People v. Guion

Opinion SIMONS, Acting P. J. Following an automobile accident, one of the drivers, appellant Dellreitta Guión, identified herself to the investigating officer as Jean Haile and arranged to have her son bring a driver’s license in Haile’s name to the scene. Guión then presented that license to the officer. Later that day, Guión admitted she had lied and revealed her true name. Based on these facts, a jury convicted Guión of felony false personation (Pen. Code, § 529, former subd. 3) (former section 529(3)).1 A search of Guión’s apartment conducted several days after she falsely identified herself produced evidence that led to her conviction of two additional charges, possession of a controlled substance (Health & Saf. Code, § 11350), and unlawful acquisition of personal identifying information (Pen. Code, § 530.5, subd. (c)(1)) (section 530.5(c)(1)). Guión appeals from the judgment of conviction, challenging the trial court’s denial of her motion for a trial continuance, the trial court’s instructions to the jury on the identity theft charge (§ 530.5(c)(1)), and the sufficiency of the evidence to support her conviction for false personation (former § 529(3)). In the published portion of this opinion, we conclude there was insufficient evidence of a violation of former section 529(3) to sustain that conviction because that provision requires “more than mere impersonation. It requires that the impersonator use—not just assert—the false identity in one of the — 1429 — ways listed in [the statute’s] three former subdivisions.” (People v. Casarez (2012) 203 Cal.App.4th 1173, 1190 [138 Cal.Rptr.3d 178] (Casarez).) In the unpublished portion of the opinion, we also reverse the identity theft conviction. The judgment is otherwise affirmed. I. Background Guión was charged by information with false personation of Jean Marie Haile-Brown (former § 529(3))2 (count 1); possessing cocaine base (Health & Saf. Code, § 11350, subd. (a)) (count 2); receiving stolen property (§ 496, subd. (a)) (count 3); and unlawfully obtaining personal identifying information (§ 530.5(c)(1)) (count 4). At trial, Guión acknowledged three prior misdemeanor convictions for petty theft and a prior felony conviction for grand theft in the 1980’s, a felony petty theft conviction with priors in 1994, a child abuse arrest in 2003 or 2004, and a battery conviction in 2004. A. Trial Evidence On May 7, 2009, City of San Pablo Police Officer Kenneth White responded to the scene of a vehicle collision between Guión and another driver. Both cars were damaged, and he could not determine which driver was at fault. White asked Guión to identify herself. She was unable to provide identification and first claimed that her name was “Cynthia Dille,” with a date of birth of April 17, 1962. When a records check failed to locate anyone with that name and date of birth, Guión gave her date of birth as January 22, 1959. When White was still unable to find any record of such a person, Guión claimed to be “Cynthia Marshall.” Again no matching records could be found. White told Guión that he would need to take her to the police station to confirm her identity. Guión then claimed to be Jean Marie Haile and said she would call her son to bring her identification. Her son arrived and handed Guión a California driver’s license in Haile’s name, with what appeared to be Guión’s photograph. Guión then handed Haile’s driver’s license to White, saying, “See, this is me.”3 Based on the appearance of the driver’s license, White believed it was fake. When confronted, Guión admitted the identification was false but claimed she could not obtain real identification because she was in the federal witness protection program. White placed Guión under arrest. As they drove to the police station, Guión volunteered her real name and said she had been using Haile’s name for years. — 1430 — Haile testified that her identification, including her driver’s license, had been lost or stolen three times in the previous five years, she did not know Guión, and Guión did not have permission to use her identification.4 Her driver’s license number matched the number on the false identification Guión presented to Officer White.5 On May 12, 2009, in the course of an investigation sparked by Guión’s use of a false name, City of San Pablo Police Detective Daniel Wiegers searched Guión’s residence pursuant to a warrant. He found rock cocaine that Guión admitted was hers. He also found Medi-Cal paperwork in several different names, with different Social Security numbers and dates of birth; a photocopy of a Health Plan of San Mateo employee identification badge with the name Vernon C. Pierce under Guión’s picture; identification cards in the names of Wilfred Stevenson, Michael Stone, and Adriana Amaya-Abella; a driver’s license for Davion