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Name: People v. Tillotson
Case #: G035041
Court: CA Court of Appeal
District 4 DCA
Division: 3
Opinion Date: 06/21/2007
Subsequent History: rev. granted 10/1707, S155385

The jury was correctly instructed on aiding and abetting with CALJIC 3.01. Appellant was tried on a 24-count information charging her with theft and controlled substance violations. The jury found her guilty on counts 1 through 9, 13, and 20 through 24. She was acquitted 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 she committed the crimes while on bail. She was sentenced to 14 years and four months in prison, with count 1 as the principal term. The appellate court affirmed in part, reversed in part, and remanded as follows: On counts 4 though 7, the trial court correctly instructed the jury with CALJIC 3.01 on aiding and abetting. CALJIC 3.01 is accurate and complete. There was no error by not instructing with CALJIC 3.14. Assuming it was relevant to aiding and abetting liability, it did not add anything not covered by 3.01. Sufficient evidence supported the convictions for Penal Code section 530.5, subdivision (a), and for attempted contempt. There was sufficient evidence to support the conviction on count 22 which charged appellant with using the victim’s identifying information in violation of Penal Code section 530.5, subdivision (a). Appellant willfully obtained the victim’s address from the internet and gave it to the Police Complaint Center (PCC), requesting that it provide surveillance of the victim, a police officer. She did not inform the PCC that there was a restraining order prohibiting her from surveilling the victim. Therefore appellant used the identifying information for an unlawful purpose, and it did not matter that the PCC never conducted the requested surveillance. Further, there was sufficient evidence to convict of count 23 (attempted contempt) because appellant completed an attempt to violate the restraining order. Appellant had signed a surveillance contract, arranged to pay the fee, and provided information about the victim to the PCC. Had the PCC agreed to appellant’s request, the intended violation of the restraining order would have been carried out. The trial court did err when it instructed the jury on Penal Code section 502, subdivision (c)(1) because the instruction omitted an element of the offense. The instruction permitted the jury to find appellant guilty based on her access of the computer without requiring that she use the information accessed in order to obtain money, property, or data. Since it cannot be said beyond a reasonable doubt that a properly instructed jury would have found that appellant used the victim’s address from the report obtained, the instructional error was prejudicial and required reversal. The trial court further erred by failing to state reasons for imposing consecutive sentences on counts 4, 5, 20, 22, and 24. Since the appellate court could not tell whether it was reasonably probable appellant would have received a more favorable sentence in the absence of the error, reversal and remand was required. Resentencing under Cunningham was required. The trial court sentenced appellant on count 1 to the upper term based on the facts that the crimes were carried out with sophistication, the victims were particularly vulnerable, and appellant’s numerous prior convictions. None of the aggravating factors were found true by a jury. Since it cannot be said beyond a reasonable doubt that the trial court would have sentenced appellant to the upper term based solely on the prior convictions, the error was not harmless beyond a reasonable doubt. Remand for resentencing in light of Cunningham was required.