Filed 11/5/15 P. v. Rueda and Caudillo CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G050101

         v.                                                            (Super. Ct. No. 13 CF3684)

PETER RUEDA AND                                                        OPINION
MARIA GUADALUPE CAUDILLO,

     Defendants and Appellants


                   Appeal from a judgment of the Superior Court of Orange County, John
Conley, Judge. Affirmed.
                   John E. Edwards, under appointment by the Court of Appeal, for Defendant
and Appellant Peter Rueda.
                   Richard Jay Moller, under appointment by the Court of Appeal, for
Defendant and Appellant Maria Guadalupe Caudillo.
                   Kamala D. Harris, Attorney General, Gerald A. Engle, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Melissa Mandel and
Alana Cohen Butler, Deputy Attorneys General, for Plaintiff and Respondent.
              Peter Rueda and Maria Guadalupe Caudillo were convicted by a jury of
several crimes in connection with the theft of two leaf blowers.
              Rueda challenges the sufficiency of the evidence to prove a conviction for
false personation (Pen. Code, § 529, subd. (a)(3); all further statutory references are to the
Penal Code, unless otherwise stated). He also claims trial counsel provided ineffective
assistance by conceding guilt of the false personation charge. Because Rueda both
falsely personated, and while in this assumed personality, committed a separate act that
subjected the impersonated individual to criminal liability, substantial evidence supports
the false personation conviction. In light of the evidence and counsel’s reasonable
tactical decision to focus on other charges, Rueda’s ineffective assistance of counsel
claim is meritless.
              Caudillo contends the trial court deprived her of due process of law and the
right to confront and cross-examine adverse witnesses by precluding her attorney, under
Evidence Code section 352, from admitting evidence about the immigration status of
three prosecution witnesses for impeachment. But, in our view, the trial court acted
within its broad discretion under Evidence Code section 352 by excluding highly
inflammatory and minimally relevant evidence of immigration status. Consequently, the
judgment is affirmed.
                                          FACTS
              Early one morning in November 2013, Santos Rojas1 drove his friend and
coworker, Jose Lozano, to a doughnut shop on Fairview Avenue in Santa Ana before
starting their workday as gardeners. They intended to meet Santos’s brother, Sebero
Rojas, who was also a gardener and drove a truck. Santos carried various tools of their




       1 We refer to members of the Rojas family by their first names for clarity and not
out of any disrespect.

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trade in the back of his truck. His tools included two leaf blowers worth about $475
each.
              Santos and Lozano went inside the doughnut shop to buy coffee while
Sebero waited outside. As Santos was putting sugar and milk in his coffee, he heard
somebody yell, “You’re being robbed.” After the second such exclamation, Santos
looked outside and realized someone had taken the leaf blowers out of his truck. When
he ran outside, Santos saw Sebero yelling at three people, Rueda, an unidentified male,
and Caudillo. Rueda and Caudillo were sitting in Rueda’s car, and Caudillo had a leaf
blower on her lap.
              Sebero moved his truck to block Rueda’s car. Santos attempted to retrieve
one of his leaf blowers from the back of Rueda’s car, but Caudillo got out of the car and
came at Santos with a tire iron. She twice tried to hit Santos, but missed both times,
connecting instead with Rueda’s car window. Santos ran for Sebero’s truck while
Caudillo repeatedly bashed the windshield of Santos’s truck. Then, she picked up the tire
iron and threw it at Sebero’s truck.
              This prompted Rueda to join the fray. He got out of his car, retrieved a
blowtorch, and lit it. Rueda held the flame about a foot away from Sebero’s face and told
him to move his truck. Santos told Rueda to leave his brother alone, which prompted
Rueda to turn around and walk toward Santos. Santos stepped back, but Rueda pressed
forward. As Rueda tried to burn Santos, Santos asked, “why are you doing this? Why
are you stealing?” Rueda said, “it’s my job.”
              At this point, Rueda got back in his car. Caudillo had tried to start Sebero’s
truck, but Sebero had taken the keys. As she stood by, a police officer arrived and took
control of a chaotic scene. The officer ordered Rueda to get out of his car and raise his
hands. Rueda complied. When asked for identification, Rueda gave his brother’s name,
date of birth, and driver’s license number as his own. He also told the officer he was the
victim of a crime and unarmed, although Santos testified Rueda threatened to pull out a

