Filed 10/10/13 P. v. Phillips CA4/2

                     NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for
                               publication or ordered published for purposes of rule 8.1115.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

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                        E055742

v.                                                                        (Super.Ct.No. RIF1103810)

RAJAHD REON PHILLIPS,                                                     OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of Riverside County. Christian F. Thierbach,

Judge. Affirmed in part; reversed in part with directions.

         Martin Kassman, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Laura A.

Glennon, Deputy Attorneys General, for Plaintiff and Respondent.




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       A jury found defendant and appellant Rajahd Reon Phillips, guilty of (1) identity

theft (Pen. Code, § 530.5);1 (2) burglary (§ 459); (3) grand theft (§ 487, subd. (a)); and

(4) fraudulent use of an account access card (§ 484g, subd. (a)). The trial court found

true the allegations that defendant suffered (1) two prior strike convictions (§§ 667,

subds. (c) & (e)(2)(A), 1170.12, subd. (c)(2)(A)), and (2) three prior convictions for

which he served prison terms (§ 667.5, subd. (b)); however, the court dismissed one of

defendant’s prior strikes pursuant to a Romero2 motion. The trial court sentenced

defendant to prison for a term of 10 years, 4 months.

       Defendant raises three issues on appeal. First, defendant asserts the trial court

erred by sustaining the prosecutor’s objection that defense counsel misstated the law

when arguing to the jury about the meaning of “abiding conviction.” Second, defendant

contends the trial court violated his right of due process by sustaining the prosecutor’s

objection to defense counsel’s argument concerning the meaning of “abiding

conviction.” Third, defendant contends the trial court erred by imposing a consecutive

prison term for the grand theft conviction because the sentence should have been stayed

pursuant to section 654. We reverse defendant’s sentence with directions, but otherwise

affirm the judgment.




       1   All subsequent statutory citations will be to the Penal Code unless indicated.

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


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                    FACTUAL AND PROCEDURAL HISTORY

       On January 2, 2011, at 3:47 p.m., defendant made a purchase at Tilly’s clothing

store in the Promenade Mall in Temecula. The purchase totaled $408.73. In making the

purchase, defendant used a credit card that bore defendant’s name, but the victim’s debit

card account number. The victim did not give defendant permission to use the victim’s

account.

       At 4:32 p.m. on January 2, defendant made a $285.89 purchase at the Bath &

Body Works store in the mall. Defendant again used a card bearing the victim’s

account number to make the purchase. At 4:49 p.m. on January 2, defendant used a

card reflecting the victim’s account number to make a $573.01 purchase at Victoria’s

Secret, which was also located in the mall.

       In his defense, defendant presented the testimonies of his fiancée and cousin,

who both stated defendant was in Los Angeles County on January 2, 2011.

       At defendant’s trial, the trial court instructed the jury on the reasonable doubt

standard of proof. (CALCRIM No. 220.) The instruction explained, “Proof beyond a

reasonable doubt is proof that leaves you with an abiding conviction that the charge is

true.” (CALCRIM No. 220.) During defense counsel’s closing argument, the following

discussion took place:

       Defense Counsel: “[P]roof beyond a reasonable doubt is proof that leaves you

with an abiding conviction that the charge is true. [¶] What does ‘abiding conviction’

mean? ‘Abiding conviction’ means long-lasting. It means that if you go back there and

after reviewing the evidence you deliberate and you decide to vote guilt[y], that this has


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to be a decision that sticks with you and what you are sure of not just weeks, but months

and years down the line.

       “[Prosecutor:] Objection. Misstates the law.

       “The Court: Sustained.

       “[Defense Counsel:] Okay. You can’t go back and vote guilty and come back

and ask me in a couple of days, ‘Okay. [Defense Counsel], did he really do it?’ if you

happen to run into me on the street. ‘Was he really guilty?’ If there [are] questions

with respect to whether or not you feel that there is evidence lacking or questions with

respect to whether or not he is guilty, then that’s reasonable doubt right there.”

