P. v. Williams

Filed 9/28/07 P. v. Williams CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION THREE

After a jury trial, appellant Rickey Charles Williams was convicted of the felony offenses of possessing cocaine base for sale (Health & Saf. Code,  11351.5) and possessing heroin (Health & Saf. Code,  11350, subd. (a)), and the misdemeanor offense of false representation of his identity to a peace officer (false representation of identity) (Pen. Code,  148.9, subd. (a)). The jury acquitted him of the misdemeanor offense of using a police scanner to assist in the commission of criminal activity (Pen. Code,  636.5). At a bench trial, the court found true several sentencing enhancement allegations pertaining to prior convictions and previously served prison terms. The court sentenced appellant to a total term of 13 years.

The parties agree, and we concur, that there is insufficient evidence to support appellants conviction for false representation of identity. However, we reject appellants challenges to his other convictions on the grounds that the trial court erred in denying his motion for a new trial and improperly admitted certain evidence. Accordingly, we reverse the conviction for false representation of identity and strike the sentence imposed thereon, but otherwise affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

At about 6:30 a.m. on August 16, 2005, East Palo Alto police officers Stephen Kalb and Tim Brackett received on their pagers a text message from the police dispatcher that two subjects or people were selling drugs from a truck parked in a driveway at a certain address in East Palo Alto. The uniformed officers drove in separate marked police cars to the location, with Kalb arriving first. Kalb saw appellant and another man in the driveway; the two men were standing near a truck and looked at the officer. Kalb told the men that there had been a complaint of drug sales at the location. When he asked the men their names, appellant identified himself as Luther Deldridge.

Because Kalb knew Luther Deldridge and believed that appellant was falsely using Deldridges name, Kalb asked appellant several questions to confirm his identity. While Kalb was questioning appellant, Brackett arrived at the location. Brackett acted as backup for Kalb. As Kalb continued to talk to the men, Brackett looked inside a nearby garbage can and saw a black scanner. The scanner was off, but when Brackett turned it on and Kalb sent a test message from his radio, the scanner cycled onto the East Palo Alto police frequency. Brackett noticed that the two men were starting to become fidgety, agitated and uncomfortable. Given the text message and the discovery of the scanner, Brackett decided to handcuff the men while further investigating the situation. Brackett asked the two men to turn around, and face the truck. As Brackett walked towards the men, appellant ran away. Brackett ordered appellant to stop and grabbed appellants jacket, but appellant knocked Bracketts hand away and continued running. Bracket pursued appellant. After seeing that the other man in the driveway was not moving, Kalb began to chase Brackett and appellant.

While he was running, Brackett saw a plastic baggie fall from between appellants legs at knee level, hit the inside of appellants pant leg and then hit the ground. The officer did not see anything that indicated appellant had kicked the baggie before the officer saw it going down. There was no one else near appellant at that time. Nor did the officer see any pedestrians in the area that morning or cars going by. At the time the officer saw the baggie, appellant was running and [c]ertainly not making an indication as though he was throwing anything. The officer could not see appellants hands, just the motion of his arms, running. Brackett stopped and picked up the plastic bag, which was filled with an off-white substance that the officer suspected was cocaine base.

Although Kalb was following Brackett and appellant, Kalb was focusing on appellant and car traffic. Kalb did not see appellant make any movement consistent with throwing anything on the ground. Nor did Kalb see Brackett stop to pick up the baggie. Kalb ran past Brackett and continued to pursue appellant. After appellant jumped a fence, Kalb stopped running because he heard Brackett yelling. When Kalb turned around, Brackett held up the plastic baggie and yelled to him, we had drugs.

Brackett returned to his patrol car to secure the plastic baggie. By that time, the other man who had been standing with appellant, the truck, and the scanner were gone. Kalb got into his car and continued to search for appellant. Kalb met East Palo Alto Police Officer Brian Frayer, and later Police Sergeant Kevin Fung, who joined in the pursuit of appellant. Appellant was ultimately caught and arrested by Frayer.

