People v. Ngo CA2/5

Filed 9/2/15 P. v. Ngo CA2/5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, B262341

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. GA093334) v.

CUONG CHINH NGO,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, Suzette Clover, Judge. Affirmed. Stanley Dale Radtke, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Steven D. Matthews and Roberta L. Davis, Deputy Attorneys General, for Plaintiff and Respondent.

A jury convicted defendant and appellant Cuong Chinh Ngo (defendant) on two counts of unauthorized use of personal information, in violation of California Penal Code section 530.5. The evidence at trial established that defendant obtained the checking account number of a third party and told his girlfriend to use the account number when paying utility bills. We are asked to decide whether the trial court should have granted the defense request to give a “mistake of fact” jury instruction (CALCRIM No. 3406) to pinpoint for the jury defendant’s argument that he did not know he lacked lawful authorization to use the account number when he provided it to his girlfriend.

BACKGROUND In April 2014, Wa Hing Chan noticed two charges to his Citibank checking account that he did not authorize, one from the Southern California Gas Company and the other from the Walnut Valley Water District. Chan reported the charges to the police. Detective Bing Han of the Monterey Park Police Department investigated the unauthorized charges. He learned that the service address associated with both charges was a residence in West Covina where defendant’s girlfriend was living; he also discovered that both payments had been made using her mobile phone number. Detective Han visited the West Covina residence and spoke to defendant’s girlfriend. Han asked her to call defendant, which she did, and Han spoke to defendant over the phone. Admissions made by defendant during the phone conversation with Detective Han were the heart of the prosecution’s case. Han testified that defendant admitted he obtained the account information used to make the two payments to the utility companies. Defendant told Han that a man named “Ben” he met at the Commerce Casino gave defendant a check and told him that he “could make payments using the information on the check” to satisfy a $300 debt that Ben owed defendant. Defendant admitted that he gave the checking account information to his girlfriend to use to make the two utility payments. Defendant provided Detective Han with a phone number that he claimed was Ben’s, but when Han called the number it was not in service.