LEE v. The People of the State of California, Real Party in Interest. (1999)

Randolph Lee was held to answer for “falsely personat[ing] another in either his private or official capacity, and in such assumed character ․ [d]o [ing] any other act whereby, if done by the person falsely personated, he might, in any event, become liable to any suit or prosecution, or to pay any sum of money, or to incur any charge, forfeiture, or penalty, or whereby any benefit might accrue to the party personating, or to any other person [,]” an alternative felony-misdemeanor.  (Pen.Code, §§ 529, subd. 3;  17.) ¹

Preliminary hearing evidence showed that on July 24, 1998, Lee signed a traffic ticket with his deceased brother's name (Edward Watson).   On August 18, 1998, Lee again identified himself as Watson when stopped by different officers for various Vehicle Code violations.   On August 18, the detaining officers discovered Lee's deception and that he had engaged in it to avoid being arrested for parole violations and outstanding warrants for driving on a suspended license.

Because Lee has prior serious felony convictions for a 1982 armed robbery (§§ 211, 12022.5) and a 1986 firearm assault in which he inflicted great bodily injury (§§ 245, subd. (a)(2), 12022.7), the People chose to charge him with a felony violation of section 529, exposing him to a possible 25 years-to-life sentence as a third strike defendant upon conviction.  (§§ 667, subds. (b)-(i);  1170.12.)

Lee moved to set aside the information (§ 995), arguing the preliminary hearing evidence demonstrated as a matter of law he had only given false information to a peace officer (§ 148.9), a misdemeanor, and could not be prosecuted under section 529.   The trial court denied Lee's motion.   Lee sought writ review.   We issued an alternative writ.

We hold Lee violated section 529 by falsely personating his deceased brother, satisfying that section's requirement that the perpetrator impersonate a real person.   We deny Lee's petition.²

FACTS

Deputy Sheriff William Phelton, patrolling in Lancaster, stopped Lee for driving a car with an “inoperable taillight, an expired registration and loud exhaust.”   Phelton asked Lee for his driver's license.   Lee answered he did not have the license with him.   Lee told Phelton and his partner he was a member of the Eight Trey Crips and his street name was “Little Smokey.”   When Phelton pointed out that Lee's tattoo indicated “four-three,” Lee admitted he was really a member of the Four Trick Crips.

Phelton's partner ran the information through the computer, but found no matches.   Phelton told Lee to give his true identity.   Lee replied he had gotten a ticket in the name of Edward Watson “a couple weeks ago.”   Phelton then searched the vehicle and found an insurance estimate in the name of Randolph Lee. Phelton confronted Lee, who continued to insist he was Watson, and told Lee that if Lee did not reveal his true identity, the officers would arrest him, take him to the station, and fingerprint him.   After being placed in the back seat of the patrol car, Lee admitted his true name.

Phelton ran Lee's name and found Lee had an outstanding warrant for $10,000 for driving on a suspended driver's license and was on parole.   Lee also admitted his parole supervision was through the San Bernardino office and he had not obtained permission to be in Lancaster.   Phelton arrested Lee for violating section 529, subdivision 3, and brought Lee to the station, where the deputy confirmed the outstanding warrant.   Phelton contacted Ollie Watson, Lee's and Watson's mother, who confirmed Watson had died in 1970.   She also gave Phelton the July 24 ticket Lee had signed with Watson's name.

DISCUSSION

 “An information will not be set aside if there is some rational ground for assuming the possibility that an offense has been committed and the accused is guilty of it.  [Citation.]  ‘On a motion to set aside an information, the question of the guilt or innocence of the defendant is not before the court, nor does the issue concern the quantum of evidence necessary to sustain a judgment of conviction.   The court is only to determine whether the magistrate, acting as a man of ordinary caution or prudence, could conscientiously entertain a reasonable suspicion that a public offense had been committed in which the defendant had participated.’  [Citation.]   Neither the trial court in a section 995 proceeding [citations] nor a reviewing court on appeal therefrom [citations] may substitute its judgment as to the weight of the evidence for that of the committing magistrate.  ‘Although the magistrate, in reaching his decision, may weigh the evidence, resolve conflicts, and give or withhold credence to witnesses, such a balancing of the evidence is not within the powers of a tribunal reviewing the magistrate's order.’  [Citation.]   Every legitimate inference that may be drawn from the evidence must be drawn in favor of the information.  [Citation.]”  (People v. Hall (1971) 3 Cal.3d 992, 996, 92 Cal.Rptr. 304, 479 P.2d 664.)

