Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Mike Camacho, Judge. Los Angeles County Super. Ct. No. KA078209
Kathleen M. Redmond, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven E. Mercer and Roberta L. Davis, Deputy Attorneys General, for Plaintiff and Respondent.
BIGELOW, J.
A jury convicted Ann Darlene Wernke of five counts charging her with the theft of her brother’s identity, and one count charging her with grand theft from a bank which opened credit card accounts in her brother’s name. (Pen. Code, §§ 530.5, subd. (a), 487, subd. (a).) In a bifurcated proceeding, Wernke admitted she had prior felony convictions which made her ineligible for probation. (§ 1203, subd. (e)(4).) The trial court sentenced Wernke to total term of four years four months in state prison. We affirm.
All section references are to the Penal Code.
FACTS
The Family Setting
Wernke’s mother and father both died in 1999. After her parents’ deaths, Wernke lived in the family home located on Moab Street in Claremont. The Wernke parents had been “pack rats,” and had “kept every single medical record, every single transaction on all four [of their] kids,” including papers which contained personal information such as Social Security numbers and birth dates. During the handling of the estate, and possibly earlier, Wernke and her brother, Timothy Faulkner, became estranged, and none of his personal records were returned to him. At some point, Wernke and her husband began operating a business named D & J Embroidery out of the Claremont house.
The record reflects some clerical discrepancies regarding the numbering of the counts. For purposes of this appeal, we correspond the numbering of the counts to the dates of the offenses as alleged in the information, and as used by the trial court at the sentencing hearing, and in the abstract of judgment, and as used by the parties on appeal. We do not follow the numbering of the counts on the verdict sheets, which is different.
On November 12, 2005, an application from D & J Embroidery was submitted to Chase Bank for a credit card account. The credit card application used Faulkner’s name, birth date and Social Security number, and was signed in Faulkner’s name, but the phone number listed on the application did not belong to Faulkner, and the address listed on the application corresponded with the house in Claremont in which Wernke lived. Faulkner did not prepare nor submit the credit card application to Chase. Chase processed the application, and mailed two credit cards to the Claremont address, one in Faulkner’s name and the second card in Wernke’s name.
In December 2005, Chase issued a statement showing a balance of $3,518.27 on the account. Chase thereafter received a payment of $100 on the account in the form of a personal check from Joel Wernke, defendant Wernke’s husband. In January 2006, Chase issued a statement showing a balance of $9,302.41 on the account. Chase thereafter received a payment of $200 on the account in the form of a business check from D & J Embroidery.
On December 5, 2005, Chase opened a second credit card account for the business D & J Embroidery, again under the name Timothy Faulkner, and again using Faulkner’s personal information. In January 2006, Chase issued a statement showing a balance of $4,783.21 on this second account. Chase thereafter received a payment of $100 on the account in the form of a personal check from Joel Wernke, defendant Wernke’s husband. In February 2006, Chase issued a statement showing a balance of $15,825.21 on the second account. Chase thereafter received a payment of $320 on the account in the form of a business check from D & J Embroidery. Records for the second Chase credit card account showed charges on four separate dates at a Vons supermarket in Claremont, and charges to the California Hawking Club which originated in Sacramento in January 2006.
Count 3 (Identity Theft)
On February 6, 2006, an application for a credit card account was submitted to American Express using Faulkner’s name. The application listed Faulkner’s birth date and Social Security number, but the phone number listed on the application did not belong to Faulkner, and the address listed on the application corresponded with the house in Claremont in which Wernke lived. American Express issued four credit cards, and sent the cards to the Claremont house. The main card, in Faulkner’s name, was activated on February 17, 2006.
Count 4 (Grand Theft)
In February 2006, after receiving a report of fraud, Chase closed the two credit card accounts which had been opened using Faulkner’s personal information. The unpaid balance on the first account totaled $13,955.37; the unpaid balance on the second account totaled $18,150.56.
