P. v. Montolongo

Filed 6/26/07 P. v. Montolongo CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Kern County. Richard J. Oberholzer, Judge.

Joshua G. Wilson, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, J. Robert Jibson and Raymond L. Brosterhous II, Deputy Attorneys General, for Plaintiff and Respondent.

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Lionel Montolongo was convicted of transporting a controlled substance (Health & Saf. Code,  11379, subd. (a)), possession of a controlled substance (Health & Saf. Code,  11377, subd. (a)), and giving a false name to a police officer (Pen. Code,  148.9, subd. (a)).^[1] He argues that he cannot be convicted of both transportation of a controlled substance and possession of the same controlled substance because the latter is a necessarily included offense of the former. He also argues that while he did give a false name to the officers, he was not legally detained at the time and therefore the evidence was insufficient to support the conviction.

The People concede, and we agree, that the possession of a controlled substance conviction must be reversed. We will affirm the judgment in all other respects.

FACTUAL AND PROCEDURAL SUMMARY

Officer James Jones was on patrol on the night in question in a marked patrol car driven by Officer Jason Hatcher. Hatcher initiated a traffic stop for excessive speed on a vehicle being driven by Manuel Gonzalez. Hatcher approached the driver of the vehicle and Jones approached the passenger, Montolongo. Montolongo told Jones his name was Tony Lopez. Subsequently, both occupants were ordered out of the vehicle.

Methamphetamine and two scales commonly used for weighing illegal substances were discovered during a consensual search of the vehicle. After being ordered out of the vehicle, Montolongo gave officers a false name a second time. He eventually admitted his true identity.

Montolongo was charged and convicted of transporting a controlled substance (Health & Saf. Code,  11379, subd. (a)), possession of a controlled substance (Health & Saf. Code,  11377, subd. (a)), and giving a false name to officers (Pen. Code  148.9, subd. (a)). He was sentenced to an aggravated term of four years for transporting a controlled substance, plus two years for two section 667.5, subdivision (b), enhancements.

DISCUSSION

I. Possession of a Controlled Substance

Montolongo was convicted of both possession of a controlled substance, and transportation of a controlled substance. (Health & Saf. Code,  11377, subd. (a) & 11379, subd. (a).) He argues that possession of a controlled substance is a necessarily included offense to the transportation count, and therefore he cannot be convicted of both crimes.

The law is well settled. Although section 954 permits an accusatory pleading to charge different statements of the same offense, and permits conviction of any number of the offenses charged, it has long been the rule that multiple convictions may not be based on necessarily included offenses. [Citations.] (People v. Ortega (1998) 19 Cal.4th 686, 692, overruled on other grounds in People v. Reed (2006) 38 Cal.4th 1224, 1228-1229.) The test in this state of a necessarily included offense is simply that where an offense cannot be committed without necessarily committing another offense, the latter is a necessarily included offense. [Citations.] [Citation.] (Ortega, at p. 692.) The question of whether an offense is necessarily included in another offense is determined by the statutory definitions of the offenses and the language of the accusatory pleading. (Id. at p. 698.)

The People concede that the Supreme Court has held that possession of a controlled substance is necessarily included in the transportation of a controlled substance when the same substance is utilized to support both offenses, as is the case here. (People v. Rogers (1971) 5 Cal.3d 129, 134, fn. 3.) Accordingly, Montolongos conviction for possession of a controlled substance in count 2 must be reversed.

II. False Identification

Montolongo told officers his name was Tony Lopez, an admittedly false name. After he was arrested he told the officers his true name. He was convicted in count 3 of violating section 148.9, subdivision (a), which states: Any person who falsely represents or identifies himself or herself as another person or as a fictitious person to any peace officer listed in Section 830.1 or 830.2, or subdivision (a) of Section 830.33, 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. As recognized in In re Voeurn O. (1995) 35 Cal.App.4th 793, 795-796, the statute unambiguously requires the defendant be either lawfully detained or arrested at the time he identifies himself falsely. Montolongo asserts that he was engaged in a consensual encounter when he gave the officers a false name. Accordingly, he argues the evidence was insufficient to support the verdict.

To support his argument Montolongo relies on People v. Brendlin (2006) 38 Cal.4th 1107 (Brendlin). The People inexplicably ignore Brendlin and argue substantial evidence supports the conviction citing Maryland v. Wilson (1997) 519 U.S. 408, 410 (Maryland).

Brendlin, which was decided after the trial in this matter, held that a passenger in a vehicle stopped for a traffic violation is not detained and thus his or her Fourth Amendment rights are not implicated. (Brendlin, supra, 38 Cal.4th at p. 1122.) Under this decision, Montolongo was not detained when he first gave a false name to the officers, and thus did not violate section 148.9, subdivision (a). Since the prosecutor argued that the first time Montolongo gave the officers a false name was sufficient to support a conviction, it would be difficult to uphold the conviction in light of Brendlin.

Brendlin, however, was overruled by the United States Supreme Court in Brendlin v. California (June 18, 2007, No. 06-8120) ___ U.S. ___ [2007 U.S. Lexis 7897], which held that a passenger in a vehicle that is stopped by the police is detained for the purposes of the Fourth Amendment. The California Supreme Courts opinion in Brendlin was vacated. (Id. at p. ___ [2007 U.S. Lexis at p. *28].) Under the United States Supreme Courts opinion, Montolongo was detained from the moment the vehicle was stopped, and thus he violated section 148.9, subdivision (a) when he gave a false name to the investigating officers.

III. Proposition 36

Montolongo asserts the trial court erred when it failed to sentence him pursuant to the provisions of section 1210.1, commonly known as Proposition 36. Montolongos argument, however, is dependent on our reversing the conviction for giving a false name to Jones. Since we have affirmed the conviction for violating section 148.9, subdivision (a), Montolongo is not eligible for sentencing pursuant to Proposition 36. ( 1210.1, subd. (b)(2).)

DISPOSITION

The conviction in count 2 for possession of a controlled substance (Health & Saf. Code,  11377, subd. (a)) is reversed. The judgment is affirmed in all other respects. The matter is remanded to the trial court for correction of the abstract of judgment.

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^* Before Cornell, Acting P.J., Gomes, J. and Dawson, J.

^[1] All further statutory references are to the Penal Code unless otherwise stated.