P. v. Garland

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Filed 7/12/18 P. v. Garland CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Sacramento)
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THE PEOPLE,
Plaintiff and Respondent,
v.
CODY KEITH GARLAND,
Defendant and Appellant.
C082670
(Super. Ct. No. 15F06523)
Following a jury trial, defendant Cody Keith Garland was convicted of two counts
of second degree burglary (Pen. Code, § 459; undesignated statutory references to follow
are to this code), unlawful driving or taking of a vehicle (Veh. Code, § 10851, subd. (a)),
receiving a stolen vehicle (§ 496d, subd. (a)), forgery (§ 470, subd. (d)), four counts of
misdemeanor identity theft (§ 530.5, subd. (c)(1)), possession of burglary tools (§ 466),
and providing false identifying information to an officer (§ 148.9, subd. (a)). The trial
court sustained three prior prison term allegations (§ 667.5, subd. (b)) and a prior vehicle
theft allegation (§ 666.5, subd. (a)) and sentenced defendant to a split term of eight years
four months in state prison and a consecutive five-year county jail term for the
misdemeanors, with the last 18 months of the sentence on mandatory supervision.

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On appeal, defendant contends he was improperly convicted of one of the burglary
counts and the forgery count, and there was insufficient evidence to support two of the
identity theft counts. We shall modify the judgment to reduce the burglary conviction in
count one to shoplifting (§ 459.5), remand for resentencing, and otherwise affirm.
BACKGROUND
In July 2015, Shevaun Holmes and her husband Pierre Holmes lived in a
Greenhaven apartment complex. The Holmes’s typically paid rent with a money order
for $500 and another money order for $325, with Pierre Holmes dropping it through the
mail slot near the front door of the rental office. They paid the July 2015 rent on July 4;
the money orders were filled out but the payee line was left blank. The $500 money
order went missing, and was later cashed by defendant at a Check ‘n Go store after he
wrote his name on the payee line. Defendant told an officer he had cashed the money
order. When he went to cash it, the clerk told him the payee line was blank, so he filled it
in with his name.
The manager at a different apartment complex in Greenhaven related how rent was
paid by tenants, either in person or by dropping it off through a drop box. Video
surveillance at the complex taken between September 27, 2015, and October 5, 2015,
showed defendant and several acquaintances repeatedly reaching into the box and
removing documents.
On October 17, 2015, officers responding to a traffic camera notification of a
stolen 1999 Honda Civic found the car parked at a gas station with defendant standing
right next to the driver’s side and a person later identified as Samantha Dean standing
next to an open car door on the passenger side. The Honda was reported stolen on
July 18, 2015. As soon as defendant noticed the police, he immediately turned around
and walked to a Chevrolet pickup truck, put something in the truck’s bed, and walked to
the front of the gas station. Dean walked to the passenger side of the truck and reached

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through an open window. Defendant and Dean were detained; defendant provided a false
name when asked for identification.
The Honda’s hood was warm to the touch. An officer located two flathead
screwdrivers on the driver’s side floorboard, and was able to turn on the ignition with one
of them. A cell phone in the center console contained defendant’s name, e-mail address,
and text messages addressed to him.
During a search of the truck, officers found Department of Motor Vehicles
paperwork containing defendant’s name, along with many keys, including shaved keys
commonly used to manipulate ignitions in order to steal cars. The truck also contained
various documents belonging to at least 10 different people. Among the documents were
an airline boarding pass, medical records, and receipts belonging to Bobby Jones,
checkbooks, a medical insurance card, and Social Security card belonging to Julia
Kressin, a W-2 wage statement, bank letter, and personal identification number belonging
to Annclaire Mendoza, a school schedule containing the name and address of Mendoza’s
son, Vincent Salvitti, and an invoice for eyeglasses and a related rebate form for Adriana
Lupian that included her name, address, e-mail address, and date of birth.
In 2014, Mendoza, Salvitti, and Jones lived together but were forced out of their
home after it caught fire. Many of their possessions were left in the house after the fire.
Items belonging to them found in defendant’s truck were taken from the home, and
defendant did not have permission to have them. The items belonging to Lupian had
been deposited by her in the slot for outgoing mail at her apartment complex.
DISCUSSION
I
Defendant contends his conviction for second degree burglary related to cashing
the forged money order at the Check ‘n Go (count one) must be reduced to shoplifting
(§ 459.5) and the shoplifting statute precludes prosecution for the forgery offense (count