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gun in addition to waving the blowtorch. He also made the following statements: “I
didn’t do anything,” “what’s the big deal? I’ll buy him a new blower,” and “come on, it’s
just a blower.”
              Following Rueda’s arrest, police officers found a blowtorch and a tire iron
in Rueda’s car, and they located a second tire iron underneath Seberos’s truck. During a
police interview, Rueda insisted he had been the victim of an assault, and that he had
been falsely accused of theft. He told his interviewers that he had gone “to get a
doughnut, and suddenly somebody accused him of stealing leaf blowers.”
              Caudillo turned to walk away from the scene, but bystanders pointed her
out and an officer detained her. Caudillo initially identified herself as Jenny Benitez, but
later recanted and gave her true name during the ride to jail. When questioned by the
police, Caudillo said she did not know Rueda, but she intervened because she believed
Rueda was the assault victim.
              A jury convicted Rueda of using a deadly weapon to commit second degree
robbery, two counts of assault with a deadly weapon, and false personation. Caudillo
was convicted of personally using a deadly weapon to commit second degree robbery,
one count of assault with a deadly weapon, two counts of misdemeanor vandalism, and
one count of false representation to a police officer. The court sentenced Rueda to serve
five years and eight months in prison. Caudillo received a four-year prison sentence.
This appeal followed.
                                      DISCUSSION
1. Rueda’s Challenge to the Sufficiency of the Evidence
              Rueda challenges the sufficiency of the evidence to prove false personation.
(§ 529, subd. (a)(3).) When addressing such claims, the reviewing court evaluates the
whole record in the light most favorable to the judgment to determine whether it discloses
substantial evidence—evidence that is reasonable, credible, and of solid value—from
which a reasonable trier of fact could find the defendant guilty beyond a reasonable

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doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 318-319; People v. Story (2009) 45
Cal.4th 1282, 1296; People v. Johnson (1980) 26 Cal.3d 557, 578.) Moreover, we accept
any logical inferences the jury could have drawn from the circumstantial evidence
because the jury, not the reviewing court, must be convinced of the defendant’s guilt
beyond a reasonable doubt. (People v. Zamudio (2008) 43 Cal.4th 327, 357-358.)
              Section 529 makes it a criminal offense to falsely personate, or
impersonate, another person, and in that assumed personality do “any . . . act whereby, if
done by the person falsely personated . . . might . . . 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.”
(§ 529, subd. (a)(3).) According to the statute, the prosecution must prove the defendant
tendered a false identification, and while in that false identity, also committed an “act
separate from the false identification” that exposes the individual impersonated to civil or
criminal liability. (People v. Guion (2013) 213 Cal.App.4th 1426, 1434 (Guion).)
              Relying on People v. Chardon (1999) 77 Cal.App.4th 205 (Chardon) and
People v. Stacy (2010) 183 Cal.App.4th 1229 (Stacy), the Attorney General argues Rueda
falsely identified himself as his brother, and while in this assumed personality, he also
subjected his brother to criminal prosecution by making incriminating statements. We
find the Attorney General’s argument persuasive.
              In Chardon, the defendant was convicted of false personation after she
falsely identified herself to police as her sister when she was stopped for speeding.
(Chardon, supra, 77 Cal.App.4th at pp. 208-209.) The defendant used her sister’s full
name and birth date to assert the false identity, but she also signed her sister’s name to the
citation’s promise to appear. (Id. at p. 209.)
              On appeal, the defendant argued her acts were all “‘part of the act of
providing the false information’ and did not include ‘any other act’ which would expose
her sister to liability.” (Chardon, supra, 77 Cal.App.4th p. 212.) The appellate court

