People v. Cole
| Decision Date | 04 April 1994 |
| Docket Number | No. F019408,F019408 |
| Citation | 23 Cal.App.4th 1672,28 Cal.Rptr.2d 788 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE, Plaintiff and Respondent, v. Eric Roger COLE, Defendant and Appellant. |
Appellant was arrested on suspicion of burglary. While appellant was seated in the patrol car, the arresting officer asked him several questions regarding his identity in order to fill out a form required for booking. Appellant told the officer his name was Larry Quesenberry and he was born November 6, 1968. When the officer ran a computer check of the name and date of birth, the middle name "Ray" appeared; appellant responded affirmatively when the officer asked him if "Ray" was his middle name. The information identified another person, not appellant.
Appellant was charged with burglary (Pen.Code, § 459), 1 attempted escape (§ 836.6, subd. (b)) and felony false personation (§ 529, subd. 3). It was alleged for purposes of enhancement that appellant had committed the charged felonies while released upon his own recognizance pending trial on two earlier felonies (§ 12022.1). A jury found appellant guilty as charged.
The court sentenced appellant to an aggregate term of eight years--the aggravated term of six years on the burglary count, a concurrent one-year for attempted escape, a concurrent two years for false personation and a consecutive two-year enhancement based upon the finding that the burglary had been committed while appellant was released on his own recognizance pending trial on a felony offense alleged to have occurred May 28, 1992.
Pursuant to section 529, subdivision 3, it is a felony to personate another falsely, and in such assumed character, (1) to do an act which, if done by the person falsely personated, might cause that person liability for any prosecution, or (2) to do an act whereby any benefit might accrue to the person falsely personating. Pursuant to section 148.9, it is a misdemeanor to provide a police officer with false identification either to evade process of the court or to evade proper identification.
In People v. Robertson (1990) 223 Cal.App.3d 1277, 273 Cal.Rptr. 209, the court identified one of the distinctions between the two crimes:
(People v. Robertson, supra, 223 Cal.App.3d at p. 1281, 273 Cal.Rptr. 209, emphasis added.)
Appellant contends there is no evidence of an act in addition to that of falsely identifying himself to the arresting officer. Because there is no evidence of an additional act that would elevate the crime from a misdemeanor to a felony, his felony conviction must be reversed.
According to respondent, evidence of "[a] compounding act, whether it was the defendant's own affirmative action, or his passive allowance of further court action under the false identity" is sufficient to demonstrate the felony violation of section 529. Respondent contends the appellant's initial act of falsely identifying himself as Larry Quesenberry was compounded by (1) the act of giving Larry Quesenberry's birth date during booking, and (2) "reaffirm[ing] [his] false identity by confirming his alleged middle name of 'Ray.' "
Appellant responds that the answers to questions posed by the officer while filling out the pre-booking form as appellant sat in the patrol car are simply part of the initial falsehood, and each response should not be characterized as an additional act within the meaning of section 529.
Respondent's "compounding act" analysis is taken from the discussion in People v. Robertson, supra, 223 Cal.App.3d at page 1282, 273 Cal.Rptr. 209, in which defendant falsely identified himself to the arresting officer as his brother. Following his arrest, a complaint was filed against him titled, "People of the State of California versus Joseph Robertson." He continued to masquerade as his brother through his arraignment and was released from custody on his own recognizance. He signed both a booking form and a release form using his brother's name. When he failed to appear at the next scheduled hearing, a bench warrant was issued for his brother's arrest. His brother subsequently was arrested on the outstanding warrant in Texas and extradited to California where criminal proceedings were reinstituted. His brother was found incompetent to stand trial and was committed to Atascadero State Hospital. Authorities at Atascadero discovered the gambit and appellant was apprehended.
The Robertson court concluded, "[the] initial falsehood on appellant's part was compounded many times by what happened thereafter." (People v. Robertson, supra, 223 Cal.App.3d at p. 1282, 273 Cal.Rptr. 209.) It was abundantly clear from the record in Robertson that defendant engaged in acts in addition to the act of providing false identification to a police officer.
There 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. According to respondent's analysis, if a person provides any additional information beyond a false name, the crime is elevated to a felony. We conclude such a construction of section 529 is unreasonable and not compelled by Robertson.
The conduct described in Robertson was substantially more than merely providing a police officer with false identification. Here, however, giving a false birthdate 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.
The record does not support the felony conviction; however, it does support a misdemeanor conviction. A new trial is not necessary. The judgment of conviction on count III will be reversed and upon remand the trial court will be directed to modify the judgment to reflect a conviction for violation of section 148.9, subdivision (a), and to impose sentence accordingly.
Section 12022.1 provides for a two-year enhancement if it is determined a defendant committed the current felony offense while released from custody on bail or on his or her own recognizance prior to judgment on a prior felony offense.
In support of the allegation, the prosecution offered four certified copies of documents from Contra Costa County Superior Court. The first in order of time is a superior court order filed September 4, 1992, appointing a doctor to examine appellant and to file a written report with the court prior to September 18, 1992, on "ISSUES AS DESIGNATED ON THE ATTACHED DOCUMENT." There is no attached document. The second document is a superior court order authorizing appellant's release on his own recognizance. This document also indicates appellant waived time for sentencing up to and including September 18, 1992. It reflects appointment of a doctor...
To continue reading
Request your trial
-
In re Reeves
...254 Cal.Rptr. 331, 765 P.2d 493, People v. Bruce G. (2002) 97 Cal.App.4th 1233, 1236, 118 Cal.Rptr.2d 890, People v. Cole (1994) 23 Cal.App.4th 1672, 1674, 28 Cal.Rptr.2d 788, and People v. Parrott (1986) 179 Cal.App.3d 1119, 1122, 225 Cal.Rptr. 13. Hereafter section 2933.1(c). 14. That is,......
-
People v. Ormiston, A094813.
...trial or appeal on another charge." (Cf., People v. Adams, supra, 6 Cal.4th 570, 572, 24 Cal.Rptr.2d 831, 862 P.2d 831; People v. Cole (1994) 23 Cal. App.4th 1672, 1677 .) Defendants may and often are separately released from custody on bail or OR long before they are granted deferred entry......
-
Burgess v. Biter
...557, 578.) Substantial evidence includes circumstantial evidence and the reasonable inferences flowing therefrom. (People v. Cole (1994) 23 Cal.App.4th 1672, 1678.) "An inference is a deduction of fact that may logically and reasonably be drawn from another fact or group of facts found or o......
-
People v. Chardon
...rule required reversal of the Penal Code section 529 conviction. (Robertson at p. 1282, 273 Cal. Rptr. 209.) In People v. Cole (1994) 23 Cal.App.4th 1672, 28 Cal.Rptr.2d 788, the defendant was arrested and orally identified himself to the arresting officer as "Larry Quesenberry" and provide......