Count 10 (Identity Theft)
On January 13, 2006, Mary Hoffman volunteered at the membership table at an event for the California Hawking Club in Sacramento County. While Hoffman was working, Wernke approached the table, and wrote her name and “Timothy Faulkner” on the registration form, and used a Chase credit card to pay $45 for her banquet meal. Wernke signed the credit card receipt, signing Faulkner’s name.
Count 11 (Identity Theft)
A minute or two after signing the credit card receipt for her own meal, Wernke stated, “Oh, I got to pay for Timothy,” and returned to the registration table. She used the same Chase credit card to pay $27 dollars for a child’s banquet meal, and again signed the credit card receipt with Faulkner’s name.
Count 12 (Identity Theft)
On January 14, 2006, Wernke used the Chase credit card again, this time to pay $200 for raffle tickets at the California Hawking Club event in Sacramento. Wernke again signed the credit card receipt with Faulkner’s name.
The Criminal Case
In August 2007, the People filed an information charging Wernke with the counts summarized above. The charges against Wernke were tried to a jury in late March and early April 2008. The jury began its deliberations at 3:49 p.m. on April 3, 2008, and the trial court excused the jury at 4:30 p.m. Deliberations resumed on April 4, 2008, at 9:09 a.m., and, at 11:45 a.m., the jury notified the court that it had reached a verdict. Shortly thereafter, the jury returned verdicts finding Wernke guilty of the following counts:
The information originally included two additional counts which were dismissed before trial. The information also included several additional identity theft counts which were submitted to the jury, and upon which the jury returned not guilty verdicts. For purposes of Wernke’s current appeal, we have addressed only those counts upon which Wernke was convicted.
Count 2: identity theft of Faulkner on November 12, 2005;
Count 3: identity theft of Faulkner on February 6, 2006;
Count 4: grand theft of Chase Bank between November 2005 and May 2006;
Count 10: identity theft of Faulkner on January 13, 2006;
Count 11: identity theft of Faulkner on January 13, 2006; and
Count 12: identity theft of Faulkner on January 14, 2006.
Following the jury’s verdicts, Wernke admitted prior convictions which rendered her ineligible for probation, and, on April 17, 2008, the trial court sentenced Wernke to a total term of four years four months in state prison.
Wernke filed a timely notice of appeal.
DISCUSSION
I. The Service Dog Issue
Wernke contends all of her convictions must be reversed because the trial court violated her federal constitutional right to due process by denying her request to have her service dog with her in the courtroom during trial. We disagree for several reasons.
A. The Trial Court’s Ruling
Wernke’s constitutional argument fails because it rests on a factual predicate not supported by the record. In other words, we are not convinced that Wernke, in fact, made a request to have the assistance of her service dog in the courtroom, as the trial actually unfolded.
Before trial, Wernke advised the trial court that she was not able to drive at night because she had severe panic attacks, and that she had a service dog for her condition, and that she “wanted to know if we could excuse [trial] like at three [each day].” Wernke told the court that she would not need the dog if the proceedings were excused early each day, and she made it home “before it got dark.” Otherwise, advised Wernke, she “would probably have to bring it.” The court deferred addressing the issue
The service dog issue arose again the following day. At that time, Wernke advised the court that she needed the dog for “traveling” to and from the courthouse. When the trial court asked Wernke, “What do you want me to approve?” her counsel spoke up and replied, “She’s requesting to have the court allow her to bring her service animal, her service dog here to court.”
Responding to Wernke’s request (as framed by her counsel), the trial court ruled:
“Well, here’s the problem. In order to do that, it’s going to create an obvious distraction for the jury as well as any witness, and I fear that that might impact their ability to listen to the testimony and evaluate the evidence free of distractions. [¶] Ms. Wernke, I’m going to ask that you do your best to remain calm throughout this traumatic experience that you’re facing. Thus far, you’ve done fine. Obviously, I have no problem with you bringing your dog with... you [to the] court as you travel and so forth, but I cannot make an order to allow you to bring the animal into the courthouse and, most importantly, into the courtroom. At least not for the time being, I’m going to respectfully deny your request. I just don’t want to create a distraction for the jury. And I know it’s a big inconvenience but we’ll see how it goes with you tomorrow. If it becomes a severe problem, let your attorney know and I’ll reevaluate.”
