No. 2--05--0458 Filed: 5-9-07

______________________________________________________________________________ IN THE AP PE LLATE COU RT OF ILLIN OIS SECOND DI STRICT

______________________________________________________________________________ THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINO IS, ) of Wi nn eb ag o C ou nt y. ) Plaintiff-Appellee, ) ) No. 03--CF--3689 ) MARIA D. MONTOYA, ) Honorab le ) Rosemary

Collins, Defend ant-App ellant. ) Judge , Pres idin g.

___________________________________ ____________________________ _______________

_ JUSTICE BOWMAN de livered

the opinion of the c ourt: Following a stip u lated bench trial, defendant, Maria D. Montoy a, was convicted of two counts of identity theft (72 0 IL CS 5/16G--15(a)(1) (West Supp. 2003)). The trial court sentenced defenda nt to 30 mont

hs' probation and 100 hours of public service work and imposed a $500 fine. Onappeal, defe ndan t argues that: (1) the evidence is insufficie nt to sustain her convictions of identity theft, and ( 2) she is ent itle d to a $ 5 credi t again st her fine. We aff irm de fendan t's convicti ons but modi fy

the sente ncing o rder to r

eflect t he $5 cre dit. I. BACKGROUND OnFebruary

18, 2004, defenda

nt was indi cted on two counts of identity theft. Cou

nt I all eged that " between February

of 2000 and December of 2003 *** defenda nt knowingly used personal identifying information of Mona L. Cantu, by using the social security

number of Mona Cantu, to fr au du le nt ly obtain money ex cee di ng $ 10, 000 and not ex cee di ng $ 100 ,00 0." Co unt IINo. 2--05--0458

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alleged that "between December of 2002 and August of 2003 *** defendant knowingly us e d personal ide ntify

ing in formation of Mona L. Cantu, by using the social security

number of Mona Cantu, to fraudulently obtain ser vices exceeding $10,000 and not exceeding $100,000." The charges

arose after defendant, an undocumented immigrant, purcha sed a soci al secu rity card b earing C antu's social security number a

nd used it toobtain a job. A stipulated bench trial commenced on March 1, 2005, at which the following evidence was adduc ed. Defendant

applied t o work f or Terr a Harve st Foo ds us ing Can tu's name and social se curity number. From

February 2000 to December 2003, defendant rece ived $53,702.57 in wages at Terra Harves tunder the

name and

social se curity

number of Cantu. As part of her employment packa

ge, defendant was issued health insurance from Blue Cro ss Blue Shie ld of I llinois (B lue Cross) , also under Cantu's name and social securi ty numbe r. Between December 2002 a nd August 2003, defendant received medical services at Swedish Amer ican Hospital that involved the delivery of her baby. The medic al services totaled approximately $31,000. Defendant

arranged for

the Blue Cross stat

ements to be mailed to her own address, and she paid the medical and insurance bills. However, when Cantu cha nged her mailin g addr

ess, defend ant's bills b egan arriving at Cantu' s home. After receiving sever al bills that involved a hospital stay

and medic al testing , Cantu que stioned B lue Cross a bout these

charges . From thi s in qu ir y, Cantu le arned th at someone was using her name

and socia

l securit y nu mber to ob tain insuranc e throug

h Terra Harves t Foods. Cantu reported these findings to the L oves Park police department. The police conducte d

a follow-up investigation and learned that def endant w as e arning wages and re ceiving benefits at Terra Harvest Foods under Cantu's name. When the police brought a photograph of Cantu to TerraNo. 2--05--0458

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Harves tFoods , defen dant's supervisor stated that the woman in the photograph was not the person he knew as "Mona Cantu." The Loves Park police interviewe d defendant on December 22 , 20 03. In itially, defendant identified herself as Mona Cantu. The police asked for her mother's maiden

name, and defendant did not answer this question. Defendant told the police she was using someone e lse's "card." Defendant

was t hen t rans porte d to th e pol ice s tation, wh ere she g ave a state ment e xp laini ng the circumstances by which she obtained Ca ntu's social security

number. According

to defendant, she drove to Ch icago with a person named Sylvia, w ho loaned her $100 and

obtained the socia l securit y card for def endant. In her statement, de fendant admitted using Cantu's name and social sec uri t y number to obtain a j ob. Defendant also stated that she did not use the social security number anywher e else. There was no evidence tha t defendant knew that Cantu was a real person. OnApril 8, 2005, defendant was convicted of two counts of identity theft. On May 9, 2005, defendant filed a motion for a new trial, which the trial c ourt denied. At defendant's sentencing he aring on May 9, 2005, the State present ed evidence of the financial difficulty that defe ndant's actions had caused Cantu. First, the I llinois Department of Employment

