People v. Shabtay

• Decision Date: 25 April 2006
• Docket Number: No. B179520.,B179520.
• Citation: 42 Cal.Rptr.3d 227,138 Cal.App.4th 1184
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Yerev SHABTAY, Defendant and Appellant.

42 Cal.Rptr.3d 227

138 Cal.App.4th 1184

The PEOPLE, Plaintiff and Respondent, v. Yerev SHABTAY, Defendant and Appellant.

No. B179520.

Court of Appeal, Second District, Division 5.

April 25, 2006.

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, Michael R. Johnsen and Allison H. Chung, Deputy Attorneys General, for Plaintiff and Respondent.

KRIEGLER, J.

Penal Code section 484e, subdivision (b)¹ defines an offense of grand theft where a person "within any consecutive 12-month period, acquires access cards issued in the names of four or more persons which he or she has reason to know were taken or retained" with the intent to defraud. The narrow issue in this appeal is whether a defendant may be convicted of more than one violation of section 484e, subdivision (b) within any 12-month consecutive period, when a defendant acquires eight or more access cards. We conclude that the plain language of section 484e, subdivision (b) precludes multiple convictions where the prosecution alleges that the defendant acquired access cards within any consecutive 12-month period.

A jury convicted defendant and appellant Yerev Shabtay of multiple offenses arising from a sophisticated identity theft scheme he operated in 2001, including three counts of grand theft of personal property (§ 487, subd. (a)), two counts of grand theft by possession of access card numbers of 11 other persons (§ 484e, subd. (b)), one count of receiving stolen property (§ 496, subd. (a)), and one count of conspiracy to commit grand theft (§§ 182, subd. (a)(1), 487, subd. (a)). The jury found that the victim of grand theft in count 1 sustained a loss exceeding $50,000 within the meaning of section 12022.6, subdivision (a).

Defendant argues he could only be convicted of a single count of violating section 484e, subdivision (b), because the prosecution alleged and proved that defendant acquired 11 access cards within a single 12-month period. The Attorney General argues that because the prosecution established that defendant acquired access cards in the names of eight or more persons in a consecutive 12-month period, defendant was properly convicted of two violations of section 484e, subdivision (b). In other words, the Attorney General interprets the statute as allowing for a separate charge during any consecutive 12-month period whenever a defendant acquires enough access cards to reach an ascending multiple of four. For the reasons that follow, we agree that only one conviction within any consecutive 12-month period is permissible, and therefore reverse one of the convictions under section 484e, subdivision (b).

Counts 7 and 8 of the information both alleged in part: "On and between February 6, 2001 and May 8, 2001 . . . the crime of THEFT, in violation of PENAL CODE SECTION 484e[, subdivision] (b), a Felony, was committed by YEREV SHABTAY, who did, within a consecutive 12-month period, acquire access cards issued in the names of four and more persons with reason to know they were taken and retained under circumstances which constitute a violation of the other subdivisions of this section." We review the testimony and extensive documentary evidence in the light most favorable to the judgment. (Jackson v. Virginia (1979) 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560; People v. Osband (1996) 13 Cal.4th 622, 690, 55 Cal.Rptr.2d 26, 919 P.2d 640; Taylor v. Stainer (9th Cir.1994) 31 F.3d 907, 908-909.) Our focus will be on the evidence pertinent to counts 7 and 8—the two grand theft counts defendant argues can only be the subject of a single conviction. All facts are from the case of the prosecution, as no defense witnesses were presented.

Defendant operated an Internet based electronic sales business in 2001 called "Simply Discount." An employee, Sharon Israel, was instructed by defendant to order electronics equipment on the Internet, using customer information including credit card numbers. Ms. Israel directed that the electronics equipment ordered with customers' credit card information be shipped to one of nine public mail boxes, which had been rented by defendant. At defendant's direction, Ms. Israel picked up packages at defendant's nine public mail boxes. On a "fairly frequent" basis throughout 2001, Ms. Israel took the packages from the public mail boxes to the residence from which defendant operated his Internet electronics sales venture.

Detectives, armed with a search warrant, searched defendant's place of business, seizing approximately 270 items, the majority of which were computers, digital cameras, and camcorders. Investigators established that some of the electronic equipment had been purchased during 2001 using the credit cards of the 11 victims. That equipment was shipped to the mailboxes where defendant regularly sent Ms. Israel to pick up packages. Eight different victims testified their credit card numbers were used in 2001 without their permission to purchase electronic equipment ultimately found in defendant's place of business. It was stipulated that three other victims did not authorize the use of their credit card numbers to make purchases in 2001 of electronic equipment which was found in defendant's place of business.