After a pat down search, the police found on appellants person $257 in cash, and a plastic clear Visine eye drop bottle containing a usable quantity of heroin in a dark liquid. As the bottle was taken from his pants, appellant said, thats nothing. Thats just diversion, or its only diversion. The plastic baggie recovered by Brackett contained 34.25 grams of cocaine base, which if sold in bulk was worth $750 to $800, but would yield about $3,400 if sold in individual $20 doses. Expert witnesses Atherton Peace Officer Kristen Nichols and Detective Sergeant Leo Capovilla of the San Mateo County Sheriffs Office opined that the cocaine was possessed for sale. No latent fingerprints were recovered from the plastic baggie or the plastic bottle.

The prosecution offered in evidence documents showing that in 2000 and 2003, appellant had been convicted, by way of . . . plea[s], of possessing cocaine base for sale. No witnesses testified regarding the circumstances leading to the 2000 conviction. The circumstances leading to appellants 2003 conviction were testified to by Capovilla, and several other members of the San Mateo County Sheriffs Office: Detective Sergeant Thomas Gallagher and Deputy Sheriffs Ken Owen and Keith Maher. On June 14, 2003, in East Palo Alto, Owen, Maher, and Capovilla observed appellant in the drivers seat of a parked car. He appeared to be doing something to the ignition. As the officers left their car, appellant got out of the car, left the drivers door open, and started walking away from the officers. After the police identified themselves and asked him to stop, appellant ran away. The officers chased appellant. During the chase, appellant dropped a Visine eye drop bottle containing a tar-like liquid substance. Capovilla and Mahler later retrieved the bottle; its contents tested positive for heroin. Owen and Mahler eventually caught and arrested appellant. Appellant had a black police scanner in his hand. When retrieved by the officers, the scanner was on and tuned to a frequency used by the East Palo Alto police department and the officers unit. After handcuffing appellant on the ground, he was rolled over and the officers searched him for identification and weapons. Appellant had $257 in cash in small denominations. Although the officers searched appellant at the time of his arrest, they did not find any other suspected narcotics on his person because he was heavily clothed and they did not strip search him. But, the officers found on the ground a large rock-like substance, which later tested positive for cocaine base. At the police station, Gallagher placed the handcuffed appellant in an interview room. While observing appellant on a hidden surveillance monitor, Gallagher saw appellant start to pull a plastic baggie from his pants. By the time the officer had re-entered the interview room, appellant had taken out the plastic baggie and started to crush its contents. He managed to grind some contents into the carpet before the officer stopped him. The police retrieved the remaining substance, which later tested positive for cocaine base. Capovilla opined that the recovered cocaine base, worth about $1,800 if sold in individual $20 doses, was possessed for sale.

Appellant did not testify at trial. He called his wife as a witness. She testified that on August 16, 2005, she gave appellant $200 in cash to pay for their childrens day care, and to buy diapers and milk. She had also given appellant money earlier that week. Because she worked and appellant was unemployed, she gave appellant money and in return, he assisted her by caring for the children and doing household chores.

