Friday, September 21, 2012

False Test Scores, Fraudulent Drivers’ Licenses and Computer Fraud

After she was charged with “two counts of false government documents activity” in violation of California Penal Code § 113, “one count of attempted false government documents activity” in violation of California Penal Code §§ 113 & 664, “five counts of filing false or forged instruments” in violation of California Penal Code § 115(a) and “three counts of fraudulent computer access” in violation of California Penal Code § 502(c), Shamsha N. Laiwala initially pled “not guilty to all charges”.  People v. Laiwala, 2012 WL 3834895 (California Court of Appeals 2012).   

She then agreed to plead guilty to four of the charges, “in return for a dismissal of the remaining charges and a four-year prison term to run concurrently with any federal sentence imposed on the guilty plea” she entered in a separate federal prosecution.  People v. Laiwala, supra.

After entering the plea, Laiwala “returned to court without her lawyer” and said she wanted to withdraw it.  People v. Laiwala, supra.  The court appointed a new lawyer for her and he filed a motion claiming the “charges were legally defective.”  People v. Laiwala, supra.  The court held a hearing on the issue, denied her motion to withdraw the plea and sentenced her to “four years in state prison.”  People v. Laiwala, supra.  She appealed that decision. People v. Laiwala, supra.

The opinion notes that the charges against Laiwala and her two codefendants,

Darryl Maxwell and Andrea Howard, stemmed from numerous contacts by an undercover agent with [Laiwala] at her place of business during the period from December 2007 through April 2008. On several different occasions, [she] discussed with the undercover agent various options for buying fictitious documents, including drivers' licenses, Social Security numbers, birth certificates, vehicle registrations, and traffic school completion certificates.

[Laiwala]  told the undercover agent he could purchase a birth certificate and Social Security number for $1500, and a traffic school completion certificate for $130. Maxwell, an employee of the Department of Motor Vehicles (DMV), assisted [Laiwala] by processing false DMV test scores, and Howard assisted in obtaining false Social Security numbers.

People v. Laiwala, supra. 

After dealing with some procedural issues, the Court of Appeals took up Laiwala’s first argument, which was the “deficiency” of “the charges in counts 5 and 6” of the charging document filed against her.  People v. Laiwala, supra.  In pleading guilty to counts 5 and 7, Laiwala pled guilty to violating California Penal Code § 502(c), which

provides in pertinent part: `Except as provided in subdivision (h), any person who commits any of the following acts is guilty of a public offense: [¶] (1) Knowingly accesses and without permission alters, damages, deletes, destroys, or otherwise uses any . . . computer . . . in order to . . . devise or execute any scheme or artifice to defraud, deceive, or extort.’

People v. Laiwala, supra. 

Counts 5 and 6 charged Laiwala

as an aider and abettor of codefendant Maxwell who, using his computer during working hours at the DMV, entered false test scores into the DMV computer system to assist defendant in their scheme to facilitate the issuance of fraudulent drivers' licenses.

People v. Laiwala, supra. 

As I’ve noted in earlier posts, aiding and abetting (or accomplice) liability is a derivative type of criminal liability:  Assume A tells B he wants to kill his wife but needs B to buy the murder weapon; B buys the weapon and gives it to A, who uses it to kill his wife.  A can be charged with and convicted of murder because he purposely killed his wife, i.e., he directly committed the crime of murder.  B can also be convicted of murder because he aided and abetted A’s crime; his guilt is derivative, i.e., derives from A's crime.  Wikipedia has an entry on this, if you’re interested.

In challenging her conviction on Counts 5 and 6, Laiwala relied on California Penal Code § 502(h)(1), which states that § 502(c) does not

apply to punish any acts which are committed by a person within the scope of his or her lawful employment. For purposes of this section, a person acts within the scope of his or her employment when he or she performs acts which are reasonably necessary to the performance of his or her work assignment.

Laiwala argued that Maxwell was

using his work computer to enter the fraudulent DMV test scores, had not obtained access to the computer unlawfully, and therefore under . . . the language of California Penal Code § 502(h)(1), his conduct was not criminal since it was performed within the course and scope of his lawful employment. As such, [Laiwala] could not be liable for aiding and abetting a noncriminal act.

People v. Laiwala, supra. 

The Court of Appeals was not convinced.  It noted, first, that in interpreting statutes courts must give them “a reasonable and common sense construction in accordance with the apparent purpose and intention of the lawmakers -- one that is practical rather than technical, and that will lead to a wise policy rather than to mischief or absurdity.” Bush v. Bright, 264 Cal.App.2d 788  (California Court of Appeals 1968). It also noted that California Penal Code § 502(a)

contains the following expression of legislative intent: `It is the intent of the Legislature in enacting this section to expand the degree of protection afforded to . . . governmental agencies from tampering, interference, damage, and unauthorized access to lawfully created computer data and computer systems. . . .’

`The Legislature further . . . declares that protection of the integrity of all types and forms of lawfully created computers, computer systems, and computer data is vital to the protection of the privacy of individuals as well as to the well-being of . . . governmental agencies, and others within this state that lawfully utilize those computers, computer systems, and data.’