Section 484e, subdivision (b) states: "Every person, other than the issuer, who within any consecutive 12-month period, acquires access cards issued in the names of four or more persons which he or she has reason to know were taken or retained under circumstances which constitute a violation of subdivision (a), (c), or (d) is guilty of grand theft."² The term "access card" does not merely refer to credit or automatic teller machine cards; it also includes credit card information. Section 484d, subdivision (2) defines the term access card as follows: "`Access card' means 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." As noted, the term "access card" includes an account number which can be used to obtain "goods or any other thing of value." Hence, if four or more victims' credit card numbers are used within any consecutive 12-month period to commit a crime as specified in section 484e, subdivisions (a), (c), or (d), a grand theft has occurred.

There was substantial evidence defendant used the credit card numbers of 11 victims within a single, consecutive 12-month period to purchase electronic equipment without their permission. Defendant's acquisition of the 11 victims' credit card numbers for a fraudulent use violated section 484e, subdivision (d). (See fn. 2, ante; People v. Molina (2004) 120 Cal. App.4th 507, 516, 15 Cal.Rptr.3d 493 [applying § 484e, subd. (d)]; People v. Smith (1998) 64 Cal.App.4th 1458, 1470, 76 Cal. Rptr.2d 75 [applying predecessor to § 484e, subd. (d)].) The crime of grand theft was committed because defendant acquired access cards issued in the names of four or more persons within a consecutive 12-month period, which he had reason to know were retained by him under circumstances which constitute a violation of section 484e, subdivision (d). (People v. Butler (1996) 43 Cal.App.4th 1224, 1233, 51 Cal.Rptr.2d 150 [applying predecessor to § 484e, subd. (b)].)

The issue in this case is whether section 484e, subdivision (b) can be violated more than once in any consecutive 12-month period. As noted earlier, the information alleged that defendant committed two violations of section 484e, subdivision (b), each on and between February 6, 2001, and May 8, 2001.

The rules of statutory interpretation are well-settled. "Our fundamental task in construing a statute is to ascertain the intent of the lawmakers so as to effectuate the purpose of the statute. [Citation.] We begin by examining the statutory language, giving the words their usual and ordinary meaning. [Citation.]" (Day v. City of Fontana (2001) 25 Cal.4th 268, 272, 105 Cal.Rptr.2d 457, 19 P.3d 1196(Day)). We construe the words of a statute in context, and to the extent possible, harmonize provisions relating to the same subject matter. (People v. Shabazz (2006) 38 Cal.4th 55, ___, 40 Cal.Rptr.3d 750, 130 P.3d 519 [2006 DJDAR 3567, 3571]; People v. Robles (2000) 23 Cal.4th 1106, 1114, 99 Cal.Rptr.2d 120, 5 P.3d 176; Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735, 248 Cal.Rptr. 115, 755 P.2d 299.) We do not give statutory language a literal construction if it is contrary to the legislative intent apparent in the statute. (People v. Robles, supra, 23 Cal.4th at p. 1114, 99 Cal.Rptr.2d 120, 5 P.3d 176.) "If the language is clear and unambiguous there is no need for construction, nor is it necessary to resort to indicia of the intent of the Legislature (in the case of a statute) or of the voters (in the case of a provision adopted by the voters)." (Lungren v. Deukmejian, supra, 45 Cal.3d at p. 735, 248 Cal.Rptr. 115, 755 P.2d 299.) A statutory interpretation that renders related provisions nugatory must be avoided. (People v. Shabazz, supra, 38 Cal.4th at p. ___, 40 Cal.Rptr.3d 750, 130 P.3d 519 [2006 DJDAR at p. 3571]; People v. Craft (1986) 41 Cal.3d 554, 561, 224 Cal.Rptr. 626, 715 P.2d 585.) If a statute is amenable to two alternative interpretations, the one that leads to the more reasonable result will be followed. (Lungren v. Deukmejian, supra, 45 Cal.3d at p. 735, 248 Cal.Rptr. 115, 755 P.2d 299.) "If there is no ambiguity, then we presume the lawmakers meant what they said, and the plain meaning of the language governs." (Day, supra, 25 Cal.4th at p. 272, 105 Cal.Rptr.2d 457, 19 P.3d 1196.) "Ambiguous means `susceptible to more than one reasonable interpretation.'" (...