Super. Ct. No. 05-100614-7) Contra Costa County Superior Court Case No. 05-100614-7, Leslie G. Landau, Judge
The opinion of the court was delivered by: Bruiniers, J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
Following an automobile accident, one of the drivers, appellant Dellreitta Guion, identified herself to the investigating officer as Jean Haile and arranged to have her son bring a driver's license in Haile's name to the scene. Guion then presented that license to the officer. Later that day, Guion admitted she had lied and revealed her true name. Based on these facts, a jury convicted Guion of felony false personation (Pen. Code, § 529, former subd. (3)) (former section 529(3)).*fn2 A search of Guion's apartment conducted several days after she falsely identified herself produced evidence that led to her conviction of two additional charges, possession of a controlled substance (Health & Saf. Code, § 11350), and unlawful acquisition of personal identifying information (Pen. Code, § 530.5, subd. (c)(1)) (section 530.5(c)(1)). Guion appeals from the judgment of conviction, challenging the trial court's denial of her motion for a trial continuance, the trial court's instructions to the jury on the identity theft charge (§ 530.5(c)(1)), and the sufficiency of the evidence to support her conviction for false personation (former § 529(3)).
In the published portion of this opinion, we conclude there was insufficient evidence of a violation of former section 529(3) to sustain that conviction because that provision requires "more than mere impersonation. It requires that the impersonator use--not just assert--the false identity in one of the ways listed in [the statute's] three former subdivisions." (People v. Casarez (2012) 203 Cal.App.4th 1173, 1190 (Casarez).) In the unpublished portion of the opinion, we also reverse the identity theft conviction. The judgment is otherwise affirmed.
Guion was charged by information with false personation of Jean Marie Haile-Brown (former § 529(3))*fn3 (count 1); possessing cocaine base (Health & Saf. Code, § 11350, subd. (a)) (count 2); receiving stolen property (§ 496, subd. (a)) (count 3); and unlawfully obtaining personal identifying information (§ 530.5(c)(1)) (count 4). At trial, Guion acknowledged three prior misdemeanor convictions for petty theft and a prior felony conviction for grand theft in the 1980's, a felony petty theft conviction with priors in 1994, a child abuse arrest in 2003-2004, and a battery conviction in 2004.
On May 7, 2009, City of San Pablo Police Officer Kenneth White responded to the scene of a vehicle collision between Guion and another driver. Both cars were damaged, and he could not determine which driver was at fault. White asked Guion to identify herself. She was unable to provide identification and first claimed that her name was Cynthia Dille, with a date of birth of April 17, 1962. When a records check failed to locate anyone with that name and date of birth, Guion gave her date of birth as January 22, 1959. When White was still unable to find any record of such a person, Guion claimed to be Cynthia Marshall. Again no matching records could be found. White told Guion that he would need to take her to the police station to confirm her identity. Guion then claimed to be Jean Marie Haile and said she would call her son to bring her identification. Her son arrived and handed Guion a California driver's license in Haile's name, with what appeared to be Guion's photograph. Guion then handed Haile's driver's license to White, saying, "See, this is me."*fn4 Based on the appearance of the driver's license, White believed it was fake. When confronted, Guion admitted the identification was false but claimed she could not obtain real identification because she was in the federal witness protection program. White placed Guion under arrest. As they drove to the police station, Guion volunteered her real name and said she had been using Haile's name for years.
Haile testified that her identification, including her driver's license, had been lost or stolen three times in the previous five years, she did not know Guion, and Guion did not have permission to use her identification.*fn5 Her driver's license number matched the number on the false identification Guion presented to Officer White.*fn6
On May 12, 2009, in the course of an investigation sparked by Guion's use of a false name, City of San Pablo Police Detective Daniel Wiegers searched Guion's residence pursuant to a warrant. He found rock cocaine that Guion admitted was hers. He also found Medi-Cal paperwork in several different names, with different social security numbers and dates of birth; a photocopy of Guion's Health Plan of San Mateo employee identification badge with the name Vernon C. Pierce under Guion's picture; identification cards in the names of Wilfred Stevenson, Michael Stone, and Adriana Amaya-Abella; a driver's license for Davion Butler; a credit union ATM/check card for Amy Sindicic; Chase Bank correspondence for Arcelia Galan; and bills and bank correspondence for Ivory Lang.
