People v. Shabtay

In People v. Shabtay (2006) 138 Cal.App.4th 1184, a defendant operating an identity theft scheme obtained 11 access cards in the names of other persons during a twelve-month period. The prosecution charged the defendant with and convicted him of two counts of violating section 484e, subdivision (b), which makes it illegal for a "person, other than the issuer" to "acquire access cards issued in the names of four or more persons" "within any consecutive 12-month period." (Ibid.) The Court of Appeal reversed the defendant's conviction on one of the two counts, holding "only one conviction within any consecutive 12-month period is permissible . . . under section 484e, subdivision (b)." (People v. Shabtay, supra, 138 Cal.App.4th at p. 1188.) In Shabtay, the Attorney General made the same argument asserted here, "that the defendant's failure to demur to the information pursuant to section 1004 constitutes a waiver of the multiple-conviction issue." (People v. Shabtay, supra, 138 Cal.App.4th at pp. 1191-1192.) The Court of Appeal rejected this claim. "While a demurrer does lie to challenge an improper charging of more than one offense under section 954, the failure to demur does not justify a multiple conviction that is improper as a matter of law. A demurrer would have prevented a trial on two counts of violating section 484e, subdivision (b). Having failed to demur, defendant cannot complain about any prejudice he may have suffered from facing trial on a count that should not have been prosecuted, because the failure to demur waives the issue. However, the lack of a demurrer does not mean defendant waives any objection to an unwarranted multiple conviction." (Id. at p. 1192.)