Filed 6/26/14 P. v. Torossian CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.


                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D064395

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCE328101)

ANTRANIK TOROSSIAN,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, William J.

McGrath, Jr., Judge. Affirmed.

         Avatar Legal and Cynthia M. Jones, under appointment by the Court of Appeal,

for Defendant and Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., and Minh U. Le,

Deputy Attorneys General, for Plaintiff and Respondent.
                                             I.

                                    INTRODUCTION

       A jury convicted defendant Antranik Torossian of one count of burglary and two

counts of false personation stemming from an incident in which Torossian held himself

out as being one of his roommates at a car dealership. On appeal, Torossian contends

that his conviction for burglary should be reversed on the ground that there is insufficient

evidence to support the finding that he entered the dealership with the intent to commit a

felony.

       At trial, the prosecutor relied on Torossian's intent to commit false personation as

the felonious intent underlying the burglary charge. False personation is a "wobbler"

offense, which means that it can be charged as either a felony or misdemeanor.

According to Torossian, the trial court implicitly rendered his conviction for false

personation a misdemeanor conviction, rather than a felony, when the court suspended

imposition of sentence. Torossian also argues that the facts demonstrate that the conduct

underlying his false personation conviction constitutes misdemeanor conduct as a matter

of law. Torossian contends that his intent to commit false personation thus fails to satisfy

the element of felonious intent that is necessary for a burglary conviction.

       We conclude that Torossian's contentions are without merit, and affirm the

judgment.




                                             2
                                            II.

                  FACTUAL AND PROCEDURAL BACKGROUND

A.     Factual background

       In January 2013, Ernesto Guevarra lived with his sister and Torossian, her

boyfriend, in El Cajon, California. Guevarra and Torossian considered each other to be

brothers-in-law. Two other men, Phillip Mendes and Ric Smith, also lived with

Guevarra, his sister, and Torossian.

       At the time of the events underlying the offenses charged in this case, Guevarra

owned a 2012 Volkswagon Passat. The vehicle was driven primarily by Torossian.

Torossian had negotiated the purchase of the Volkswagon in Guevarra's name, while

Guevarra was present. Torossian generally made the payments on the Volkswagon.

However, Guevarra made three payments when Torossian was unable to make those

payments. Guevarra typically drove a 2008 Jeep Patriot. He was unable to drive the

Volkswagon because it had a manual transmission. Guevarra and Torossian agreed that

they would trade in the Volkswagon for a car that Guevarra could drive, i.e., one that had

an automatic transmission. Guevarra agreed that the transaction would be done in his

name because Torossian was "on [S]ocial [S]ecurity" and his credit score was not high

enough to enable him to buy a car. Guevarra wanted to trade in the 2012 Volkswagon

Passat for a diesel Volkswagon or a Toyota Prius, in order to get better fuel efficiency on

his daily commute. Guevarra told Torossian this. Guevarra knew that Torossian had

Guevarra's personal information and intended to use it when negotiating a trade in at the

                                             3
car dealership. However, Guevarra expected to be present at the dealership with

Torossian during the negotiations, and to assist in the purchase of a new car.

       Mendes had also spoken with Guevarra about purchasing a car together. Guevarra

had given Mendes permission to use Guevarra as a coapplicant to buy a new car if

Mendes's credit turned out to be insufficient. However, Guevarra did not give Torossian

permission to use Guevarra's information to help Mendes purchase a car.

       On February 13, 2013, Torossian went to a Mitsubishi dealership in El Cajon.

Abraham Malfavon, a sales consultant, met with Torossian and asked him to provide

information about himself, including his name and address. The dealership required a

credit check before it would allow Torossian to test drive a car. Malfavon obtained

information from Torossian, input the information onto a computerized registration form,

printed out the form, and had Torossian sign the form. Torossian identified himself to

Malfavon as Ernesto Guevarra. Malfavon forgot to ask Torossian for a driver's license.

Based on the information that Torossian provided to Malfavon, which was information

pertaining to Guevara, the general manager at the dealership ran a credit check on

"Ernesto Guevarra." Guevarra was approved for credit.

       Malfavon showed Torossian two cars. Torossian drove both cars and mentioned

that he wanted to trade in his current car. Torossian gave Malfavon the vehicle

registration card for a Volkswagon Passat, registered in the name of Ernesto Guevarra.

Torossian apparently decided that he wanted to purchase a Mitsubishi Lancer GT. The

Lancer GT that Torossian was considering had a manual transmission. Malfavon sent

                                             4
Torossian to speak with Joe Raymond, the sales manager, who negotiated with Torossian

regarding the price of the car.

