People v. Montes-Rodriguez

reason, For the same night havior the of post- his arrest and his prejudiced. could not have been Such a de arrest suicide attempts. fense, raised, properly if would not have suc record, however, The reveals that the deci- Reviewing ceeded. interrogation defendant's sion plea insanity not to enter a of was suppression and confession at the hearing, strategic and therefore not ineffective. See the trial court found all his statements to be Ardolino, 69 P.3d at 76. Defendant's trial Thus, voluntary. there is no indication that directly counsel addressed the issue of an outrageous governmental an conduct defense insanity plea, stating he was concerned that

would have been viable. See in Inter defense, if he raised the defendant's silence M.N., est 761 P.2d at (reversing 1129-30 self-incriminating statements made dismissal, outrageous trial court's conduct during requisite mental examination grounds, because undercover officer's action could against be used part him. As of his in convincing minor to steal tires and obtain argument, specifically trial counsel informed marijuana for him were not so offensive as to the trial court that he would advise defen- justice); shock the universal sense of insanity dant to enter an plea if his silence J.A.L., in Interest against would not be used him. Because the (Colo.1988) (same). trial court assurance, could not that counsel did not advise defendant to enter

B. Crime of Passion Defense plea. Defendant asserts that counsel did not ad- Because defendant's assertions of ineffec- equately present a passion crime of defense. tive directly assistance are refuted He avers that the passion tendered crime of record, postconviction court did not err in rejected instruction was the trial court failing grant a hearing. See id. and then pursued. The order is affirmed. postconviction rejected court these contentions because the record showed that Judge Judge ROY and CONNELLY jury provided was with an instruction on concur. degree second murder-heat passion, though not the one originally sub-

mitted. The court reasoned that the fact jury provided was with a heat of

passion imply instruction would that defense presented

counsel sufficient during

trial the instruction. The court

also noted that a division of this court had already rejected argument Colorado, PEOPLE of the State of jury improperly instructed on the Plaintiff-Appellee, provocation. definition of See McDowell I. postconviction court. squarely The record refutes defendant's con- MONTES-RODRIGUEZ, Felix Moreover, tention. defendant's Crim. P. Defendant-Appellant. 35(c) allege any motion does not facts to No. 07CA0578. indicate that defense counsel failed to intro- duce other evidence to buttress this defense. Colorado Appeals, Court of Div. III. Insanity C. Plea March 2009.

Defendant contends that trial coun sel was ineffective because he failed to enter plea guilty by of not insanity. reason of argues this defense should

have been raised because of his erratic be- Impersonation

I. Criminal Defendant asserts that the trial court denying erred his motion for acquittal. prosecution's He asserts that evidence established conduct does not impersonation eriminal under constitute see 18-5-118(1)(e), tion C.R.S8.2008. We dis agree. trial court a motion