Lee contends his conduct is insufficient to violate section 529, subdivision 3, because when he gave Watson's name and signed it on the ticket, his brother was dead and could not possibly “become liable to any suit or prosecution, or to pay any sum of money, or to incur any charge, forfeiture, or penalty.”   While Lee could have “benefitted” if the impersonation had prevented officers from discovering Lee's outstanding warrant and parole status, that is not sufficient because Lee did not impersonate a real person.

The People counter that a dead person is real, not fictitious, and that the financial, legal, and even penal consequences of identity theft in the modern electronic age are enormous, even if the deceased's estate or heirs, after expending enormous amounts of time and money, eventually can remove the cloud created by such false personation.   The People also argue Lee “benefitted,” or hoped to do so, by falsely identifying himself as Watson.   Thus, the People conclude Lee violated section 529 by falsely identifying himself as Watson both orally and by signing the traffic ticket.

Unlike section 529, section 148.9 can be violated by falsely identifying oneself as a fictitious person:  “(a) Any person who falsely represents or identifies himself or herself as another person or as a fictitious person to any peace officer ․, upon a lawful detention or arrest of the person, either to evade the process of the court, or to evade the proper identification of the person by the investigating officer is guilty of a misdemeanor. (b) Any person who falsely represents or identifies himself or herself as another person or as a fictitious person to any other peace officer ․, upon lawful detention or arrest of the person, either to evade the process of the court, or to evade the proper identification of the person by the arresting officer is guilty of a misdemeanor if (1) the false information is given while the peace officer is engaged in the performance of his or her duties as a peace officer, and (2) the person providing the false information knows or should have known that the person receiving the information is a peace officer.”  (§ 148.9, italics added.)

 In contrast, section 529, subdivision 3, requires that the perpetrator impersonate a real person (People v. Robertson (1990) 223 Cal.App.3d 1277, 1281, 273 Cal.Rptr. 209):  “Every person who falsely personates another in either his private or official capacity, and in such assumed character either:  [¶] ․ [¶] 3.   Does any other act whereby, if done by the person falsely personated, he might, in any event, become liable to any suit or prosecution, or to pay any sum of money, or to incur any charge, forfeiture, or penalty, or whereby any benefit might accrue to the party personating, or to any other person;  [¶] Is punishable by a fine not exceeding ten thousand dollars ($10,000), or by imprisonment in the state prison, or in a county jail not exceeding one year, or by both such fine and imprisonment.”  (Italics added.)

People v. Robertson, supra, 223 Cal.App.3d at pp. 1281-1282, 273 Cal.Rptr. 209 affirmed a felony section 529, subdivision 3 conviction, rejecting the defendant's claim that he was guilty only of violating section 148.9, where the defendant falsely identified himself to the arresting officer as his brother.   The defendant signed booking and release forms using his brother's name.   When he failed to appear at the next scheduled hearing, a bench warrant was issued for the brother's arrest.   After the brother was arrested on the outstanding warrant, the authorities discovered the ruse and the defendant was convicted.

Robertson explained that, when compared to section 148.9, section 529, subdivision 3 required an additional act beyond the impersonation itself, “which, had it been done by the [one] falsely personated, might have subjected that person to either a suit or some kind of debt or fine;  or which benefitted the defendant or ‘any other person’ in some way.”  (People v. Robertson, supra, 223 Cal.App.3d at p. 1281, 273 Cal.Rptr. 209.)   In addition, section 529, subdivision 3 requires that the impersonation be of a real, not fictitious, person in his private or official capacity, and that the defendant have the specific intent to benefit himself or subject the one impersonated to suit, debt, or fine.  Section 148.9 requires only an impersonation to evade a court's process.   The misdemeanor does not require any additional act, that a real person be impersonated, or any specific intent.  (People v. Robertson, supra, 223 Cal.App.3d at pp. 1281-1282, 273 Cal.Rptr. 209.)

People v. Cole (1994) 23 Cal.App.4th 1672, 28 Cal.Rptr.2d 788 determined that the record did “not support the felony conviction;  however, it [did] support a misdemeanor conviction.”  (Id. at p. 1676, 28 Cal.Rptr.2d 788.)   When arrested, Cole identified himself with another person's name and birthdate.  Cole rejected the People's argument that giving the false birthdate in addition to the false name satisfied the section 529 additional act requirement, distinguishing Robertson:  “The conduct described in Robertson was substantially more than merely providing a police officer with false identification.   Here, however, giving a false birthdate and middle name was no more than part of the act of providing the false information upon which the false identity was based.   Each statement made in the course of providing contemporaneous statements amounting to false identification logically cannot be construed as separate acts compounding each prior statement.”  (Id. at p. 1676, 28 Cal.Rptr.2d 788.)

