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PEOPLE v. RIZO (1999)

Court of Appeal, Second District, Division 6, California.

The PEOPLE, Plaintiff and Respondent, v. Jose RIZO et al., Defendants and Appellants.

No. B114174.

Decided: February 24, 1999

Patricia Nelson and Florence R.H. Popper, under appointments by the Court of Appeal, for Appellant Jose Rizo. Catherine Campbell, under appointment by the Court of Appeal, Fresno, for Appellant Jose T. Macias. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Assistant Attorney General, Pamela C. Hamanaka and Wendy Chase Arenson, Deputy Attorney General, for Plaintiff and Respondent.

Jose Rizo and Jose T. Macias were convicted by jury of feloniously manufacturing, distributing, or selling false government documents to conceal the true citizenship or resident alien status of another person.  (Pen.Code, § 113.) 1  They were each sentenced to state prison.   We vacate the convictions based on the doctrine of factual impossibility and direct the trial court to enter new judgments for attempted violations of section 113.   We remand for resentencing.  (§ 1260.)


On February 2, 1997, officers from the Los Angeles Police Department went to a San Fernando Valley parking lot based on information that people were selling counterfeit immigration cards there.   Appellants approached undercover Officer Ben Meda and said they could get him anything he wanted.   Officer Meda asked for a false immigration card and provided a passport-type photo of himself, a name, and a date of birth.

Appellants drove to a North Hollywood apartment and returned 90 minutes later.   They sold Officer Meda a false immigration card bearing his photo and a social security card for $60.

Officer Meda said that he had a cousin who needed a California identification card and agreed to meet appellants at the same place.   The next day he gave Macias a photo of a fellow officer and a name.   Appellants returned hours later and sold Officer Meda a counterfeit California identification card bearing the fellow officer's photo.

Pursuant to a search warrant, the police searched the North Hollywood apartment and seized naturalization and immigration cards, social security cards, cut-up pieces of driver's licenses and magnetic strip, a laminating machine, a cutting board, and a typewriter.   Appellant Macias told an officer that “you have got me, I have done this, it is hard to live here․”   Appellant Rizo told another officer that he lived at the apartment and that he “makes ․ counterfeit documents and cards.”

Adequacy of the Information

 Appellants contend that the information was confusing.   It alleged that appellants “did willfully and unlawfully manufacture and sell false government documents ․ with the intent to conceal the true citizenship and resident alien status of another person.”  (Emphasis added.)   This language appears in the misdemeanor version of section 113 which was enacted in 1994.

On November 8, 1994, the electorate approved Proposition 187.   It contained a felony version of section 113 that repealed, by implication, the misdemeanor version.  (People v. Bustamante (1997) 57 Cal.App.4th 693, 701, 67 Cal.Rptr.2d 295.)   The felony version omits the “intent to conceal” phrase and states in pertinent part:  “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․”

Appellants argue that the information was misleading because it uses the “intent to conceal” language found in the misdemeanor version of section 113.   At no time below did appellants object or argue that the information was confusing or misleading.   Appellants waived any pleading defect by not demurring to the information.  (People v. Jennings (1991) 53 Cal.3d 334, 356-357, 279 Cal.Rptr. 780, 807 P.2d 1009;  People v. Thomas (1986) 41 Cal.3d 837, 843, 226 Cal.Rptr. 107, 718 P.2d 94.)   The fair import of the information, the jury instructions, and verdict forms was that appellants were charged with a felony violation of section 113.

Specific Intent

 Appellants next argue that the trial court erred in instructing that felony section 113 is a specific intent crime.   This section prohibits the manufacture, distribution or sale of false documents “to conceal the true citizenship or resident alien status of another person․”   In People v. Bustamante, supra, 57 Cal.App.4th at p. 700, fn. 6, 67 Cal.Rptr.2d 295, the Court of Appeal recommended that trial courts treat section 113 as a specific intent crime.   That was done here.   There was no instructional error.   Even if the statute did not contain a specific intent requirement, the instruction given inured to the benefit of appellants because it placed a greater burden on the People.

