Filed 6/27/17 P. v. Tinitali CA3
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.



IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----




THE PEOPLE,

Plaintiff and Respondent,

v.

BERNICE ELIZABETH TINITALI,

Defendant and Appellant.
C077174 & C078868

(Super. Ct. No. 12F07351)




Defendant Bernice Elizabeth Tinitali was convicted of second degree burglary, identity theft, and check fraud, after she attempted to use the identification of R. Hernandez and the checking account number of A. Phillips to open a debit account at Nordstrom.
Defendant argues her two convictions for identity theft against two separate victims involved only a single use of stolen identity and should have been charged as a single crime. She argues there was insufficient evidence she willfully attempted to use Phillips’ checking account number, since his name was not on the check used to open a Nordstrom account. She argues the standard instruction on identity theft did not sufficiently define the term “willfully.” She argues the relationship of one of the juror’s with Phillips violated her right to a fair trial. We find no merit to any of these contentions.
After trial, defendant petitioned the trial court for an order redesignating her burglary to a misdemeanor pursuant to Penal Code section 1170.18, subdivisions (b)(1)-(3) and (i). The trial court initially denied the petition. Subsequently, we granted a limited remand to allow a second petition. The trial court granted the second petition and redesignated count one, felony burglary, to a misdemeanor.
FACTUAL AND PROCEDURAL BACKGROUND
Hernandez lost her wallet at an Applebee’s restaurant in April 2012. Among other things, her wallet had contained her driver’s license, debit card, credit card, and some checks. On October 14 and 15, Phillips’s business, Classic Marine and Classic Craft Boat, was burglarized. At the time of the burglaries, Phillips had a corporate checking account with Patelco Bank. He did not realize at the time of the burglaries that his checking account number had been taken, but two or three weeks later he received a call from his bank saying Nordstrom had received a suspicious check displaying his account number.
On the afternoon of October 30, 2012, defendant entered the women’s fashion area of Nordstrom. She caught the attention of Nordstrom’s loss prevention officer, Christopher Silvas, because she was acting suspiciously. She was randomly selecting jeans without looking at sizes, was carrying a large empty bag, was refusing the salesperson’s offer of help, and was wearing a large coat even though it was a warm day. Silvas notified his manager, and they decided to maintain continuous observation of defendant.
When defendant went into the fitting room, a salesperson entered behind her to make sure no clothing was passed off, and Silvas and his manager sat outside the fitting room area to make sure no one else went in.
Defendant handed the salesperson who entered the fitting room behind her a driver’s license and a blank check for a Patelco Bank account for the purpose of opening a Nordstrom debit card. A Nordstrom debit card ties directly to the customer’s checking account. The name on the driver’s license was Hernandez’s. However, the picture on the license looked nothing like defendant. The name on the check was also Hernandez’s. However, it was later discovered that the account number was from Phillips’s business account.
After defendant completed the application for the Nordstrom debit card, she purchased a total of $488.30 worth of merchandise with the card.
Because Silvas had contacted Patelco Bank due to the discrepancy between the defendant and the picture on the driver’s license, Silvas suspected the transaction was fraudulent. He searched all of the fitting rooms and noticed a pair of jeans was missing. He and his manager then contacted defendant. Defendant was extremely defensive and slightly aggressive. She began to scream when they placed her in handcuffs. When asked her name, defendant replied that she was Hernandez. Defendant would not give permission for her purse to be searched, but she did give permission to look in her wallet for identification. Inside the wallet were two checks and several identification cards for Hernandez. In addition they found checks, insurance cards, bank cards, and credit cards in the names of four other people. None of them were in defendant’s own name. Some of the items belonged to Hernandez’s son, Christopher M., and were stolen when Hernandez’s wallet went missing.
When Sacramento Police officers arrived at Nordstrom, they searched defendant’s purse and found a pair of jeans that retailed for $169 without tax. Also in defendant’s purse were Hernandez’s wallet and a pair of needle-nose pliers. Such pliers could be used to remove anti-theft sensors attached to clothing. The police officers observed that defendant was drowsy and not alert. She continued to insist that her name was Hernandez.
