People v. Butler

• Decision Date: 26 March 1996
• Docket Number: No. B091593,B091593
• Citation: 51 Cal.Rptr.2d 150,43 Cal.App.4th 1224
• Court: California Court of Appeals Court of Appeals
• Parties: , 96 Cal. Daily Op. Serv. 2050, 96 Daily Journal D.A.R. 3422 The PEOPLE, Plaintiff and Respondent, v. Andre Maurice BUTLER, Defendant and Appellant.

Page 150

51 Cal.Rptr.2d 150

43 Cal.App.4th 1224, 96 Cal. Daily Op. Serv. 2050,

96 Daily Journal D.A.R. 3422

The PEOPLE, Plaintiff and Respondent, v. Andre Maurice BUTLER, Defendant and Appellant.

No. B091593.

Court of Appeal, Second District, Division 4, California.

March 26, 1996.

Rehearing Denied April 16, 1996.

Review Denied June 26, 1996.

Sharon M. Jones, Ventura, under appointment by the Court of Appeal, for Defendant and Appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Senior Assistant Attorney General, John R. Gorey, Supervising Deputy Attorney General, Jaime L. Fuster and Mitchell Keiter, Deputy Attorneys General, for Plaintiff and Respondent.

RUBIN, Associate Justice. ^*

This case affords us the opportunity to examine the fascinating and often uncertain relationship between law and technology. While courts must be sufficiently receptive to the notion of adapting legal principles to address societal changes brought upon by new technologies, where, as here, the issue involves an interpretation of existing statutes, we must maintain our usual deference to the Legislature in such matters and ask ourselves first how that body would have handled the problem if it had anticipated it. (Lewis v. Ryan (1976) 64 Cal.App.3d 330, 333, 134 Cal.Rptr. 355.)

Here we are presented with the question of whether the possession of an unlawfully cloned cellular phone constitutes a violation of the access card law. (Pen.Code, § 484d et seq.) After due analysis of the act, the legislative history and analogous federal authorities, we conclude that possession of such a device falls within the access card law and that the Legislature did not intend to bar prosecution under that law by its enactment of a telephone fraud law. For this reason, and because defendant's other arguments on appeal are without merit except for an error in sentencing, we modify part of the sentence and affirm.

I. Procedural History

Defendant Andre Butler ("defendant") was convicted of two felony counts of receipt of an access card with the intent to defraud (Pen.Code, § 484e, subd. (c)) and two misdemeanor counts of possession of an instrument with the intent to avoid a lawful telephone charge (Pen.Code, § 502.7, subd. (b)(1)). ¹ The criminal charges all arose out of his possession of two cloned cellular phones. A cloned cellular phone is one that is unlawfully programmed with electronic identification numbers assigned not to the cloned phone but to another cellular phone. When a telephone call is placed from a cloned phone, the call is charged to the account of the person who is lawfully assigned the electronic identification numbers. (See discussion, post.)

Defendant also admitted a 1978 prior conviction for robbery. He was sentenced to the middle term of two years in state prison for counts 1 and 2 (the two access card charges) and one year in the county jail for the two misdemeanor charges. The sentence on count 1 was doubled to four years because of the second strike prior conviction. (Pen.Code, § 667(b)-(i).) The sentences for the remaining counts were imposed to run concurrently with count 1.

Defendant's principal contention on appeal is that he was unlawfully convicted of the two felony access card counts because as a matter of law cellular telephones do not constitute access cards within the Penal Code's definition of that term. Even if cellular phones are access cards, since the Legislature adopted an entirely separate statutory scheme for telephone fraud in section 502.7, defendant argues he can be prosecuted only under that more specific statute and not the general statute, section 484e(c). Defendant also contends that the court failed to instruct sua sponte on section 484e(a), a lesser included misdemeanor. Finally, defendant makes a multifaceted attack on the three strikes law under which he was sentenced and contends that the trial court should have stayed the sentences on counts 2, 3 and 4 rather than imposing concurrent sentences.

II. Factual Summary

Viewed in the light most favorable to the judgment (People v. Ochoa (1993) 6 Cal.4th 1199, 1206, 26 Cal.Rptr.2d 23, 864 P.2d 103), the evidence established that on November 16, 1994, defendant was in Inglewood in the vicinity of a laundromat when he became engaged in an argument with the store's proprietor. During the disturbance, defendant threatened the shop owner and then made a call on a cellular phone which he removed from his pocket. The owner said he was going to call the police; defendant responded that he would do likewise. Whereupon, he removed a second cellular phone from his pocket and began dialing that phone.