Service s attempted to re collect u nemploy ment bene fits that h ad been provided to Cantu based on def endan t's employ

ment a t Terra Harves t Foods. Se cond, the State of I

llinois with

held Cantu 's state tax refund because it believed that Cantu was working at defendant's job and not pay ing taxes. Third, th e fede ral government withheld a portion of Cantu's fe deral tax refund based on defend ant's employment. L ast, Cantu was forced to dispute

various medical charges that defe ndant had incurre d. Defe

ndant wa s sentenc ed to 30 mon ths' pro bation an d 100 hour s o f public service work and was fined $500. Defendant timely appealed.No. 2--05--0458

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Theft Defendant

first argues that her actions did not constitute identity theft. Spe c ifically, she argues that she did not "fraudulently obtain" money and ser

vices when she used

Cantu's name and social security

number to

obtain a j ob, beca

use she earned her wage s and the insurance benefits were part of her employme

nt package. I

n reviewing a challenge to the suffi ciency of the evidence, we determine whether, after viewing the evide nce in the light most favorable to the pro se cution, any rational trier of

fact could hav e found the essent ial eleme nts of the crime be yon d a reas onable do

ubt. Peoplev. Collins , 214 Ill. 2d 206, 217 (2005). I n this case, b ecause the facts are not in dispute, defend ant's guilt is a question of law, which we review de novo . Se e Pe ople v. Smit h , 191 Ill. 2d 408, 411 (2000). We begin by

setting forth the relevant provisions of the I de nt it y T heft L aw (720 I LCS 5/16G--1 et seq. (West Supp. 2003)), which was enacted in 1999. The legislative declaration for the Ide ntity Theft L aw provi des as fo llows: "(a) It is the public p olicy of th is State that the substantial burden placed upon the economy of this State as a result of the rising incidence of i dentity th eft and the negative effect of this cr ime on the

People of this State a

nd its victi

ms is a matter of grave concer n to the People of this State who have the right to be pr ot ec te d i n t he ir he al th , s af et y, and welfare fromthe eff

ects of th is crime, and therefore identity theft shall be identified

and dea lt with swiftly and appropr

iately considering

the onerous nature of the crime." 720 IL CS 5/16G-- 5(a) (West Supp. 2003).No. 2--05--0458

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Under section 1 6G--15( a)(1), "[a] pers on commits t he offe nse of ide

ntity t heft when he or she kn ow in gl y: (1) uses

any persona l identify ing information or

persona l identifi cation do cume nt of another person to fraudul ently

obtain credit, mon ey, goods, services, or other propert y." 720 I LCS 5/16G--15(a)(1) (West Supp. 2003). Se ction 16G --25 the n states that "[i]t is no def ense t o a char ge of *** identity theft that the offende r has an interest in the credit, money , goods, services, or other property." 720 IL CS 5/16G--25 (West Supp. 2003). We are asked

to constr ue the phr

ase "f raudule ntly obtain" as used in

the statut e. "Be cause the const ruction o f a statut

e is a question of law, the stand ard of r eview is de novo ." Collins , 214 Ill. 2d at 214. The principal rule of statutory construction is to give effect to the legislature 's inten

t. People v. Grever , 222 Ill. 2d 321, 328 (2006). The lang uage o f the stat

ute is the best indication of the legislative intent. Grever , 222 Ill. 2d at 328. To asce

rtain the legisla ture's intent, we

may also consider the purpose and necessity for the law, the evils sought to be remedied, and the goals to be achieved. Collins , 214 Ill. 2d at 214. Further more , we shoul d evalua

te a statu tory provision

as a whole rather than read phrases in isolation. People v. Glisson , 202 Ill. 2d 499, 505 (2002). When the langua

ge is pla in and una

mbiguous , we must a

pply the statut e without re sorting

to further aids of statutory construction. Collins , 214 Ill. 2d at 214. The statute does not define fraud, and this is a case of first impression. "In the absenc e of

a statutory definition indicating leg islative intent, anundefined term must be given its ordinary and popularl y understood meaning." In re Ryan B. , 212 Ill. 2d 226, 232 (2004). Also, "[a] termof wellknownlegal significance

can be presumed

to have that mean ing in a statu te." Advincula v. United Blood Services , 176 Ill. 2d 1, 17 (1996). "Fraud" is defined as a "knowing misrepresentation of the truth or concealment of

a material fact to induce another to act to his or her detriment." Black's L awNo. 2--05--0458

