People v. Bustamante
| Decision Date | 05 September 1997 |
| Docket Number | No. B105801,B105801 |
| Parties | , 97 Cal. Daily Op. Serv. 7339, 97 Daily Journal D.A.R. 11,789 The PEOPLE, Plaintiff and Respondent, v. Julio C. BUSTAMANTE, Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Senior Assistant Attorney General, James W. Bilderback and Gustavo Gomez, Deputy Attorneys General, for Plaintiff and Respondent.
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The California Legislature enacted Penal Code section 113 (misdemeanor section 113), signed by the Governor on September 15, 1994, filed with the Secretary of State on September 16, 1994, and effective on November 30, 1994: 2
"(a) Any person who manufactures or sells any false government document with the intent to conceal the true citizenship or resident alien status of another person is guilty of a misdemeanor and shall be punished by imprisonment in a county jail for one year.
Every false government document that [57 Cal.App.4th 696] is manufactured or sold in violation of this section may be charged and prosecuted as a separate and distinct violation, and consecutive sentences may be imposed for each violation.
On November 8, 1994, the voters passed Proposition 187, which became effective November 9, 1994. This initiative created a second Penal Code section 113 (felony section 113):
"Any person who manufactures, distributes or sells false documents to conceal the true citizenship or resident alien status of another person is guilty of a felony, and shall be punished by imprisonment in the state prison for five years or by a fine of seventy-five thousand dollars ($75,000)." (Emphasis added.)
Appellant Julio C. Bustamante (Bustamante) was charged by way of information with two counts: violations of Penal Code sections 113, "False Government Documents Activity," and 12021, subdivision (a)(1), felon in possession of a firearm. The information as to Penal Code section 113 read as follows: "On or about May 8, 1996, in the County of Los Angeles, the crime of FALSE GOVERNMENT DOCUMENTS ACTIVITY, in violation of PENAL CODE SECTION 113, a Felony, was committed by ... JOSE GARCIA CABRERA [ 3] ..., who did willfully and unlawfully manufacture and sell false government documents, to wit: drivers license, social security, immigration and etc. with the intent to conceal the true citizenship and resident alien status of another person." (Emphasis added.)
Bustamante made a motion pursuant to Penal Code section 995 to set aside the information, raising the issue of the "dueling 113's" and arguing that only the misdemeanor version should apply. The prosecution countered by arguing that the more recent statute, that enacted by initiative, was properly charged and supported by the evidence presented at the preliminary hearing. The trial court concluded that the more recently enacted statute must prevail and accordingly denied the 995 motion. Bustamante waived jury trial and was convicted by the court of the felony violation of section 113 and acquitted of the crime of being a felon in possession of a firearm. A special allegation that Bustamante had served a prison sentence within the last five years pursuant to section 667.5, subdivision (b) was also found to be true. Bustamante was sentenced to the state prison for the statutorily provided term of five years, plus an additional one year for the recent prior commitment to the state prison for a similar offense. Bustamante appeals. We affirm.
The facts are largely undisputed. Los Angeles Police Officer Kenneth Belt (Belt) was conducting an investigation into "paper mills," businesses engaged in the creation of counterfeit documents, particularly those relevant to immigration and citizenship matters. This investigation involved the use of undercover police officers who were videotaped by a commercial television news crew. On May 8, 1996, Belt and his fellow officers, along with the television news crew, went to the vicinity of Independence Avenue and Sherman Way in the San Fernando Valley section of the City of Los Angeles. Belt conducted a surveillance of the area for approximately an hour for the purpose of identifying likely document peddlers. Los Angeles Police Officer Joe Esquivel (Esquivel), acting in an undercover capacity, approached co-defendant Jose Chavez (Chavez) and another individual identified only as Navarette. Esquivel was equipped with a concealed radio transceiver, allowing Belt to overhear his conversations In the meantime, Belt observed Chavez hand the napkin to Bustamante. Los Angeles Police Officer Victor Martin (Martin), also undercover, followed Bustamante and observed him to enter an apartment house located at 7323 Millwood, whereupon Martin lost sight of Bustamante. Shortly thereafter Martin observed Bustamante and two other persons emerge from the apartment building, enter a vehicle and drive toward Sherman Way. Martin remained at the apartment house.
with suspects in the field. Chavez and Navarette each made distinctive hand signals indicating they had "micas" for sale. "Mica" is a slang term for a United States Immigration and Naturalization Service identification card. Esquivel placed an order for a birth certificate and social security card with Chavez for an agreed price of $60. Chavez instructed Esquivel to write down the desired information 4 on a napkin, which was handed to Navarette. Esquivel was further instructed to return in approximately 40 minutes for the finished products and to make payment. Esquivel then left the location.
Belt observed Chavez and Bustamante enter a parking lot at Independence and Sherman Way in a blue Toyota vehicle and park. Chavez took what appeared to be documents out of his pocket and placed them in a nearby trash can. Navarette retrieved the items from the trash can and made contact with Esquivel. Esquivel inspected the birth certificate and social security card, and paid Navarette with three marked $20 bills. Esquivel then placed an order for a second Social Security card by giving Navarette a piece of paper with a name. Esquivel then left. Navarette handed this piece of paper to a person identified as co-defendant Alberto Nunez (Nunez). Belt then observed Nunez to walk out of the parking lot area.
Back at the Millwood apartment, Martin then observed Bustamante to return in the same vehicle with the same two other persons, and to enter a particular apartment at 7323 Millwood. Martin observed the two other persons leave, with Bustamante remaining inside the apartment. Belt then observed Navarette and Chavez to re-enter the parking lot in the same blue Toyota automobile, exit the car and walk to the vicinity of the trash can where Chavez placed an item in that same trash can. Belt then directed the surveilling and support officers to move in and to arrest the "paper mill" participants then present in the parking lot. Esquivel then went to the Millwood apartment and placed Bustamante under arrest. After securing Bustamante's written consent to search the premises, officers located evidence suggesting a "paper mill" operation: a typewriter, paper cutter, lamination device, forged birth certificates, motor vehicle ownership certificates and work authorization permits. The piece of paper with the name Esquivel requested for the second Social Security card was also found in the apartment. An edited videotape of many of these activities was played for the trial court.
Bustamante contends the trial court erred when it determined that the second, initiative-based, section 113 automatically took precedence over the statute passed by the Legislature, and that the two section 113's were intended to co-exist. Bustamante urges this court to set aside the sentence imposed and return the matter to the trial court so that the superior court can examine the record and exercise its discretion whether to apply the misdemeanor rather than the felony version of section 113. We decline the invitation. We hold that the provisions of misdemeanor section 113 are inconsistent with those of felony section 113, and are not amenable to any reasonable harmonization that is in keeping with the intent of the voters. We further hold that under recognized principles of statutory construction the later enactment of felony section 113 operates as a repeal, albeit by implication, of misdemeanor section 113.
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