       After Torossian and Raymond reached agreement on a price, Malfavon assisted

Torossian with a credit application. Malfavon asked Torossian for the required

information, and completed the credit application form. Torossian printed a name and

signed the application. He also filled out a form that required six personal references.

       At that point, Malfavon asked Torossian for his driver's license. Rather than

provide a driver's license, Torossian provided Malfavon with a driver's license number.

The finance director at the dealership checked the validity of the driver's license number

that Torossian had provided by using the dealership's computer system to obtain

information from the Department of Motor Vehicles. The finance director determined

that the license number was invalid, and that no such number had been issued by the

Department of Motor Vehicles. Upon being told that the license number he had provided

was invalid, Torossian said that he would return to the dealership later because he could

not find his driver's license. Torossian was unable to purchase a car that day without a

valid driver's license to verify his identity.

       Malfavon waited two or three days before calling Torossian at the number that

Torossian had provided during his visit to the dealership. Torossian answered Malfavon's

call and told Malfavon that he would return to the dealership.

       On February 16, 2013, Torossian returned to the Mitsubishi dealership, this time

accompanied by Mendes. Mendes provided his own driver's license to register with the

                                                 5
dealership, and asked to look at a Lancer GT. Mendes also provided his personal

information on the dealership's registration form and signed the form. After viewing the

Lancer GT, Mendes decided that he wanted to purchase a Lancer GT. The Lancer GT

that Mendes was shown had a manual transmission. Mendes negotiated a price for the

car with Raymond, the sales manager. Torossian was present during the discussions and

participated in the negotiations.

       After Mendes, Torossian and Raymond agreed on a price for the Lancer GT,

Malfavon helped Mendes complete a credit application. Malfavon obtained information

from both Mendes and Torossian, as a coapplicant, for credit to purchase the car. Instead

of providing his own personal information, Torossian provided Guevarra's information

for the coapplication portion of the application. Mendes and Torossian both signed the

credit application. After Malfavon obtained additional information from Mendes,

including Mendes's driver's license number and insurance information, Malfavon asked

for Torossian's driver's license. Rather than provide a driver's license, Torossian

provided a driver's license number. The driver's license number that Torossian provided

on this occasion was different from the one that he had provided on his previous visit to

the dealership. Torossian also showed Malfavon a California Department of Social

Service Community Licensing Division form, which was in Ernesto Guevarra's name, to

attempt to establish that the driver's license number that he had provided was valid. This

time, when someone at the dealership attempted to verify the driver's license number, the

driver's license number proved to be valid. However, the dealership would not permit

                                             6
Mendes and Torossian to purchase a vehicle without having some form of photographic

identification from Torossian. Mendes and Torossian left the dealership, saying that they

would return in 30 minutes.

       A few hours later, when Mendes and Torossian had not returned to the dealership,

Malfavon called the number that Torossian had given him to inquire whether Torossian

had obtained his photographic identification. According to Malfavon, the person who

answered the telephone did not sound like Torossian. Although Malfavon did not think

that the person on the other end of the telephone was Torossian, Malfavon requested that

the person come to the Mitsubishi dealership.

       Guevarra testified that he is the person who answered the telephone call from

Malfavon. Malfavon told Guevarra that his credit had been approved for trading in his

car for a new vehicle. Guevarra was upset because he had not agreed to trade in his

Volkswagon for a Mitsubishi. Guevarra told Malfavon that he had not been to the

dealership.

       After Malfavon got off the telephone with Guevarra, he asked Raymond to call the

number that he thought he had dialed, to make sure he had dialed correctly. No one

answered the call when Raymond dialed the number.

       Torossian arrived at the dealership, alone, sometime after Malfavon's telephone

call to the number that Torossian had provided. The finance director at the dealership

called the police.



                                            7
       El Cajon Police Officer Melissa Calderon was dispatched to the dealership to

investigate a claim that someone was using another person's identification to try to

purchase a vehicle. After arriving at the dealership, Calderon spoke with Torossian. She

asked him for his identification. Torossian gave Calderon his own California driver's

license, which reflected his real name, Antranik Torossian. The dealership provided

Calderon with documents bearing Ernesto Guevarra's and Philip Mendes's information.

       In the meantime, Guevarra received a call from Torossian asking him to come to

the dealership. Guevarra drove to the dealership, accompanied by Mendes and Smith.

Officer Calderon was there when Guevarra arrived. Calderon confirmed with Guevarra

that the information on the car purchasing documents was Guevarra's information.

       At trial, Guevarra testified that he learned about the credit application that

Torossian had completed in Guevarro's name from the dealership. He also testified that

he had never given the dealership permission to run a credit check on him.