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Dictionary

670 (7th ed. 1999); see also Webs ter's Third New International Dictionary 904 (1986) (defining"frau

d" as " an inst ance or an act of trickery or deceit esp[ecially] when involving misrepresentation: an act of deluding"). "Fra

udulent" means "belonging to or characterized by

fraud [or] *** obtain ed or performed by fraud." Webster's Third New International Dictionary

904 (1986). Int his case, defendant does not contest that she obtained money in the form of wages and services in the form of

insuranc e benef

its. Rathe r, defe ndant con tends tha t she did not "fr audulent ly obtain" money or servic es, because she earned her wages and the insurance benefits were par t of her emplo yment

package. I

n other words, there is no evidence that she intended to def raud Terr a Harves tFoods by

stealing money or by being c ompensat

ed for se rvices not actu all y render ed. Defendant

relies on City of L iberal v. Vargas , 28 Kan. App. 2d 867, 24 P.3d 155 (2001), to support her argument. See People v. Cumbee , 366 I ll. App. 3d 476, 492 ( 2006) (with an issue of first impression, it is instructive to consider other states' treatment of the issue). In Vargas , the defendant admitted that he was not authorized to work in the United

States and that he had bought a social security card under someone else's name so tha t he could obta

in employ ment. Vargas , 28 Kan. App. 2d at 867, 869, 24 P.2d at 156, 157. The defendant was char ged with identity thef

t, which u nder the Kansas statute "is knowingly and with intent to defraud for

econom ic benefit, obtaining, possessing, transferring , using or attempting to obtain, possess, transfer

or use, on e o r more identification documents or personal identification number of anothe r person other than that issued lawfully for the use of the possessor ." Vargas , 28 Kan. App. 2d at 868, 24 P.3d at 156. In reviewing the legislative history

of the statute, the court noted that the statute was intended to protect individua

ls who had

had their identities stolen. Vargas , 28 Kan. App. 2d at 870, 24 P.3d at 157. Accord

in g to t he court , there w as no ment ion of any

intent by the leg islature

toNo. 2--05--0458

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pr otect a t hird party fr

om identity theft. Vargas , 28 Kan. A pp. 2d at 8 70, 24 P.3d a

t 157. Thus , becau se the defendant in Vargas stole a fa lse identi ty r ather th an the ide

ntity of a rea l perso n, th e statute was inapplicable. Vargas , 28 Kan. App. 2d at 869-70, 24 P.3d at 157. The court went on to say tha t even if the statute applied to the facts in that case, the defendant could not be found guilty of

identity theft. Vargas , 28 Kan. App. 2d at 870, 24 P.3d at 157. Noting that the statute required an

"intent to defraud," the court rea soned that the defendant did not intend to defraud his employe

r by stealing

money or by

being compen satedfor ser vices not actually rendered. Vargas , 28 Kan. App. 2d at 870, 24 P.3d at 157. Also, the defendant did not receive any "economic benefit," because he was paid for the time he worked. Vargas , 28 Kan. App. 2d at 870, 24 P.3d at 157. With respect to the argum ent that the defendant's employ er would not have hired the defenda

nt had it known of his

status as a

n illega l immigra

nt, th e court responded that the employer was not defrauded in any

way by t he defe ndant' s actions

. Vargas , 28 Kan. App. 2d at 870, 24 P.3d at 157. At first glance, Vargas appears to support the defendant's position. However, a more recent Kansas decision, State v. O swald , 36 Kan. App. 2d 144, 137 P.3d 1066 (2006), limits the application of Vargas

. I n Oswald , the defendant was charg ed with ide ntity theft for using an other pe rson's n ame and social security c ard to open a cell phone account. Oswald , 36 Kan. App. 2d at 146, 137 P.3d at 1068. The def

endant kn ew the vic

tim, Willhoite, who had provided the defendant with her social security information for the limited purpose of paying a phone bill. Oswald , 36 Kan. App. 2d at 145, 148, 137 P.3dat 1067, 1069. Willhoite never made any pa yments on the

newly established acco

unt, because the defe ndant ar range d for the

cell phone bills to be sent to the defendant's address. Oswald , 36 Kan. App. 2d at 145, 137 P.3d at 1067.No. 2--05--0458