Butler; a credit union ATM/check card for Amy Sindicic; Chase Bank correspondence for Arcelia Galan; and bills and bank correspondence for Ivory Lang. Amaya-Abella testified at trial that the identification card in her name found in Guión’s apartment belonged to her, she had lost it in San Leandro in or before 2004, and Guión did not have her consent to possess it. Guión testified in her own behalf, and said she gave White false names because her own driver’s license had been suspended. She said a friend she knew only as “Cookie” had left Haile’s driver’s license at her home. Guión said her son handed the license directly to Officer White, and she thought he had provided her true identification card. She offered various explanations for the items that were found in her home. B. Verdicts and Sentence At the close of the People’s evidence, the court dismissed count 3 following a defense motion under section 1118.1. The jury found Guión guilty on the three remaining counts. The trial court sentenced Guión to the lower term of one year four months in state prison on count 1, along with a concurrent prison term of one year four months on count 2, and a concurrent county jail term of one year on count 4. Guión filed a timely notice of appeal from the judgment of conviction. — 1431 — II. Discussion A., B.* C. Sufficiency of Evidence of False Personation (Former § 529(3)) Guión contends the evidence does not support her conviction for false personation under former section 529(3). Former section 529 provides in part: “Every person who falsely personates another in either his or her private or official capacity, and in such assumed character either: [f] 1. Becomes bail or surety for any party in any proceeding whatever, before any court or officer authorized to take such bail or surety; [][] 2. Verifies, publishes, acknowledges, or proves, in the name of another person, any written instrument, with intent that the same may be recorded, delivered, or used as true; or, [f] 3. Does any other act whereby, if done by the person falsely personated, he might, in any event, become liable to any suit or prosecution, or to pay any sum of money, or to incur any charge, forfeiture, or penalty, or whereby any benefit might accrue to the party personating, or to any other person; . . . .” (Italics added.) A person who violates section 529 commits either a misdemeanor or a felony. Guión asserts, in order to establish a violation of former section 529(3), there must be proof she committed some affirmative and distinct act beyond falsely identifying herself to White that might have exposed Haile to liability or produced some benefit to herself,10 and that the prosecution failed to prove the necessary “additional act.” Specifically, she maintains: “[She] gave a false driver’s license bearing the personal information of . . . Haile to . . . White. However, [she] did nothing else while impersonating . . . Haile .... The prosecution urged the jury to convict on the theory that by offering Haile’s name to the police, [Guión] subjected [Haile] to civil liability for the automobile accident. The problem with this theory is [that] it collapses the additional act requirement into the false personation requirement.” (Italics added.) 1. The “Additional Act” Requirement The proper interpretation of former section 529(3) is a question we review de novo. (People v. Singleton (2007) 155 Cal.App.4th 1332, 1337 [66 — 1432 — Cal.Rptr.3d 738] (Singleton).) “ ‘As in any case involving statutory interpretation, our fundamental task here is to determine the Legislature’s intent so as to effectuate the law’s purpose. [Citation.] We begin by examining the statute’s words, giving them a plain and commonsense meaning. [Citation.] ....’” (Casarez, supra, 203 Cal.App.4th at p. 1182, quoting People v. Murphy (2001) 25 Cal.4th 136, 142 [105 Cal.Rptr.2d 387, 19 P.3d 1129].) “Under section 529, it is either a misdemeanor or a felony to falsely impersonate another person and, while doing so, commit an additional act.” (Casarez, supra, 203 Cal.App.4th at p. 1179, fn. omitted.) “The additional act may be one of three types, as the statute provided.” (Ibid.) Section 529 is clear that the prohibited act is not only separate from the false personation, but may not occur before the falsehood; the act must occur while “in such assumed character.” Although the People do not dispute Guión’s construction of former section 529, the dissent contends she misinterprets the statute, and no additional act is required beyond a misidentification that, in context, exposes the one falsely personated to liability or creates the benefit specified. (Conc. & dis. opn., post, at pp. 1437-1438, 1440, 1447.) According to the dissent, Guión violated former section 529(3) because her false identification triggered a potential liability