DISCUSSION

I. Denial of Appellants Motion for a New Trial

Appellant filed a motion for a new trial, pursuant to Penal Code section 1181, subdivisions (5) and (8),[1] contending that after the verdict, he discovered that the prosecution had failed to disclose certain information about pervasive corruption in the East Palo Alto police department during the time that the prosecutions main witnesses Officers Kalb and Brackett were employed there. The motion was supported by a transcript of a pre-trial hearing in another case in which an East Palo Alto Police Officer testified against other officers charged with an assault. In the proffered transcript, the officer testified that while he was aware of other instances of the use of force by one of the officers involved in the assault, he had not reported the alleged misconduct to the Patrol Division Lieutenant, his superior officer, because, it was the culture at the time. [The Lieutenant] had his what they like to call themselves as the boys, a certain group of officers, a click [sic]. They almost operated as a gang. And if you were one of them, you were fine. If you werent, [the Lieutenant] had a different set of standards. It was a double standard down the line. The officer admitted he lied during internal affairs investigations and filed false police reports about past incidents of alleged excessive force because he was afraid if he reported the use of force by certain officers he would lose his job. He named several police officers he believed were part of the Lieutenants gang and testified that a majority -- maybe half the persons at the police department were part of the group. He determined who he thought were members of the gang by the punishment that was given out to a select few officers. He was not afraid to report misconduct by other officers, [i]t was particularized to just a certain few people [who] were protected with different standards. When asked if he would report misconduct of other officers, the officer replied, I can only speculate and say maybe, yes. According to appellant, a new trial was required because the transcript constituted either newly discovered evidence, or if nothing else, material that should have been disclosed pursuant to Brady v. Maryland (1963) 373 U.S. 83 (Brady).

The District Attorney opposed the motion, arguing that (1) appellant had failed to detail any allegations supporting relief, pursuant to Penal Code section 1181, subdivision (5); and (2) the officers testimony was neither admissible nor relevant evidence pertaining to appellants case, and it did not cast any doubt on the jurys verdict or undermine the prosecutions case. The trial prosecutor submitted an affidavit in which he detailed parts of the officers testimony, but noted, among other things, that the officers who had testified at appellants trial had not been named, and the officer had not testified that police were lying at trials or writing false police reports in general.

After oral argument by counsel, the trial court denied appellants motion for a new trial. The court explained: I did read [the] transcript and that transcript does deal with certain officers covering for other officers with reference to excessive force in the East Palo Alto police department. I do not find based on a reading of that transcript the kind of allegations that show grounds for a motion for a new trial in this case. [] First of all, I do not find the district attorneys office committed misconduct, let alone prejudicial misconduct in connection with this case. And I do not find that ‑- the transcript provided by the defense, . . . represents material newly discovered evidence [that] if presented at trial [would] probably result in a different result. None of the testifying officers in [appellants] case [are] the subject of that transcript explicitly. And that transcript deals with officers who covered for other officers in excessive force context. [] I find that any such testimony involving unrelated officers would not have [probably resulted] . . . in a . . . different [outcome] . . . .

Appellant argues his motion for a new trial should have been granted based on the prosecutors misconduct in not disclosing the proffered testimony under Brady. He also argues that even if the evidence was not Brady material, it was newly discovered evidence that warranted a new trial. We disagree with appellants contentions.

In Brady, the United States Supreme Court held that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution. (Brady, supra, 373 U.S. at p. 87.) The high court has extended the prosecutors duty to encompass the disclosure of material evidence, even if the defense made no request concerning the evidence. (United States v. Agurs (1976) 427 U.S. 97, 107.) The duty encompasses impeachment evidence as well as exculpatory evidence. (United States v. Bagley (1985) 473 U.S. 667, 676.) Such evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A reasonable possibility is a probability sufficient to undermine confidence in the outcome. (Id. at p. 682.)  [T]he reviewing court may consider directly any adverse effect that the prosecutors failure to respond might have had on the preparation or presentation of the defendants case.  (In re Brown (1998) 17 Cal.4th 873, 887, quoting Bagley, supra, 473 U.S. at [p.] 683.) Defendant has the burden of showing materiality. (In re Sassounian (1995) 9 Cal.4th 535, 545.) (People v. Hoyos (2007) 41 Cal.4th 872, 917-918.)

In determining whether a defendant is entitled to a new trial,  [t]he question always exists . . . as to whether under all the circumstances of the case the newly discovered evidence is produced in such a way, and is of such a nature, that its introduction upon another trial would render a different result reasonably probable, and as to whether, in the absence of such evidence, the defendant has had a fair trial on the merits. [] In making this determination the court is entitled to consider the credibility as well as the relevance of the proffered testimony. [Citations.] (People v. Sousa (1967) 254 Cal.App.2d 432, 435.) Defendant has the burden of showing that the evidence was material in that its introduction would   render a different result probable on a retrial of the cause.   (People v. Martinez (1984) 36 Cal.3d 816, 821.)   The determination of a motion for a new trial rests so completely within the courts discretion that its action will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears.  [Citations.]  [I]n determining whether there has been a proper exercise of discretion on such motion, each case must be judged from its own factual background.  [Citation.] (People v. Delgado (1993) 5 Cal.4th 312, 328.)