 The felony version of section 113, like the misdemeanor version, imports the concept of doing an act with the intent to achieve a further consequence, i.e., that appellants manufacture, distribute or sell false documents for the purpose of concealing the true citizenship or resident alien status of another person.  “ ‘When the definition of a crime consists of only the description of a particular act, without reference to intent to do a further act or achieve a future consequence, we ask whether the defendant intended to do the proscribed act.   This intention is deemed to be a general criminal intent.   When the definition refers to defendant's intent to do some further act or achieve some additional consequence, the crime is deemed to be one of specific intent.’  [Citation.]”  (People v. Daniels (1975) 14 Cal.3d 857, 860, 122 Cal.Rptr. 872, 537 P.2d 1232.)   Like other statutes criminalizing the sale or use of forged instruments, section 113 is a specific intent offense.  (E.g., People v. Prantil (1985) 169 Cal.App.3d 592, 596, 215 Cal.Rptr. 372 [§ 470 forgery by uttering forged check requires specific intent to defraud];  People v. Suk (1990) 220 Cal.App.3d 952, 960, 269 Cal.Rptr. 676 [Veh.Code, § 10752, prohibiting sale of a false vehicle identification number, is a specific intent offense].)

The trial court gave CALJIC 3.31 which stated that felony section 113 was a specific intent crime and that without specific intent, the crime was not committed.   The jury was instructed that, in order to convict, “each of the following elements must be proved beyond a reasonable doubt:  [¶] 1. A person manufactured, distributed or sold false documents to conceal the true citizenship or resident alien status of another person.”

Appellants requested and received instructions on attempt to violate felony section 113 and the lesser related offense of possessing or transporting deceptive identification documents.  (§ 483.5.) 2

The jury was instructed that “you may not find the defendant guilty of the crime charged in Count I or any lesser crime, unless the proved circumstances are not only (1) consistent with the theory that the defendant had the required specific intent but (2) cannot be reconciled with any other rational conclusion.”

During deliberations, the jury requested “a more ‘in depth’ definition of ‘intent.’ ”   Appellants argued that no further instructions were required.   The trial court instructed the jury to refer to the instructions given.

 Appellants contend that the instructions on felony section 113, attempt, and section 483.5 were ambiguous and confusing.   We reject the argument.   When the jury requested clarification, appellants argued that the instructions were adequate.   If appellants believed the instructions were ambiguous or contradictory, they were required to object and request clarifying language.  (People v. Johnson (1993) 6 Cal.4th 1, 53, 23 Cal.Rptr.2d 593, 859 P.2d 673.)   Having waived the issue, they may not argue for the first time on appeal that the instructions were confusing, misleading, and required further clarification.  (People v. Rodrigues (1994) 8 Cal.4th 1060, 1193, 36 Cal.Rptr.2d 235, 885 P.2d 1.)  “[A] defendant is not entitled to remain mute at trial and scream foul on appeal for the court's failure to expand, modify, and refine standardized jury instructions.”  (People v. Daya (1994) 29 Cal.App.4th 697, 714, 34 Cal.Rptr.2d 884.) 3

Unanimity Instruction

 Appellant Macias argues that the trial court erred by not instructing that, in order to convict of the single count charged, the jury had to unanimously agree that appellants committed the same act.   The immigration and social security cards were sold February 2, 1997.   The California identification card was sold February 3, 1997.   The trial court had no sua sponte duty to give a unanimity instruction because the acts were closely connected in time and formed a single course of conduct.  (People v. Stankewitz (1990) 51 Cal.3d 72, 100, 270 Cal.Rptr. 817, 793 P.2d 23.)

 In argument to the jury, Macias admitted that he sold “a resident alien card, a social security card, and a California [I.D.] card that were all false.”   He argued that the prosecution had not proven that the documents were sold to a noncitizen to conceal the true citizenship of another person.   Appellant Rizo made a similar argument and urged the jury to convict of attempt to commit section 483.5.   A unanimity instruction is not required where, as here, “the defendant offers essentially the same defense to each of the acts, and there is no reasonable basis for the jury to distinguish between them.  [Citation.]”  (People v. Stankewitz, supra, 51 Cal.3d at p. 100, 270 Cal.Rptr. 817, 793 P.2d 23.)


 Appellants also contend that the trial court had a sua sponte duty to instruct on the definition of “knowingly” with respect to section 483.5, the lesser related offense.   The jury, at appellants' request, was instructed that the prosecution must prove that appellants “knew or reasonably should have known that the deceptive identification document was to be used for fraudulent purposes.”

