People v. Gonzales, s. 26046

• Decision Date: 21 April 1975
• Docket Number: Nos. 26046,26009,s. 26046
• Citation: 188 Colo. 272,534 P.2d 626
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Marcelino GONZALES, Defendant-Appellant.
• Court: Colorado Supreme Court

Page 626

534 P.2d 626

188 Colo. 272

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Marcelino GONZALES, Defendant-Appellant.

Nos. 26046, 26009.

Supreme Court of Colorado, En Banc.

April 21, 1975.

John P. Moore, Atty. Gen., John E. Bush, Deputy Atty. Gen., E. Ronald Beeks, Asst. Atty. Gen., Denver, for plaintiff-appellee.

Rollie R. Rogers, Colorado State Public Defender, James F. Dumas, Jr., Chief Deputy State Public Defender, Thomas M. Van Cleave III, Deputy State Public Defender, Denver, for defendant-appellant.

LEE, Justice.

Appellant was convicted in the Weld County District Court of criminal impersonation in violation of 1971 Perm.Supp., C.R.S.1963, 40--5--113. ¹ We find no merit to any of appellant's claims for reversal and therefore affirm the judgment.

The evidence presented by the People was for the most part undisputed. It showed that the appellant had made several visits and telephone calls to the place of business known as the Communications Center in Greeley, over a period of several days in November 1972. Each time, he inquired whether a Western Union money order had come in in his name. On November 13, having been again told that there was no money order in his name, he asked if there was one for either a Nora or Maria Gonzales. When informed that there was a $70 order for Nora, he requested it, stating that 'she is my wife.' The clerk at first refused. It was against the company's policy to pay out money to persons other than the named payee. Appellant protested that Nora was sick and that he needed the money for his family. He finally persuaded the clerk to pay him the money, for which he signed a receipt. Nora Gonzales testified at trial that she had never been married to appellant, nor had she ever met him; and that she was in fact married to Andrew Gonzales.

Appellant was arrested a month later in the hospital room of his estranged wife Maria. When the arresting officer questioned him as to his identity, he gave the name of Marcelino Carrion and presented two identification cards, one bearing the name of Marcelino Gonzales and the other, Charles Gonzales. Maria was registered at the hopital under the name of Carrion, the surname of her second husband. She testified that appellant's family often called him 'Charlie,' and by the nickname 'Challo.'

Appellant chose not to testify in his own behalf. His theory of defense was that, although he had signed for an taken the money, he had done so without fraudulent intent. There was evidence that Maria had, at appellant's request, written to his parents for money and that appellant on two occasions had received the proceeds from money orders in which he was the named payee.

I.

Appellant contends that the criminal impersonation statute is facially unconstitutional as violative of the Due Process clauses of the Fourteenth Amendment to the Federal Constitution and Article II, Section 25, of the Colorado Constitution, because of vagueness and overbreadth.

The criminal impersonation statute in pertinent part reads as follows:

'Criminal Impersonation. (1) A person commits criminal impersonation if he assumes a false or fictitious identity or capacity, and in such identity or capacity he:

* * *

* * *

'(e) Does any other act with intent to unlawfully gain a benefit for himself or another or to injure or defraud another.'

In considering the constitutional challenge, we are guided by certain fundamental principles. The statute is initially presumed to be constitutional and one attacking its validity has the burden of proving its unconstitutionality beyond a reasonable doubt. Howe v. People, 178 Colo. 248, 496 P.2d 1040; Clark v. People, 176 Colo. 48, 488 P.2d 1097. Fi the statute is susceptible to different interpretations, one of which is constitutional, this Court will interpret it so as to satisfy constitutional requirements. People v. Dist. Ct., Colo., 521 P.2d 1254; People v. Heckard, 164 Colo. 19, 431 P.2d 1014.

In examining the statute in the light of appellant's charge of vagueness, we apply the test many times reiterated by this Court: that if the statute gives a fair description of conduct forbidden, and men of common intelligence can readily understand the meaning and application of the statute, then it will not be held to be unconstitutionally vague; conversely, if the statute is so vague that men of common intelligence must necessarily guess at its meaning and application, then it must be held invalid in violation of the constitutional requirements of due process.

Having so examined the statute in light of the foregoing test, we find the words used therein to be simple, understandable, and of common usage, sufficiently explicit in terms to fairly inform a person of common intelligence of what conduct is forbidden and will render him liable to criminal penalties. We do not find the statute to be unconstitutionally vague.

Nor do we find merit to appellant's contention that the statute is overbroad. A statute may be challenged on the ground of overbreadth if it offends the constitutional principle that governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms. NAACP v. Alabama ex rel. Flowers, 377 U.S. 288, 84 S.Ct. 1302, 12 L.Ed.2d 325 (1964); Zwickler v. Koota, 389 U.S. 241, 88 S.Ct. 391, 19 L.Ed.2d 444 (1967); Aptheker v....