Appellant failed to meet his burden of establishing that with the proffered testimony in evidence, the testimony of any of the officers in this case would have been so diminished that there is a reasonable probability the outcome of the trial would have been different (Kyles v. Whitley (1995) 514 U.S. 419, 434 [Brady standard]) or that a different result was probable on a retrial (People v. Martinez, supra, 36 Cal.3d at p. 821 [newly-discovered-evidence standard]). The proffered testimony was not exculpatory because it did not pertain to the charges against appellant. As to its use as impeachment, the testimony neither implicated the credibility of the entire East Palo Alto police department, nor even arguably g[a]ve rise to any inference of perjury by any officer who testified in the case. (United States v. Agurs, supra, 427 U.S. at p. 114.) Appellant does not present any argument as to any adverse effect the failure to disclose the proffered testimony may have had on the preparation or presentation of his case. (In re Brown, supra, 17 Cal.4th at p. 887.) Even assuming the earlier disclosure of the officers testimony might have led appellants trial counsel to conduct additional discovery, the evidences influence on the outcome of the case [is] speculative. [Citations.] (People v. Hoyos, supra, 41 Cal.4th at p. 919, fn. 28.) The mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial, does not establish materiality in the constitutional sense sufficient to establish a Brady violation. (United States v. Agurs, supra, 427 U.S. at pp. 109-110.) Accordingly, reversal on this ground is not warranted.[2]

II. Admission of Evidence Explaining Officers Actions

Before trial, the prosecutor moved in limine to allow Officers Brackett and Kalb to testify as to why they had initially approached appellant. The prosecutor represented that an unidentified woman had called East Palo Alto police, and said there are two cars selling drugs at a certain location. And she describes one of them as a . . . black truck with red fenders, and a second car, newer model car. This information was given to the officers, who went to the location and saw one truck that matched the description, and two men, appellant and another person. The prosecutor asked that the testimony be admitted not for its truth, but to explain the officers actions. The prosecutor argued that an explanation of the officers actions was necessary for two reasons: (1) to avoid the perception that appellant was basically rousted by the police for no reason at all. They just came there, started asking questions, started ordering them around. It was totally unfair. Thats possibly jury nullification; and (2) to prove the detention element of the false representation of identity offense, the officer needed to articulate what the basis was for his investigation, detention of appellant. Appellant opposed the admission of the evidence, arguing it was impermissible hearsay, and what the officers thought or heard from the police dispatcher did not add any value to the facts. The court agreed with the prosecutor that the evidence was relevant to the issue of whether appellant was lawfully detained when he falsely represented his identity, and that the People [were] also vulnerable to a claim . . . that there was harassment going on here in the absence of something directing [the officers] attention to appellant. Appellant replied by arguing that the prosecutor needed to establish the legality of the detention by doing it the right way. [] . . . [] Authenticate. Bring in . . . whoever made the call, whoever dispatched the call, something other than hearsay. The court was troubled by the use of this hearsay but noted the police could rely on information they received, including hearsay information, for purposes of detention. In the absence of a stipulation that the element of detention did not need to be proven, the court held the prosecutor had to prove appellant was lawfully detained when he falsely represented his identity. And, the information the officers used to decide to detain appellant was relevant to the issue of the lawfulness of the detention. The court also held the prosecutor did not need to call as a witness the person who made the crime report to the police. Whether the jury heard the 911 tape or the officers related what they were told, the crime report came out of the hearsay category, to the extent [the court] instruct[ed] the jury that its not offered for its truth, but just as a basis for the officers conduct in this case.