We see no indication in the record that the issue of Wernke’s need for the presence of her service dog in the courtroom arose at any time during the remainder of the trial.
The issue of Wernke’s service dog did arise as an evidential matter during the trial. During a discussion before the start of the afternoon session on April 1, 2008, defense counsel advised the trial court: “At some point,... I do want to let the jury see the service dog.” When the trial court asked about the relevance of showing the dog to the jury, defense counsel indicated that certain defense witnesses were going to testify that the dog was with Wernke at the Hawking event, thus impeaching a prosecution witness’s identification of Wernke. (Prosecution witness Mary Hoffman had earlier testified that Wernke did not have a dog with her at the Hawking event.) After hearing counsel’s explanation, the court ruled: “I have no problem with you calling witnesses to support the fact that a dog was there, not seen. But there is no reason to bring the dog in to say this is the dog.” The court suggested that, if the dog’s small size became relevant, a photograph of the dog next to a ruler might be introduced. Two defense witnesses thereafter testified about the dog, and photos of the dog were shown to the jury.
B. Wernke’s Constitutional Claim Is Not Waived
Before turning to Wernke’s arguments, we dispatch with the People’s contention that Wernke waived her claim of constitutional error under the Fourteenth Amendment because her requests for the presence of her service dog in the trial court were not based upon constitutional grounds. Assuming that Wernke’s comments to the trial court constituted an unambiguous request to have her service dog present with her in the courtroom during trial, we agree with her position that we may consider her constitutional claim on appeal. (See generally People v. Boyer (2006) 38 Cal.4th 412, 441, fn. 17 [where a defendant’s constitutional arguments on appeal do not invoke facts or legal standards different from those in the trial court itself, but merely assert the trial court’s act, insofar as wrong for the reasons actually presented to that court, had the additional consequence of violating constitutional precepts, the defendant’s new constitutional arguments are not forfeited on appeal].)
C. Analysis
However, we reject Wernke’s claim that the trial court violated her federal constitutional right to due process under the Fourteenth Amendment by excluding her service dog from the courtroom. Without deciding whether a trial court has discretion to allow or exclude a service animal from the courtroom during trial, we find no constitutional error because Wernke’s arguments do not persuade us that the absence of her service dog affected her right to due process vis-à-vis her right to a fair trial, and we find no support in the record for Wernke’s assertion that the denial of the presence of her service dog was analogous to cases “involving the use of physical restraints in the courtroom [or] forcing a defendant to use anti-psychotic drugs while at trial.” The record simply does not support Wernke’s assertion that she may have felt “confused, frustrated, or embarrassed, thus impairing [her] mental faculties” and her ability to assist in her own defense. On the contrary, Wernke expressly advised the trial court that she needed her service dog for “traveling” to and from the courthouse, and that she “would not” need her service dog in the courtroom. There is no indication in the record that Wernke raised the issue during trial. In short, the record does not support Wernke’s claim that the trial court’s ruling on the service dog issue undermined her “ability to conduct a defense at trial.” (See People v. Mar (2002) 28 Cal.4th 1201, 1227-1228.)
We acknowledge that the trial court stated it would not allow Wernke to bring her service dog in the courtroom, as noted in the earlier statements we quoted on page 6, ante. However, other than a request about an evidentiary matter, the only request by Wernke was to have the service dog in the court building, not the courtroom.
