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The People v. Jose Contreras Casarez

February 27, 2012

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
JOSE CONTRERAS CASAREZ, DEFENDANT AND APPELLANT.



(Super. Ct. No. VCF233966) APPEAL from a judgment of the Superior Court of Tulare County. James W. Hollman, Judge.

The opinion of the court was delivered by: Kane, J.

CERTIFIED FOR PUBLICATION

OPINION

Defendant Jose Casarez was convicted of falsely impersonating his brother during a traffic stop. On appeal, he contends (1) insufficient evidence supported the conviction for false personation, (2) a more specific criminal statute precluded his conviction, (3) the trial court erred in failing to instruct on the lesser included offense of attempted false personation, (4) the trial court abused its discretion by refusing to reduce the offense to a misdemeanor, and (5) the trial court denied defendant's constitutional rights by failing to hold a hearing to determine his competency. We will reverse.

PROCEDURAL SUMMARY

On March 18, 2010, the Tulare County District Attorney charged defendant with false personation (former Pen. Code, § 529, subd. 2;*fn1 count 1). The information further alleged that defendant had suffered a prior felony conviction within the meaning of the Three Strikes law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), had served three prior prison terms (§ 667.5, subd. (b)), and was ineligible for probation (§ 1203, subd. (e)(4)).

On May 25, 2010, a jury found defendant guilty as charged. Defendant admitted the special allegations.

The court denied probation and sentenced defendant to five years in prison: the middle term of four years (two years doubled pursuant to § 667, subd. (e)(1)), plus one year, to be served consecutively for a prior prison term enhancement. The remaining two prior prison term enhancements were dismissed in the interest of justice.

FACTS

On March 3, 2010, Officers Whaley and Verissimo conducted a traffic stop. Verissimo noticed defendant in the back seat of the car. A warrant was out for defendant's arrest, and Whaley and Verissimo had both received a wanted-person flyer containing defendant's photograph and identifying information, including a description of his tattoos. When Verissimo noticed the tattoos on defendant's hands, it jogged his memory and he recognized him. Verissimo asked defendant what his name was. Defendant said his name was Tony Contreras. Verissimo did not believe him, so he asked if he would step out of the car so they could talk. Defendant said, "Fine," and he stepped out. As he was doing so, Verissimo asked him if he possessed anything illegal or dangerous, and he said he did not. Verissimo asked if he could search him, and defendant said, "Go ahead." As Verissimo patted down defendant, Verissimo pulled out a folded piece of white paper from defendant's back pocket. Without unfolding it, Verissimo set it on the roof of the car. Defendant said either, "It's a birth certificate that will identify me as Tony Contreras," or "That's my birth certificate. That proves who I am." When Verissimo looked at the paper, he saw it was a Tulare County birth certificate in the name of Tony Contreras. It appeared to be valid.

Whaley contacted an officer who confirmed defendant's identity based on his distinctive tattoos. At this point, Whaley took defendant into custody. After defendant was read his Miranda*fn2 rights, he agreed to talk to Whaley. Defendant said the birth certificate was his brother's. He had taken it from his mother's bedroom without her knowledge because he had an active warrant and he knew his brother did not. He said he was carrying it so he could show it to law enforcement and pass himself as his brother to avoid being apprehended on his active warrant.

Verissimo testified that he sometimes relied on birth certificates as proof of identity during traffic stops because they contain a name and a birth date, which are tools in identifying the person, allowing the officer to investigate further for a photograph or other identifying information, such as tattoo descriptions.

Whaley testified that he too had used birth certificates as identifying documents. The name and birth date provide identifying information. Whaley would use other tools in addition to the birth certificate to identify a person. When a person gives his name, his production of a birth certificate makes his assertion of the name more credible.

DISCUSSION

Defendant contends the evidence did not support his conviction under section 529, subdivision 2, because there was insufficient evidence he committed an additional act beyond falsely identifying himself to the officer. We agree.

I. Standard of Review

"'To determine the sufficiency of the evidence to support a conviction, an appellate court reviews the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt.'" (People v. Bolden (2002) 29 Cal.4th 515, 553.) We must draw all reasonable inferences in support of the judgment. (People v. Wader (1993) 5 Cal.4th 610, 640.) "It is not our function to reweigh the evidence, reappraise the credibility of witnesses, or resolve factual ...


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