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disagreed, concluding instead that by signing her sister’s name to the promise to appear,
the defendant had committed an additional act that exposed her sister to further criminal
liability. (Ibid.)
               In Stacy, supra, 183 Cal.App.4th at page 1234, the defendant gave her
cousin’s name and an incorrect birth date to a police officer following her detention for
driving under the influence. Then, while pretending to be her cousin, the defendant
refused to complete a required breathalyzer test or give a blood sample, notwithstanding
advisements that her refusal to complete these tests would result in the automatic
suspension of her driver’s license. (Id. at pp. 1232-1233.)
               On appeal, the defendant argued there was no evidence she committed an
additional act beyond falsely identifying herself. (Stacy, supra, 183 Cal.App.4th at p.
1235.) However, the appellate court found sufficient evidence to convict the defendant
on the charge of false personation because she “refused to complete the mandatory
second breath test or consent to having her blood drawn,” which put her cousin “at risk of
liability for refusing to submit to and/or complete the chemical testing requirements.”
(Ibid.)
               In this case, as in Chardon and Stacy, Rueda was arrested at the scene of a
crime. The responding police officers found a chaotic scene with multiple victims.
When asked for identification, Rueda gave his brother’s name, birth date, and driver’s
license number. Then, at the scene, while he continued to hold himself out as his brother,
Rueda said,“I didn’t do anything,” “what’s the big deal? I’ll buy him a new blower,” and
“come on, it’s just a blower.” These statements are reasonably interpreted as admissions
of guilt to the charge arising out of the robbery. In fact, Rueda’s statements were
admitted for this purpose at trial. (Evid. Code, § 1220.) Here, Rueda made
incriminating statements while holding himself out as his brother. By doing so, he
subjected his brother to potential criminal liability for charges arising out of the robbery.



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Thus, the prosecution proved the false personation offense under section 529, subdivision
(a)(3).
              Rueda asserts his statements were not an “additional act” under section 529.
Instead, he asserts his statements were part of the false personation. But, as noted,
Rueda’s statements related to charged crimes, and this fact distinguishes his case from the
cases on which he attempts to rely. (Guion, supra, 213 Cal.App.4th 1426, People v. Cole
(1994) 23 Cal.App.4th 1672 (Cole), and People v. Casarez (2012) 203 Cal.App.4th 1173
(Casarez)).
              In Guion, Cole, and Casarez, the so-called additional act was nothing more
than additional false identification information. In Guion, the defendant produced a false
and adulterated driver’s license in the same name the defendant verbally claimed as her
own. (Guion, supra, 213 Cal.App.4th at p. 1435.) In Cole, the defendant confirmed the
middle name and birth date of the person he had already claimed to be. (Cole, supra, 23
Cal.App.4th at p. 1676.) And, in Casarez, the defendant did not commit an additional act
when he attempted to use his brother’s birth certificate after identifying himself as his
brother. (Casarez, supra, 203 Cal.App.4th at p. 1192.)
              Here, by contrast, Rueda gave his brother’s name, and while maintaining
this false identity, he made incriminatory statements unrelated to his false identity.
Rueda’s false personation could have subjected his brother to criminal liability.
Therefore, the evidence is sufficient to support the jury’s guilty verdict.
              Alternatively, Rueda claims his trial attorney provided constitutionally
deficient representation because counsel conceded Rueda’s guilt on the false personation
charge. When considering such claims, we are mindful that the defendant bears the
burden of proving a claim of ineffective assistance of counsel. (People v. Camden (1976)
16 Cal.3d 808, 816.) And, when, as here, counsel has had no opportunity to explain his
or her conduct, we will not find ineffective assistance of counsel unless there could be no
satisfactory explanation. (People v. Lewis (1990) 50 Cal.3d 262, 288.)

