Appeal from a judgment of the Superior Court of Orange County, Gary S. Paer, Judge. Affirmed. (Super. Ct. No. 07CF1802)
The opinion of the court was delivered by: O'leary, J.
CERTIFIED FOR PUBLICATION
Angel Vicente Valladares appeals from a judgment after a jury convicted him of the manufacture, distribution, and sale of false immigration documents. He argues: (1) Penal Code section 113,*fn1 the statute he was convicted of violating, was repealed by implication by section 112; (2) the trial court erroneously failed to instruct the jury on the lesser included offense of section 112; (3) insufficient evidence supports his conviction; (4) his conviction violates the equal protection clause; and (5) the prosecutor committed misconduct during rebuttal argument. None of his contentions have merit, and we affirm the judgment.
Investigator Tanya Hauge was investigating a false document operation in Santa Ana when she learned she could obtain counterfeit documents at a nearby shopping center. Hauge and another undercover officer drove in an unmarked van to the shopping center where they saw Valladares talking with a group of people. Hauge‟s and Valladares‟s eyes met, and Hauge mouthed the words, "MICA," a term Hispanics use to refer to legal permanent resident cards. Valladares approached and, in Spanish, asked Hauge what she needed. She responded an identification card and Social Security card. When Valladares asked her what type of card she wanted, Hauge replied, "laser," the newer type of card. He quoted her a price of $110 for the two cards, but they agreed on $100. He asked her if she had a photograph, and when she said no, he suggested they go to a nearby studio; Valladares led the way. The photographer took pictures of Hauge, handed them to Valladares, and Hauge paid the photographer $6. Valladares asked Hauge for her name, birthday, and country of origin, and on a piece of paper, she wrote, "Nora Gaston Santos[,] . . . 11-30-60[,] . . . Philippines." The name and birthday were invented. When Valladares asked Hauge for her Social Security number, Hauge said she did not have one and asked if he could create one. Valladares told her the documents would be ready in one hour and to meet at the same place. He gave her a piece of paper with his name and telephone number.
A little later, Hauge called Valladares and told him she saw police where they were supposed to meet and they agreed to meet at another location. When they met, Valladares handed Hauge an envelope marked "Nora." Inside the envelope was the identification card, Social Security card, the photographs, and the piece of paper with Hauge‟s information. The cards had Hauge‟s invented information, and the identification card had a fingerprint that was not Hauge‟s. When Hauge said the documents looked good, Valladares said they were created with computers. Hauge paid Valladares with a premarked $100 bill, and Valadares jokingly asked if it was real. Hauge said it was, and he left. Shortly thereafter, an officer stopped Valladares‟s vehicle and found the premarked $100 bill.
An information charged Valladares with the manufacture, distribution, and sale of false documents (immigration documents) (§ 113) (count 1), and two counts of forgery of an official seal (§ 472) (counts 2 and 3). Before trial, on the prosecutor‟s motion, the trial court dismissed counts 2 and 3. At the close of the prosecutor‟s case-in-chief, defense counsel moved for acquittal pursuant to section 1118.1. The trial court denied the motion. The jury convicted Valladares of count 1. The trial court sentenced Valladares to prison for five years.
Valladares argues his conviction for violating section 113 must be reversed because section 112 implicitly repealed section 113. We disagree.
In 1994, the California Legislature enacted misdemeanor section 113 during an extraordinary session. During the same month, California voters passed Proposition 187, which created felony section 113. In People v. Bustamante (1997) 57 Cal.App.4th 693, 698 (Bustamante), the court stated: "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."
In 2001, the California Legislature amended and renumbered section 113 to section 112. Section 112 states: "(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 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. [¶] (b) A prosecuting attorney shall have discretion to charge a defendant with a violation of this section or any other law that applies. [¶] (c) As used in this section, "government document‟ means any document issued by the United States government or any state or local government, including, but not limited to, any passport, immigration visa, employment authorization card, birth certificate, driver‟s license, identification card, or social security card." (Italics added.)
Section 113 provides: "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 ...