After Officer Brackett first testified on direct regarding the text message he had received on his pager, the trial court told the jury that the evidence was only offered for a limited purpose: In this case -- it will be true a couple of times in this case that evidence is going to be offered for a limited purpose. The evidence of why the officers were dispatched to [the location] is offered only to explain their actions and as it relates to the lawfulness of any detention. It is not offered for the truth of the matter asserted. [] Do not consider this evidence for any purpose except for the limited purpose for which it was admitted. In other words, the statement that the officer got over the radio as to what somebody else allegedly saw, you cant accept that for the truth. Its just to explain the conduct of the officers. Again, during its final instructions, the court told the jury that evidence as to . . . why officers were dispatched to [the location] was admitted for limited purposes. At the time this evidence was admitted, you were instructed that it could not be considered by you for any purpose other than the limited purpose for which it was admitted. Do not consider this evidence for any purpose except the limited purpose for which it was admitted.

We are not persuaded by appellants argument that the admission of the officers reasons for approaching appellant was erroneous because it was irrelevant to the issue of the legality of the detention. The case was tried on the theory that appellant was detained when Officer Kalb first approached him to question him about a complaint of drug sales at the location, to which appellant argued the officers action was unlawful because he had an insufficient basis to detain and question him.[3]  [T]o determine whether a particular encounter constitutes a [detention], a court must consider all the circumstances surrounding the encounter to determine whether the police conduct would have communicated to a reasonable person that the person was not free to decline the officers requests or otherwise terminate the encounter. [Citation.] . . . Circumstances establishing a [detention] might include any of the following: the presence of several officers, an officers display of a weapon, some physical touching of the person, or the use of language or of a tone of voice indicating that compliance with the officers request might be compelled. [Citations.] The officers uncommunicated state of mind and the individual citizens subjective belief are irrelevant in assessing whether a [detention] . . . has occurred. [Citation.] (In re Manuel G. (1997) 16 Cal.4th 805, 821.) Consistent with the parties trial theories, the jury was instructed that in determining whether appellant had been lawfully detained, they could consider [t]ime, location, number of people, demeanor and conduct of a suspect, a recently reported crime, and the gravity of the crime. . . . (Italics added.) Thus, we conclude the court appropriately determined that evidence of Officer Kalbs reason for approaching appellant (conveyed to appellant before asking him his identity) was relevant in assessing whether the officer had lawfully detained defendant.

Appellant also contends the courts refusal to require the prosecution to produce either the anonymous 911 caller or the police dispatcher violated his Sixth Amendment right to confrontation under Crawford v. Washington (2004) 541 U.S. 36 (Crawford).[4] However, Crawford made clear that there are no confrontation clause restrictions on the introduction of out-of-court statements for nonhearsay purposes. As Crawford confirmed, [t]he [Confrontation] Clause does not bar the use of [out-of-court] statements for purposes other than establishing the truth of the matter asserted. [Citation.] (People v. Cage (2007) 40 Cal.4th 965, 975, fn. 6.) Because the challenged testimony was admitted for nonhearsay purposes, we do not address appellants Crawford arguments.

III. Admission of Evidence of Appellants Prior Convictions

Before trial, the prosecutor sought to admit, over appellants objection, evidence of appellants three prior convictions for possessing cocaine base for sale. After argument, the court excluded appellants 1994 conviction as too remote and cumulative, but allowed admission of his 2000 and 2003 convictions under Evidence Code section 1101. The court explained that such evidence was admissible because it was offered to prove a fact, such as intent, preparation, plan, knowledge, absence of mistake or accident. And . . . although, not mentioned in [Evidence Code section 1101], to negate things such as an implication that evidence was planted. [] I think absence of mistake or accident applies to this situation where the implication will no doubt be that this wasnt his cocaine. . . . But instead, it was something just found on the street and kicked by the officers. In weighing the prejudicial effect of the evidence, pursuant to Evidence Code section 352, the court found the evidence, which had substantial probative value pertaining to the elements of intent to sell and knowledge that appellant possessed cocaine base, would not unduly prejudice the jury. During the testimony and in its final instructions, the court instructed the jury that the evidence of appellants prior convictions could only be used to determine if the evidence tended to show appellants intent, knowledge of narcotics, a common plan or scheme, or the absence of mistake or accident, and that the evidence was not to be considered for any other purpose. The jury was also told it could not consider the prior conduct and convictions as evidence that appellant was a person of bad character or that he was disposed to commit the current offenses.