People v. Laiwala, supra.

The Court of Appeals found that

[i]t cannot reasonably be argued that in enacting Penal Code section 502 for the purpose, in part, of protecting the integrity of governmental databases and computers, the Legislature intended that public employees and their cohorts be protected from criminal prosecution for using their work computers to enter fraudulent data for private gain. 

Entering fraudulent DMV test scores in furtherance of a criminal scheme to fabricate fraudulent drivers' licenses plainly is not an act `reasonably necessary to the performance’ of any DMV employee's work assignment.

People v. Laiwala, supra (emphasis in the original).

It also rejected Laiwala’s claim that the Court of Appeals earlier decision in Chrisman v. City of Los Angeles, 155 Cal. App. 4th 29 (California Court of Appeals 2007) supported her argument:

In Chrisman, a police department filed administrative charges against one of its officers, seeking his termination for misuse of the officer's work computer, among other charges. . . . The `gist’ of the computer misuse charges, based on § 502, was that the officer, while on duty, had searched department databases on his work computer for information about friends and celebrities. . . . There was no dispute the officer had no work-related purpose for the computer searches. 

Chrisman explained however that `scope of employment in section 502, subdivision (h)(1) cannot be read so narrowly as to render an employee's conduct criminal under § 502 merely because the employer disapproved of it. . . . The officer's conduct was against department policy and could be described as misconduct, but there were no allegations the officer entered false information in furtherance of a larger scheme to create fraudulent government documents.

The conduct at issue in Chrisman is not remotely comparable to the computer fraud at issue here.

People v. Laiwala, supra.

Laiwala also argued that she should be allowed to withdraw her guilty plea to Counts 9 and 10 because the charges were “defective.”  People v. Laiwala, supra.  These two counts charged Laiwala with violating California Penal Code § 115(a), which provides as follows:

Every person who knowingly procures or offers any false or forged instrument to be filed, registered, or recorded in any public office within this state, which instrument, if genuine, might be filed, registered, or recorded under any law of this state or of the United States, is guilty of a felony.

People v. Laiwala, supra.

According to the court, “Count 9 was based on the procurement and offering of a fraudulent driver's license application,” while “count 10 was based on a false vehicle transfer form and false smog, brake and lamp certificate.”  People v. Laiwala, supra.

Laiwala argued that

her conduct could only lawfully be charged as a misdemeanor under Vehicle Code § 20, which reads: `It is unlawful to use a false or fictitious name, or to knowingly make any false statement or knowingly conceal any material fact in any document filed with the Department of Motor Vehicles or the Department of the California Highway Patrol.’

People v. Laiwala, supra.

A violation of § 20 is a misdemeanor, while a violation of § 115(a) is, as noted above, a felony. Laiwala argued that the conduct at issue in Counts 9 and 10 should have been charges as § 20 misdemeanors, rather than § 115 felonies.  People v. Laiwala, supra.

She also argued “that the one-year statute of limitation on misdemeanors had expired at the time the felony complaint in this matter was filed on July 16, 2009” which, if true, would have meant she could not have been charged for the conduct noted above.  People v. Laiwala, supra.

In making that argument, she relied on the California Supreme Court’s decision in In re Williamson, 43 Cal.2d 651 (1954).  People v. Laiwala, supra. Under Williamson, if a

`general statute includes the same conduct as a special statute, the court infers that the Legislature intended that conduct to be prosecuted exclusively under the special statute.’ People v. Murphy , 52 Cal.4th 81 (California Supreme Court 2011).

‘Typically the issue . . . arises where the special statute is a misdemeanor and the prosecution has charged a felony under the general statute. . . Such prosecutions raise a genuine issue whether the defendant is being subjected to a greater punishment than specified by the Legislature, and the question for the court  . . . is whether the Legislature intended the more serious felony provisions would remain available in appropriate cases.’ Mitchell v. Superior Court, 49 Cal.3d 1230 (California Supreme Court 1989).

People v. Laiwala, supra.

The Court of Appeals rejected Laiwala’s attempt to analogize her case to the facts in People v. Wood, 161 Cal. App.2d 24 (California Court of Appeals 1958) and, in so doing, also rejected her argument:

[Wood] was an automobile dealer who included false dates of sale and false dates of nonoperation in forms filed with the DMV following vehicle sales. The court explained that such conduct amounted to the filing of documents containing false statements but did not amount to the presentation of a forged instrument.

In contrast, [Laiwala] was charged with procuring and offering counterfeit driver's license applications and related documents for filing with the DMV, as part of a criminal enterprise fabricating false government identification documents. 

Nothing . . . indicates a legislative intent to limit the penalty for such conduct to a misdemeanor. Indeed, other sections of the Vehicle Code and Penal Code provide for the filing of felony charges in connection with the possession and use of counterfeit and forged vehicle registrations and drivers' licenses. . . .

People v. Laiwala, supra.

For these and other reasons, the Court of Appeals upheld the lower court’s refusal to let Laiwala withdraw her guilty plea.  People v. Laiwala, supra.

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