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five). The Attorney General concedes on the burglary count but argues prosecution on
the forgery count was not precluded by section 459.5. We agree with the Attorney
General.
Among the changes brought by Proposition 47 (Prop. 47, as approved by voters,
Gen. Elec. (Nov. 4, 2014)) was the creation of the new crime of shoplifting through
section 459.5. “(a) Notwithstanding Section 459, shoplifting is defined as entering a
commercial establishment with intent to commit larceny while that establishment is open
during regular business hours, where the value of the property that is taken or intended to
be taken does not exceed nine hundred fifty dollars ($950). Any other entry into a
commercial establishment with intent to commit larceny is burglary. Shoplifting shall be
punished as a misdemeanor, except that a person with one or more prior convictions for
an offense specified in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e)
of Section 667 or for an offense requiring registration pursuant to subdivision (c) of
Section 290 may be punished pursuant to subdivision (h) of Section 1170. [¶] (b) Any
act of shoplifting as defined in subdivision (a) shall be charged as shoplifting. No person
who is charged with shoplifting may also be charged with burglary or theft of the same
property.” (§ 459.5.)
At the time of defendant’s trial, it was an open question whether section 459.5
applied only to commercial burglaries committed by larceny or applied to such burglaries
committed through other forms of theft such as theft by false pretenses. In a case decided
while this appeal was pending, the California Supreme Court held that section 459.5
applied to commercial burglaries committed through any form of theft, not just theft by
larceny. (People v. Gonzales (2017) 2 Cal.5th 858, 862 (Gonzales).)
The burglary conviction in count one was based on the theft by false pretenses of
$500 (the amount of the forged money order) from the Check ‘n Go by defendant during
regular business hours. Applying Gonzales, we conclude the burglary count was
preempted by section 459.5 and shall modify the burglary conviction in count one to the

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shoplifting offense. Since this conviction was the principal count at sentencing, a remand
for resentencing is necessary.
Defendant’s contention regarding the forgery count is based on the language in
subdivision (b) of section 459.5 stating that any act of shoplifting under the statute “shall
be charged as shoplifting” and our Supreme Court’s application of this statutory language
in Gonzales. In Gonzales, the Attorney General argued that even if a burglary committed
through theft by false pretenses was subject to section 459.5, that statute did not apply
because the defendant in Gonzales also harbored the intent to commit a nontheft felony,
identity theft, when he entered the commercial establishment. (Gonzales, supra,
2 Cal.5th at p. 876.) The Supreme Court rejected this argument as follows: “Section
459.5, subdivision (b) requires that any act of shoplifting ‘shall be charged as shoplifting’
and no one charged with shoplifting ‘may also be charged with burglary or theft of the
same property.’ (Italics added.) A defendant must be charged only with shoplifting
when the statute applies. It expressly prohibits alternate charging and ensures only
misdemeanor treatment for the underlying described conduct. The statute’s use of the
phrase ‘the same property’ confirms that multiple burglary charges may not be based on
entry with intent to commit different forms of theft offenses if the property intended to be
stolen is the same property at issue in the shoplifting charge. Thus, the shoplifting statute
would have precluded a burglary charge based on an entry with intent to commit identity
theft here because the conduct underlying such a charge would have been the same as
that involved in the shoplifting, namely, the cashing of the same stolen check to obtain
less than $950. A felony burglary charge could legitimately lie if there was proof of
entry with intent to commit a nontheft felony or an intent to commit a theft of other
property exceeding the shoplifting limit. That did not occur here, however.” (Gonzales,
supra, at pp. 876-877, italics omitted.) According to defendant, the Supreme Court’s
interpretation of section 459.5 precludes his prosecution (and therefore conviction) for
forgery because the forgery and burglary crimes involved the same underlying conduct.

