State v. Castillo

• Decision Date: 13 April 2011
• Docket Number: No. 29,641.,29,641.
• Citation: 252 P.3d 760,2011 -NMCA- 046,149 N.M. 536
• Parties: STATE of New Mexico, Plaintiff–Appellee,v.Javier J. CASTILLO, Defendant–Appellant.
• Court: Court of Appeals of New Mexico

149 N.M. 536
252 P.3d 760
2011 -NMCA- 046

STATE of New Mexico, Plaintiff–Appellee,
v.
Javier J. CASTILLO, Defendant–Appellant.

No. 29,641.

Court of Appeals of New Mexico.

Feb. 9, 2011.Certiorari Denied, No. 32,913, April 13, 2011.

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Gary K. King, Attorney General, Anita Carlson, Assistant Attorney General, Santa Fe, NM, for Appellee.Hugh W. Dangler, Chief Public Defender, Allison H. Jaramillo, Assistant Appellate Defender, Santa Fe, NM, for Appellant.

OPINION VANZI, Judge.

{1} Defendant was convicted of one count of theft of identity and four felony counts of violating the Remote Financial Service Unit Act (RFSUA), NMSA 1978, Section 58–16–16(B) (1990), after he used a stolen debit card to purchase and attempt to purchase goods at several retail stores. Defendant appeals his convictions, arguing that he should have been charged with a single petty misdemeanor under the fraudulent use of a credit card statute, NMSA 1978, Section 30–16–33(B) (2006), rather than being charged under RFSUA. Defendant also contends that his convictions are a violation of the Eighth Amendment and equal protection clauses of the United States Constitution and the New Mexico Constitution, that there is insufficient

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evidence that he fraudulently used the debit card, and that the rule of lenity should apply in this case. For the reasons that follow, we affirm.

BACKGROUND

{2} Kathryn Sando's house was burglarized early one morning. Her purse and debit cards were among the items stolen from her home. One of the debit cards had Sando's name on it and was tied to her regular checking account, while the other was a temporary card which had “preferred customer” on it instead of a name and was tied to a different bank account.

{3} On the same morning that the burglary took place, Defendant used the card which had the name “Kathryn Sando” on it to make $83 worth of purchases at two Allsup's Convenience Stores and at a Lowe's Hardware Store. He then attempted to make a purchase at Walgreens with the same card, but the card was declined after Defendant tried several different incorrect pin number combinations.

{4} A Walgreens' manager notified police about the suspicious and unsuccessful transactions. He gave police a license plate number which led them to a car belonging to Defendant's girlfriend. Inside the car, police found an Allsup's receipt for a purchase made that morning with a debit card ending in the same four numbers as Sando's stolen card. Defendant was arrested and taken to the police station for questioning. After being read his Miranda rights, Defendant admitted that he used a card, that he was at two Allsup's stores and Walgreens, but he denied that he was involved in a burglary. Defendant also stated that he thought the card he used was a “debit card.” Video recordings showing Defendant making the debit card transactions at the Allsup's stores, Lowe's, and Walgreens were admitted into evidence and played for the jury.

{5} The jury found Defendant guilty of one count of theft of identity and four counts of violation of RFSUA. The district court sentenced Defendant to a term of eighteen months for each count in violation of the RFSUA for a total of six years. For the theft of identity violation, Defendant received an additional eighteen months, but he does not appeal that conviction. The district court suspended five-and-one-half years of Defendant's sentence, leaving a sentence of two years of incarceration for the five felonies.

{6} Defendant appeals his RFSUA convictions, arguing that he was incorrectly charged and that his sentence is unconstitutional.

DISCUSSIONDefendant Was Properly Charged With Fraudulent Use of a Debit Card Under RFSUA

{7} Defendant contends that he was improperly convicted of four fourth degree felonies for violations of RFSUA when he would have been convicted of only a single petty misdemeanor if he had been charged with the same conduct under the fraudulent use of a credit card statute, § 30–16–33. Specifically, he argues that fraudulent use of a debit card can be punished under either statute because the debit card he used is a “credit card” within the meaning of Section 30–16–33. Therefore, he asserts that the Legislature must have intended that his actions be punished under Section 30–16–33. We disagree.

{8} The determination of whether a debit card is a credit card for purposes of Section 30–16–33 is an issue of statutory interpretation that we review de novo. State v. Romero, 2006–NMSC–039, ¶ 6, 140 N.M. 299, 142 P.3d 887. The primary purpose of statutory interpretation is to “to give effect to the intent of the [L]egislature.” State v. Rowell, 121 N.M. 111, 114, 908 P.2d 1379, 1382 (1995). We first look to the ordinary and plain meaning of the language of a statute, because the statutory text is “the primary indicator of legislative intent.” Bishop v. Evangelical Good Samaritan Soc'y, 2009–NMSC–036, ¶ 11, 146 N.M. 473, 212 P.3d 361.

