People v. Tillotson, G035041.

CourtCalifornia Court of Appeals
Writing for the CourtFybel
Citation61 Cal.Rptr.3d 731,152 Cal.App.4th 382
PartiesThe PEOPLE, Plaintiff and Respondent, v. Linda Jean TILLOTSON, Defendant and Appellant.
Docket NumberNo. G035041.,G035041.
Decision Date21 June 2007
61 Cal.Rptr.3d 731
152 Cal.App.4th 382
The PEOPLE, Plaintiff and Respondent,
Linda Jean TILLOTSON, Defendant and Appellant.
No. G035041.
Court of Appeal, Fourth District, Division 3.
June 21, 2007.
As Modified on Denial of Rehearing July 13, 2007.

[61 Cal.Rptr.3d 735]

Jean F. Matulis, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lilia E. Garcia and Deana L. Bohenek, Deputy Attorneys General, for Plaintiff and Respondent.




A 24-count information charged Linda Jean Tillotson with two counts of possession for sale of a controlled substance (counts 1 and 24), two counts of possession of controlled substance paraphernalia (counts 2 and 21), one count of possession of 28.5 grams or less of marijuana (count 3), three counts of computer access and fraud (counts 4 through 6), one count of computer access and fraud with injury (count 7), eight counts of identity theft (counts 8 through 14 and 22), five counts of acquiring access card account information (counts 15 through 19), one count of possession of a controlled substance (count 20), and one count of disobeying a court order (count 23). A jury convicted Tillotson on counts 1 through 9, 13, and 20 through 24, and acquitted her on counts 10 through 12 and 14 through 19. The trial court found true the enhancement charged on counts 4, 5, 20, 22, and 24 that Tillotson committed the crimes while released from custody on bail.

The trial court, using count 1 as the principal term, sentenced Tillotson to a total prison term of 14 years four months.

We conclude:

1. On counts 4 through 7, the trial court correctly instructed the jury with CALJIC No. 3.01 on aiding and abetting liability. The trial court was not required to give CALJIC No. 3.14, which concerns accomplice liability.

2. Substantial evidence supported Tillotson's conviction on count 22 for identity theft in violation of Penal Code section 530.5, subdivision (a).

3. Tillotson was charged under count 23 with violating Penal Code section 166, subdivision (a)(4). Substantial evidence

61 Cal.Rptr.3d 736

supported a conviction for the lesser included offense of attempt to violate that code section. The judgment as to count 23 is modified to reflect a conviction for attempt to violate Penal Code section 166, subdivision (a)(4) and, as modified, is affirmed and remanded for resentencing.

4. On count 4, the trial court's jury instruction on Penal Code section 502, subdivision (c)(1) was erroneous because the instruction omitted an element of the offense. We find the error was prejudicial and therefore reverse the judgment as to count 4 and remand for retrial.

5. Under the accusatory pleading test, a violation of Penal Code section 502, subdivision (c)(3) appears to be a lesser included offense to a violation of section 502, subdivision (c)(1), alleged in count 4.

6. The trial court erred by imposing two three-year enhancements under Health and Safety Code section 11370.2, subdivision (c) — one on count 1 and the other on count 24.

7. When prison sentences are imposed on multiple secondary offenses and one primary offense, Penal Code section 12022.1, subdivision (e) requires only the sentence on one secondary count to run consecutively to the sentence on the primary count. The trial court has discretion to decide whether to impose the prison sentences on the remaining secondary counts to run consecutively or concurrently. The trial court erred by imposing sentences on counts 4, 5, 20, 22, and 24 to run consecutively to each other without stating reasons for doing so.

8. Because we reverse the judgment as to count 4, we need not resolve whether Penal Code section 654 required the trial court to stay imposition of sentence on counts 5, 6, and 7. On remand, the trial court should determine whether to stay imposition of sentence on those counts in light of the result of any retrial on count 4.

9. The trial court imposed the upper term sentence on count 1 based on factors not found true beyond a reasonable doubt by a jury. In light of Cunningham v. California (2007) 549 U.S. ___, 127 S.Ct. 856, 166 L.Ed.2d 856 (Cunningham), we remand for resentencing on count 1.

We therefore affirm in part, reverse in part, and remand, as specifically described in the disposition.

Searches of Tillotson's House

A. July 9, 2003 Search

On June 26, 2003 at around 7:00 p.m., Chad Ellenwood went to Tillotson's house on Heil Street in Huntington Beach to purchase methamphetamine. He bought $50 worth — about one-half of a gram — from her. After Ellenwood left Tillotson's house, police officers stopped his car and found the methamphetamine. He told the officers he had just purchased it from Tillotson.

On July 9, 2003, several Huntington Beach police officers executed a search warrant on Tillotson's house. Officer Carole Ortiz conducted a body search of Tillotson. As Tillotson disrobed, her dress dropped to the floor, and Ortiz noticed a Ziploc baggie in the bodice. The baggie contained 4.73 grams of methamphetamine.

One officer found, behind a glass display case, a black pouch. Inside the black pouch, the officers found a pipe containing 520 milligrams of methamphetamine, six twisted plastic baggies containing a total of 16.74 ounces of methamphetamine, a plastic baggie containing 1.16 grams of methamphetamine, and another plastic baggie containing 4.76 grams of marijuana. Officer Mike Reilly found three more plastic baggies in a potted plant on top of a

61 Cal.Rptr.3d 737

television set. Two of the baggies were empty, and the third contained 40 milligrams of methamphetamine. On top of Tillotson's desk, Reilly found a small amount of marijuana, and, in the top desk drawer, he found a plastic baggie holding about 100 smaller Ziploc baggies of the type used to package narcotics. Each baggie had small green dollar signs printed on it.

