Opinion
B291626
03-02-2020
THE PEOPLE, Plaintiff and Respondent, v. SANTIAGO GABRIEL GRAJEDA, Defendant and Appellant.
Michael C. Sampson, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Steven E. Mercer and Michael C. Keller, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. KA113173) APPEAL from a judgment of the Superior Court of Los Angeles County, Mike Camacho, Judge. Affirmed as modified. Michael C. Sampson, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Steven E. Mercer and Michael C. Keller, Deputy Attorneys General, for Plaintiff and Respondent.
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Convicted of several offenses related to personal information theft and forgery, Santiago Gabriel Grajeda argues that the trial court failed to instruct the jury on a lesser included offense on one count; requests review of the trial court's determination regarding the discovery of personnel records of a law enforcement officer involved in the case; and contends that his presentence custody credits were improperly calculated. We affirm the judgment as modified.
FACTUAL AND PROCEDURAL BACKGROUND
During a traffic stop by the police, Grajeda was found to be in possession of numerous items indicative of fraudulent activity, one of which was a California identification card bearing Grajeda's photograph, the name Francisco Lopez, and the identification number and address of a woman named Tracy Pepatphong. Based on this and other evidence, Grajeda was convicted of possession of a forged identification card with the intent to use the card to facilitate the commission of a forgery (§ 470b); possession of a forged document with the intent to defraud (§ 475, subd. (a)); and three counts of acquiring or retaining possession of the personal identifying information of another person with the intent to defraud (Pen. Code, § 530.5, subd. (c)(1)).
Unless otherwise indicated, all further statutory references are to the Penal Code.
The court sentenced Grajeda to an aggregate term of seven years four months in state prison. He received 138 days of presentence custody credits: 69 days for time actually served and 69 days of conduct credits. Grajeda appeals.
DISCUSSION
I. Lesser Included Offense
Grajeda argues on appeal that the trial court had a duty to instruct the jury sua sponte on possession of an altered driver's license (Veh. Code, § 14610) as a lesser included offense of possession of an altered driver's license or identification card with the intent to use the item to facilitate a forgery (§ 470b). "A trial court must instruct on all lesser included offenses supported by substantial evidence. [Citations.] The duty applies whenever there is evidence in the record from which a reasonable jury could conclude the defendant is guilty of the lesser, but not the greater, offense. [Citations.]" (People v. Duff (2014) 58 Cal.4th 527, 561.) The court has no duty to instruct on a lesser included offense when there is no evidence the offense was less than that charged. (People v. Eid (2014) 59 Cal.4th 650, 656.) We independently review the question of whether the trial court erred by failing to instruct on a lesser included offense. (People v. Booker (2011) 51 Cal.4th 141, 181.)
Vehicle Code section 14610, subdivision (a)(1) provides that it is unlawful for any person "[t]o display or cause or permit to be displayed or have in his possession any canceled, revoked, suspended, fictitious, fraudulently altered, or fraudulently obtained driver's license."
Section 470b reads, "Every person who displays or causes or permits to be displayed or has in his or her possession any driver's license or identification card of the type enumerated in Section 470a with the intent that the driver's license or identification card be used to facilitate the commission of any forgery, is punishable by imprisonment in a county jail for not more than one year, or by imprisonment pursuant to subdivision (h) of Section 1170." Section 470a provides that the identification card must be "issued by a governmental agency." --------
Grajeda argues that the Vehicle Code offense is a lesser included offense of the Penal Code offense under the accusatory pleading test (People v. Reed (2006) 38 Cal.4th 1224, 1228), then contends that because he testified that he had fabricated the "driver's license" for a purpose other than to facilitate a forgery there was substantial evidence that he violated Vehicle Code section 14610 and not section 470b such that the court should have instructed the jury on the lesser offense.
Even if Grajeda were correct that Vehicle Code section 14610 is a lesser included offense of section 470(b) under the accusatory pleading test, the trial court nonetheless had no duty to instruct the jury on the Vehicle Code offense because there was no substantial evidence that Grajeda violated Vehicle Code section 14610. Vehicle Code section 14610 concerns driver's licenses only, and the evidence at trial established that the falsified document in question was not a driver's license but a government-issued identification card. Both Grajeda and the officer who arrested him testified that the falsified item in his wallet was an identification card. While in his briefing on appeal Grajeda repeatedly refers to the card as a driver's license, his citations to the record do not include evidence that this was a falsified driver's license rather than a forged identification card. Because there was no substantial evidence from which the jury could have concluded that Grajeda possessed an altered driver's license, the court did not err when it did not instruct the jury on possession of an altered driver's license (Veh. Code, § 14610) as a lesser included offense of possession of an altered driver's license or identification card with the intent to use the item to facilitate a forgery (§ 470b).
II. Law Enforcement Personnel Records
Pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess), Grajeda requested discovery in the trial court of the personnel records of the police officer who arrested him. The court granted the motion with respect to records relating to falsification of reports over the prior five years. Grajeda requests that we review the record of the in camera proceedings for any error.
We have reviewed the sealed record of the proceedings. (People v. Mooc (2001) 26 Cal.4th 1216, 1229.) At the in camera proceedings the custodian of records testified under oath that he had searched for documents responsive to the court's ruling but had found none. As the record demonstrates that no potentially relevant materials existed, there was no error in the court's conduct of the Pitchess proceeding.
II. Presentence Custody Credits
The parties agree, as do we, that Grajeda's presentence custody credits were incorrectly calculated. Grajeda was awarded 69 days of actual credit, although the records indicate that he served 154 days prior to sentencing. He received 69 days of conduct credits, but under section 4019 he was entitled to 154 days of conduct credits. We modify the judgment accordingly.
DISPOSITION
The judgment is modified to reflect 154 days of actual custody credits in addition to presentence credits in the amount of 154 days, for a total of 308 days of presentence custody credits. The trial court is directed to prepare a corrected abstract of judgment in accordance with this opinion. The court shall forward a copy of the corrected abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
ZELON, J. We concur:
PERLUSS, P. J.
FEUER, J.