People v. Balaguer

1

THE PEOPLE, Plaintiff and Respondent, v. DANIEL BALAGUER, Defendant and Appellant.

A168932

California Court of Appeals, First District, Third Division

November 26, 2024

NOT TO BE PUBLISHED

(San Mateo County Super. Ct. No. 22-NF-0111545-A)

TUCHER, P.J.

A jury convicted defendant Daniel Balaguer of multiple offenses including four counts of unlawful possession of the personal identifying information of another person. (Penal Code § 530.5, subd. (c) (§ 530.5(c)); statutory references are to this code unless otherwise indicated.) On appeal, defendant contends all of his convictions for violating section 530.5(c) must be reversed because there is no evidence he intended to defraud people whose personal identifying information he possessed. We affirm the judgment.

BACKGROUND

In August 2023, defendant was tried on the following charges first degree robbery of a transit operator (§§ 211, 212.5, subd. (a); count 1); felony assault (§ 245, subd (a)(4); count 2); unlawful possession of Xanax (Health &Saf. Code, § 11375, subd. (b)(2); count 3); possession of a controlled substance (Health &Saf. Code, § 11350, subd. (a), count 4); and five counts of unlawful possession of personal identifying information (§ 530.5(c)(1), counts 5-9). The prosecution presented its case over four court days between August 11 and 17. The defense did not call witnesses or present evidence.

The Prosecution Case

On September 3, 2022, at around 2:00 a.m., Lawrence L. was working as a Lyft driver when he received a request for a ride from San Francisco to Daly City. Lawrence, who is deaf, picked up defendant at the designated location. When defendant got in the front seat of the Lyft car, Lawrence gestured for him to move to the backseat, but defendant was "stubborn" and insisted on sitting in front. Defendant held a light green backpack on his lap. Lawrence also had a backpack that night; his was black and was in the trunk of his car.

While Lawrence was on the freeway driving to Daly City, defendant gestured repeatedly to indicate he wanted to stop and get something to eat. Lawrence exited the freeway, drove to a parking lot for an In-N-Out fast food restaurant, and gestured to defendant to get out. Defendant became angry, got out of the car and started recording Lawrence on his phone. Frightened, Lawrence used his phone to record defendant. Defendant put on his backpack, walked around to the back of Lawrence's car, tried to "pop" the trunk, and then "forced" it open. Lawrence tried to close it, but defendant got the trunk open, took Lawrence's black backpack, and ran. Lawrence gave chase and yelled for help. He caught up with defendant and grabbed his backpack. Then defendant knocked Lawrence to the ground and he also fell over as he tried to retake Lawrence's backpack. Defendant put his arm around Lawrence's neck, and held him in a chokehold while using his other hand to try to pry the backpack from underneath Lawrence's body. Defendant continued to choke Lawrence until people stopped to help, by which point Lawrence had almost lost consciousness. When defendant removed his arm, Lawrence slowly "kind of, woke up." Somebody helped him walk back to his car, where he sat on the curb with his backpack. He had scrapes on his knees and elbows, and the left side of his face was red and bruised. He was shaken, felt dizzy and his vision was blurry, as he waited for the police, who arrived a few minutes later.

Daly City Police Officer Matungol was with his training officer when they responded to the report of a disturbance at the In-N-Out. Matungol noticed defendant walking north across the parking lot. He was wearing a beige backpack and walking briskly away from bystanders who were pointing at him. When Matungol made contact, defendant was out of breath, speaking very fast, and making incoherent statements. Meanwhile, other officers had made contact with Lawrence. Matungol went to talk to Lawrence, who was still sitting on the curb. He was able to question Lawrence about what happened with the assistance of another officer at the scene who knew American Sign Language. Matungol also took photographs of Lawrence's injuries. Then he returned to the police station to take a statement from defendant, which was recorded and admitted into evidence at trial. Defendant's version of the events was confusing. Initially, he outright denied taking Lawrence's backpack. Then he admitted opening the trunk and trying to take the backpack, explaining that he had to take it because Lawrence said he had fentanyl. Ultimately, defendant denied that he actually took the backpack, and claimed that Lawrence started chasing him for no apparent reason.

After defendant gave his statement, Matungol searched defendant's wallet and backpack. Inside his wallet, defendant carried his own identification card. He also carried personal identification cards belonging to four different women: two driver licenses; one permanent resident card; and one Chinese identification card. Defendant also had a credit and debit card bearing a woman's name, and a fuel card issued to a business. A piece of tinfoil found in defendant's backpack contained 0.177 grams of fentanyl. Matungol testified at trial that he was not able to contact any of the individuals whose names were on the cards found in defendant's wallet. Verdicts and Judgment

Before this case was submitted to the jury, the trial court dismissed the charge for unlawful possession of Xanax due to insufficient evidence. The court also granted a defense motion to dismiss a sentence enhancement allegation for causing great bodily injury during commission of the assault alleged in count two. The jury began deliberating on August 17, 2023, and returned verdicts the following day. Defendant was found guilty of the following offenses: first degree robbery; simple assault as a lesser included offense of count two; misdemeanor possession of a controlled substance; and five misdemeanor counts of "Identifying Information Theft" in violation of section 530.5(c). On the afternoon of August 18, a court trial was held to resolve bifurcated issues, including an enhancement allegation for a prior strike conviction and allegations regarding circumstances in aggravation in connection with the robbery.

Defendant was sentenced on September 15, 2023. The People conceded that it appeared that two of the section 530.5(c) convictions involved the same victim, although her name was stated somewhat differently on two items of identification. The court dismissed the duplicate charge pursuant to section 1385. However, the court denied a motion to dismiss the prior strike conviction that had been proven at the court trial, finding that defendant did not fall outside the spirit of the Three Strikes Law and that factors articulated in section 1385 did not weigh in favor of dismissal. The court also found defendant was ineligible for probation, numerous aggravating factors had been proven true, and there were no mitigating factors.

Using the robbery conviction to calculate defendant's base term, the court imposed an upper six-year sentence, which was doubled to twelve years because of the strike. For defendant's other convictions, all misdemeanors, the court imposed concurrent terms in county jail.

DISCUSSION

Defendant challenges the sufficiency of the evidence to support his convictions for violating section 530.5(c), which provides "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 of another person is guilty of a public offense." As used in the...