Officer Joshua Page searched the exterior of the house and found a small camera attached to its southwest corner. The camera was inside a cylindrical case and faced the front yard. The camera had a live feed into a television set in Tillotson's home office. Anyone approaching the front walk area would activate a motion sensor attached to the camera, setting off a beeper in Tillotson's home office.

Based on the items seized from Tillotson's house and the presence of video surveillance equipment, Officer Reilly concluded that Tillotson had possession of the controlled substances for purposes of sale.

Tillotson was arrested, and Commissioner Martin Engquist conducted her arraignment. Tillotson hated Commissioner Engquist, considered him a "son of a bitch," and believed he was part of a conspiracy against her. Tillotson obtained Commissioner Engquist's home address from the State Bar of California Web site. Using the address, Tillotson's sister, Beatrice Huff, went to Commissioner Engquist's home, removed three bags of garbage from his garbage bin, and hauled them away in the back of a pickup truck.

B. February 26, 2004 Search

Sometime in 2003, Huntington Beach Police Detective Patrick Ellis was assigned to the fraud unit and was investigating an identity theft ring. He had learned the ring members were using a stolen Equifax account number and password to gain access illegally to Equifax's database and pull credit reports. Over a dozen people were involved in the ring. Ellis traced the ring to a former dental office employee named Mark Ohm, who had taken Equifax password information after being fired in June 2003. After firing Ohm, the dental office failed to change the password, allowing him to access and compromise credit reports. The password was passed along to others, including Mike Quitoriano, who used the password to access the Equifax database from Tillotson's house on August 8, 2003. Ellis learned the ring's activities had compromised some 586 credit reports.

During the investigation, Huntington Beach Police Detective James Schoales received a letter from Equifax informing him his credit report had been compromised. After Schoales told Ellis about the letter, Ellis carefully searched a list of compromised credit reports for names of other law enforcement officers. He found the names of Huntington Beach Police Officers John Topartzer and John Van Holt, Cypress Police Sergeant Kenneth Ramsey, and Commissioner Engquist. Through Internet access and telephone records, Ellis learned all the officers' reports and Commissioner Engquist's report were run from Tillotson's house on August 8, 2003.

On February 26, 2004, a team of Huntington Beach police officers, including Ellis and the chief of police, executed a search warrant on Tillotson's house. In a wooden cabinet in Tillotson's home office, the officers found seven Equifax credit reports.

Tillotson was home during the search. She waived her rights under Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 and spoke to the officers. She admitted having the credit reports but claimed she had not downloaded and printed them. She told the officers a friend of hers named Baby Hernandez had brought a man named "Mike" to her house, where he set up a laptop computer. Mike went

61 Cal.Rptr.3d 738

online, accessed the credit reports, and printed them. Ellis knew Mike to be Mike Quitoriano, who was involved in the identity theft ring under investigation. Ellis had learned from his investigation that Quitoriano was privy to the Equifax access code and password taken from the dental office.

The Equifax credit reports found at Tillotson's house included those for Detective Schoales, Sergeant Ramsey, Commissioner Engquist, Officer Van Holt, Officer Topartzer, and Los Angeles Police Officer James Katapodis. Tillotson was never authorized to obtain those reports or any credit reports from Equifax.

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4 cases
  • People v. Inman, C051199 (Cal. App. 8/20/2007)
    • United States
    • California Court of Appeals
    • August 20, 2007
    ...defendant does not forfeit or waive a legal argument that was not recognized at the time of sentencing." (People v. Tillotson (2007) 152 Cal.App.4th 382, The trial court found a number of aggravating and mitigating factors. As aggravating factors, the court found: (1) some of defendant's cr......
  • People v. Morris, A111366 (Cal. App. 10/11/2007), A111366
    • United States
    • California Court of Appeals
    • October 11, 2007
    ...The language of CALJIC No. 3.01 has been upheld in numerous cases as an accurate statement of the law. (See People v. Tillotson (2007) 152 Cal.App.4th 382; People v. Hoang (2006) 145 Cal.App.4th 264, 273-274.) As recently explained in People v. Tillotson, "CALJIC No. 3.01 is accurate and co......
  • People v. Winbush, B193617 (Cal. App. 9/11/2007), B193617
    • United States
    • California Court of Appeals
    • September 11, 2007
    ...were other convictions upon which the court could have relied. To the extent that respondent contends that People v. Tillotson (2007) 152 Cal.App.4th 382; People v. Hill (1986) 185 Cal.App.3d 831 or People v. Savala, supra, 147 Cal.App.3d 63 permit a longer sentence on remand, it is mistake......
  • People v. Tillotson
    • United States
    • United States State Supreme Court (California)
    • October 17, 2007
    ...Cal.Rptr.3d 464 169 P.3d 886 PEOPLE v. TILLOTSON. No. 6155385. Supreme Court of California. October 17, 2007. Prior report: Cal.App., 61 Cal.Rptr.3d 731. The Respondent's petition for review is granted. The matter is transferred to the Court of Appeal, Fourth Appellate District, Division Th......

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