In 2009, defendant was a passenger in a car driven by her husband that was stopped by police. She was found to be in possession of a bag containing her identification and nine other credit cards that were not in her name. The court took judicial notice of defendant’s prior convictions for forgery, selling and receiving access cards with the intent to defraud, and identity theft.
Defendant testified in her defense that she had been at Nordstrom with her husband, who was shopping for a birthday present for himself. Defendant claimed that even though she realized that a loss prevention agent was following her, she agreed to help a woman who had a cast on her arm get a credit card in exchange for a hit of crystal methamphetamine. They went to the restroom, took a couple of hits of methamphetamine, and walked out of the restroom. She went to help the woman sign for her credit card, and before she could finish signing the woman’s name, “they” came, threw her to the ground, and told her she was under arrest. She claimed the purse was not hers.
The jury found defendant guilty of: (1) violating section 459, commercial burglary, (count one); (2) violating section 530.5, subdivision (a), identity theft of Hernandez (count two); (3) violating section 530.5, subdivision (a), identity theft of Phillips (count three); and (4) violating section 475, subdivision (b), check fraud (count four). The trial court found true allegations that she had been previously convicted and imprisoned for the crimes of selling or receiving access cards with intent to defraud, and identity theft, and that she had reoffended within five years. The court initially sentenced defendant to a total term of six years four months. The court ordered that the first four years four months be served in county jail, and that defendant then be placed on mandatory supervision for two years by the Sacramento County Probation Department.
After the trial court granted defendant’s second petition under Proposition 47, it resentenced defendant to state prison for three years on count two, eight months on count three, eight months on count four, and two years on the enhancements for an aggregate prison term of five years eight months, with three years eight months to be served in custody and two years to be served on mandatory supervision.
DISCUSSION
I
Defendant Was Properly Convicted of Two
Counts of Identity Theft
Defendant was convicted in counts two and three of violating section 530.5, subdivision (a) against two separate victims. That subdivision provides in pertinent part: “Every person who willfully obtains personal identifying information, as defined in subdivision (b) of Section 530.55, of another person, and uses that information for any unlawful purpose, including to obtain, or attempt to obtain, credit, goods, services, real property, or medical information without the consent of that person, is guilty of a public offense . . . .”
Defendant argues she was charged and convicted of two counts of identity theft, even though the transaction at Nordstrom involved only a single use of stolen identity information. She claims one of the convictions must be reversed because the single use gives rise to a single charge of identity theft. She bases her argument on a principle relating to grand theft that was first articulated by the Supreme Court in People v. Bailey (1961) 55 Cal.2d 514 (Bailey). There, the defendant was receiving welfare payments and falsely informed the county that the man with whom she had been living as husband and wife had moved out. (Id. at pp. 515-516.) The court held that the series of petty thefts the defendant committed by continuing to receive payments could be aggregated into a single charge of grand theft because the offenses were “committed pursuant to one intention, one general impulse, and one plan.” (Id. at p. 519.)
The question in Bailey was whether the defendant could avoid a charge of grand theft by breaking up the transactions into a series of petit thefts. (People v. Mitchell (2008) 164 Cal.App.4th 442, 455 (Mitchell).) Bailey involved the crime of theft, not the crime of identity theft. Even if the rule set forth in Bailey were to apply to the crime of identity theft, it does not apply in this case where there is more than one victim, as was decided in People v. Valenzuela (2012) 205 Cal.App.4th 800, 808. “As [the] legislative history [of section 530.5] makes clear, the retention of personal identifying information of another is not a possession crime, but is a unique theft crime. Therefore, cases holding that, with regard to possession crimes, the possession of multiple items is a single offense even when there are multiple victims are not applicable to section 530.5, subdivision (c)(1). Instead, the retention of personal identifying information of multiple victims constitutes multiple identity theft offenses.” (Ibid.)