When the rules on for judgment acquittal, the issue is "whether evidence, direct and cir the relevant both cumstantial, in when viewed as whole and prosecution, to the the most favorable is support to substantial and sufficient conclu by that the sion a reasonable mind Suthers, General, Attorney Alex- John W. charge beyond guilty is a reasonable Reinhardt, Attorney ander Assistant Gen- C. Gonzales, 123, People v. 666 P.2d doubt." Denver, Colorado, eral, Plaintiff-Appel- for (Colo.1983) Bennett, (quoting People v. 127 lee. (1973)). 125, 130, 466, 183 Colo. 515 P.2d 469 Foreman, Denver, Colorado, L. for Susan test, applying the evidence substantial Defendant-Appellant. prosecution the court must the the bene- every might fit of reasonable inference that Opinionby Judge CASEBOLT. fairly People be drawn from the evidence. v. Defendant, Montes-Rodriguez, ap- Felix (Colo.1982). Brassfield, 652P.2d 592 peals the of conviction entered on C.R.S.2008, 18-5-118(1), provides, Section jury finding guilty him of eriminal verdict pertinent part: "A erimi- commits impersonation. We affirm. if impersonation nal he assumes a becoming aware that After someone was capacity, false or fictitious or and in number, using her Social the (e) capacity ... such he Does report, ordered a eredit which showed that unlawfully gain other act with intent to application had used it on a credit injure for or to benefit himself another car loan. When confronted detec- defraud another." investigating complaint, tive the de- victim's Jones, relies on v. using fendant admitted a false number that (Colo.App.1992), ar- to his Later, him given had been a friend. at gument person's that his use of another station, police defendant made a written these cireum- number under admitting having statement used the num- imper- does not criminal stances constitute employment obtaining ber in and a loan for reliance that sonation. His case is mis- purchase car. of a placed. trial, At the finance from the car director dealership applied that he met with defen- The defendant in Jones for and testified paperwork relating dant received a number of student and handled the loans. He application. application applied proper the loan for the for all loans his own name, requested identifying transposed portions loan forms of but he of his So- numerous information, name, address, here, including em- cial number. As the defen- status, charged ployment and Social number. dant Jones was with criminal on the information that defendant had in violation of section 18-5- Based finding provided, proof the finance director had extended 118. the defendant Except him credit. for the Social used a false Social number was not enough prove had he a "false or all the information defendant assumed identity," sug- provided accurate. the Jones division unreasonable, gested ruling manifestly arbitrary, the common of that Ibarra, phrase is "to hold oneself out as someone or unfair. (Colo.1993). "requires he or she not" and person, assumption of the of another

whether that other is real or ficti- A. Character Witness P.2d at 374. tious." 404(a)(1) provides, pertinent CRE part, as follows: Here, accept argu- even if we that he ment assume generally. Character Evidence victim, that conclusion is not determina- person's character or a trait of his tive. Jones did not address whether character is not purpose admissible for the capacity. defendant had assumed a false proving conformity he acted in meanings capacity One of the common of occasion, is particular therewith on a except: legal qualification, competency, power, or fit- (1) Character of accused. In a criminal Bauer, People 896, ness. v. 80 P.3d 897 case, pertinent evidence of a trait of his (Colo.App.2003). accused, by character by offered an or prosecution to rebut the same....

Here, evidence, viewed in the prosecution, most favorable to the indicates interpreted Courts have the word that defendant used a num- "pertinent" synonymous to be with "rele ber that he knew was not his own with intent Miller, 84, vant." v. 890 P.2d gain purchase the benefit of a loan to (Colo.1995). Evidence is relevant when it doing, car. In so defendant as- any tendency has to make the existence of capacity. a fictitious sumed The finance di- any fact that consequence is of to the deter rector testified that defendant could not have probable mination of the action more or less providing obtained loan without a Social probable than it would be without the evi By providing number. a Social Se- 401; Gibbens, dence. CRE v. curity impliedly asserted (Colo.1995). Accordingly, power loan, or his fitness to obtain the and whether a "pertinent" character trait de ability legally country, his to work in this and pends upon question whether the trait thereby repay it. Because defendant knew any consequence would make fact of to the false, the information was and because determination of proba the case more or less he furnished it to obtain a benefit he could ble than it would be without evidence of the obtained, not otherwise have he violated the Miller, trait. 890 P.2d at 92. portion prohibits of the statute that the as- 18-5-113(1) prohibits Section assum sumption of a capacity. false or fictitious ing a or capacity." "false fictitious or Accordingly, we conclude that the evidence nature, with We its is sufficient defendant's convie- charge of criminal involves tion. dishonesty, fraud and because false or capacity

