Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SCE285353, Luis R. Hanoian, Judge.
HUFFMAN, J.
Manuel Gonzalez Trujillo was convicted following a court trial of robbery (Pen. Code, § 211), evading an officer with reckless driving (Veh. Code, § 2800.2, subd. (a)), taking and driving a vehicle without consent (Veh. Code, § 10851, subd. (a)), receiving a stolen vehicle (§ 496d), possession of a firearm by a felon (§ 12021, subd. (a)(1)), false personation (§ 529, subd. (3)), and resisting arrest (§ 148, subd. (a)(1)).
All further statutory references are to the Penal Code unless otherwise noted.
The court found Trujillo had used a firearm in connection with the robbery (§ 12022.5, subd. (a); § 12022.53, subd. (b)), and found Trujillo had suffered two prison priors (§ 667.5, subd. (b)).
Trujillo was sentenced to a determinate term of 16 years, four months in prison.
Trujillo appeals challenging only his conviction for false personation. He contends there is insufficient evidence to support the felony conviction and it should be reduced to the misdemeanor offense of giving a false name to a police officer (§ 148.9). We agree with Trujillo that there is insufficient evidence to support the felony charge of false personation. Accordingly, we will reduce the conviction for count 7 to the misdemeanor offense of providing false identification to a police officer under section 148.9, and as modified, affirm the judgment and remand the case to the superior court with directions to resentence as to count 7.
STATEMENT OF FACTS
A California Highway Patrol officer ultimately apprehended Trujillo after his car crashed following a high speed chase.
California Highway Patrol Officer Travis Wirth arrested Trujillo at the scene and informed him of his rights pursuant to Miranda v. Arizona (1966) 384 U.S. 436. Wirth asked Trujillo his name and Trujillo responded "Alexander Gonzalez Trujillo, " and provided a date of birth. Alexander Trujillo is appellant's younger brother. After Trujillo was taken to a hospital for treatment of the dog bites he suffered when apprehended by an officer and a police dog, Trujillo was taken to jail. Wirth filled out the appropriate booking information for appellant using the name of Alexander Trujillo with the birth date and information that had been provided by appellant. He confirmed the information with appellant and then booked appellant into the jail as "Alexander Trujillo." Ultimately Trujillo's true identity was learned and he was prosecuted in his own name.
DISCUSSION
Trujillo contends that there is insufficient evidence to prove the crime of false personation as it is defined under section 529. He contends that his only act was to provide a false name and date of birth and that the crime of impersonating another defined in section 529 requires other acts not established by the evidence in this case. Accordingly, he requests the court to reduce his felony conviction under section 529 to a misdemeanor violation of section 148.9.
When we examine a challenge to a conviction based upon a claim of insufficient evidence we apply the familiar substantial evidence standard of review. Under that standard we review the entire record drawing all reasonable inferences in support of the trial court's decision and do not reweigh the evidence or make credibility determinations. Our analysis is limited to determining whether or not there is sufficient, substantial evidence in the record of credible and solid value such that a reasonable trier of fact could have found defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 576; People v. Kraft (2000) 23 Cal.4th 978, 1053.)
The pertinent portions of section 529 provide that: "Every person who falsely personates another in either his private or official capacity, and in such assumed character either: [¶]... [¶] [d]oes 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." Violation of section 529 can be punished as a felony.
Section 148.9 on the other hand, provides that, "any person who falsely represents or identifies himself or herself as another person or as a fictitious person to [certain law enforcement officials], 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 courts that have reviewed convictions under section 529 have noted "[t]here necessarily must be something to distinguish an act punishable as a felony under section 529 from an act punishable as a misdemeanor under section 148.9." (People v. Cole (1994) 23 Cal.App.4th 1672, 1676 (Cole).) There must be something beyond the giving of a false identity in order to distinguish the felony offense from the misdemeanor. (People v. Stacy (2010) 183 Cal.App.4th 1229, 1235 (Stacy).)
In Cole the defendant was arrested on suspicion of burglary. He identified himself under a false name with a false date of birth. The name and date of birth he provided belonged to another individual. The court in Cole found insufficient evidence to support the felony offense because the act of simply offering false identification to a police officer is not enough to qualify as a violation of section 529. That section requires something that compounds the act of false identification, particularly when it places a impersonated individual at risk of some harm or liability. (Cole, supra, 23 Cal.App.4th at p. 1676.)
For example, in People v. Chardon (1999) 77 Cal.App.4th 205 (Chardon), the defendant had been stopped for speeding and gave her sister's name and date of birth. She then signed the traffic citation in her sister's name. On appeal, the court found that the defendant had committed an additional act beyond identifying herself by a false name, and that act had placed her sister at risk for liability. The act of signing the citation in her sister's name and creating a promise to appear placed her sister at risk of potential liability for failing to appear at a scheduled hearing. (Id. at p. 212.)
Similarly in Stacy the defendant had been arrested for a traffic offense. The defendant underwent field sobriety tests and was arrested having given the name of her cousin. At the police station the defendant refused to complete the breathalyzer test or to give a blood sample. (Stacy, supra, 183 Cal.App.4th 1229 at pp. 1232-1233.)
On appeal, the court concluded that there had been an additional act that potentially subjected the defendant's cousin to liability in that the giving of a false identity to the officer and refusing mandatory breath tests could have theoretically exposed her cousin to the consequences of having been thought to have refused to comply with the mandatory breath or blood test requirements. (Stacy, supra, 183 Cal.App.4th 1229 at p. 1235.)
While the acts in Chardon, supra, 77 Cal.App.4th 205, and Stacy, supra, 183 Cal.App.4th 1229, that distinguished those cases from the misdemeanor offense were not substantial, the distinction we draw from those cases is that the act of the defendant created a risk that the relative whose identity the defendant was using could have been subject to liability for failing to appear for the citation or liability in connection with being identified as refusing to comply with the mandatory breath or blood test requirements. However fine the distinction, there is no such act in this case.
Whatever may have happened in this case, the evidence dealing with the defendant's conduct is contained in the testimony of California Highway Patrol Officer Wirth. That testimony indicates that Trujillo gave his younger brother's name and birth date at the time of arrest and when the officer filled out the booking sheet using that information, the defendant confirmed that was his identity.
We can discern no act done by Trujillo beyond identifying himself as his younger brother to support a criminal conviction. Allowing the officer to book him under his younger brother's name did not pose the risk that the younger brother would be charged with failing to appear as in the case of Chardon, supra, 77 Cal.App.4th 205, or that his license would be in jeopardy as in the case of Stacy, supra, 183 Cal.App.4th 1229. Nothing in this record indicates that Trujillo took any action other than identifying himself as his younger brother and confirming that identification during the booking process. In short, the evidence only supports the conclusion that Trujillo falsely identified himself to a police officer within the meaning of section 148.9, a misdemeanor. Accordingly, his felony conviction under section 529 cannot stand and we order the conviction on count 7 reduced to the lesser included offense of violation of section 148.9, providing false identification to a peace officer.
DISPOSITION
The felony conviction for count 7 is reduced to a misdemeanor conviction for violating section 148.9. In all other respects, the judgment is affirmed, and the case remanded to the superior court for resentencing in light of the elimination of the felony conviction for count 7.
WE CONCUR: BENKE, Acting P. J. NARES, J.