth approximately two million dollars. On February 2, 2004, defendant deposited two additional checks from closed accounts totaling $350,000 into the two accounts. Between January 22, 2004, and February 22, 2004, defendant issued several checks from the Citibank accounts for deposits to other bank accounts as well as to purchase jewelry and other merchandise. Citibank was able to recover $599,700 from the accounts leaving a sustained loss of $300.

During their investigation, the police learned the checks written on the closed account belonged to Anthony Ng Yukshing and June Chanthasone Sananikone. Further investigation revealed Mr. Yukshing was defendant's boyfriend and father of her child. While Mr. Yukshing was separated from his wife, defendant wrote checks to herself using the wife's identity. When Mr. Yukshing would call the credit card company to report the fraudulent use, defendant would call at a later time saying her "husband" was aware of the writing of the checks and no fraud had taken place.[6]

Count Four (Theft or Unauthorized Use of a Vehicle) and Count Five (Issuing a Check With Insufficient Funds)

On January 22, 2004, after opening the Citibank accounts, defendant went to Stevens Creek BMW and negotiated the purchase of a 2004 BMW M3 for $68,201. She presented her driver's license, several bank documents from Citibank and a Washington Mutual personal check in the amount of $41,268.08. While verifying funds, aliases appeared on defendant's credit rating. Defendant explained that previously she had been the victim of identity theft. While checking with Citibank, the bank verified the accounts, but would not verify the funds. Satisfied with defendant's explanation, the BMW dealership completed the transaction.

While waiting for the check to clear, the car dealership learned defendant's accounts had been frozen. After three weeks, the dealership contacted defendant and told her to return the vehicle, which she did. Stevens Creek BMW reported a loss of $8000 suffered as a result of this crime due to damage to and depreciation of the vehicle.

Count Seven (Unauthorized Use of Personal Identifying Information) and Count Ten (Obtaining Telephone or Telegraph Service by Fraud)

While investigating defendant's purchase of the BMW, police attempted to locate her at the address listed on the Washington Mutual check she presented to the dealership. The listed address was a residence owned and occupied at the time by Gary and Linda Johnston. Defendant had expressed an interest in the residence when it was going on the market in early 2004. During the course of defendant's interactions with the realtor, it became obvious that defendant was unable to come up with the necessary deposit. The realtor stopped returning defendant's phone calls. In December 2004, defendant ordered a truck full of furniture from a local interior design company and had it delivered to that residence. In January 2004, the owners of the residence began receiving mail addressed to defendant. Defendant had ordered a phone connection through SBC and garbage pick-up in her name at the residence. On one occasion, defendant convinced contractors working at the property she was the new owner and gained entrance to the residence. Defendant informed neighbors she was the new owner.

Count Twelve (False Crime Report)

On February 13, 2005, defendant reported to the police that an ex boyfriend, Anthony Ng Yukshing, had made death threats against her. Officers noticed inconsistencies in defendant's statements. Further investigation revealed Mr. Yukshing had made no threats.

Count One (Grand Theft), Count Two (Access Card Forgery) and Count Three (Unauthorized Use of Personal Identifying Information)

On March 9, 2004, Jennifer Echauri was at her desk at her place of work when defendant asked to use the phone. Shortly thereafter, Echauri discovered her wallet was missing. When she called the credit card company to report her cards had been lost or stolen, she learned one of her credit cards had been used to make $2494.40 worth of purchases at Nordstrom's department store.

Along with Nordstrom's loss prevention personnel, Echauri determined through the use of video surveillance tapes that defendant was the individual who made the purchases. One March 14, 2005, San Jose Police located defendant and placed her under arrest. A search of defendant's wallet revealed two Nordstrom's gift cards, a gift card from Macy's, a Guess gift card and $283, all of which belonged to Echauri.

Count Thirteen (False Report of a Crime)

The record on appeal contains no facts underlying this charge.

Procedural History

On August 10, 2005, the Santa Clara County District Attorney filed an amended complaint in case No. CC585261 alleging all the counts to which defendant ultimately pleaded no contest, including the strike prior allegation and prison prior allegations that defendant admitted.