Appellant argues that the court erred in admitting the evidence of his prior 2000 conviction because there were insufficient facts to determine whether the conviction was truly probative of his intent. He additionally argues that as to both convictions, their probative value was outweighed by their prejudicial impact. We conclude appellants arguments do not warrant reversal.

Evidence of prior criminal acts is admissible when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge . . .), but not to prove the defendant carried out the charged crimes in conformity with a character trait. (Evid. Code,  1101.) To be relevant on the issue of identity, the uncharged crimes must be highly similar to the charged offenses. . . . [] . . . [] A lesser degree of similarity is required to establish relevance on the issue of common design or plan. . . . [] The least degree of similarity is required to establish relevance on the issue of intent. [Citation.] For this purpose, the uncharged crimes need only be sufficiently similar [to the charged offenses] to support the inference that the defendant  probably harbored the same intent in each instance. [Citations.]   [Citations.] [] As we have observed, however, evidence of uncharged misconduct  is so prejudicial that its admission requires extremely careful analysis  and to be admissible, such evidence  must not contravene other policies limiting admission, such as those contained in Evidence Code section 352.  [Citation.] Thus, [t]he probative value of the uncharged offense evidence must be substantial and must not be largely outweighed by the probability that its admission would create a serious danger of undue prejudice, of confusing the issues, or of misleading the jury. [Citation.] On appeal, a trial courts ruling under Evidence Code sections 1101 and 352 is reviewed for abuse of discretion. [Citations.] (People v. Lewis (2001) 25 Cal.4th 610, 636-637.)

Appellant argues that without knowledge of the underlying facts, the prosecution failed to show there was any similarity between the 2000 conviction and the current offense to establish intent.[5] We disagree. Because appellants 2000 conviction was for the identical offense charged in this case, the trial court had sufficient information to determine whether the previous conviction was sufficiently similar to permit its admission on the issue of intent.

Also, there is no merit to appellants argument that both prior convictions were insufficient to show his intent to commit the charged offense. As conceded by appellant, [t]o be admissible to show intent . . . the prior conduct and the charged offense need only be sufficiently similar to support the inference that defendant probably harbored the same intent in each instance. [Citation.] (People v. Yeoman (2003) 31 Cal.4th 93, 121.) However, appellant contends his prior convictions were irrelevant because his defense was that he did not possess the cocaine at all, not that he possessed it and did not know it was cocaine, or that he possessed it for personal use. We disagree. By pleading not guilty, appellant put all elements of the offense of possessing cocaine base for sale in dispute, and those elements remained  disputed  until resolved by the jury. (People v. Rowland (1992) 4 Cal.4th 238, 260.) Appellant cannot limit the prosecutions evidence by a tactical decision not to contest an essential element of the offense. (Estelle v. McGuire (1991) 502 U.S. 62, 69; People v. Thornton (2000) 85 Cal.App.4th 44, 48-49.) Nor does due process require the prosecution to refrain from introducing relevant evidence simply because the defense chooses not to contest the point. (Estelle v. McGuire, supra, 502 U.S. at p. 70.) The challenged evidence rightly served as corroborative circumstantial evidence supporting the credibility of [the officers] testimony and the other evidence of the charged offense. (People v. James (2000) 81 Cal.App.4th 1343, 1365.)