Amaya-Abella testified at trial that the identification card in her name found in Guion's apartment belonged to her, she had lost it in San Leandro in or before 2004, and Guion did not have her consent to possess it.
Guion testified in her own behalf, and said she gave White false names because her own driver's license had been suspended. She said a friend she knew only as "Cookie" had left Haile's driver's license at her home. Guion said her son handed the license directly to Officer White, and she thought he had provided her true identification card. She offered various explanations for the items that were found in her home.
At the close of the People's evidence, the court dismissed count 3 following a defense motion under section 1118.1. The jury found Guion guilty on the three remaining counts. The trial court sentenced Guion to the lower term of one year four months in state prison on count 1, along with a concurrent prison term of one year four months on count 2, and a concurrent county jail term of one year on count 4.
Guion filed a timely notice of appeal from the judgment of conviction.
A. Denial of a Trial Continuance*fn7
Guion contends the trial court erred in denying her motion to continue trial to allow her to privately retain her counsel of choice. Guion was represented throughout the trial court proceedings by the public defender. On November 15, 2010, Guion moved unsuccessfully to remove her appointed counsel pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden).*fn8 The matter was set for trial on December 27. It was then continued, at Guion's request, to February 22, 2011. That date was vacated when Guion appeared late for a readiness conference. The trial was reset for March 28 on a "time not waived" basis. Thereafter, for reasons not set forth in the record, trial was continued four additional times to dates in April. On April 25, Guion again appeared late for trial, after the trial date had been vacated and a bench warrant issued. Trial was then set for May 23, before Judge Leslie Landau.
Once assigned to a trial department, Guion requested a continuance, purportedly so that she could retain private counsel. In response to the court's inquiries, she said she had spoken to a private attorney, Linda Fullerton, in November 2010, when her Marsden motion was denied, and had spoken to Fullerton again that morning. She claimed that Fullerton, who was not present in court, was willing to take her case if the court would grant a continuance. Guion said that she had no written agreement with Fullerton, but that her mother had paid a retainer.*fn9 The trial court denied Guion's request, explaining, "[Y]ou don't have any documentation. You're not here with another attorney. You don't have -- [¶] . . . [¶] -- anything that shows me you have, in fact, hired another attorney; . . . you declared ready at the readiness conference and it's a little late now to be trying to get a new attorney."
Guion argues the trial court violated her right to counsel and due process when it denied her a continuance to allow her to retain her counsel of choice. Reviewing the trial court's denial of the motion for abuse of discretion (People v. Jenkins (2000) 22 Cal.4th 900, 1037 (Jenkins), we find no error.
The "constitutional right to the effective assistance of counsel" "encompasses the right to retain counsel of one's own choosing." (People v. Holland (1978) 23 Cal.3d 77, 86; accord, People v. Courts (1985) 37 Cal.3d 784, 789 (Courts).) "[T]his right is not absolute: it must be carefully weighed against other values of substantial importance, such as that seeking to ensure orderly and expeditious judicial administration, with a view toward an accommodation reasonable under the facts of the particular case. [Citation.]" (People v. Byoune (1966) 65 Cal.2d 345, 346; see § 1050, subd. (e) [a continuance in a criminal trial may only be granted for good cause].) Nonetheless, "the courts should make all reasonable efforts to ensure that a defendant financially able to retain an attorney of his [or her] own choosing can be represented by that attorney. [Citation.]" (People v. Crovedi (1966) 65 Cal.2d 199, 207 (Crovedi).)