 Here, Lee did more than simply give a false name to try and escape identification.   On a separate occasion, Lee signed his brother's name to a traffic ticket to further his plan of avoiding detection while he continued to drive with outstanding warrants and in violation of his parole.   A month later, when stopped again, Lee tried to use his earlier false signature on the ticket to escape detection.   Thus, despite Lee's contrary claim, he did an additional act in addition to claiming to be someone else, as required by section 529, subdivision 3.   In this respect, our case is like Robertson and unlike Cole.

 We next address the core issue raised by this petition:  Can one violate section 529 by impersonating a deceased person?   We conclude the answer is yes.   A deceased person was real, not fictitious.   While he is not presently alive, records document his life;  those who knew him can testify to his acts and record them for history;  his friends and family mourned his death;  if necessary, his corpse (if not cremated or otherwise destroyed) may be exhumed to provide DNA samples for genealogical, medical, or forensic uses.   His heirs and estate may incur claims if someone uses his name to borrow or change asset ownership;  although they may eventually escape liability, they may expend enormous amounts of time and money to do so, while their assets are frozen.

Whatever else he may be, a deceased person is not and never was “[f]ictitious [:  f]ounded on a fiction;  having the character of a fiction;  pretended;  counterfeit.   Feigned, imaginary, not real, false, not genuine, nonexistent.   Arbitrarily invented and set up, to accomplish an ulterior object.”  (Black's Law Dict. (6th ed.1990), p. 624.)

On the contrary, a deceased person is “[a]ctual[:  r]eal;  substantial;  existing presently in fact;  having a valid objective existence as opposed to that which is merely theoretical or possible.   Opposed to potential, possible, virtual, theoretical, hypothetical, or nominal.   Something real, in opposition to constructive or speculative;  something existing in act.   It is used as a legal term in contradistinction to virtual or constructive as of possession or occupation.   Actually is opposed to seemingly, pretendedly, or feignedly, as actually engaged in farming means really, truly in fact.”  (Black's Law Dict., supra, p. 34.)

 Laws prohibiting impersonating others have at least two purposes.   One, just discussed, is to prevent harm to the person falsely personated.   A second, equally important purpose, is to assure the integrity of judicial and governmental processes.³  “Historically, fake personation was not made an offense merely for the protection of the person impersonated.”  (35 C.J.S., False Personation, § 1, p. 791, fn. omitted.)   “Ordinarily there cannot be a personation of a supposititious individual who never existed, or of an officer where there is no legally appointed officer of the character which accused was assuming to personate;  but under a statute punishing one assuming to be an officer of the government, the offense may be committed even though the offender assumes to hold an office which has no legal existence.   The offense may be committed even though the person whose name and character are assumed is dead.”  (Id. at § 3, p. 794, emphasis added, fns. omitted.)

People v. Horkans (1942) 109 Colo. 177, 181, 123 P.2d 824, 826, cited with approval an earlier version of the emphasized language from Corpus Juris Secundum, stating:  “To ‘falsely impersonate’ may mean to pretend to be a particular person without lawful authority․ [M]oreover, the offense of impersonation may be committed although the person who is impersonated is dead.   25 C.J., p. 578, § 4.”   The Colorado Supreme Court continued:  “It is incorrect to say that the offense of false impersonation, historically, was imposed only to protect persons impersonated.   We here are dealing with a statutory offense that makes no such exclusive imposition, and there exist many other similar impersonation statutes․”  (Ibid.) Horkans reversed the dismissal of and reinstated an indictment where the defendants falsely impersonated a third person in whose name they took and passed a civil service exam.   The third person paid them to do so.   Although the quoted passages are dictum, we find them persuasive, particularly since they were applied to a very similar Colorado law quoted in the case:  “ ‘If any person shall falsely impersonate another, and in such assumed character:  ․  4. Does any other act in the course of any act or proceeding whereby if it were done by the person falsely personated, such person might in any event become liable to an action or special proceeding, civil or criminal, or to pay a sum of money, or to incur a charge, forfeiture or penalty, or whereby any benefit might accrue to the offender or to another person․’ ”  (Id. at p. 178, 123 P.2d 824.)

Likewise, in Camren v. State (Okla.Crim.App.1991) 815 P.2d 1194, Camren impersonated his deceased brother when he was stopped and ticketed for speeding.   Like Lee, Camren signed his dead brother's name on the ticket.   Camren testified that he gave his dead brother's name to avoid permanently losing his already-expired driver's license.   Camren was convicted under the Oklahoma statute which provides:  “Every person who falsely personates another, and in such assumed character:  [¶] (4) Does any other act whereby, if it were done by the person falsely personated, he might in any event become liable to any suit or prosecution, or to pay any sum of money, or to incur any charge, forfeiture or penalty, or whereby any benefit might accrue to the party personating, or to any other person․”  (Id. at p. 1195.)   The appellate court affirmed, assuming without discussion that a dead person may be impersonated.

