P. v. Becker

Filed 4/7/06 P. v. Becker CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Frank A. Brown, Judge. Affirmed.

A jury convicted Joseph Paul Becker of two counts of petty theft with a prior (Pen. Code,^[1] § 484), one count of second degree burglary (§ 459), and one count of giving false information to a peace officer (§ 148.9, subd. (a)).

In a bifurcated proceeding, Becker admitted all alleged prior convictions, including two prior prison terms as defined by sections 667.5, subdivision (b) and 668. Probation was denied. (§ 1203, subd. (e)(4).)

The court sentenced Becker to prison for five years and eight months: a three-year upper term for second degree burglary, a consecutive eight-month term for petty theft with a prior, a consecutive one-year term for Becker's first prison prior, and a consecutive one-year term for Becker's second prison prior. The court imposed and stayed a three-year term on the second count of petty theft with a prior under section 654 and did not impose any additional time for giving false information to a peace officer.^[2]

Becker appeals, contending there was insufficient evidence to support the conviction for giving false information to a peace officer. He further contends the court's imposition of the upper term for second degree burglary violated his right to jury trial under Blakely v. Washington (2004) 542 U.S. 296 (Blakely). We affirm the judgment.

FACTS

On January 16, 2004, Becker entered a Sam Goody store in University Town Center mall. After looking around, Becker left the store, setting off the security alarm. A sales associate asked Becker to come back into the store to determine what triggered the alarm. As Becker returned to the store, the sales associate asked to look inside Becker's backpack. Unwilling to fully cooperate, Becker refused to reveal the entire contents of his bag. Noticing the situation had not quickly resolved, the store manager took over and attempted to determine the cause of the alarm. During the manager's inquiry, Becker abruptly turned his back to the manager, removed a CD player from his backpack, and placed it on a magazine rack near the front of the store. Observing Becker's actions, the manager verified the CD player was a Sam Goody item taken from the floor and confronted Becker. Becker denied the CD player was his and attempted to leave the store. However, the manager was able to physically restrain Becker and detained him until police arrived.

On February 29, 2004, Becker entered a Target store. Luis Fonseca, a Target asset protection specialist, began trailing Becker when he noticed Becker was carrying a backpack. Fonseca saw Becker select a CD player from the shelf and, a short time later, place it in his backpack. As Becker was about to leave the store, he was apprehended, taken to the Target security office and handcuffed by Fonseca. Fonseca then removed the CD player from Becker's backpack and called the police. A short while later, San Diego Police Officer Nicholas arrived in full police uniform and asked Becker for personal identification. Because Becker did not have any identification, Officer Nicholas asked Becker to verbally identify himself by name, date of birth and social security number. Becker gave the name "James Decker," his date of birth "3-16-1961," and a social security number. As Becker could not provide satisfactory evidence of personal identification, he was taken into custody under section 853.6 and placed in the officer's patrol car.

Once Officer Nicholas was in the patrol car, Becker immediately stated he did not truthfully identify himself because he did not want Fonseca to know his true identity. Becker then gave the name "Joseph Becker," a date of birth "2-19-1961," and a different social security number. At the police station, Becker was identified through Cal-ID.^[3] The identity Becker provided in the patrol car was correct.

DISCUSSION

I

Becker contends substantial evidence does not support the conviction for giving false information to a peace officer under section 148.9, subdivision. (a). Specifically, Becker argues there was insufficient evidence of intent to evade the process of the court or to evade being properly identified and therefore the conviction must be reversed.

Under the sufficiency of the evidence standard of review, the appellant has the burden of showing no rational trier of fact, viewing the evidence in the light most favorable to the prosecution, could have found the elements of the crime beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 316-320.) Substantial evidence refers to "evidence which is reasonable, credible, and of solid value." (People v. Johnson (1980) 26 Cal.3d 557, 578.) "The test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt." (People v. Mincey (1992) 2 Cal.4th 408, 432.) Here, the evidence consists of Officer Nicholas's testimony at trial.

Section 148.9, subdivision (a) provides in part: "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."

Becker does not dispute he was lawfully detained at the time he gave Officer Nicholas a false identity. However, Becker contends there was insufficient evidence of the requisite intent to evade proper identification or court process under section 148.9, subdivision (a). Becker asserts he falsely identified himself to prevent Fonseca from learning his true identity, not to evade proper identification by Nicholas or process of the court. Becker relies on the fact that he recanted and provided his true identity to Nicholas immediately after the officer got in the patrol car. We are not persuaded.

The only reason Becker gave to Officer Nicholas for not wanting Fonseca to learn his true identity was that Becker did not like what Fonseca was saying. Becker did not indicate to Officer Nicholas that he was afraid of or threatened by Fonseca. In fact, the record shows Fonseca and Becker were "actually [talking] pretty well." The jury was not required to accept Becker's explanation, and it was entitled to draw an inference that Becker's detailed false information was designed to frustrate the process of the court and he later had second thoughts about it. As such, sufficient evidence existed for a rational trier of fact to find Becker intended to evade proper identification at the time he falsely identified himself to the police.

Becker cites People v. Quiroga (1993) 16 Cal.App.4th 961 (Quiroga), a case interpreting section 148, resisting a peace officer. In Quiroga, the defendant refused to give his name to the arresting officer while en route to the jail. (Id. at p. 965.) The Quiroga court concluded that such a refusal to disclose personal identification following arrest for a misdemeanor or infraction does not constitute a violation of section 148. (Quiroga, supra, at p. 970.) Here, instead of refusing to disclose personal identification, Becker falsely identified himself. Unlike the defendant in Quiroga, Becker sought to mislead the authorities by providing false information. As Quiroga concerns an entirely distinguishable situation from the present matter, Becker's reliance on Quiroga is misplaced.

II

Becker also contends the trial court's selection of the upper term violated the right to jury trial defined in Blakely, because a jury did not decide the aggravating factors beyond a reasonable doubt.

In People v. Black (2005) 35 Cal.4th 1238 (Black), the California Supreme Court evaluated California's upper and consecutive term sentencing provisions in light of the United States Supreme Court decisions in Blakely, supra, 542 U.S. 296 and U.S. v. Booker (2005) 543 U.S. 220 (Booker). Based on an in-depth evaluation of California's determinate sentencing scheme, the court in Black concluded that the judicial fact finding which occurs when a court selects an upper or consecutive term does not implicate the concerns for preservation of the jury trial right identified in Blakely and Booker. (Black, supra, at p. 1263.) We are bound by the decisions of the California Supreme Court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

DISPOSITION

The judgment is affirmed.

McCONNELL, P. J.

WE CONCUR:

BENKE, J.

NARES, J.

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^[1] Statutory references are to the Penal Code.

^[2] Becker had served 283 actual days plus had 140 conduct credits.

^[3] " 'California Identification System' or 'Cal-ID' means the automated system maintained by the Department of Justice for retaining fingerprint files and identifying latent fingerprints." (§ 11112.1, subd. (a).)