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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