D. Prejudice Is Not Shown in the Record in Any Event
Assuming the trial court committed an error of constitutional magnitude, we find the error harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 26.) In this regard, the factors that we considered in addressing Wernke’s assignment of error overlap the prejudice analysis. We see nothing in the trial record to support a conclusion that the presence of Wernke’s service dog would have had any effect on the conduct or outcome of her trial. The service dog could not have assisted Wernke or her trial counsel in the presentation of evidence, or the questioning of witnesses, or, in any other way had any effect on the admissibility or credibility of the circumstantial evidence showing that Wernke unlawfully opened credit card accounts in her brother’s name. We have searched Wernke’s briefs on appeal for any indication of the tactics or actions which would have been different had her service dog been present with her in the courtroom, and we do not see any such indication. Wernke has not carried her burden of showing prejudice from the trial court’s handling of the service dog issue.
II. The Sentencing Issues
A. The Breakdown of the Total Sentence
The trial court sentenced Wernke to a total term of four years four months as follows:
Count 3: identity theft of Faulkner on February 6, 2006, by applying for the American Express credit card account = three years (upper term);
Count 2: identity theft of Faulkner on November 12, 2005, by applying for the Chase credit card account = two years (midterm) stayed;
Count 4: grand theft of Chase Bank between November 2005 and May 2006 = two years (midterm) stayed;
Count 10: identify theft of Faulkner on January 13, 2006, by using a credit card on the second Chase account = eight months (one-third the midterm) consecutive;
Count 11: identify theft of Faulkner on January 13, 2006, by using a credit card on the second Chase account = two years (midterm) concurrent;
Count 12: identity theft of Faulkner on January 14, 2006, by using a credit card on the second Chase account = eight months (one-third the midterm) consecutive.
B. Section 654
Wernke contends the trial court should have applied section 654 to stay the terms imposed on counts 10, 11, and 12 for using the credit card on the second Chase account. To be more specific, Wernke contends that a person who commits a crime by opening a credit card account using another’s name, and who thereafter commits a series of ensuing crimes by using that credit card for a series of ensuing purchases, may only be punished for opening the credit card account in the first instance. We disagree.
Section 654 precludes multiple punishments for a single act or a course of conduct indivisible in time and character. (People v. Ramirez (2006) 39 Cal.4th 398, 478.) The question whether a defendant’s course of criminal conduct is “indivisible” depends on the intent and the objective of the defendant. Generally speaking, when a defendant’s course of criminal conduct is perpetrated in pursuit of “one objective,” then he or she may be punished only once, but, when a course of conduct is “divisible in time,” he or she may be punished more than once, even though he or she had one objective. (Compare Neal v. State of California (1960) 55 Cal.2d 11, 19 with People v. Beamon (1973) 8 Cal.3d 625, 639, fn. 11.) The question whether a defendant’s course of conduct was indivisible within the meaning of section 654 is a question of fact for the trial court, and, for this reason, a trial court’s decision not to apply section 654 must be affirmed on appeal when it is supported by substantial evidence. (People v. Andra (2007) 156 Cal.App.4th 638, 640.)
Substantial evidence supports the trial court’s finding that Wernke committed the crimes charged in counts 2, 10, 11, and 12 as divisible criminal acts, not as indivisible course of criminal conduct. Wernke submitted the application to Chase for the first credit card account she wrongly opened on November 12, 2005 (count 2). Wernke used a credit card issued on the second Chase account on January 13, 2006 (count 10), then used the credit card again on January 13, 2006 (count 11), and then used it again on January 14, 2006 (count 12). All of these misuses of credit in Faulkner’s misappropriated name were divisible by a sufficient amount of time, and distinct contextual setting, to have allowed Wernke an opportunity to reflect on her actions, and to renew her intent, at each step, to misuse the ill-gotten credit. (People v. Gaio (2000) 81 Cal.App.4th 919, 935 [trial court’s consecutive sentencing supported implied finding that appellant entertained multiple objectives with respect to several bribes of same person.]) We are more than amply satisfied that substantial evidence supports the trial court’s decision not to consider all of Wernke’s acts related to the Chase credit card account as one indivisible course of conduct.