On September 15, 2005, before defendant entered her pleas of no contest, she was advised of her privilege against self-incrimination, her right to confront her accusers and her right to trial by jury as required by Boykin v. Alabama (1969) 395 U.S. 238 (89 S.Ct. 1709), and In re Tahl (1969) 1 Cal.3d 122. Defendant freely and voluntarily waived those rights. The court advised defendant that the maximum potential sentence for all charges was 20 years. The court advised defendant of the immigration consequences of conviction and other consequences of her pleas of no contest.

On February 6, 2006, defense counsel[7] filed a Romero motion. In the motion, counsel pointed out that defendant's strike prior was 15 years old and involved a residential burglary of the home of defendant's parents. Counsel noted that defendant's current crimes could have been charged as misdemeanors. Defendant had never engaged in violent behavior and suffered from bipolar disorder, which played a significant role in her criminal behavior. A psychiatric evaluation by Dr. Paul Koller and a letter from defendant's parents in which they pleaded for leniency for their adoptive daughter, were attached to the motion.

On March 3, 2006, defendant's public defender was relieved and Jamie Harmon, private counsel, was substituted for the Public Defender's Office. On April 27, 2006, the Public Defender was appointed as defendant's counsel again.

On July 20, 2006, defendant made a motion pursuant to People v. Marsden (1970) 2 Cal.3d 118. The court held a hearing. Eventually, after some discussion in open court of the substance of the motion, the court denied the motion.

As noted, on December 12, 2006, the court heard the Romero motion. Defense counsel argued that defendant's strike was old; her current crimes were economic crimes and could have been charged as misdemeanors and defendant is a nonviolent person who had a very troubled past. The prosecutor pointed out to the court that while defendant was out on bail after entering her pleas of no contest she engaged in further criminal behavior aimed at Mr. Yukshing. Accordingly, the prosecutor urged the court to impose a sentence of 12 years. The prosecutor informed the court that if the defendant were to be sentenced to 12 years in state prison, he would dismiss all charges associated with defendant's new crime spree.

Ultimately, the court denied the Romero motion, noting that the court was not making the decision based on the prosecutor's indication that he would dismiss the "other" case if the court imposed a 12-year prison sentence. Rather, the court's decision not to strike the strike was based on defendant's criminal history and the offenses to which she had pleaded no contest and the fact that the court had to protect society.

As noted, the court sentenced defendant to an aggregate term of 12 years in state prison.

In conclusion, after a comprehensive review of the entire record, we have failed to discover any issue requiring this court's attention.

Disposition

The judgment is affirmed.

_____________________________

ELIA, J.

WE CONCUR:

_____________________________

RUSHING, P. J.

_____________________________

PREMO, J.

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[1] Unless noted, all statutory references are to the Penal Code.

[2]People v. Superior Court (Romero) (1996) 13 Cal.4th 497.

[3] Appellate counsel pointed out a potential issue to assist this court in conducting our independent review. Specifically, counsel posed the following question. "Did the court conduct an adequate inquiry when it considered defendant's request that his [sic] appointed counsel be replaced pursuant to People v. Marsden (1970) 2 Cal.3d 118, and did it abuse its discretion when it denied that request?"

[4] We point out that the crux of defendant's Marsden motion was her attorney's reluctance to bring a Romero motion. Ultimately, counsel did bring a Romero motion. When the court asked defendant if she would be satisfied if the court put aside a second case that she had picked up since she entered her no contest pleas in this case and "go ahead and do the Romero motion on this case," defendant replied, "Yes Your Honor." " 'A defendant is entitled to have appointed counsel discharged upon a showing that counsel is not providing adequate representation or that counsel and defendant have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result.' [Citations.] [] We review a trial court's decision declining to discharge appointed counsel under the deferential abuse of discretion standard. [Citation.]" (People v. Cole (2004) 33 Cal.4th 1158, 1190.) No such showing can be made in this case because, ultimately, defendant was satisfied with her counsel's performance.

[5] The facts underlying each count are taken from the probation report.

[6] The probation officer noted that she was not able to determine which act was alleged in count eleven. Defendant allegedly signed June Ng Yukshing's signature on an MBNA check in the amount on $250,000 dated January 20, 2004. However, the Bank of America check in the amount of $250,000, which was located in the District Attorney's file, was signed by defendant in her true name. This check was dated September 23, 2004. This count alleged a forgery drawn on a Bank of America account in the amount of $250,000 dated September 29, 2004.

[7] At this time, defendant was represented by the Santa Clara County Public Defender.