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Gonzales addressed whether the defendant could be prosecuted for second degree
burglary based on an intent to commit a nontheft felony. It did not address the situation
here, whether a defendant can be prosecuted for a nontheft misdemeanor that involved
conduct that was also part of the shoplifting crime. Cases are not authority for
propositions not considered therein. (Siskiyou County Farm Bureau v. Department of
Fish & Wildlife (2015) 237 Cal.App.4th 411, 437, fn. 11.) As interpreted in Gonzales,
section 459.5, subdivision (b) mandates that burglaries committed by thefts of any sort
for less than $950 are treated as the misdemeanor crime of shoplifting, and that an intent
to commit a nontheft felony does not support liability for second degree burglary unless
the felonious intent is not related to the underlying larceny. It has no application to the
issue before us.
“We interpret voter initiatives as we interpret all legislative enactments: ‘ “we
begin with the text as the first and best indicator of intent.” ’ [Citation.]” (People v.
Valencia (2017) 3 Cal.5th 347, 388.) Accordingly, we consider the ordinary meaning of
the language, the text of related provisions, terms used in other parts of the statute, and
the overall structure of the statutory scheme. (Lonicki v. Sutter Health Central (2008)
43 Cal.4th 201, 209.)
By its terms, section 459.5 precludes only prosecutions for theft or burglary.
(§ 459.5, subd. (b) [“No person who is charged with shoplifting may also be charged with
burglary or theft of the same property”]; see also id. subd. (a) [“Notwithstanding section
459 shoplifting is defined as . . . .”].) A prosecution for forgery is not a prosecution for
theft or burglary.
“Forgery has three elements: a writing or other subject of forgery, the false
making of the writing, and intent to defraud. [Citation.]” (People v. Gaul-Alexander
(1995) 32 Cal.App.4th 735, 741.) “An intent to defraud is an intent to deceive another
person for the purpose of gaining a material advantage over that person or to induce that
person to part with property or alter that person’s position by some false statement or

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false representation of fact, wrongful concealment or suppression of the truth or by any
artifice or act designed to deceive. [Citation.]” (People v. Pugh (2002) 104 Cal.App.4th
66, 72.) Making the forged instrument with an intent to defraud is sufficient to constitute
forgery and does not require either passing the instrument or obtaining a material
advantage by it so long as there is an intent to defraud. “ ‘The crime of forgery as
denounced by statute (Pen. Code, § 470) consists of either of two distinct acts—the
fraudulent making of an instrument, such as a false writing thereof, or the uttering of a
spurious instrument by passing the same as genuine with knowledge of its falsity
[citation]; and although both acts may be alleged in the conjunctive in the same count in
the language of the statute, the offense does not require the commission of both—it is
complete when one either falsely makes a document without authority or passes such a
document with intent to defraud [citations], and the performance of one or both of these
acts with reference to the same instrument constitutes but a single offense of forgery.
[Citation.]’ [Citation.]” (People v. Kenefick (2009) 170 Cal.App.4th 114, 123; see
2 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Crimes Against Property, § 177,
pp. 225-226.) While forgery is often used to accomplish a theft, no variant of the crime
requires an intent to permanently deprive the owner of possession of property. It
therefore is not a form of theft. (See People v. Avery (2002) 27 Cal.4th 49, 54 [theft
requires intent to permanently deprive owner of possession].)
Defendant’s reliance on the treatment of Vehicle Code section 10851 is misplaced.
Vehicle Code “section 10851[, subdivision] (a) ‘proscribes a wide range of conduct.’
[Citation.] A person can violate [Vehicle Code] section 10851[, subdivision] (a) ‘either
by taking a vehicle with the intent to steal it or by driving it with the intent only to
temporarily deprive its owner of possession (i.e., joyriding).’ [Citations.]” (People v.
Garza (2005) 35 Cal.4th 866, 876.) Defendant asks us to take a similar approach to the
forgery statute. We decline. There are not theft and nontheft variants of forgery. The
issue addressed in Garza, whether a conviction under Vehicle Code section 10851 bars a

