In a recent decision, the California Court of Appeals for the 1st District reversed the conviction of a defendant on the charge of felony false personation (California Penal Code § 529) because the prosecution failed to prove the defendant committed an “additional act” while acting “in such assumed character.” The court ruled that a defendant must not only assert the false identity, but actually “use” the identity in one or more of the three ways listed in the Penal Code § 529.
For a defendant to be convicted of a felonious violation of California Penal Code § 529, the prosecution must prove the defendant not only falsely personated another, but in that assumed character also: “(1) Becomes bail or surety for any party in any proceeding whatever, before any court or officer authorized to take that bail or surety, (2) Verifies, publishes, acknowledges, or proves, in the name of another person, any written instrument, with intent that the same may be recorded, delivered, or used as true, or (3) Does any other act whereby, if done by the person falsely personated, he might, in any event, become liable to any suit or prosecution, or to pay any sum of money, or to incur any charge, forfeiture, or penalty, or whereby any benefit might accrue to the party personating, or to any other person.”
In this case, the defendant was involved in a car crash. When a police officer spoke to her to conduct an investigation, she falsely identified herself. After providing several false names to the investigating officer, the defendant settled on one name and offered to have her son come to the scene of the crash with a driver license to prove her identity. The defendant’s son brought a driver license to the scene, and the defendant presented it to the police officer. The name on that driver license matched the name the defendant had provided, and it had a picture of the defendant. However, when the police officer handled the license, he believed it to be fake. When the police officer confronted the defendant, she admitted she had lied about her identity. She explained that she had been using this identity for years as a result of not being able to obtain a real identification because she was in the witness protection program. The defendant was arrested and subsequently convicted of a felony false personation.
The defendant appealed her conviction and the California Court of Appeals for the 1st District reversed. The prosecution argued that the defendant put the victim whose identity she had used at risk of civil liability for the car crash, therefore violating the third subsection of the applicable code (Penal Code § 529a(3) formerly § 529(3)). They also argued that when the defendant provided the fake driver license to substantiate her previous oral misidentification, she committed the required “additional act.” The court disagreed. The court explained that the defendant’s action of presenting the driver license was not an additional act, but rather a continuation of the oral misidentification. The court also reasoned that, although the defendant’s actions may have subjected the victim to potential civil liability for the car crash, the defendant did not commit an additional act to cause such liability while “in such assumed character.” Essentially, the potential civil liability was the result of the car crash. The car crash occurred before the defendant falsely identified herself. So while she was under the “assumed character,” she did nothing to subject the victim to any liability.
It has long been common practice for law enforcement to arrest defendants for the false personation of another when a defendant misidentifies themselves as another person. What the court has said here is that mere misidentification is not enough. For a conviction to stand under this section, the defendant must not only falsely identify themselves as another person, but must go on to commit some additional act while under that assumed identity. While there may be some other misdemeanor charges that could apply depending on the specific circumstances, they will carry a lesser penalty than this felony violation.