                                      DISCUSSION

       A.     ABIDING CONVICTION

       Defendant contends the trial court erred by sustaining the prosecutor’s objection

to defense counsel’s argument defining “abiding conviction,” because the argument did

not misstate the law.

       Defendant’s contention relates to an alleged misstatement of law. Thus, we are

presented with a legal question, which we review de novo. (People v. McDonald (2013)

214 Cal.App.4th 1367, 1379.)

       The words “abiding conviction” refer to both the duration of a juror’s conviction

as well as the strength, depth and certainty of the conviction. (People v. Stone (2008)

160 Cal.App.4th 323, 334; People v. Zepeda (2008) 167 Cal.App.4th 25, 31-32.)

Defense counsel’s closing argument misstated the law because only the duration aspect

of “abiding conviction” was presented. Counsel argued, “‘Abiding conviction’ means


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long-lasting.” This was an incorrect statement of the law because it was only a partial

definition of the term—it omitted the rest of the portion of the definition concerning the

weight or depth of feeling. The problem is analogous to an attorney arguing that

burglary consists of entering a residence, but forgetting to mention the portion of the

definition requiring an intent to commit a felony. (§ 459.) By presenting an incomplete

definition, defense counsel misstated the law. Accordingly, we conclude the trial court

did not err by sustaining the prosecutor’s objection.

       B.     DUE PROCESS

       Defendant contends the trial court violated his right of due process by sustaining

the objection to defense counsel’s argument concerning the definition of “abiding

conviction.” Defendant asserts the trial court’s ruling effectively lowered the

prosecution’s burden of proof because it “amounted to instructing the jury that a belief

in guilt need not be strong or long-lasting to constitute an ‘abiding conviction.’”

       As set forth ante, defendant’s trial counsel misstated the law by giving an

incomplete definition of “abiding conviction.” The trial court properly ruled on the

objection to the misstatement of law. We cannot fault the trial court for correctly ruling

on a properly raised objection. If defendant felt the jury was left with a

misunderstanding of the duration aspect of the law due to the trial court’s ruling, then

defendant needed to request a curative instruction at the trial court. Any possible harm

caused by the ruling on the objection could likely have been cured below if such an

instruction were given to the jury. (People v. McDowell (2012) 54 Cal.4th 395, 440

[failure to request corrective action forfeits the issue for appeal].)


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       Nevertheless, we note there is nothing indicating the jury understood the ruling

on the objection to be an instruction lowering the burden of proof. This is especially

true given that defense counsel immediately continued discussing the topic of duration

following the ruling on the objection. It is not reasonable to assume the jury would

have thought an abiding conviction has no duration aspect since defense counsel quickly

returned to discussing the duration aspect of the law. (People v. Hernandez (2003) 111

Cal.App.4th 582, 589 [a court considers whether there a reasonable likelihood the jury

misunderstood the instruction].) In sum, we conclude the trial court did not lower the

prosecutor’s burden of proof.

       C.     SECTION 654

       Defendant contends the trial court erred by not staying his sentence for the grand

theft (§ 487, subd. (a)) conviction because it involved the same act and objective as the

conviction for identity theft (§ 530.5). (§ 654.)

       Section 654, subdivision (a), 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.” We apply the substantial

evidence standard of review. (People v. McCoy (2012) 208 Cal.App.4th 1333, 1338.)




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       In Count 3, defendant was charged with grand theft. Specifically, in Count 3 it

was alleged defendant stole $1,023.14 from the victim. The identity theft statute

provides: “Every person who willfully obtains personal identifying information . . . 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 . . . .” (§ 530.5, subd.

(a).) “‘[I]t is the use of the identifying information for an unlawful purpose that

completes the crime [of identity theft] and each separate use constitutes a new crime.’

[Citation.]” (People v. Johnson (2012) 209 Cal.App.4th 800, 817, italics omitted.)

       It is unclear how defendant obtained the card with his name and the victim’s

account number. Thus, there is not substantial evidence that defendant used the

victim’s information to fraudulently obtain the credit card. For example, one could

speculate defendant made the card himself since the magnetic strip on the card did not

work. As a result, the evidence reflects defendant’s first use of the victim’s identifying

information was when he used the card at Tilly’s.

