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Name: People v. Mitchell
Case #: C052649
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 06/26/2008

Penal Code section 530.5, subdivision (a), (unlawful use of personal identifying information) is committed each time an offender uses personal identifying information for an unlawful purpose. Appellant was convicted of 51 offenses resulting from her theft and use of identifying information, blank checks, etc. from the elderly and dependent adult for whom she had been hired as a caretaker. Two counts of conviction for violation of section 530.5, subdivision (a), were based on the use of the victim’s driver’s license on two separate dates. Appellant argued one of those convictions had to be reversed because there was only one unlawful taking of personal identifying information. The appellate court held it is the use of the identifying information, not its acquisition, that completes the crime. Each separate use constitutes a new offense.
Under the elements test, Penal Code section 484f, subdivision (b) (forgery; access cards; design, alteration, use) is not a necessarily included offense of section 470 subdivision (d) (forgery). Only the elements test may be applied in determining whether an offense is necessarily included in another. (People v. Reed (2006) 38 Cal.4th 1224.) “Section 470, subdivision (d), may be violated by forging a signature on one of the indicated documents. However, it may also be violated by uttering, publishing, or passing the item, whether or not the person also forged a signature on it. In the latter case, there is no violation of section 484f, subdivision (b).”
Multiple convictions for Penal Code section 496, subdivision (a) (receiving stolen property) are permitted if the evidence shows that the various items were received by defendant on different occasions. Appellant argued three of four counts of receiving stolen property had to be reversed because it was not proven the property was received on different occasions. The appellate court agreed one count had to be reversed, but upheld the other two contested counts. Even though the crime is commonly referred to as receiving stolen property, it can be committed in a number of ways, such as concealing or withholding property. The prosecution theory on these counts was that the concealed or withheld the property on different dates and they met that burden.
Failure to object to an erroneous instruction forfeits the objection on appeal unless the defendant’s substantial rights are affected. And forfeiture is not overcome by a claim of ineffective assistance of counsel resulting from failure to object unless the argument is fully developed with an explanation as to how counsel’s performance was below the accepted level and actual prejudice resulted. Appellant argued that a unanimity instruction was inadequate, and that trial counsel was ineffective for failing to object to the instruction. The Court of Appeal noted the record failed to show why counsel failed to object. The argument on appeal only set forth the basic standard for ineffective assistance, and did not try to explain (1) how the omission fell below an objective standard of reasonableness (it just presumed so), (2) how there could be no satisfactory explanation for that omission, and (3) how it resulted in prejudice. “This will not suffice.”