 When words are commonly understood by those familiar with the English language and have no technical meaning peculiar to the law, instructions as to their meaning are not required.  (People v. Anderson (1966) 64 Cal.2d 633, 639, 51 Cal.Rptr. 238, 414 P.2d 366.)

Factual Impossibility

 Appellants contend that the trial court erred in denying the motion for judgment of acquittal as to felony section 113.  (§ 1118.1.)   The documents were manufactured or sold with the intent of concealing the true citizenship or resident alien status of another person.   But appellants meritoriously argue that it was factually impossible to complete the crime because the documents were prepared for Officer Meda and a fellow officer, each of whom were United States citizens.   Appellants could not conceal the true citizenship or alien status of the officers if the officers were already United States citizens.

 Where the crime cannot be completed because of some fact or circumstance unknown to the defendant, liability exists only for the attempt.   (People v. Reed (1996) 53 Cal.App.4th 389, 396-397, 61 Cal.Rptr.2d 658.)   “Thus, an individual may be guilty of attempting to receive stolen property when the property is in fact not stolen.  [Citations.]”  (People v. Thompson (1993) 12 Cal.App.4th 195, 202, 15 Cal.Rptr.2d 333, citing People v. Rojas (1961) 55 Cal.2d 252, 258, 10 Cal.Rptr. 465, 358 P.2d 921 and People v. Meyers (1963) 213 Cal.App.2d 518, 520-523, 28 Cal.Rptr. 753.)

In ruling on the acquittal motion, the trial court should have considered whether the evidence was sufficient to establish the commission of the crime charged or a necessarily included offense.  (People v. Wong (1973) 35 Cal.App.3d 812, 828, 111 Cal.Rptr. 314;  People v. Garcia (1985) 166 Cal.App.3d 1056, 1068, 212 Cal.Rptr. 822.)   It failed to do so.

 Although the evidence does not support convictions for violations of felony section 113, it does support convictions for attempts to do so.   (People v. Ross (1988) 205 Cal.App.3d 1548, 1554-1555, 253 Cal.Rptr. 178;  People v. Rojas, supra, 55 Cal.2d 252, 261, 10 Cal.Rptr. 465, 358 P.2d 921.)   Section 1181, subdivision 6, provides:  “When the verdict or finding is contrary to law or evidence, but if the evidence shows the defendant to be not guilty of the degree of the crime of which he was convicted, but guilty of a ․ lesser crime included therein, the court may modify the ․ finding or judgment accordingly ․, and this power shall extend to any court to which the cause may be appealed.”   We accordingly reduce the judgment of conviction to an attempted violation of section 113.  (§ 1260;  People v. Rojas, supra, 55 Cal.2d at pp. 260-261, 10 Cal.Rptr. 465, 358 P.2d 921.)

The convictions for violations of section 113 are vacated with directions to enter new judgments for attempted violations of felony section 113.   As modified, the judgments are affirmed.   The matters are remanded for resentencing.


1.   All statutory references are to the Penal Code.

2.   The jury was instructed on the elements of section483.5 as follows:  “Every person who manufactures, sells, offers to sell, furnishes, offers to furnish, transports, or offers to transport, any deceptive identification document, and who knows or reasonably should know that the deceptive identification document will be used for fraudulent purposes is guilty of a felony․”

3.   Appellant Rizo claims that he was denied effective assistance of counsel because his attorney did not object to the instructions or request supplemental instructions.   Appellant Rizo's trial counsel believed that section 113 was a strict liability offense and stated that “strict liability is a status that the defendant never desires to have.”   As a matter of trial tactics, counsel believed that it would be more difficult to convict based on the specific intent instructions given.   Appellant Rizo has not demonstrated that counsel's representation fell below an objective standard of reasonableness and that it is reasonably probable that he would have obtained a more favorable result absent counsel's failings.  (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 104 S.Ct. 2052, 2064-2065, 80 L.Ed.2d 674, 693-694;  People v. Ledesma (1987) 43 Cal.3d 171, 216-217, 233 Cal.Rptr. 404, 729 P.2d 839.)


GILBERT, Acting P.J., and COFFEE, J., concur.

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PEOPLE v. RIZO (1999)

Docket No: No. B114174.

Decided: February 24, 1999

Court: Court of Appeal, Second District, Division 6, California.

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