People v. Mariano

THE PEOPLE, Plaintiff and Respondent, v. MITCHELL AUGUSTINE PEKSON MARIANO, Defendant and Appellant.

G054973

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE

September 24, 2018

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. No. 16NF1886)

OPINION

Appeal from a judgment of the Superior Court of Orange County, John S. Adams, Judge. Affirmed.

Richard Power, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Susan Miller, Deputy Attorneys General, for Plaintiff and Respondent.

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INTRODUCTION

A jury convicted Mitchell Augustine Pekson Mariano of one count of identity theft of 10 or more persons in violation of Penal Code section 530.5, subdivision (c)(3)¹ (count 1) and nine counts of identity theft with a prior conviction in violation of section 530.5, subdivision (c)(2) (counts 2-10). The trial court sentenced Mariano to the midterm of two years on count 1 with concurrent two-year sentences each on counts 7, 8, and 10. The court suspended execution of sentence and placed Mariano on formal probation for three years with terms and conditions. The court stayed execution of sentence on counts 2, 3, 4, 5, 6, and 9 pursuant to section 654.

Mariano makes three contentions on appeal: (1) the evidence was insufficient to support the convictions for possession of the personal identifying information of another person with the intent to defraud; (2) the jury was not correctly instructed on the meaning of possession; and (3) the trial court erred by taking judicial notice of evidence that Mariano had a prior conviction for theft of personal identifying information.

We affirm. First, we conclude, based on the totality of the circumstances, sufficient evidence was presented to support a finding that Mariano was in possession of personal identifying information with intent to defraud. Second, we conclude the trial court accurately and completely instructed the jury on the meaning of possession. Finally, we conclude the trial court did not err by taking judicial notice and informing the jury of the prior conviction evidence to show intent and knowledge.

FACTS

On June 27, 2016 at 2:00 a.m., Buena Park Police Officer Christopher Nyhus was on patrol at the Radisson Hotel located on Beach Boulevard, a known high crime area. While on patrol, Nyhus checked vehicle registrations in the hotel parking lotand found a Mitsubishi Gallant having an expired 2015 registration, but displaying a 2016 registration sticker. Nyhus received a separate alert from the computer system in his patrol car indicating a person with outstanding warrants was associated with the vehicle.

Nyhus contacted the hotel desk clerk and learned the vehicle with the expired registration was associated with room 126, a suite, which had been booked to Nazanin Sananoian. Nyhus learned that Sananoian was on probation for identity theft and was subject to search at any time. Other police officers arrived at the scene, and Nyhus, the other officers, and the hotel security guard went to room 126.

Nyhus knocked on the door of room 126, but no one answered. The officers announced their presence and received no response. The hotel security guard then used his master key to open the door. As the door opened, Nyhus saw a man, later identified as Mariano, standing in the front room of the suite. Mariano walked quickly to the back of the suite. Sananoian and Tony Tena also were at the back of the suite. Nyhus and his fellow officers entered the suite and ordered Mariano, Sananoian, and Tena to the front of the suite. While Mariano, Sananoian, and Tena were seated in the front of the suite, the officers conducted a probation search of the entire hotel suite.

Nyhus searched the bedroom area, located towards the back of the suite, and found a large amount of "paperwork" on a nightstand. The paperwork appeared to be stolen mail and personal identifying information, none of which matched Mariano, Sananoian, or Tena. Nyhus then searched the bedroom closet where he found a large cardboard box containing dozens of pieces of paper with the same type of information. Nyhus testified some of the papers in the large cardboard box belonged to Sananoian and Tena, but he did not find anything belonging to Mariano.

Fellow Buena Park Police Officer Patrick Carney, who assisted in the search of the suite, found three more pieces of mail in a trash can in the front room. None of this mail belonged to Mariano, Sananoian, or Tena. The officers did not findany suitcases or toiletries in the suite but did find a few pieces of clothing hanging in the closet. Four cell phones were seized during the search. One cell phone belonged to Mariano, but it could not be searched because it was passcode protected.

Nyhus advised Mariano of his rights under Miranda v. Arizona (1966) 384 U.S. 436. Mariano waived those rights and spoke with Nyhus. Mariano denied any knowledge or ownership of the papers found in the hotel suite and claimed he was only there to see Tena. Mariano claimed he was helping Tena change rotors on one of Tena's vehicles. Nyhus found no tools or car parts. Mariano, who was wearing a white t-shirt, showed no signs of dirt, oil, or grease. More papers appearing to contain personal identifying information were found in a search of the two vehicles. All the stolen mail and other materials found during the search of the hotel suite and vehicles were booked into evidence and written up in Nyhus's police report. After reviewing the materials found in the hotel suite, Nyhus concluded most of them were possessed for a fraudulent purpose.

At trial, 12 victims whose personal information was found in the hotel suite testified.² All testified they did not know Mariano and he did not have permission to possess or use their personal information. The trial court took judicial notice of Mariano's 2011 guilty plea to identity theft.

DISCUSSION

I.The Evidence Was Sufficient to Support

the Conviction for Identity Theft.

A. Standard of Review

Mariano was charged with identity theft in counts 1 through 10 in violation of section 530.5, subdivision (c)(2) or (3).³ Mariano contends there was insufficient evidence to show he was in possession and control of the victims' personal information found in the hotel suite. Because Mariano challenges the sufficiency of the evidence to support his convictions, "'we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.'" (People v. Steele (2002) 27 Cal.4th 1230, 1249.) "Reversal on this ground 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.)

B. The Evidence Was Sufficient to Prove Possession.

To violate section 530.5 subdivision (c)(2) or (3), a person "with the intent to defraud" must "acquire[] or retain[] possession of . . . personal identifying information." (Ibid.) "Actual or constructive possession is the right to exercise dominion and control over the contraband or the right to exercise dominion and control over theplace where it is found. [Citation.] Exclusive possession is not necessary." (People v. Rushing (1989) 209 Cal.App.3d 618, 622.) "A defendant does not avoid conviction if his [or her] right to exercise dominion and control over the place where the contraband was located is shared with others." (Ibid.)

In Armstrong v. Superior Court (1990) 217 Cal.App.3d 535, 539, the court held: "[T]he terms 'control' and 'right to control' are aspects of a single overriding inquiry into when the law may punish an individual who is exercising such a degree of intentional direction over contraband that he can be justifiably and fairly punished in the same manner as if he were indeed in actual physical possession of a controlled substance. Implementation of this policy necessarily encompasses a potentially wide variety of conduct in a wide variety of settings, all directed by such factors as the alleged offender's capacity to direct the illicit goods, the manifestation of circumstances wherein it is reasonable to infer such capacity exists and the degree of direction being exercised by the accused over the contraband." As Armstrong explains, "the totality of circumstances will determine whether a defendant has exercised the requisite control over contraband in the hand of another." (Ibid.)

Here, the totality of the circumstances established that Mariano had the requisite control over the personal identifying information to be punished under section 530.5, subdivision (c)(2) and (3). At trial, Nyhus testified Mariano was found in the hotel suite with dozens of pieces of personal identifying information belonging to other individuals. Mariano was in the front of the suite, near a trash can holding several pieces of personal identifying information. Nyhus testified that, when the officers entered the suite, Mariano did not greet or acknowledge them but walked quickly to a room at the back of the suite. It was 2:00 a.m., yet Mariano was awake and alert. Mariano gave a less than credible explanation for being in the hotel suite at 2:00 a.m.: He claimed he was there to change the rotors on Tena's vehicle. But, as Nyhus testified, Mariano had no tools or auto parts with him and his clothing showed no signs of grease or dirt. Theofficers found no toiletries or...