B.     Procedural background

       The San Diego County District Attorney charged Torossian with two counts of

false personation (Pen. Code, § 529; counts 1 and 3),1 two counts of burglary (§ 459;

counts 2 and 4), and one count of attempted grand theft of personal property (§ 487, subd.

(a); count 5). Counts 1 and 2 were alleged to have occurred on February 13, 2013.

Counts 3 and 4 were alleged to have occurred on February 16, 2013. Count 5 was

alleged to have occurred between February 13 and February 16, 2013.

1      All statutory references are to the Penal Code unless otherwise specified.
                                              8
       The trial court dismissed count 5 for insufficient evidence. The following day, a

jury found Torossian guilty on counts 1, 3, and 4. The jury found him not guilty on count

2.

       At sentencing, the trial court suspended imposition of sentence and ordered

Torossian to serve three years of probation with 45 days to be served in local custody.

Torossian filed a timely notice of appeal.

                                             III.

                                      DISCUSSION

       Torossian contends that his conviction on count 4, for burglary, should be reversed

for insufficient evidence. According to Torossian, the trial court implicitly determined

that his convictions for false personation—a "wobbler" offense that can be either a felony

or a misdemeanor—were misdemeanors for all purposes because the court suspended

imposition of sentence. Torossian also contends that the facts establish that the conduct

underlying the false personation counts was misdemeanor conduct as a matter of law, and

did not amount to felony conduct. He maintains that since the prosecutor argued to the

jury that the underlying intent to commit a felony to support Torossian's burglary

conviction was his intent to commit false personation, and his commission of false

personation was, according to Torossian, legally and factually a misdemeanor, there is no

felonious intent to support his burglary conviction.




                                              9
A.     Additional background

       The prosecutor charged Torossian with felony false personation (§ 529, subd.

(a)(3)) and felony burglary (§ 459). The trial court instructed the jury with respect to the

offense of burglary as follows: "To prove that the defendant is guilty of the crime of

burglary, the People must prove two things. No. 1, the defendant entered a building; and

No. 2, when he entered a building, he intended to commit a felony, false []personation."

       The prosecutor argued that "the second element is that when [Torossian] entered a

building, he intended to commit a felony. And here in this case it's false []personation."

       The jury found Torossian guilty of both counts of false personation, and one count

of burglary.

B.     Analysis

       There is sufficient evidence to support Torossian's conviction for burglary. The

record does not support Torossian's contention that his commission of false personation

was legally and factually a misdemeanor.

       Burglary is the entry into any building with the intent to commit larceny or any

felony therein. (People v. Yarbrough (2012) 54 Cal.4th 889, 892.) A defendant "may be

liable for burglary upon entry with the requisite intent to commit a felony," whether or

not the defendant actually commits a felony. (People v. Montoya (1994) 7 Cal.4th 1027,

1041-1042.)

       "The Legislature has classified most crimes as either a felony or a misdemeanor,

by explicitly labeling the crime as such, or by the punishment prescribed." (People v.

                                             10
Park (2013) 56 Cal.4th 782, 789 (Park).) However, there is a special category of crimes

that is punishable as either a felony or a misdemeanor. These crimes, which are referred

to as "wobblers," are "punishable either by a term in state prison or by imprisonment in

county jail and/or by a fine." (Ibid.) The offense of false personation is a wobbler, since

it may be punished as either a felony or as a misdemeanor. (People v. Rathert (2000) 24

Cal.4th 200, 208.)

       " 'A wobbler offense charged as a felony is regarded as a felony for all purposes

until imposition of sentence or judgment. [Citations.] If state prison is imposed, the

offense remains a felony; if a misdemeanor sentence is imposed, the offense is thereafter

deemed a misdemeanor. [Citations.]' " (People v. Upsher (2007) 155 Cal.App.4th 1311,

1320.) Thus, when a factfinder has determined that a defendant is guilty of a wobbler

offense that was charged as a felony (or when a defendant has pled guilty or no contest to

such an offense), the trial court has discretion, pursuant to the procedures set forth in

section 17, subdivision (b), to determine the nature of the conviction. (See Park, supra,

56 Cal.4th at p. 790.) Subdivision (b)(3) of section 17 provides that a wobbler is a

misdemeanor when, among other things, "the court grants probation to a defendant

without imposition of sentence and at the time of granting probation, or on application of

the defendant or probation officer thereafter, the court declares the offense to be a

misdemeanor." (Italics added.) Section 17, subdivision (b)(3) gives the trial court the

discretion to "reduce a wobbler to a misdemeanor either by declaring the crime a

misdemeanor at the time probation is granted or at a later time—for example when the

                                             11
defendant has successfully completed probation." (Park, supra, at p. 793.) Prior to this

procedure being made available to courts through a 1963 amendment to the statute, a

wobbler could be deemed a misdemeanor only when a court actually imposed a sentence

other than commitment to state prison. (Id. at pp. 791-793.) Currently, however, under

section 17, subdivision (b)(3), a court may simply declare an offense to be a

misdemeanor, even if it chooses to stay imposition of sentence because it is granting the

defendant probation.