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Relying on Vargas , the defendant argued that she obtained no "economic benefit" from her

use of Willh oite's inform ation. Oswald , 36 Kan. App. 2d at 148, 137 P.3d at 1069. The Oswald

court rejecte d that ar

gument, reasoni

ng that due to her poor credit the defendant would have been unable to establish a cellular account without using Willhoite's identify ing information. Oswald , 36 Kan. App. 2d at 148-49, 137 P.3d at 1069. The Oswald defendan t also reli ed on the l angua ge in Vargas stating that the defendant did not intend to defrau d his employer by stealing money

or by being compensated

for services not actually

rendered. Oswald , 36 Kan. App. 2d at 149, 137 P.3d at 1069. However, the Oswald court stated that this language in Vargas was "c learly dicta" because the Vargas decision was based on the defendant's use of a fra udulent identity, rather than an identi ty that belonged to a real person. Oswald , 36 Kan. App. 2d at 149, 137 P.3d at 1069-70. Vargas , in light of Oswald , does not support defendant. The Oswald

court interpreted Vargas to hold that a

defenda nt can be convicte d of ident

ity t heft only if the stolen identity belongs to a real person. See Oswald , 36 Kan. App. 2d at 149, 137 P.3d at

1069. Thus, Vargas is distinguishable on this basis because defendant in this case used the identity of a real person, Mona

Cantu. Also, the very language in Vargas relied upon by def endant was cha racter ized as " clearly

dicta" by the Oswald court. As a r e sult, defendant's reliance on Vargas for the proposition that she d

id not inten

d to defraud her employer

by stealing mone

y or by being compensated for services not actually re

ndered is unpersuasive. The State urges us to follow Sta te v. Ramir ez , 246 Wis. 2d 802, 633 N.W.2d 656 (2001), where the defendant

admitted to using another person's social security number to obtain a job. The social securit

y number b elonge d to a person living in Nevada. Ramirez , 246 Wis. 2d at 805, 633 N.W.2dat 658. The defendant was charg ed under Wisconsin's identity thef t statute, which statedNo. 2--05--0458

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that "[w]hoeve

r intentionally

uses or a ttempts t o use any pers onal identifying inf ormation or personal identificationdocument

of an indi

vidual t o obtain c redit, money , goods, service s or any thing el se of value without the authorization or consent of the individual and by repre senting that he or she is the individua

l or is act ing with the authorization or consent of the individual is guilty of a Class

D felony." Ramirez , 246 Wis. 2d at 805 n.3, 633 N.W.2d at 658 n.3. A mong other things, the defendant argued that he did not

obtai n a thi ng of value as the result of his unauthorized use of another person's social security

number. Ramirez , 246 Wis. 2d a t 808, 633 N.W.2d at 659. The court rejected that

argument, stating that what the defenda nt ultimately sought and obtained was the compensation and other economic benefits that flowed from the e mployment. Ramirez , 246 Wis. 2d at 808, 633 N.W.2d a

t 659. Be cause

the defendant obtained money in the form of wages as the result of his unauthorized use of another's personal identify ing information, he was gui lty of identit y theft. Ramirez , 246 Wis. 2d at 813, 633 N.W.2d at 662. For the follow

ing rea sons, we hold that

defendant "fraudulently

obtained" both money

and services as a result of her unauthorized use of Cantu's name a nd social security number

. Defendant admitted that she k

nowingl y us ed Cantu' s nameand

social security number

to obtain a job at Terra Harves tFoods, where she received more than $50,000 in wages. As part of her empl oym e nt package, defenda

nt was issu

ed an in s urance policy

in Cantu's name, through which she rece ived approxima

tely $31,000 in

medical s ervice s. Obvio usly, had defend ant no t used Cantu 's name and social securi ty number to obtain a job, she would not have been entitled to receive the wage s an d insurance benefits that

flowed directly

from her employme

nt. While it is true that defendant did not actually steal money or

service s from he

r employ er, she d id obtain employment, compensation, and insurance benefits by misrepre senting herself as someone e lse. Co ntrary to def endant's assertion,No. 2--05--0458

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the statute did not requ ir e her to "defraud" he r employer by

"stealing money " or by " being compensa te d for s ervices not actually rendered" in order to be g uilty of identity

theft. Again, the "frau dulent" behavior in this case consisted of defendant's know ing use of Cantu's identify ing informationto obtain e

mploy ment, wag es, and b enefits t o which sh e would

not otherwise have been entitled. Perhaps more importantly, sec tion 16G--25 of the Identity Theft Law

state s that

"[i]t is no defense to a char ge of * ** identity

theft that the offender has an int erest in the cr edit, money , goods, services, or other property ." (Emphasis added.) 720 IL CS 5/16G--25 (West Supp. 2003). As the State points out, the statute, on its face, defeats defe ndant' s claim that she has a defense to the identity theft charges because

she earned the money

and the insurance benefits. Under the statute, her interest in these items provides no defense. Thus, the fact that defe ndant earned the wages

and qualified for the insurance benefits does not somehow neg ate the fact that they were " fraudul ently obtained." Our holding i s consi stent with the legislative declaration of the Identity Theft Law, which focuses on the substantial burden placed upon the economy as a result of iden