for Haile for the accident that preceded the falsehood. The dissent’s interpretation is contrary to the language of the statute and the cases that have interpreted it. In People v. Robertson (1990) 223 Cal.App.3d 1277, 1279 [273 Cal.Rptr. 209] (Robertson), the defendant was convicted of false personation under former section 529(3) after falsely identifying himself to police as his brother when he was caught stealing a truck. (Robertson at p. 1279.) In evaluating the elements of former section 529(3), the court stated, “z'n addition to the act of impersonation itself [there must be] an ‘act’ which, had it been done by the person falsely personated, might have subjected that person to either a suit or some kind of debt or fine; or which benefitted the defendant or ‘any other person’ in some way.” (223 Cal.App.3d at p. 1281, italics added.) The court concluded the additional act requirement had been met, as the defendant not only falsely identified himself in the first instance, but continued masquerading as his brother throughout his arraignment, signed his brother’s name to a booking form and an own-recognizance release form, and failed to appear at a scheduled hearing, resulting in the issuance of a bench warrant for his brother’s arrest. In People v. Cole (1994) 23 Cal.App.4th 1672 [28 Cal.Rptr.2d 788] (Cole), the defendant was arrested for burglary and. gave the officer a false name and birth date. (Id. at p. 1674.) Under the dissent’s reasoning, this alone should — 1433 — satisfy the requirements of former section 529(3); providing another person’s name might assist the arrestee in avoiding or delaying the consequences of his crime and might cause the other person’s arrest and incarceration. But the court in Cole reversed the defendant’s conviction for false personation because no separate act was committed while the arrestee was acting in his false role. (Cole, at pp. 1675-1676, relying on Robertson, supra, 223 Cal.App.3d 1277.) In People v. Chardon (1999) 77 Cal.App.4th 205 [91 Cal.Rptr.2d 438], the defendant was convicted of false personation under former section 529(3) after falsely identifying herself to police as her sister when she was stopped for speeding with a suspended license. (Chardon, supra, 77 Cal.App.4th at pp. 208-209 [91 Cal.Rptr.2d 438].) She relied on Cole, arguing her acts were all “ ‘part of the act of providing the false information’ and did not include ‘any other act’ which would expose her sister to liability.” (Id. at p. 212.) The court disagreed, finding that, after initially providing false identification information to the officer, the defendant engaged in an additional act that exposed her sister to further criminal liability by signing her sister’s name “to the citation’s promise to appear.” (Ibid.) In People v. Stacy (2010) 183 Cal.App.4th 1229 [108 Cal.Rptr.3d 312] (Stacy), the defendant provided her cousin’s name and an incorrect birth date to a police officer following her detention for driving under the influence. (Id. at p. 1234.) Despite the officer’s repeated requests that she provide her true name, the defendant maintained her false identity. (Id. at p. 1232.) While in that “assumed character,” she refused to complete a required second breathalyzer test or provide a blood sample, even though she was advised her refusal to complete these tests would result in the automatic suspension of her driver’s license. (Id. at pp. 1232-1233.) Subsequently, the police established the defendant’s tme identity. (Id. at p. 1233.) On appeal, the defendant argued there was insufficient evidence she committed another act beyond falsely identifying herself. (Id. at p. 1235.) The court disagreed; “Under [former section 529(3)], it is a felony to impersonate another person, and, while doing so, commit any other act that (1) if done by the person being impersonated, might cause that person liability for any prosecution, or (2) might benefit the impersonator in some way.” (Stacy at p. 1234, italics added, fn. omitted.) “The additional act required by section 529 is something beyond, or compounding, the initial false personation to the arresting officer; it must be more than simply providing information regarding the false identity.” (Id. at p. 1235.) The court found sufficient evidence to convict the defendant on the charge of false personation because she “refused to complete the mandatory second breath test or consent to having her blood drawn” and “[h]er refusal to complete the chemical testing, while acting as [her cousin], put [her cousin] at risk of liability for refusing to submit to and/or complete the chemical testing requirements” under the Vehicle Code. (Ibid.) — 1434 — Finally, the court in Casarez considered the sufficiency of the evidence to sustain a conviction for false personation in the absence of an act committed