       The trial court did not declare Torossian's wobbler to be a misdemeanor when it

stayed imposition of Torossian's sentence. Thus, Torossian's conviction for false

personation remains a felony. (See Park, supra, 56 Cal.4th at p. 793 ["[O]nly when the

court takes affirmative steps to classify the crime as a misdemeanor" does it become a

misdemeanor for all purposes].) Torossian is therefore incorrect when he suggests that

the false personation offense underlying his burglary offense is legally a misdemeanor

because the trial court implicitly determined it to be a misdemeanor by suspending

imposition of sentence.

       Torossian's contention that "the false personation intended did not rise to the level

of felony false personation and was rather misdemeanor conduct" is also misguided.

According to Torossian, the "facts elicited at trial can only support a finding that the

conduct intended was misdemeanor false personation because while appellant technically

violated section 529, he did so only for convenience and not with any criminal intent."

Torossian also urges that his "false personation was not done to defraud or harm anyone,

                                             12
rather it allowed him to do actions which were perfectly legal, namely test driving a

vehicle and applying for credit in the name of the person who would actually take title to

the car."

       Torossian admits, however, that he violated the terms of the law. False

personation does not require an intent to harm another, so the absence of an intent on

Torossian's part to harm anyone is irrelevant for purposes of the offense of determining

whether an incident of false personation constitutes a felony or a misdemeanor. Further,

the evidence establishes that Torossian's presenting himself as Guevarra at the dealership

did defraud the dealership in that doing so enabled him to test drive a car, which, because

of his bad credit, the dealership would not have permitted him to do had he been honest

about his identity.

       There are valid policy reasons for prohibiting an individual from pretending to be

someone else in order to obtain credit in the other person's name, even if the individual in

question does not intend to harm the other person. Torossian's attempt to downplay the

nature of his conduct in this situation is unavailing. While Torossian's conduct in holding

himself out as Guevarra under all of the circumstances in this case is certainly not the

most egregious example of false personation, we cannot say that Torossian's conduct at

the dealership constituted only misdemeanor conduct as a matter of law, and did not rise




                                             13
to the level of felony conduct.2 Torossian's argument that he intended to commit only

misdemeanor false personation, both legally and factually, is without merit.

       Even if we were to assume that the trial court had in fact declared that Torossian's

false personation offense was a misdemeanor and not a felony offense, this would not

entitle Torossian to a reversal of his burglary conviction. The instructions required the

jury to find that Torossian entered the dealership with the felonious intent to commit false

personation. A felony is defined as "a crime that is punishable with death [or] by

imprisonment in the state prison." (§ 17, subd. (a), italics added.) False personation is an

offense that is punishable by imprisonment in the state prison. The jury's finding that

Torossian entered the dealership with the intent to commit false personation constitutes a

determination that he entered the dealership with the intent to a commit a crime that is

punishable by imprisonment in the state prison—i.e., a felony. The fact that the trial

court might, at a later date, declare Torossian's wobbler offense to be a misdemeanor

does not undermine the jury's finding that he entered a building with the intent to commit

a felony: "If ultimately a misdemeanor sentence is imposed [i.e., if the wobbler is

ultimately determined to be a misdemeanor offense], the offense is a misdemeanor from

that point on, but not retroactively . . . ." (People v. Feyrer (2010) 48 Cal.4th 426, 439,


2      We stress that we are not determining that Torossian's conviction for false
personation must remain a felony conviction. If Torossian completes his probation in a
satisfactory manner, the trial court may reduce his offense to a misdemeanor at that time.
However, as of the time of sentencing, the trial court had not reduced Torossian's offense
to a misdemeanor, and we cannot say that, as a matter of law, the facts establish that the
offense was necessarily a misdemeanor offense.
                                            14
italics added.) We see no reason why the same rule should not apply if the trial court

were to ultimately declare the offense to be a misdemeanor, pursuant to subdivision

(b)(3) of section 17.

                                            IV.

                                      DISPOSITION

       The judgment of the trial court is affirmed.



                                                                              AARON, J.

WE CONCUR:



         HUFFMAN, Acting P. J.



                         IRION, J.




                                            15
