THE PEOPLE, Plaintiff and Respondent, v. THUY LE TRUONG, Defendant and Appellant.
No. B263744
Court of Appeal of California, Second District, Division One
Apr. 5, 2017
Lori Nakaoka, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Shawn McGahey Webb and Noah P. Hill, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
LUI, J.—Defendant and appellant Thuy Le Truong appeals from the judgment of conviction based on illegal possession of bank-issued credit cards and bank customer account and identifying information. In count 1, Truong was charged with acquisition or retention of access card account information with the intent to use it fraudulently in violation of
Truong contends (1) none of her convictions is supported by substantial evidence; (2) because she was convicted of theft under
BACKGROUND
In 2013, Truong worked for Wells Fargo Bank as a customer service and sales representative, but she functioned primarily as a private banker. Truong’s private banking duties gave her access to internal databases containing personal customer information. Truong worked with other private bankers, including David Gonzales, whose duties included soliciting businesses in the community to sign up for Wells Fargo services. During his solicitations, Gonzales would bring with him a form containing some preprinted information, including his “officer portfolio number,” an internal Wells Fargo identification specific to Gonzales. Wells Fargo expressly trained its private bankers, including Truong, not to remove paperwork with personal identifying information from the bank.
Truong’s next-door neighbors, Isamabi and Johnny Woods, held a credit card account at Bank of America. After Bank of America warned Mrs. Woods of suspicious activity on her account, she deactivated her credit cards and ordered replacement cards for herself and her husband. Mrs. Woods had Bank of America send the cards to her home, where she expected them to arrive in her mailbox, which was unlocked and affixed to a wooden post at the curb in front of her residence. The cards never arrived. When Mrs. Woods called the bank to report she had not received the cards, the representative confirmed
In May 2014, police executed a search warrant for Truong’s residence. Two Bank of America credit cards were recovered from Truong’s dresser drawer in her bedroom. The cards bore the Woodses’ names and did not have any of the usual accompanying paperwork or envelopes with them. Police also seized two Wells Fargo documents from Truong’s desk in the home. The first was a spreadsheet containing 48 customers’ names and account numbers. The second was a customer account application bearing Gonzales’s name and credentials. Wells Fargo policy prohibited Truong from possessing any of this information outside of work.
In an interview with police following the search, Truong explained that the credit cards had been “delivered to [her] house” by “[t]he mailman or something.” When asked why she had not returned the cards, Truong replied, “I thought, because at that time I also applied for our Bank of America [sic] and then I opened it, it was somebody else’s mail.” She later stated that her father had actually mistakenly opened the envelope containing the cards, and when she saw them, she thought, “I’m going to return it. And I leave [sic] it there and totally forgot about it.” Later she changed her story again, explaining, “I was going to return them. I opened it and I saw it, I’m like, who is this? I think next door, but I’m not sure. Either I was going to give it to next door because I think it was next door but I’m not sure. But either give it to next door or give it to B of A.” When the detective pointed out that the cards’ secreted location suggested she had no intention of returning them, she responded, “I put it on the, on the bookshelf. Actually I was going to throw it away but I’m afraid that people might pick it up and I don’t know.”
DISCUSSION
On appeal, Truong contends (1) none of her convictions is supported by substantial evidence; (2) the court erred in allowing convictions for receiving stolen property and other theft offenses involving the same property; and (3) the court erred in admitting evidence of the credit limit for the stolen cards.
Assessing Truong’s substantial evidence claim, “‘we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’” (People v. Avila (2009) 46 Cal.4th 680, 701 [94 Cal.Rptr.3d 699, 208 P.3d 634]; see People v. Watkins (2012) 55 Cal.4th 999, 1019–1020 [150 Cal.Rptr.3d 299, 290 P.3d 364].) We draw all reasonable inferences in favor of the verdict and presume the existence of every fact the jury could reasonably deduce from the evidence that supports its findings. (People v. Maciel (2013) 57 Cal.4th 482, 515 [160 Cal.Rptr.3d 305, 304 P.3d 983]; People v. Kraft (2000) 23 Cal.4th 978, 1053 [99 Cal.Rptr.2d 1, 5 P.3d 68].) “[U]nless [a witness’s] testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction.” (People v. Young (2005) 34 Cal.4th 1149, 1181 [24 Cal.Rptr.3d 112, 105 P.3d 487].) “In deciding the sufficiency of the evidence, a reviewing court resolves neither credibility issues nor evidentiary conflicts.” (Ibid.; see People v. Maury (2003) 30 Cal.4th 342, 403 [133 Cal.Rptr.2d 561, 68 P.3d 1].) Rather, “‘it is the exclusive province of the... jury to determine the credibility of a witness and the truth or falsity of the facts,’” and it is not for us to substitute our judgment for that of the jury’s. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206 [26 Cal.Rptr.2d 23, 864 P.2d 103].) Finally, the trier of fact may rely on inferences to support a conviction where “those inferences are ‘of such substantiality that a reasonable trier of fact could determine beyond a reasonable doubt’ that the inferred facts are true. (People v. Raley (1992) 2 Cal.4th 870, 890–891 [8 Cal.Rptr.2d 678, 830 P.2d 712].)” (People v. Rios (2013) 222 Cal.App.4th 542, 564 [165 Cal.Rptr.3d 687].)