II. Exclusion of Evidence equivalent lying about one's Defendant asserts the trial court's status. Defendant's character for truth and rulings excluding his character witness and veracity pertinent charge. thus to the depicting States, an exhibit his niece's Social Seeuri- Edgington v. See United 164 U.S. 361, 363, (1896) 72, 78, ty 17 S.Ct. 41 L.Ed. 467 process right number violated his due present disagree. a defense. We (where charged defendant was with a crime falsifying, it was error to exclude testimo A trial court is accorded considerable dis ny general reputation offered to show his for deciding questions concerning cretion in veracity). truth and admissibility evidence, relevancy and its value, Here, probative any prejudicial impact. and evidence of defendant's character for rulings We review trial court's on eviden- pertinent truthfulness could have been with tiary an respect issues for abuse of discretion. A to whether he assumed a "false or only However, trial capacity." court abuses its discretion when its be- actually belonged number is irrelevant. admitted to cause defendant Hence, own, the trial court did not abuse its dis- he knew was not his number excluding truthful- cretion this evidence. any about his character for respect. in that Testimo- ness was irrelevant IIL Cross-Examination character ny respect to defendant's with made fact of truthfulness would not have asserts the trial court's consequence to the determination of the case on the cross-examination of the limitations it would be with- probable more or less biases, prejudices, regarding her and that trait. out evidence of testifying ulterior motives for violated his rights. disagree. Confrontation Clause Accordingly, the trial court did not abuse testimony. exeluding its discretion The trial court has discretion to de scope termine the and the limits of eross- B. Niece's Social Card examination, showing and an absent discretion, abuse of that we will not disturb A detective testified at trial that de ruling. People Ray, its Security number was fendant's niece's Social (Colo.App.2004). very to the number defendant used at similar dealership. the car Defense counsel asked right to confront witnesses is agreed if he that the correlation the detective guaranteed the Sixth and Fourteenth indicated that between the numbers defen opportunity and includes Amendments the manipulated dant had his niece's number for effective cross-examination. obtaining illegally rather the victim's. Hendrickson, (Colo.App. prosecutor objected relevancy 2001). It limit is constitutional error to ex grounds and the trial court sustained the cessively a defendant's cross-examination of objection rejected depicting and the exhibit regarding credibility. a witness the witness's the niece's number. Nevertheless, Id. the trial court has wide place latitude to reasonable limits on cross- argues that the evidence was it probable relevant because made it more examination based on concerns such about of the factors as confusion issues or interro manipulated that he had the numbers to gation repetitive only that would be mar knowing arrive at a false number without ginally relevant. Id. The trial court must gave actually the number he was as- preclude inquiries exercise its discretion to signed specific person. to another Defen- value, irrelevant, probative that have no are dant also contends that such evidence was prejudicial. or are Id. prosecu- relevant because it undermined the proof tion's that he assumed the Here, defendant asserts that the trial court persona. disagree. victim's improperly limited his eross-examination of first, the victim on two occasions: when de- 18-5-118(1) noted, previously As section why fense counsel intended to ask the victim prohibits assuming a "false or fictitious iden- and, speak she refused to to him before trial tity capacity." The use of the "ficti- word second, attempted when defense counsel to legislature it clear that tious" makes the introduce evidence that the victim believed to intend the crime false police depart- she had been victimized the solely be limited to those instances where an argued ment. Defense counsel that the evi- person impersonated. actual The division dence relevant to show the victim's bias. recognized in Jones this it held that the when prosecutor's The trial court sustained the phrase common "false or objections, finding that ir- evidence was identity" fictitious is "to hold oneself out as relevant. We with the trial court. not," someone that he or she is "whether that other is real or fictitious." using to a Defendant admitted at 874. P.2d Security number not his own in order Social job According a get apply Because defendant admitted to a to a and loan. own, ly, it or not the Social number not his the issue was irrelevant whether against of whether or not he knew to the was biased him. It is not constitu whom to, to exclude irrelevant evidence. tional error Social in contrast (Colo. Saiz, say, license or a People v. law driver's license. Cf. (trial limiting App.1995) court's latitude disagree majority's I with the conclusion margin exclusion of cross-examination allows "(bly providing a Social num- ally testimony). relevant ber, impliedly power asserted his loan, or fitness to obtain ability and his affirmed. legally in country, work this thereby and repay it." That conclusionis based on erro- Judge concurs. RUSSEL questionable neous or otherwise underlying assumptions First, or conclusions. equates it

