People v. Molina

• Decision Date: 07 April 1992
• Docket Number: No. B056088,B056088
• Citation: 5 Cal.App.4th 221,6 Cal.Rptr.2d 736
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Alan M. MOLINA, Defendant and Appellant.

Page 736

6 Cal.Rptr.2d 736

5 Cal.App.4th 221

The PEOPLE, Plaintiff and Respondent, v. Alan M. MOLINA, Defendant and Appellant.

No. B056088.

Court of Appeal, Second District, Division 1, California.

April 7, 1992.

Review Denied July 8, 1992.

[5 Cal.App.4th 222] Fred Kilbride, Burbank, under appointment by the Court of Appeal, for defendant and appellant.

Daniel E. Lungren, Atty. Gen., George H. Williamson, Chief Asst. Atty. Gen., Carol Wendelin Pollack, Acting Asst. Atty. Gen., Pamela C. Hamanaka and Sanjay T. Kumar, Deputy Attys. Gen., for plaintiff and respondent.

ORTEGA, Associate Justice.

Alan Manuelas Molina (Molina) appeals from the judgment (order granting probation) entered after his conviction by the court of perjury. (Former Pen.Code, § 118, now § 118, subd. (a), the perjury case.) ¹ Molina also appeals from the court's finding that he violated the "obey all laws" condition of probation previously imposed after his negotiated guilty plea to grand theft and two counts of forgery. (§ 487, subd. (1); former § 470, now § 470, subd. (a), the grand theft case.)

In the perjury case, Molina submitted a knowingly false driver's license application under oath to the Department of Motor Vehicles (DMV). We reject Molina's contention that because his criminal conduct was more specifically proscribed by Vehicle Code section 20's misdemeanor prohibition on making false statements in documents filed with DMV, he can be prosecuted only for that misdemeanor and not for perjury, a felony. ² At the probation We affirm the judgments (orders granting probation and finding Molina in violation of probation.)

violation hearing in the grand theft case, the trial court found that Molina violated his probation by possessing a fraudulently obtained driver's license (former Veh.Code, § 14610, subd. (a), now § 14610, subd. (a)(1)). We reject Molina's contentions that that section requires that the fraudulently possessed license be possessed for a fraudulent purpose, and that the evidence is insufficient to support the finding that Molina violated his probation. ³

FACTS

Molina does not challenge the sufficiency of the evidence. Sometime in 1979, DMV issued Molina a driver's license in his true name. On March 23, 1987, Molina applied to and received from DMV a second driver's license in the name of Joseph Alan Molina. Molina's application stated he had not applied for a driver's license within the past 12 months, had never had a California driver's license or identification card, and had not applied for a California driver's license or identification card in a different name in the past 7 years. Molina signed the March 23, 1987, license application certifying under penalty of perjury that all the information on it was true. On June 11, 1987, DMV renewed the first license in Molina's true name.

According to a DMV driver's license manager, people seeking renewal of current licenses must complete the same application under penalty of perjury as must new license applicants. DMV generally destroys renewal applications after renewing the license. All license and renewal applicants must complete and sign an application form under penalty of perjury.

On January 7, 1988, Molina pled guilty to grand theft and two counts of forgery in the grand theft case. On March 23, 1988, the trial court suspended sentence and placed Molina on probation for five years on condition, among others, that he "obey all laws, orders, rules and regulations of the probation department and of the court." The trial court then dismissed the remaining eight forgery counts.

On August 24, 1989, while searching Molina pursuant to a lawful arrest, Glendale Police Officer M. Bunsey found both licenses on Molina's person. Each license contained Molina's picture. The renewed license in Molina's name listed a July 3, 1952, birthdate, while the license issued to Joseph Alan Molina listed an August 9, 1953, birthdate. As a result, Molina was charged with a single perjury count, and with violating his grand theft probation.

Molina waived jury in the perjury case, and the trial court heard the perjury trial concurrently with the grand theft probation violation hearing. Before trial, Molina moved that the trial court determine only whether he gave false information to DMV (Veh.Code, § 20), and dismiss the perjury charge (§ 118, subd. (a)), because giving false information to DMV is the controlling specific statute, while perjury is an inapplicable general statute.

The trial court denied the motion, stating: "[U]nder [A]uto [E]quity [S]ales[, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937], there is a case on point from the Court of Appeal, the [ People v.] Barrowclough [ (1974) 39 Cal.App.3d 50, 113 Cal.Rptr.