“‘The standard of review is the same in cases in which the prosecution relies mainly on circumstantial evidence. [Citation.] “Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court[,] which must be convinced of the defendant’s guilt beyond a reasonable doubt. ‘If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment.’”’” (People v. Watkins, supra, 55 Cal.4th at p. 1020; see People v. Clark (2011) 52 Cal.4th 856, 942–943 [131 Cal.Rptr.3d 225, 261 P.3d 243]; People v. Rodriguez (1999) 20 Cal.4th 1, 11 [82 Cal.Rptr.2d 413, 971 P.2d 618].) Reversal on the basis of insufficient evidence is “unwarranted unless it appears ‘that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’” (People v. Bolin (1998) 18 Cal.4th 297, 331 [75 Cal.Rptr.2d 412, 956 P.2d 374].)
Truong’s challenges to her dual convictions for fraudulent possession of access card information and receiving stolen property in counts 1 and 3, and for possession of identifying information and receiving stolen property present questions of law and statutory interpretation, which we review de
Finally, we review the trial court’s admissibility determinations for abuse of discretion. (People v. Cox (2003) 30 Cal.4th 916, 955 [135 Cal.Rptr.2d 272, 70 P.3d 277].) We reverse for abuse of discretion only when the lower “‘“court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice.”’” (People v. Williams (2008) 43 Cal.4th 584, 634–635 [75 Cal.Rptr.3d 691, 181 P.3d 1035].)
I. Truong’s Convictions Are Supported by Substantial Evidence
Truong contends that insufficient evidence supports the jury’s finding that the Bank of America cards were “‘validly issued to another,’” as required by
Uncontroverted evidence established that Bank of America validly issued the credit cards to the Woodses in this case. Indeed, Truong does not dispute that the Woodses had an existing Bank of America credit card account or that Mrs. Woods ordered replacement cards, which should have been delivered through the mail to the Woodses’ mailbox. Bank of America confirmed it had sent the cards to Mrs. Woods’s home. Further, Truong undeniably had the credit cards bearing the Woodses’ names in her possession, and Mrs. Woods testified that they appeared to be her missing cards. Finally, Truong herself admitted the cards had been issued to the Woodses by Bank of America when she told police she had planned to return the cards to the Woodses or to the bank.
On the basis of this evidence, the jury could reasonably find that the bank cards in Truong’s possession were validly issued by Bank of America and
Truong also contends the prosecution failed to establish any intent to defraud, as required to convict under
Moreover, although possession alone does not establish an intent to defraud, a jury could reasonably infer an intent to defraud from the circumstances surrounding Truong’s possession of the credit cards. (People v. Smith (1998) 64 Cal.App.4th 1458, 1469–1470 [76 Cal.Rptr.2d 75] [determining circumstantial evidence was sufficient to support a § 484e conviction].) For example, police found the credit cards unwrapped and without their accompanying paperwork secreted in a dresser drawer in Truong’s bedroom months after Mrs. Woods reported them missing. Sometime in the months after Mrs. Woods reported to the bank that she had not received the credit cards in the mail, Truong returned mail belonging to the Woodses that had been misdelivered to Truong’s residence. The credit cards were not among the pieces of mail Truong returned. Police also found two Wells Fargo documents containing identifying information, which Truong should not have possessed. Finally, Truong’s unclear and contradictory statements about how she came into possession of the cards and why she did not return them supported an inference she intended to defraud.
With regard to the spreadsheet and account application Truong had in her possession, Truong argues (1) the absence of any evidence that she tried to use the cards suggests she did not intend to defraud through possession of the documents; (2) mere possession does not prove an intent to defraud; and (3) it was factually impossible for her to use the paperwork fraudulently. Like a violation of
Finally, factual impossibility is irrelevant to intent and, in any event, there was no showing that it was factually impossible for Truong to use the documents fraudulently. As a general matter, factual impossibility has no bearing on proof of intent: one can intend to commit fraud, even if in actuality such fraud would be impossible. (See generally People v. Camodeca (1959) 52 Cal.2d 142, 147 [“When it is established that the defendant intended to commit a specific crime it is immaterial that for some collateral reason he could not complete the intended crime”].) Here, Truong argues she did not have the requisite credentials to access any identifying information at Wells Fargo from the spreadsheet or to use the form bearing Gonzales’s employee information. This is of no consequence. Truong might have thought she had the necessary credentials or she might have devised a way to avoid the credential problem. The evidence about the extent to which Truong’s credentials would have allowed her access to identifying information was unclear, but in any event, sufficient circumstantial evidence supported the jury’s finding that Truong intended to defraud, regardless of whether she could have actually done so.
II. Truong’s Convictions on Counts 1 and 3 Violate the Prohibition Against Dual Convictions for Theft and Receipt of Stolen Property, but Her Convictions on Counts 2 and 4 Do Not
A. Truong could not be convicted for both the section 484e, subdivision (d) offense and receiving stolen property under section 496 based on her acquisition and possession of the credit cards.
The prohibition in
The question here is whether Truong’s conviction on count 1 under
Accordingly, we reverse Truong’s
Truong contends her conviction under
Unlike
Truong acknowledges that a violation of
To the contrary, we conclude that the
By contrast, in order to prove the violation of
Accordingly, we affirm Truong’s convictions in counts 2 and 4 under
III. Any Error in Admitting Evidence of the Credit Card Limit Was Harmless
Even assuming the trial court improperly admitted the credit card limit evidence, any error was harmless. Credit cards, by definition, come with credit limits.4 At worst, the credit limit evidence admitted here was superfluous and therefore quite harmless. (People v. Watson (1956) 46 Cal.2d 818, 836 [299 P.2d 243] [error is harmless unless “it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error”].) Admission of such evidence, even if erroneous, does not constitute grounds for reversal.
DISPOSITION
Truong’s conviction under
Rothschild, P. J., and Chaney, J., concurred.
Appellant’s petition for review by the Supreme Court was denied July 12, 2017, S241878.