We also reject appellants contention that the court should have excluded his prior convictions as overwhelming[ly] prejudicial under Evidence Code section 352. Evidence may be excluded if its probative value is substantially outweighed by the probability that its admission will . . . create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. (Evid. Code,  352.)   The prejudice referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues.  [Citation.] (People v. Miller (2000) 81 Cal.App.4th 1427, 1449.) Here, the trial court properly concluded that the probative value of the challenged evidence outweighed any potential for prejudice. Appellants prior convictions for possessing cocaine base for sale were relevant to the issues of his intent to sell cocaine base and knowledge of the nature of the substance. Additionally, the evidence that he had been convicted of the prior offenses decreased the danger of confusing the issues or misleading the jury because the jury did not have to determine whether the uncharged offenses had occurred. (People v. Ewoldt (1994) 7 Cal.4th 380, 402, 405.)

IV. Conviction for False Representation of Identity to Peace Officer

Penal Code section 148.9, subdivision (a), punishes the giving of false identity information to a peace officer upon a lawful detention or arrest. (Pen. Code,  148.9, subd. (a).) Thus, it has been held that a defendant cannot be convicted of the offense when he or she gives false identity information during a consensual encounter with the police. (In re Voeurn O. (1995) 35 Cal.App.4th 793, 795-797.) Appellant contends, and respondent agrees, there was insufficient evidence for the jury to conclude he was being detained when he gave a false name to Officer Kalb. We concur with the parties that the evidence only establishes appellant gave a false name to Officer Kalb during a consensual encounter and not after a detention.[6] Accordingly, we reverse this conviction and strike the sentence imposed thereon.

DISPOSITION

The conviction for false representation of identity to peace officer (Pen. Code,  148.9, subd. (a)) is reversed and the sentence imposed thereon is stricken. The matter is remanded to the trial court with directions to modify the judgment accordingly, and to forward a copy of a corrected abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.

_________________________

McGuiness, P.J.

We concur:

_________________________

Siggins, J.

_________________________

Horner, J.*

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[1] Penal Code, section 1181, provides, in relevant part, that a court may . . . grant a new trial, in the following cases only: [] . . . [] 5. When the court has misdirected the jury in a matter of law, or has erred in the decision of any question of law arising during the course of the trial, and when the district attorney or other counsel prosecuting the case has been guilty of prejudicial misconduct during the trial thereof before a jury; [] . . . [] 8. When new evidence is discovered material to the defendant, and which he could not, with reasonable diligence, have discovered and produced at the trial. When a motion for a new trial is made upon the ground of newly discovered evidence, the defendant must produce at the hearing, in support thereof, the affidavits of the witnesses by whom such evidence is expected to be given, and if time is required by the defendant to procure such affidavits, the court may postpone the hearing of the motion for such length of time as, under all circumstances of the case, may seem reasonable. . . .

[2] In his reply brief, appellant argues that [a]t a minimum, the court should have conducted a hearing to determine whether the misconduct described by the officer implicated any of the officers involved in this case. However, appellant made no request for a hearing, and he did not ask for time to submit a declaration from the officer.

[3] At trial, appellant did not argue that any evidence of a detention was irrelevant because he was not detained at the time he falsely identified himself to Officer Kalb. That we now agree with the parties that the false representation conviction should be reversed because the evidence shows that appellant falsely represented himself during a consensual encounter (Point IV of this opinion) does not warrant a different result.

[4] To the extent appellants argument involves an application of the same facts or legal standards appellant asked the trial court to apply, accompanied by a new argument that the trial error had the additional legal consequence of violating the federal Constitution, appellant has not forfeited his new constitutional claim on appeal. (People v. Guerra (2006) 37 Cal.4th 1067, 1084, fn. 4.)

[5] Because appellants prior convictions were specifically not admitted to prove identity, we do not address appellants arguments that the evidence was insufficient to establish identity.

[6] In light of our determination, we do not address appellants argument that the evidence was insufficient to show that any detention would have been unlawful.

* Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.