We reject Wernke’s argument that there was one course of conduct because, on each occasion, she had the same intent and objective, to wit, to “obtain credit.” Wernke interprets the “same objective” factor too generally and broadly. We see no difference between misusing one person’s identity on different days, and returning to and robbing the same store on different days. In either situation, each instance of committing the act constituting the crime act may be punished separately because they were committed on separate occasions. Wernke’s situation is not akin to the situation where a defendant steals several items of property during a single robbery. (See, e.g., People v. Smith (1945) 26 Cal.2d 854, 859.)
Wernke’s reliance on People v. Bauer (1969) 1 Cal.3d 368 (Bauer) for a different result is misplaced. In Bauer, the defendant and an accomplice gained admittance to a residence and robbed three elderly women of various items of personal property, and fled in a car stolen from the garage. The Supreme Court reversed the defendant’s sentences for both robbery and automobile theft for the following reason: “[T]he evidence in the instant case does not show that the theft of the car was an afterthought but indicates to the contrary that the robbers, who while ransacking the house were carrying the stolen property to the garage, formed the intent to steal the car during the robbery if not before it.” (Id. at p. 377.)
In contrast to the evidence in Bauer, the evidence in Wernke’s current case does not show as a matter of law that, in November 2005, when she applied for the Chase credit card, she had already formed the intent to later apply for a second credit card account in December 2005, and to obtain credit on the second account in January 2006. On the contrary, substantial evidence supports the trial court’s finding that, being in possession of wrongly obtained credit cards, Wernke formed a new intent to misuse the credit with each new act of using the credit cards.
C. Consecutive Terms
When imposing sentence, the trial court stated a number of reasons for choosing the upper term as to count 3, including: multiple victims, planning and sophistication, substantial monetary loss, violation of a position of trust, and Wernke’s prior convictions. Wernke contends the trial court erred by failing to state independent reasons for imposing consecutive terms on counts 10 and 12. We find any alleged error waived and harmless.
First, appellant admits she did not object to the failure to state reasons for imposition of consecutive sentences. As such, the error is waived. (People v. Scott (1994) 9 Cal.4th 331, 353.) Second, after the reform of the sentencing law pursuant to Senate Bill No. 40 (Stats. 2007, ch. 3), it is uncertain whether the prohibition against using the same reasons to impose the upper term and consecutive sentences is still in effect. (See Advisory Com. com., 23 pt. 1B West’s Ann. Codes, Rules (2006 ed.) foll. rule 4.420, pp. 253-254.) Previously, a court could not impose an upper term based on facts that also are elements of the crime or an enhancement that will be imposed. Since the court is no longer required to find specific facts to impose an upper term sentence, it is not clear that the statement of reasons required by Senate Bill No. 40 also will be subject to such restrictions.
But even if we assume there was an error, it was clearly harmless. (People v. Sanchez (1994) 23 Cal.App.4th 1680, 1684-1685.) The court stated five separate reasons for an enhanced sentence in this case. It was clear the court wished to impose consecutive sentences on counts 11 and 12. It is not reasonably probable the sentence would be different if the case were remanded for a new statement of reasons. We will not remand the case for re sentencing when it is an idle act.
DISPOSITION
The judgment is affirmed.
We concur: RUBIN, Acting P. J. FLIER, J.
The issue of Wernke’s dog arose again during argument. Defense counsel argued that prosecution witness Hoffman’s identification of Wernke was not reliable because Hoffman had testified that Wernke did not have a dog with her at the Hawking event, but two defense witnesses testified that Wernke did have the dog. In closing argument, the prosecutor commented that the defense was making “a big deal” that Wernke took her dog everywhere, and then questioned why the dog had not been at trial. After defense counsel objected, the trial court admonished the prosecutor to restrict his comments to “the state of the evidence [that] was received,” and instructed him to move on to a different topic. At a sidebar conference a moment later, the court found there was “no question” that the prosecutor’s comment about the dog had amounted to misconduct; the court then specifically instructed the jury that the court had excluded Wernke’s dog from the courtroom.