P. v. Sirman

Filed 7/24/06 P. v. Sirman CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

Jack Sirman appeals a judgment after conviction of forgery, receiving stolen property, possession of methamphetamine, unlawful use of personal identification (6 counts), grand theft (3 counts), grand theft of access card information (2 counts), and grand theft of access cards. (Pen. Code, §§ 475, subd. (b), 496, subd. (a), 530.5, subd. (a), 487, subd. (a), 484e, subds. (b) & (d);[1] Health & Saf. Code, § 11377, subd. (a).) We affirm.

FACTS AND PROCEDURAL HISTORY

During the early evening of November 3, 2004, Los Angeles Sheriff's Deputy Jeff Williams investigated an automobile parked in the desert near Lancaster. Tami Wear was the driver of the automobile, and Sirman sat in the passenger seat. Williams approached the passenger side of the automobile and saw a glass pipe containing residue lying on the floorboard near Sirman's feet. In response to Williams's question, Sirman stated: "That's my pipe, but I'm not high."

Williams arrested Wear and Sirman and searched the automobile. He found two wallet-size pouches on the floorboard that contained baggies of methamphetamine, counter checks, and identification and credit cards in the names of others. A Chase VISA credit card in the name of "Charles Shepherd" and a Discover credit card in the name of "Paul Reed" were inside one pouch. Wear informed Williams that Sirman printed checks at his residence and used them to obtain merchandise.

Sheriff's deputies later searched Sirman's room and found computers, a printer, and a scanner, as well as mail, identification, and credit cards in the names of other persons. Deputies also found a credit card solicitation addressed to "Paul Reed."

At trial, Charles Shepherd, Edward Kennepohl, Paul Reed, and Robin Jackson-Allen testified that they did not know Sirman, and had not given him permission to use their personal information. They also identified various credit cards or identification found either in Wear's automobile or in Sirman's room.

The jury convicted Sirman of forgery, receiving stolen property, possession of methamphetamine, six counts of unlawful use of personal identification, three counts of grand theft, two counts of grand theft of access card information, and grand theft of access cards. (§§ 475, subd. (b), 496, subd. (a), 530.5, subd. (a), 487, subd. (a), 483e, subds. (b) & (d); Health & Saf. Code, § 11377, subd. (a).) Sirman admitted suffering a prior felony strike conviction, and serving two prior prison terms. (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d), & 667.5, subd. (b).) The trial court sentenced him to a prison term of 21 years and 4 months, consisting in part of an upper term for forgery (count 1), and subordinate consecutive sentencing for ten counts. The trial court imposed but stayed sentence on counts 14, 15, 16, and 18 pursuant to section 654.

Sirman appeals and contends that the trial court erred by 1) imposing the upper and consecutive sentence terms in violation of Blakely v. Washington (2004) 542 U.S. 961, and 2) imposing punishment for particular counts in violation of section 654.

DISCUSSION

I.

Sirman contends that Blakely v. Washington, supra, 542 U.S. 961, and federal constitutional principles of due process of law require that the jury determine beyond a reasonable doubt the factual findings used by the trial court to impose the upper and consecutive terms of imprisonment.

In People v. Black (2005) 35 Cal.4th 1238, our Supreme Court held that imposition of an upper term of imprisonment or a consecutive sentence pursuant to section 669 does not violate a defendant's constitutional right to trial by jury. (Id., at p. 1244.) Black reasoned that "in operation and effect, the provisions of the California determinate sentence law simply authorize a sentencing court to engage in the type of factfinding that traditionally has been incident to the judge's selection of an appropriate sentence within a statutorily prescribed sentencing range." (Id., at p. 1254.) Imposition of upper term and consecutive sentencing does not violate defendants' constitutional rights to a jury trial. (Id., at p. 1244.)

II.

Sirman argues that the trial court improperly imposed punishment for counts 9, 10, 11, and 12 (victim Kennepohl); 6, 13, and 19 (victim Shepherd); and 17 and 19 (victim Reed), in violation of section 654. He asserts that he had but a single intent and objective--to obtain goods and services by unlawfully using the identity of another. Sirman claims that his charged acts were incidental to and the means of accomplishing his objective.

Section 654, subdivision (a), provides that "[a]n act . . . 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 . . . be punished under more than one provision." Section 654 precludes punishment for two offenses arising from the same act. (People v. Latimer (1993) 5 Cal.4th 1203, 1208.) Section 654 applies not only where there is one act, but also where a course of conduct violates more than one statute. (Ibid.) Whether conduct is divisible depends upon the intent and objective of the defendant. (Ibid.) If all of the offenses were incident to one objective, the defendant may be punished for any one of the offenses but not for more than one. (People v. Norrell (1996) 13 Cal.4th 1, 6, disapproved on other grounds by People v. Kramer (2002) 29 Cal.4th 720, 722.)

The trial court did not err. Count 9 charged Sirman with unlawfully obtaining and using the personal information of victim Kennepohl in violation of section 530.5, subdivision (a) (identity theft). Counts 10, 11, and 12 charged Sirman with using Kennepohl's personal credit information to defraud Dell Computers of two laptop computers and a printer, each purchase made on a different date. Thus, the information charged that Sirman committed grand theft in violation of section 487, subdivision (a), upon victim Dell Computers in counts 10, 11, and 12.

Count 6 charged Sirman with receiving stolen property. The prosecutor stated during summation that this count concerned the Chase VISA credit card in the name of "Charles Shepherd" that was found in a pouch in Wear's automobile. Shepherd testified that this card was stolen from his business office. Count 13 charged Sirman with unlawfully obtaining and using the personal information of Shepherd to obtain goods and services. The prosecutor stated that this count concerned Sirman's use of Shepherd's personal information to open a Lowe's credit account and to charge $1,000 of goods.

Count 17 charged Sirman with theft in violation of section 484e, subdivision (d), by unlawfully obtaining the access card of another. The prosecutor stated that this count concerned the Discover card issued to "Paul Reed" that was found in the Wear automobile.

Finally, count 19 charged Sirman with the grand theft of access cards belonging to four or more persons within a 12-month period, in violation of section 484e, subdivision (b). The prosecutor stated that this count concerned the credit cards found in the Wear automobile and in Sirman's room. Among those cards were cards issued to "Adam Rodarte," "Carpenter's Property Management," "Candis Jones," "Larry Jones," and "Erick Mencos." The victims of this count included others besides Shepherd and Reed.

Sirman committed acts of identity theft and theft against different victims at different times. He received punishment commensurate with his culpability. (People v. Latimer, supra, 5 Cal.4th 1203, 1211.)

The judgment is affirmed.

NOT TO BE PUBLISHED.

GILBERT, P.J.

We concur:

YEGAN, J.

PERREN, J.

Christopher G. Estes, Judge

Superior Court County of Los Angeles

______________________________

Cheryl Barnes Johnson, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Joseph P. Lee, Carl N. Henry, Deputy Attorneys General, for Plaintiff and Respondent.

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[1] All further statutory references are to the Penal Code unless stated otherwise.