       The Tilly’s purchase is incorporated into the total grand theft amount of

$1,023.14. In the information, the victim is the named victim for both the identity theft

and grand theft convictions. Thus, the identity theft would likely have begun prior to

defendant entering the mall and ended at the Tilly’s purchase, while the grand theft

began at the Tilly’s purchase and ended after the Victoria’s Secret transaction.

       Because the crimes overlap, we must consider the law pertaining to a single

course of conduct. The “act” described in section 654 “need not be an act in the


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ordinary sense of a separate, identifiable, physical incident, but may instead be a ‘course

of conduct’ or series of acts violating more than one statute and comprising an

indivisible transaction punishable under more than one statute.” (People v. Liu (1996)

46 Cal.App.4th 1119, 1135.) If the violations “shared common acts” the inquiry for the

court is “whether the defendant’s criminal intent and objective were single or multiple.”

(Ibid.)

          The evidence in this case reflects a solitary intent to steal. There is nothing

indicating a different motive. Defendant committed identity theft to obtain goods from

the three stores, and he committed grand theft to take property from the three stores.

Thus, we conclude there was a single intent and the course of conduct is not divisible.

As a result, section 654 should have been applied to defendant’s sentence.

          As a result of staying the consecutive one year, four month sentence for Count 3,

defendant’s 10 year, 4 month sentence would be reduced to nine years. This stay “will

result in a direct and calculable decrease” in defendant’s sentence, since over one year

will be removed from the prison term. (People v. Burns (1984) 158 Cal.App.3d 1178,

1183.) This reduction will “confer a windfall on defendant at the expense of the

legitimate interests of the People in having an appropriate sentence pronounced.”

(Ibid.) In such cases, a remand for resentencing should be ordered to allow the trial

court to reconsider its entire sentencing scheme, as long as the sentence on remand is no

greater than the original term. (Id. at p. 1184; see also People v. Delgado (2010) 181

Cal.App.4th 839, 855.) Accordingly, we will remand the matter for resentencing with

the directive that the sentence for Count 3 be stayed.


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       The People concede the two crimes overlap, but assert the identity theft was

complete before the grand theft because the grand theft required the additional

purchases from Victoria’s Secret and Bath & Body Works in order to be complete. The

People appear to be asserting defendant’s crimes do not constitute a “course of conduct”

because they were not completed at the same time. The People do not provide legal

support for this assertion. Crimes do not need to be completed at the same time in order

to constitute a course of conduct; sharing common acts is sufficient. (People v. Retanan

(2007) 154 Cal.App.4th 1219, 1229.) In this case, the Tilly’s transaction is the common

act shared by both crimes. Thus, the crimes constitute a course of conduct.

       The People assert the course of conduct is divisible because defendant’s two

crimes were separated in time, in that the three purchases took place over the span of

one hour. The People’s argument is problematic because the two crimes overlap at the

Tilly’s transaction. The Tilly’s purchase is needed to make defendant’s theft pass over

the $950 grand theft requirement. Thus, the Tilly’s transaction cannot be separated

from either crime, which means the crimes are not temporally separated, they overlap

one another.

       Next, the People assert the victim was the victim of the identity theft, while the

three stores were the victims of the grand theft. The People appear to be asserting the

multiple victims exception to section 654. This argument is not persuasive because the

multiple victims exception applies to crimes of violence. (People v. Oates (2004) 32

Cal.4th 1048, 1063.) There is nothing indicating violence was involved in defendant’s

two theft offenses. Accordingly, this exception is not applicable.


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                                      DISPOSITION

       The judgment of conviction is affirmed. The sentence is reversed. The trial

court is directed to resentence defendant, staying the sentence for Count 3 and not

exceeding the 10 years, 4 months prison term that was originally imposed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS




                                                      MILLER
                                                                                      J.


We concur:


HOLLENHORST
                       Acting P. J.


McKINSTER
                                 J.




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