We are persuaded by these authorities, construing nearly identical statutes, that we should interpret section 529 such that it is violated by one falsely impersonating a deceased person, so long as the perpetrator also commits an additional act beyond the impersonation and acts with the required specific intent.   Because the trial court did so find, we deny Lee's petition.

 Moreover, section 529, subdivision 3 can be violated in two ways: 1) doing an act which, if done by the person falsely personated, might subject the victim to criminal or civil liability, financial obligation, or charge, forfeiture, or penalty;  or 2) doing an act which benefits the perpetrator.   Here, Lee hoped to benefit (and did so on July 24) by continuing without detection to drive illegally on a suspended license with outstanding warrants and in violation of his parole.   Thus, apart from whether Lee's conduct could have subjected anyone to liability, obligation, or penalty, his act (signing the ticket with Watson's name) benefitted him.  “[T]he word ‘benefit’ as used in [section 529, subdivision 3] is not limited to pecuniary or material gain.   The word ‘benefit’ denotes any form of advantage.  [Citations.]”  (People v. Vaughn (1961) 196 Cal.App.2d 622, 630, 16 Cal.Rptr. 711 [affirming a conviction for violating section 529, subdivision 3 where the defendant lawyer had an accused's twin sister pose as the accused during a preliminary hearing and when arrested for the accused's outstanding warrant];  Camren v. State, supra, 815 P.2d at pp. 1195-1196.)

On the other hand, entering a home intending to steal after the resident had died in a bedroom reduced a first degree (residential) burglary to second degree.  “To prove first degree burglary of an inhabited dwelling, the People must present evidence that the house is ‘currently being used for dwelling purposes, whether occupied or not.’  [Citation.]   What this means is that a dwelling is inhabited if the occupant is absent but intends to return and to use the house as a dwelling.  [Citations.]   To put it plainly, a dead body is not using a house for a ‘dwelling’ and there is no way to say that a dead man is going to return or that he has an ‘intent’ of any kind.   It follows that, at the time of [defendant's] entry ․, the house was not occupied within the meaning of section 459.”  (People v. Ramos (1997) 52 Cal.App.4th 300, 302, 60 Cal.Rptr.2d 523.)   Of course, that portion of burglary analysis focuses on whether the occupant intends to return.   Section 529, subdivision 3 focuses on the likelihood of harm to others from the perpetrator's conduct.

The preliminary hearing evidence sufficiently demonstrated Lee violated section 529, subdivision 3 by falsely impersonating his deceased brother Watson by signing Watson's name to a traffic ticket issued to Lee, then repeating the false identification when stopped nearly a month later.   The magistrate and trial court both so found.   We agree and deny Lee's writ petition.

DISPOSITION

We deny the writ petition.

FOOTNOTES

1.   All further references are to the Penal Code.

2.   Both the complaint and information charged Lee with violating section 529 without listing any of its three subdivisions, but both documents charged Lee with doing so only in the language of section 529, subdivision 3.Both during the section 995 motion and on appeal, the People argued, and the trial court agreed, that if, as we hold, his deceased brother is a real person under section 529, the preliminary hearing evidence also supports a charge that, by signing the traffic ticket with Watson's name on July 24, Lee violated subdivision 2, which states:  “Every person who falsely personates another in either his private or official capacity, and in such assumed character ․ [v]erifies, publishes, acknowledges, or proves, in the name of another person, any written instrument, with intent that the same may be recorded, delivered, or used as true․”Lee does not dispute that the preliminary hearing testimony shows he signed Watson's name.   Lee argues that, because of the complaint's and information's language, he did not know he would face a charge of violating subdivision 2, and it would violate due process to so construe the information.   Lee notes the issue whether the ticket constitutes a “written instrument” under subdivision 2 has not been argued.We need not resolve this argument here.   Should the People decide to file an amended information alleging violations of both subdivisions 2 and 3, either as one or as two charges, these issues may be raised in the trial court.

3.   See, for example, section 528, which states:  “Every person who falsely personates another, and in such assumed character marries or pretends to marry, or to sustain the marriage relation towards another, with or without the connivance of such other, is guilty of a felony.”   This statute, by its terms, is designed to do more than protect the person who marries the impersonator from harm, since the statute is violated whether the person married knows of the falsehood or not.   While we do not here interpret section 528, that section likely was enacted both to protect the person falsely impersonated from harm (accusations of bigamy if the person is or later becomes married;  financial obligations of support), and to protect the institution of marriage as well as prevent fraud against third parties (wrongfully acquiring government or employer benefits reserved for spouses).

ORTEGA, Acting P.J.

MIRIAM A. VOGEL, J., and MASTERSON, J., concur.