Shortly thereafter, the police arrived on the scene and saw defendant acting in an agitated manner moving a cellular phone from ear to ear by changing hands. After conducting an investigation, the police effected a citizen's arrest for disturbing the peace. Defendant was taken into custody.

When defendant was at the jail, the booking officer took the two phones from him and booked them with defendant's property. While the officer was examining the phones, he noticed that one of them was missing an external tag containing the phone's serial number. The officer also thought it was odd that someone would have two cellular phones in his possession. His suspicions were partially aroused because of a recent briefing he had attended on cloned cellular phones. He called fellow officer Paul Harvey, a detective with expertise with cloned telephones.

Detective Harvey looked at the two phones and determined that the internal electronic serial number (ESN) and mobile identification number (MIN) programmed into each phone did not match the phone, and that the two phones were clones. Detective Harvey advised the booking officer to add telephone cloning charges against defendant.

After waiving his Miranda rights, defendant told Detective Harvey that he was delivering the two phones to a person in Inglewood from a cloner in the San Fernando Valley. He offered to reveal the source of the altered phones if he could make a "deal." Detective Harvey demurred. A few days later defendant telephoned Detective Harvey, said he did not like the deal that he had been offered (presumably by the prosecutor), and would tell the cloner that the police were aware of the operation.

At trial, an employee of Air Touch Cellular explained how a cellular phone is cloned. When a legitimate subscriber purchases a telephone, he or she must open an account with the cellular provider. The account is then linked to two distinct numbers, unavailable to anyone else. The first number, the MIN, is the number which is referred to commonly as the phone number, a ten digit number with an area code and a personal number. It is programmed into the software of the cellular phone. The second number, the ESN, is a special serial number also programmed into the phone.

Combinations of linked ESNs and MINs are obtained illegally either through sophisticated scanning devices which electronically pull them from airwaves while a lawful subscriber is using his or her phone, or from unscrupulous telephone company employees. The ESN/MIN combinations are then sold to cloners who use special computer software to reprogram those numbers into other cellular phones. A single ESN/MIN combination can be used to program more than one phone. When telephone calls are placed on cloned phones, the legitimate subscriber is billed for the call along with the calls which the subscriber has placed lawfully on his or her own cellular phone.

The Air Touch Cellular witness identified the lawful subscribers for the ESN/MIN numbers on the two phones in defendant's possession and explained the ESNs did not correspond to the manufacturers of those phones. The telephone bills on the subscribers' accounts disclosed that several calls were made to the telephone number belonging to defendant's wife. The calls were placed on November 14, 15 and 16 (the day of defendant's arrest). There was no evidence that the lawful subscribers knew defendant or his wife.

III.

Defendant was Properly Convicted under Section 484e(c)

A. The Statutory Scheme

Defendant's principal contention on appeal is that he could be convicted only of section 502.7(b)(1), telephone fraud, and not section 484e(c), access card fraud. The importance of this argument is that defendant was charged and convicted of section 484e(c) as a felony and of section 502.7 as a misdemeanor.

We begin our analysis with an overview of the two statutes.

Sections 484d through 484j comprise a comprehensive statutory scheme which punishes a variety of fraudulent practices involving access cards. "Access card" is defined broadly to include: "any card, plate, code, account number, or other means of account access that can be used, alone or in conjunction with another access card, to obtain money goods, services, or any other thing of value, or that can be used to initiate a transfer of funds, other than a transfer originated solely by a paper instrument." (§ 484d(2), emphasis added.) Although the term itself uses the word "card," its definition is broad in scope and covers intangible information as well as tangible objects. The term "access card" is found in every other part of the statutory scheme, and it is unlawful activity associated with an access card that triggers criminal prosecution under the various statutes. (§ 484e et seq.) ²

Under sections 484e(a) and (b), one who acquires an access card without the consent of the cardholder or issuer, or who finds a lost card, and possesses the card with the intent to use, sell or transfer it, is guilty of petty theft. Under subdivision (c), the charge of which defendant was convicted, one who sells, transfers, conveys or receives an access card with the intent to defraud is guilty of grand theft. The principal but not sole distinction between sections 484e(a) and (...