while in the assumed character. In that case, the defendant provided a false name and birth certificate to avoid being taken into custody on an outstanding warrant, but the court found insufficient evidence to sustain the conviction because he did not use the false identity in one of the ways listed in the statute. (Casarez, supra, 203 Cal.App.4th at pp. 1178, 1190, 1192.) In so holding, the court undertook an extensive review of section 529 in the context of the statutory scheme and the cases considering that provision. The court explained, “Without an additional act, the mere impersonation generally constitutes only a misdemeanor,” noting that a contrary construction would render section 529 duplicative of other penal statutes making false personation a misdemeanor. (Casarez, at pp. 1190, 1192; see, e.g., §§ 529a [offering a false birth certificate with the intent to represent oneself as another person], 529.5 [possessing a fake driver’s license], 529.7 [possessing an official driver’s license to which one is not entitled], 148.9 [falsely identifying oneself to a peace officer during a lawful detention or arrest in order to evade proper identification].) The Casarez court stated: “We assume the Legislature had section 529 in mind when it later added sections 529a, 529.5, and 529.7—purposely defining new misdemeanor crimes that are distinguishable from section 529 and its additional act requirement. Creating a misdemeanor in section 529a that already existed as a felony in section 529, its nearest neighbor, would have been an utterly irrational legislative act. We will not attribute such a senseless absurdity to the Legislature. [Citation.]” (Casarez, at p. 1192, italics added.) As these decisions make clear, former section 529(3) requires more than “proof that the defendant falsely personated another real person in a context that exposed the impersonated individual to potential liability or provided someone a relevant benefit,” as the dissent would hold (conc. & dis. opn., post, at p. 1447); it requires an act separate from the false identification that occurred while the defendant was acting “in such assumed character.”11 2. The Sufficiency of the Evidence to Show an “Additional Act” by Guión The People accept our interpretation of the statute, but contend the evidence shows Guión committed the requisite additional act. Once the statute is construed, the question of whether the evidence presented at trial is — 1435 — sufficient to establish a violation of the statute, as so construed, is subject to deferential review. (Casarez, supra, 203 Cal.App.4th at p. 1182.) Our “task is to ‘review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’ [Citation.]” (Singleton, supra, 155 Cal.App.4th at p. 1339.) The People argue, “[Guión] did more than orally identify herself as Jean Haile. After . . . White performed a [computer] check on the name and found no match, [Guión] called her son, who arrived at the scene with Haile’s driver’s license. When [Guión] produced the driver’s license, Haile was potentially exposed to liability for the car accident .... When [Guión] presented the license, the violation of section 529 was complete.” Thus, the People contend, in effect, that the statute’s requirement of a separate act following the false personation was satisfied by the additional effort undertaken by Guión to substantiate her oral misidentification. The court in Cole rejected a similar contention. While sitting in the patrol car after his arrest for burglary, the defendant in that case falsely identified himself as “Larry Quesenberry” and provided Quesenberry’s birth date. (Cole, supra, 23 Cal.App.4th at p. 1674.) After a computer check, the officer asked the defendant if his middle name was “Ray,” and he falsely responded that it was. (Ibid.) The court concluded the defendant’s conduct did not violate section 529: “[G]iving a false birth date and middle name was no more than part of the act of providing the false information upon which the false identity was based. Each statement made in the course of providing contemporaneous statements amounting to false identification logically cannot be construed as separate acts compounding each prior statement.” (Cole, at p. 1676; see Casarez, supra, 203 Cal.App.4th at pp. 1191-1192 [“[Sjection 529 requires an additional act beyond . . . false identifications to elevate the crime to a felony, and that act must be more than merely offering an identifying document, such as a driver’s license or birth certificate to support the impersonator’s false claim of identity.”].) Accordingly, we hold former section 529(3) requires proof of an act committed by Guión, while she was in her false role, that might have caused Haile liability or provided benefit to Guión. Because there is no substantial evidence that this occurred, Guión’s conviction on count 1 cannot stand. 