Judge J. JONES dissents. giving any required information to obtain a Judge dissenting. legal J. loan with my JONES status. view, concept that stretches "capacity" I respectfully majority's dissent from the Second, too far. it assumes both that holding that the evidence was sufficient lender assumes who has convict impersonation. defendant of eriminal right number has the to work in the view, my defendant's mere use of a Social country and that the lender therefore as- belonging along number not himto applicant repay sumes the can the loan. accurately with substantial other information There is no evidence in the record sufficient, identifying him was not under the majority's assumptions why as to case, prove beyond cireumstances required. number was "knowingly reasonable doubt that he as- I disagree majority's Because capac- a false or sume[d] holding that defendant assumed false or ity" required as is to sustain a conviction capacity, I must also address the 18-5-118, under section C.R.S8.2008. People's contention that the evidence was guilty disagree majority's sufficient to find defendant

I with the because he conclusion that defendant assumed a false or identity. assumed a false or fictitious I con- capacity. Initially, I note that the do clude that it was not. argue not even that defendant's conviction In People v. (Colo.App. 841 P.2d 372 upheld event, can be on this In basis. I 1992), a division of this court held that as disagree majority's rationale. suming a false within the meaning predecessor of a to section 18-5-118 Bauer, majority The reads is "to hold oneself out as someone that he or (Colo.App.2003), broadly. P.3d 896 too requires] she is not assumption [and essentially division in that equated case "ca person, of another whether that status, pacity" legal with a definition consis person other is real or fictitious." Id. at 874 commonly tent with the understood omitted). {emphasis The division further of the term in this context. See Webster's concluded that the defendant's mere use of a Third Dictionary New International conjunction false Social in number (2002) (capacity legal qualification, means "a application with a loan containing several fitness"); competency, power, or see also accurate identifying items of information was (8th ed.2004). Dictionary Black's Law culpability insufficient to establish under the in falsely Bauer claimed to be past years, statute. Id. In the seventeen attorney-a legal a licensed required status Assembly General change has not seen fit to person may practice before a law this holding by legislation. state. I with the Jones division's conclusion interpretation The Bauer division's of the the mere use of a false Social "capacity" term equate every does not trait number these cireumstances does not having with legal those a distinct status. Ex- amount per- a false or fictitious cept perhaps claiming as to Social context, sona. In this a "false" re- benefits, possessing a Social number person fers to an actual not the defendant. legal does not status he A "fictitious" to a refers who possess possession or she would not absent does not exist. the false Social here, defendant was not Security number person, real or ficti-

claiming to be another totality of the informa-

tious. only one included item provided,

tion which (the Security num- information Social false

ber), pre- not seek the loan defendant did himself; tending anyone other be merely to defendant application ascribed

loan that was not his. number Security number can

Though a false Social identity, it a false does

be used to establish using a false Social

not follow that necessarily establishes false identi-

number

ty. say

All that defendant's use this is not to Security number neces-

of a false may

sarily well have vio- lawful. Defendant of federal and state laws.

lated number See, § e.g., (making it a crime 18 U.S.C. seeking a loan

to make a false statement institutions); § financial 18-5-

from certain C.R.S$.2008

209(1)(a), (making it a crime to financial statement

issue a false with 18-5-902(1), defraud); § intent C.R.S8.2008 pos-

(making it a crime to use or personal identifying another's informa- sess credit). permission to obtain

tion without

However, "capacity" did not claim a he impersonate nor he

he did not have Therefore, he did not violate

someone else. I

section 18-5-118. would his con- reverse entry judg-

viction and remand for the acquittal. I

ment of Because would reverse conviction, I

defendant's would not address evidentiary arguments. DeHERRERA,

Gomcindo

Plaintiff-Appellant, FAMILY

AMERICAN MUTUAL COMPANY,

INSURANCE

Defendant-Appellee.

No. 08CA0301. Appeals,

Colorado Court of

Div. III

March 2009.

Case Details

Case Name: People v. Montes-Rodriguez

Court Name: Colorado Court of Appeals

Date Published: Mar 5, 2009

Citation: 2009 WL 540671

Docket Number: 07CA0578

Court Abbreviation: Colo. Ct. App.