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conviction under section 496, subdivision (a) for receiving the same vehicle as stolen
property (see People v. Garza, supra, at p. 871), has no analog in the context of the
forgery statute. Defendant has not found a case interpreting section 470 in the manner
the vehicle theft statute was interpreted by the Supreme Court in Garza, and we decline
to do so here. Section 459.5 does not preclude his forgery conviction.
II
Defendant contends there is insufficient evidence to support the convictions for
identity theft in counts eight (Vincent Salvitti) and nine (Adriana Lupian).
In determining the sufficiency of the evidence, we ask whether, “ ‘after viewing
the evidence in the light most favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt.’ ” (People v.
Hatch (2000) 22 Cal.4th 260, 272, italics omitted.) We resolve neither credibility issues
nor evidentiary conflicts; we look for substantial evidence. (People v. Ochoa (1993)
6 Cal.4th 1199, 1206.) “Moreover, unless the testimony is physically impossible or
inherently improbable, testimony of a single witness is sufficient to support a conviction.
[Citation.]” (People v. Young (2005) 34 Cal.4th 1149, 1181.) “ ‘ “ ‘If the circumstances
reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the
circumstances might also be reasonably reconciled with a contrary finding does not
warrant a reversal of the judgment.’ ” ’ [Citations.]” (People v. Casares (2016)
62 Cal.4th 808, 823-824.) Thus, reversal is not warranted unless there is no hypothesis
on which there exists substantial evidence to support the conviction. (People v. Bolin
(1998) 18 Cal.4th 297, 331.)
“Every person who, with the intent to defraud, acquires or retains possession of
the personal identifying information, as defined in subdivision (b) of Section 530.55,” is
guilty of identity theft. (§ 530.5, subd. (c)(1).) Defendant asserts there is insufficient
evidence that he had the necessary intent to defraud with respect to the personal

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identifying information of Salvitti or Lupian. In support of his argument, he relies
heavily upon People v. Truong (2017) 10 Cal.App.5th 551. In Truong, during a search of
a bank employee’s home, officers found a spreadsheet with 48 customers’ names and
account numbers and an account application with a coworker’s name and credentials.
(Id. at pp. 554, 555.) The defendant was convicted of several crimes, including two
counts of section 530.5, subdivision (c)(1) based on the spreadsheet and account
application. (People v. Truong, supra, at pp. 553-554.) The Court of Appeal found
sufficient evidence to support both convictions, finding the circumstantial evidence of
intent to defraud “overwhelming.” (Id. at p. 559.) Defendant compares the evidence in
this case to that in Truong, and finds the evidence of his guilt to be wanting.
Even assuming defendant is correct and there is less evidence supporting
defendant’s guilt in this case than in Truong, this does not establish or even support the
argument that the evidence was insufficient to support his guilt. As we have already
observed, the evidence of guilt in Truong was overwhelming. Evidence of guilt less than
overwhelming will support a conviction so long as it is substantial. Such is the case here.
The personal identifying information of Salvitti found in defendant’s possession
was Salvitti’s high school schedule that depicted his name and address. A person’s name
and address are among the items of personal information that come within the ambit of
identity theft. (§ 530.55, subd. (b).) These items had been taken from his burned-out
home. They were among the personal information of at least 10 people found in
defendant’s truck, which included personal information from his mother and Jones that
were also taken from the burned-out home without permission. A jury could reasonably
infer an intent to defraud from the fact that this information was intended to be used
fraudulently, just like the trove of identifying information taken from the other people.
The fact that defendant does not contest the sufficiency of the evidence for the identity
theft counts related to Jones (count six) and Mendoza’s (count seven) identifying
information is particularly telling. If the jury could reasonably find this identifying

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information was obtained with the intent to defraud, then it could do so with regards to
Salvitti’s, which was taken from the same place. The jury could make the similar
reasonable inference of intent to defraud with regards to Lupian’s identifying
information. Her information—name, address, e-mail address, and date of birth—was
statutorily protected. (§ 530.55, subd. (b).) That information was taken from her
apartment complex’s slot for outgoing mail and was with all the other identifying
information found in defendant’s truck, again supporting the inference that it was all to
be used for a fraudulent purpose.
DISPOSITION
The judgment is modified to reduce the burglary conviction in count one to
shoplifting (§ 459.5) and the matter remanded to the trial court for resentencing. In all
other respects, the judgment is affirmed.
HULL , Acting P. J.
We concur:
ROBIE , J.
HOCH , J.

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