{9} Section 30–16–33(B) provides that “[w]hoever commits fraudulent use of a credit card when the value of the property or service obtained is two hundred fifty dollars ($250) or less in any consecutive six-month period is guilty of a petty misdemeanor.” For purposes of this section, a “credit card” is defined as

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any instrument or device, whether known as a credit card, credit plate, charge card or by any other name, issued with or without fee by an issuer for the use of the cardholder in obtaining money, goods, services or anything else of value, either on credit or in consideration of an undertaking or guarantee by the issuer of the payment of a check drawn by the cardholder [.]

NMSA 1978, § 30–16–25(B)(1) (1999) (emphasis added). We note that the plain language of the statute limits the application of Section 30–16–33 to those purchases made with a card “on credit” or those purchases made “in consideration of an undertaking or guarantee by the issuer of the payment of a check drawn by the cardholder.” Section 30–16–25(B)(1).

{10} In State v. Martinez, 2001–NMCA–099, ¶ 7, 131 N.M. 254, 34 P.3d 643, we held the term “ ‘on credit’ to mean, in ordinary usage, the receipt of goods or money for payment in the future.” In that case, the defendant used a stolen electronic benefits (EBT) card at a grocery store belonging to a public assistance recipient. Id. ¶ 1. The defendant argued that the EBT card is not a credit card as defined in Section 30–16–25(B) and, therefore, the evidence was insufficient to support his conviction. Martinez, 2001–NMCA–099, ¶ 1, 131 N.M. 254, 34 P.3d 643. We agreed, concluding that an EBT card was not a “credit card” for purposes of Section 30–16–33 because although a transaction with an EBT card has a “layer of credit” between the United States Treasury, the bank, and the State of New Mexico, the cardholder only accesses benefits and does not access a line of credit tied to the cardholder's promise to pay. Martinez, 2001–NMCA–099, ¶¶ 4, 11, 131 N.M. 254, 34 P.3d 643. We also stated that because the facts of that case did not involve “the payment of any check,” the transaction did not come within Section 30–16–33's definition of a credit card as an instrument to obtain something of value “in consideration of an undertaking or guarantee by the issuer of the payment of a check drawn by the cardholder.” Martinez, 2001–NMCA–099, ¶¶ 2, 10, 131 N.M. 254, 34 P.3d 643 (internal quotation marks and citation omitted).

{11} In this case, evidence was presented that debit cards are tied to individual checking accounts, as opposed to lines of credit or guarantee of payment by the issuing bank. Sherry DeFoor, the banking manager at Bank of America, testified that a “debit card” is different from a “credit card” because a “credit card” relies on a line of credit. In contrast, a “debit card” is tied to the individual cardholder's checking account, and when the debit card is used, the money is taken directly out of that checking account. DeFoor further testified that the unauthorized use of Sando's “debit card” resulted in a direct deduction from Sando's available funds in her checking account.

{12} The bank is not lending any funds to Sando or guaranteeing any payment to a third party when she initiates a debit card transaction. Based on our reading of the plain language of Section 30–16–33, the holding in Martinez, and the evidence presented, we conclude that a “debit card” does not meet the statutory definition of a “credit card,” and that the two terms cannot be used interchangeably in this case. Consequently, contrary to Defendant's assertion that he could have been charged under either statute, we determine that Defendant's use of Sando's debit card could only be charged under RFSUA and not under the fraudulent use of a credit card statute, § 30–16–33.

{13} Consistent with our analysis, the Washington Supreme Court interpreted a virtually identical state statute in the case of Washington v. Standifer, 110 Wash.2d 90, 750 P.2d 258 (1988) (en banc). In Standifer, the issue was whether an ATM access card was a “credit card” for purposes of a statute prohibiting theft of a credit card. Id. at 259. That statute defined credit card in essentially the same manner as it is defined in Section 30–16–33. Standifer, 750 P.2d at 259. The court stated that it was clear that the card was not issued to obtain money on credit and that an ATM card did not fit the statutory language. Id. at 260. The court also considered the “guarantee” or “undertaking” provision and explained that

[c]ommon experience indicates that this portion of the statute was intended to describe

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the card issued by a bank with which the holder can obtain money, goods or services from a seller or provider thereof in consideration of the issuer's promise to pay the seller or provider, then looking to the cardholder for payment.

Id. Standifer further supports our determination that Section 30–16–33 does not encompass the unauthorized use of a...