Although People v. Valenzuela, supra, 205 Cal.App.4th 800 concerned subdivision (c)(1) of section 530.5, the holding applies equally to a violation of subdivision (a) of that section. People v. Valenzuela examined the legislative history of section 530.5 and determined that it targeted the harm suffered by the victims, and was enacted because identity theft in the electronic age is a unique crime, and not simply a form of grand theft. (People v. Valenzuela, at p. 808.)
In Mitchell, supra, 164 Cal.App.4th at page 455, we found that the doctrine in Bailey did not apply in the context of subdivision (a) of section 530.5 because the statute requires both obtaining personal identifying information and using that information for an unlawful purpose. We concluded that each separate use constituted a new crime. (Michell, at p. 455.) Similarly here, subdivision (a) requires that the personal identifying information of another be obtained, and the use of the identifying information of each separate victim so obtained constitutes a separate crime.
II
Sufficient Evidence of Willfulness
Count three charged defendant with “willfully” obtaining the personal identifying information of Arthur Phillips and using that information to obtain goods and credit from Nordstrom in violation of section 530.5, subdivision (a). Defendant argues that because the check she used was imprinted with Hernandez’s name, the evidence is insufficient to show she acted willfully in obtaining or using Phillips’s personal information. In other words, she argues that because two separate section 530.5 convictions are based on two separate victims, the prosecution was required to prove that she knew there were two victims involved in her attempt to take goods and credit from Nordstrom by means of misappropriated identifying information.
Assuming she is correct in asserting that the prosecution is required to prove her knowledge of more than one victim, there was sufficient evidence presented below from which a reasonable jury could have concluded that she was aware her crime impacted more than one victim.
On a challenge to the sufficiency of the evidence, we review the whole record in the light most favorable to the judgment to determine whether there is substantial evidence such that a reasonable trier of fact could find guilt beyond a reasonable doubt. (People v. Prince (2007) 40 Cal.4th 1179, 1251.) Substantial evidence is evidence which is reasonable, credible, and of solid value. (Ibid.) We presume the existence of every fact in support of the judgment that the trier of fact could reasonably deduce from the evidence. (Ibid.) We will not reverse the judgment for insufficiency of the evidence unless it clearly appears “that upon no hypothesis whatever is there sufficient substantial evidence to support it.” (People v. Redmond (1969) 71 Cal.2d 745, 755.)
The word willfully as used in the statute is synonymous with intentionally. It implies the person knows and intends what she is doing and acts as a free agent. (People v. Bollaert (2016) 248 Cal.App.4th 699, 710.) There was sufficient evidence from which the jury could have concluded that defendant knew the check she gave Nordstrom was not drawn on Hernandez’s account. First, the checks themselves are highly suspicious. Hernandez’s name is misspelled on the check. The printing on the check is blurred. Exhibit 14 contained two supposedly original checks with the same check number--113. These facts were sufficient to put defendant on notice that the check was fake. The only reason to have a fake check with Hernandez’s name on it was so that it would match the other identification defendant had willfully obtained. Defendant could not open a Nordstrom debit account unless the name on the account matched the name on the identification she gave.
Second, Hernandez testified that when her wallet went missing it contained, in addition to identification and other cards, “some checks.” The jury could have concluded that defendant knew from the information on those genuine checks that the information on the checks she was trying to pass off as her own belonged to someone other than Hernandez. Finally, the jury heard evidence that defendant had in her possession checks, insurance cards, bank cards, and credit cards from four other individuals, and had been arrested five years earlier in possession of nine credit cards and some blank checks in other people’s names. While none of this evidence alone may have been sufficient to prove defendant knew the check she presented was not Hernandez’s, taken as a whole it was substantial evidence of willfulness to obtain and use the personal identifying information of another person--Phillips.
III