3. The Proper Disposition on Count 1 We asked the parties for supplemental briefing regarding the appropriate disposition if we concluded Guión’s conviction of false personation was not supported by the evidence. In response, the People cited section 148.9, — 1436 — subdivision (a) and Cole, supra, 23 Cal.App.4th at pp. 1675-1677, contending we should “modify the judgment to reflect a conviction of the lesser included offense of false identification to an officer during a lawful detention or arrest to evade proper identification.” Guión argues that the proper remedy is to simply reverse the conviction because “section 148.9 is not a lesser included offense” of section 529 and the court therefore lacks authority to modify the judgment in this manner. We agree with Guión. Section 1181, subdivision 6 allows a reviewing court to modify the verdict without ordering a new trial “[wjhen the verdict ... is contrary to law or evidence [and] the evidence shows the defendant to be not guilty of the degree of the crime of which he [or she] was convicted, but guilty of ... a lesser crime included therein . . . .” In California, “a lesser offense is necessarily included in a greater offense if either the statutory elements of the greater offense, or the facts actually alleged in the accusatory pleading, include all the elements of the lesser offense, such that the greater cannot be committed without also committing the lesser. [Citations.]” (People v. Birks (1998) 19 Cal.4th 108, 117-118 [77 Cal.Rptr.2d 848, 960 P.2d 1073].) Neither test is satisfied here. The statutory elements of former section 529(3)—false personation and the commission of an additional act that might expose the person who is falsely personated to liability or benefit the defendant—do not include all of the elements of section 148.9. (See § 148.9, subd. (a) [“Any person who falsely represents or identifies himself or herself as another person ... to any peace officer . . . upon a lawful detention or arrest of the person, either to evade the process of the court, or to evade the proper identification of the person by the investigating officer is guilty of a misdemeanor.”].) The facts alleged in the accusatory pleading in this case restate the statutory language of former section 529(3) and do not include the elements of section 148.9, subdivision (a). In Cole, supra, 23 Cal.App.4th 1672, the court imposed the disposition sought by the People in this case. Cole reversed a conviction for false personation and directed the trial court to enter a judgment of conviction for a violation of section 148.9. Because Cole did not provide any legal authority or analysis supporting its disposition and simply concluded the record supported such a conviction, we decline to follow it. We therefore deny the People’s request to modify the judgment and reverse Guión’s conviction on count 1. III. Disposition The judgment of conviction is reversed as to counts 1 and 4, and the matter is remanded to the trial court for retrial of count 4 and resentencing. In all other respects, the judgment is affirmed. Needham, J., concurred. Footnotes [1] All undesignated section references are to the Penal Code. Former section 529(3) is substantively identical to current section 529, subdivision (a)(3). (Compare Stats. 2011, ch. 15, § 381, eff. Apr. 4, 2011, operative Oct. 1, 2011, with Stats. 1983, ch. 1092, § 296, p. 4050, eff. Sept. 27, 1983, operative Jan. 1, 1984.) [2] A December 2010 amended information generally alleged a violation of section 529, but the charging language clearly refers to former section 529(3). [3] White testified he believed that the picture on the identification was of Guión. Subsequent investigation determined the picture was of a woman named Barbara Nichols, whom Guión said she knew as “Cookie.” [4] At the time of trial, Haile’s married name was Haile-Brown. [5] Guión asserts in her reply brief that there was no evidence the fake license actually contained Haile’s driver’s license number. This is incorrect. [*] See footnote, ante, page 1426. [10] “Section 529, by referring to impersonation of ‘another,’ contemplates impersonation of a real or actual (as opposed to fictitious) person. [Citation.]” (Lee v. Superior Court (2000) 22 Cal.4th 41, 45 [91 Cal.Rptr.2d 509, 989 P.2d 1277].) Of the false names Guión provided on May 7, 2009, only Haile was proved at trial to be a real person. [11] The dissent distinguishes this line of cases on the basis that they all derive from Robertson’s effort to decide a statutory preemption issue, which is not presented here. (Conc. & dis. opn., post, at pp. 1444—1445.) Although Robertson addressed a preemption issue, the additional act requirement recognized by that decision and its progeny does not turn on the preemption question.