                852] case, which specifically holds, contrary to the position that [Molina] is advancing, while [Molina] seeks to distinguish that case and indicates that it's been impliedly disapproved by [ People v.] Jenkins[ (1980) 28 Cal.3d 494, 170 Cal.Rptr. 1, 620 P.2d 587], Jenkins was a different factual situation th[a]n Barrowclough.  Barrowclough has not been overruled by the Supreme Court, nor has it been rescinded by the Court that issued the opinion.  It has been cited with approval in People [ v.] Ruster [ (1976) 16 Cal.3d 690, 694, 129 Cal.Rptr. 153, 548 P.2d 353] by the California Supreme Court, and this Court does feel bound under Barrowclough to deny the motion."   The court then heard evidence and convicted Molina of perjury
                

Since Molina committed perjury before being placed on probation, the trial court refused to find the perjury to be a violation of probation. The trial court found that Molina violated his probation by possessing a fraudulently obtained license (Veh.Code, § 14610, subd. (a)(1)).

ISSUES

Molina contends the trial court erred in: (I) convicting him of perjury (§ 118, subd. (a)), an inapplicable general statute, because his conduct amounted at most to giving false information to DMV (Veh.Code, § 20), the more specific statute; and (II) finding that he violated his probation in August 1989 by possessing a fraudulently obtained license, because that statute requires that the fraudulent license be possessed for a fraudulent purpose, and the evidence was insufficient to demonstrate the required fraudulent purpose.

DISCUSSION

I

In People v. Barrowclough (1974) 39 Cal.App.3d 50, 113 Cal.Rptr. 852, the defendant was charged with perjury for filing a false driver's license application under oath. The trial court sustained the defendant's demurrer to the information and dismissed the case because "Vehicle Code section 20 'takes precedence over the general section with regard to this case.' " (Id. at p. 53, 113 Cal.Rptr. 852, fn. omitted.) On appeal, Division Five of this district reversed, holding, on facts Molina concedes are identical to those before us, that "Vehicle Code section 20 does not preclude the application of [former] ... section 118...." (Ibid.)

"[T]he Vehicle Code specifically requires applications for a driver's license to be verified. The purpose of requiring verification is to hold the applicant responsible for any false statements made in the application by subjecting him to prosecution for perjury. [Citations.] [p ] Vehicle Code section 20 does not conflict with [former] ... section 118. Vehicle Code section 20 merely renders it unlawful to use a false or fictitious name or to knowingly make a false statement or knowingly conceal any material fact in any document filed with [DMV]. Numerous documents are filed with [DMV] which are not required or authorized to be verified or made under oath. A false statement in any document filed with [DMV] may violate Vehicle Code section 20, whereas only a false statement required or authorized to be made under oath [citation] or 'under penalty of perjury' may violate [former] ... section 118. [p] Therefore [former] ... section 118 does not ' "include the same matter as the special act, and thus conflict with it" ' under In re Williamson [1954] 43 Cal.2d 651, 654, 276 P.2d 593. Violation of [former] ... section 118 requires an additional element not necessary to violation of Vehicle Code section 20 and therefore Williamson does not apply. A special statute does not supplant a general statute unless all the requirements of the general statute are covered in the special statute. [Citations.]" (People v. Barrowclough, supra, 39 Cal.App.3d at pp. 54-55, 113 Cal.Rptr. 852, second italics added, fns. omitted.)

Five years later, in People v. Jensen (1979) 94 Cal.App.3d 451, 156 Cal.Rptr. 447, the defendant was charged with perjury for providing false information under oath on DMV identification card applications.

                The "applications included a printed notice that the information provided on the form would be checked and if any fraud was discovered, the person could be subject to prosecution under Vehicle Code section 20."  (Id. at p. 453, 156 Cal.Rptr. 447.)   The trial court granted the defendant's dismissal motion, concluding that the defendant "could only be prosecuted under Vehicle Code section 20, in light of the express warning on the identification card application form."  (Ibid.)  On appeal, the First District affirmed, agreeing that "[b]y its express warning to the applicant that prosecution would be under Vehicle Code section 20, the state is precluded from then prosecuting him under a different and more severe criminal statute."  (Id. at p. 455, 156 Cal.Rptr. 447.)
                

Before arriving at its holding, however, the Jensen court rejected the defendant's alternative contention that he could be prosecuted only under Vehicle Code section 20, and not under the general perjury statute. "The Court of Appeal in People v. Barrowclough (1974) 39 Cal.App.3d 50 , specifically held that Vehicle Code section 20 did not preclude prosecution under [former] ... section 118 for false statements on a driver's license application. That case has since been cited without...