" 'There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied.' " (People v. Mungia (2008) 44 Cal.4th 1101, 1118, quoting Ungar v. Sarafite (1964) 376 U.S. 575, 589; see also Jenkins, supra, 22 Cal.4th at p. 1039; Crovedi, supra, 65 Cal.2d at pp. 206-207.) "A continuance may be denied if the accused is 'unjustifiably dilatory' in obtaining counsel, or 'if he arbitrarily chooses to substitute counsel at the time of trial.' [Citation.]" (Courts, supra, 37 Cal.3d at pp. 790-791.)
The trial court did not abuse its discretion or violate Guion's due process rights by denying her request for a continuance. Guion did not make her request until the first day of trial, six months after she had initially expressed her dissatisfaction with appointed counsel, and after seven intervening trial dates. The record does not come close to demonstrating that she diligently sought alternative counsel during the intervening six-month period. Although she said she made some sort of contact with Fullerton and another private attorney shortly after the November 2010 Marsden hearing, she apparently did not contact Fullerton's office again until the day the matter was actually assigned to a courtroom for trial. Moreover, the trial court was understandably skeptical about the reality or firmness of any agreement between Guion and Fullerton for representation. Guion's appointed counsel indicated Guion told her "an agreement has not been worked out," Guion provided no receipt for the retainer or other documentation demonstrating an attorney-client relationship, and Fullerton was not present in court to confirm that she was prepared to represent Guion.*fn10
Guion's reliance on Crovedi and Courts is misplaced. In Crovedi, the defendant's last-minute request for a continuance was attributable not to his own lack of diligence, but to the sudden illness of his originally retained counsel and the court's forced appointment of that counsel's law partner, who was not prepared to try the case. (Crovedi, supra, 65 Cal.2d at pp. 201-203.) The defendant in that case diligently sought and located alternative counsel during the week between the forced appointment and the start of trial. (Id. at p. 208.) The judicial burden of continuing the trial at that late date was mitigated, in any event, because the defendant could later be tried jointly with a co-defendant whose trial had been delayed. (Id. at pp. 202-203.) In Courts, the defendant was similarly diligent. Although he requested a continuance on the first day of trial, the delay was caused by his need to collect money for a retainer for an attorney with whom he was in regular contact, and he had kept the court informed about his efforts. (Courts, supra, 37 Cal.3d at pp. 787-789, 791-792.) In that instance, retained counsel had unsuccessfully attempted before trial to calendar a motion for substitution of attorneys and a continuance. (Id. at p. 788.) In sharp contrast, there was no indication that Guion had taken any steps between November 15, 2010, and May 23, 2011, to retain private counsel, and only Guion's assertion that new counsel would even accept the representation, which the trial court appears to have found of questionable credibility.
Guion argues that "the court should have inquired more thoroughly [into her alleged relationship with Fullerton] by contacting the attorney's office or granting a brief continuance for private counsel to appear," and that its failure to do so was error, given its duty to make all reasonable efforts to ensure that she could be represented by an attorney of her choosing. We disagree. The record does not demonstrate that the trial court precluded Guion from retaining her attorney of choice; it shows, rather, that she had over six months after the denial of her Marsden motion to retain private counsel, the trial court did not believe she had done so, and she failed to demonstrate otherwise. In these circumstances, the court did not act unreasonably in denying Guion's request to delay her trial, and we find no abuse of discretion.
B. Unanimity Instruction (§ 530.5(c)(1))*fn11
Guion contends the trial court erred by failing to instruct the jury it had to unanimously agree on the specific act or acts that constituted the offense of identity theft (§ 530.5(c)(1) [unlawful acquisition or retention of personal identifying information]). We agree that this was error.
Guion was charged in count 4 with unlawful acquisition of personal identifying information in violation of section 530.5(c)(1), and this subdivision applies to "[e]very person who, with the intent to defraud, acquires or retains possession of the personal identifying information . . . of another person." (See § 530.55, subd. (b) [defining "personal identifying information" to include, inter alia, "any name, address, telephone number, health insurance number, . . . state or federal driver's license, or identification number, social security number, place of employment, employee identification number, . . . demand deposit account number, ...