No Instructional Error
For counts two and three the trial court gave the standard instruction on the violation of section 530.5, subdivision (a) pursuant to CALCRIM No. 2040. The instruction provided, in pertinent part: “To prove the defendant is guilty of this crime the People must prove that: [¶] 1. The defendant willfully obtained someone else’s personal identifying information; [¶] 2. That the defendant willfully used that information for an unlawful purpose; and [¶] 3. The defendant used the information without the consent of the person whose identifying information she was using. [¶] . . . [¶] Someone commits an act willfully when he or she does it willingly or on purpose. . . .”
Defendant claims for the first time on appeal that the instruction was incomplete because it failed to clarify that the term “willfully” required knowledge. She does not explain knowledge of what, but presumably she would have the law require her to have knowledge of whose personal information she obtained and used. The law contains no such requirement, and the instruction given was not in error.
IV
Waiver
After Phillips gave his name prior to testifying, and was asked about the business he owned, Juror No. 11 said: “I have to stop for a second. I just need to make sure I don’t know this person.” After confirming he did know Phillips, Juror No. 11 said, “This was my mother’s boyfriend years ago.” The court excused the jury. Upon questioning Juror No. 11 outside the jury’s presence, the court discovered that Phillips had dated the juror’s mother around 25 years before. There had been no contact between them for approximately 10 years, at which time they had spoken on the phone, but their relationship had been a good one. It became apparent that Juror No. 11 was emotional because Phillips made Juror No. 11 think of his mother, who had died a few years earlier.
The trial court asked Juror No. 11 if he would be able to evaluate Phillips’s credibility just like any other witness. Juror No. 11 answered that he had no problem with objectivity, but his problem was distraction because Phillips brought back so many memories. The trial court floated the idea of adjourning for the day to give Juror No. 11 time to regroup, and have him back with the rest of the jury the next morning. Defendant’s counsel then questioned Juror No. 11. The relevant questioning was as follows:
“[Defense Counsel]: You understand that nobody likes identity theft, and Mr. Phillips is purely a victim of identity theft? That’s not what you’re here to decide. You’re here to decide whether or not Ms. Tinitali is the one that did it.
JUROR NUMBER 11: Yes, I understand.
[Defense Counsel]: Can you remain objective to the question regardless of how bad the crime may have been or who the victim may have been, that you can objectively determine whether or not Ms. Tinitali did it?
JUROR NUMBER 11: Yes.”
Defense counsel then stated that he had no objection to giving Juror No. 11 additional time. The trial court sent the jurors home for the day. The next morning the court asked Juror No. 11 how he felt, and he replied that he was ready to continue, and the fact that he knew one of the witnesses would not prevent him from being a fair and impartial juror to either side. He also stated he would no longer be distracted. The trial court asked defense counsel if he had any questions. Defense counsel stated: “No. I think that pretty much covers it. Pass for cause.”
When Phillips took the stand, he testified that he had owned a business called Classic Marine and Classic Craft Boat, that he had a corporate checking account with Patelco Bank, and that his business had been burglarized and ransacked twice on October 14 and 15, 2012. He stated he had no knowledge his checking account number was taken until he received a phone call from the bank, saying Nordstrom was suspicious about one of his checks. That happened about two weeks after the burglaries.
Although defendant “Pass[ed] for cause[,]” after it became known that Juror No. 11 knew Phillips, she now claims she was deprived of her right to an impartial jury. In passing for cause she waived the claim. (People v. Zaragoza (2016) 1 Cal.5th 21, 59.) People v. Zaragoza held that a defendant forfeited his challenge to the trial court’s inquiry into a juror’s bias by asking no further questions and failing to seek a broader inquiry. (Ibid.) We conclude defendant waived the argument she now makes because she affirmatively passed for cause. Forfeiture is the failure to timely assert a right, and waiver is the intentional relinquishment of a known right. (Cowan v. Superior Court (1996) 14 Cal.4th 367, 371.) To the extent we have discretion to consider the claim, we decline to exercise that discretion.
DISPOSITION
The judgment is affirmed.



/s/
Blease, Acting P. J.

We concur:



/s/
Robie, J.



/s/
Butz, J.