tity theft. See 720 IL CS 5/16G--5(a) (West Supp. 2003). In addition to dece iving her employer, defendant's actions caused Cantu numerous financial difficulties relatingto unemployment benefits, disputed medical bills, and federal and state tax refunds. For this rea son, the legislature stated that "identity theft shall be identified and dealt with swiftly and a ppropriately c onsidering the onerous nature of the crime." 720 IL CS 5/16G--5(a) (West Supp. 2003). Our interpre tation of t he statute is also reinforced when

one cons iders the

legisla tive deba tes. See In re Consolidated Objections to Tax L evies of School District No. 205 , 193 Ill. 2d 490, 502-03 (2000) (although it is no t n ecessa ry to resor t to legis lative his tory

to constr ue a stat ute whoseNo. 2--05--0458

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meaning is plain, the history did not conflict with

the supreme court's interpretation of the statute). When the identity theft leg islation was originally pr oposed, it resembled the Wisconsin identity theft statute discussed in Ramirez , in that ide ntity th eft was d

efined a s "using

another persona l identity to obtain credit, money , goods, service s or other propert y in that per son's na

me without their written permission while representing that one is that person or is acting on t heir behalf." (Emphasis added.) 91st Ill. Gen. Assem., Senate Procee dings, March 24, 1999, at 35 (statements of Sena tor M unez). Anamendment by the

House of Representatives, adopted by the Senate, "[c]larifie[d] the standard for finding the defe ndant g uilty , eliminat

ing con fusing l angua

ge abo ut written permission to simply require that the defendant fraudulently obtained credit, money , goods, service [ sic ] or other propert y inthe name

of another in order for the d efendant to b e found guilt y." 91st I ll. Gen. A ssem., Senate Proceed ings, May

18, 19 99, a

t 18 (s tatements

of Senato r Mun ez) . The amendment, which was "larg ely technical in nature" (91st I ll. Gen. Assem., House Proceedings, May 6, 1999, at 56 (stateme nts of Representative Righter) ), reinforces our interpretation that def endant' s conduc t falls under section 16G--15(a)(1) of the Identity Theft Law. By

representing herself as Cantu (without Cantu 's permission) to obtain a job, defendant "fraudulently obtained" money

and services during the cour se of her

employ ment. B. Credit Against Fine Defend ant's second a

rgumen t is that she is entitled to a $5 credit against her fine. A probab le

cause statement, which lack s a file-stamp and a judge's sig nature, indicates that defendant was arrested on December

22, 2003. A bail bond, which is file-stamped December 23, 2003, shows that defendant posted bond on December 22, 2003. A ccording to the State, the rec ord is "not entire lyNo. 2--05--0458

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clear" that defendant spent a par tial day in custody

before posting bond. Defendant responds that th er e w as no ne ed to po st bo nd on De ce mb er 22 , 2 00 3, un le ss sh e w as in cu st od y. Section 110--14 of the Code of Criminal Procedure of 1963 pr ovides: "Any pe

rson i nc arcerated

on a bailable offense who does not supply bail and against whom a fine is levied on convictionof

such off ense sha ll be allow ed cred

it of $5 fo r each d

ay so incarcerated upon application of the defendant." 725 I

LCS 5/110--14 (West 2002). Any portion of a day in c

ustody cons t itutes

a full day for pur

poses of section 110--14. People v. Stahr , 255 Ill. App. 3d 624, 627 (1994). Also, defend ant's failure

to rais e this is sue in the trial court does not mean it is waived. See People v. Woodard , 175 I ll. 2d 435, 4 47-48, 45 7 (1997) ( the cre dit is not l imited to pe ople who a pply for it at the trial level; as such, the normal rules of waiver do not apply a

nd the right is cognizant on appeal as a matter of course subject to the defenda nt's application). Accord in g to the pro

bable ca use state ment, the bail bond, and the pr

esenten ce report, defendant was arrested on Dec ember 22 , 2 00 3, an d r el ea se d o n b ai l t he sa me da y. We agre e with defendant that the record is sufficiently clear that she spent

a partial day in custody

before posting bond. Accordingly , defendant is entitled to a $5 credit against her f ine. See Stahr , 255 Ill. App. 3d at 627 (where the defendant was ar rested and

releas ed on bail

on the same day , she was entitled t o a $5 credit against her fine). III. CONCL USION For the fore going

reasons , the judg

ment of the

Winnebag o County

circuit c ourt is affirmed as modified to reflect a $5 credit aga inst defendant's fine. Affirmed as modified. McLAREN and BYRNE, JJ., concur.