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              In Rueda’s case, defense counsel vigorously argued his client’s innocence
of the more serious robbery and assault charges. Given the strength of the evidence to
support the false personation charge, trial counsel could have made a reasonable tactical
decision to concede guilt on the less serious crime in an effort to gain credulity with the
jury and focus their attention on the other, more serious, offenses. (People v. McPeters
(1992) 2 Cal.4th l1148, 1186-1187.) Furthermore, the strength of the evidence to prove
false personation establishes that Rueda suffered no prejudice as a result of counsel’s
tactical decision. (People v. Ledesma (1987) 43 Cal.3d 171, 217-218.)
2. Caudillo and the Court’s Exclusion of Immigration Status
              Prior to trial, Caudillo moved to impeach Santos, Sebero, and Lozano with
evidence of their immigration status. Defense counsel presumed the witnesses were
undocumented aliens because they were day laborers, gardeners, and Spanish speakers,
and he also presumed their undocumented status was relevant to their credibility. The
prosecutor noted the absence of evidence about the witnesses’ immigration status, but
assuming the witnesses’ immigration status made them subject to deportation, the
prosecutor also claimed this fact had no bearing on the witnesses’ credibility.
              The court denied the defense motion, citing Evidence Code section 352.
First, the court pointed out there was “no concrete evidence” the witnesses were subject
to deportation due to their immigration status. Second, the court found the risk of
prejudice too great to admit such evidence. “[T]his is a hot button issue here in Orange
County. And before you go showing someone’s illegal status, you better have all your
ducks in order. It better be demonstrable that they are illegal, and there better be an
awfully important reason why you would go down that road.” And, finally, the court
stated any “minimal relevance” was substantially outweighed by the potential for
prejudice.
              On appeal, Caudillo claims the court’s ruling excluding evidence of
Santos’s, Sebero’s, and Lozano’s immigration status prevented her from completely

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cross-examining these witnesses and deprived her of the constitutional right to due
process and cross-examination. We disagree.
              “The rules regarding the admissibility of evidence are well established.
Only relevant evidence is admissible. [Citation.] Evidence is relevant if it has ‘any
tendency in reason to prove or disprove any disputed fact that is of consequence to the
determination of the action.’ [Citation.] ‘The test of relevance is whether the evidence
tends “logically, naturally, and by reasonable inference” to establish material facts such
as identity, intent, or motive. [Citations.] The trial court retains broad discretion in
determining the relevance of evidence.’ [Citations.]” (People v. Cunningham (2001) 25
Cal.4th 926, 995.)
              “This discretion extends to evidentiary rulings made pursuant to Evidence
Code section 352. [Citation.]” (People v. Tully (2012) 54 Cal.4th 952, 1010 (Tully).)
That section provides: “The court in its discretion may exclude evidence if its probative
value is substantially outweighed by the probability that its admission will (a) necessitate
undue consumption of time or (b) create substantial danger of undue prejudice, of
confusing the issues, or of misleading the jury.” (Evid. Code, § 352.)
              In this case, the court determined the witnesses’ immigration status had
little relevance to their credibility. Caudillo asserts this was error because immigration
status is highly relevant to witness credibility and bias. She primarily relies on People v.
Viniegra (1982) 130 Cal.App.3d 577 (Viniegra). But Caudillo’s reliance is misplaced.
              In Viniegra, the defendant was prosecuted for fraud in obtaining public aid
and food stamps and for committing perjury. (Viniegra, supra, 130 Cal.App.3d at p.
580.) The prosecution theorized that the defendant owned property and collected rent,
which was contrary to her claims of indigence. A defense witness testified that he had
paid rent to someone other than the defendant. The prosecutor attempted to impeach this
witness for motive and bias by showing “the witness was an illegal alien and that he
worked at the same place as defendant’s husband.” (Ibid.)

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              At trial, “[t]he question was then asked if [the witness] was not testifying
for defendant in fear that he would otherwise be ‘turned in as an illegal alien . . . .’”
(Viniegra, supra, 130 Cal.App.3d at p. 580.) The court overruled objections on grounds
of relevance and prejudice, “and the witness answered, ‘I’m not afraid. No. They would
be returning me to my native land.’” (Ibid.)
              On appeal, the defendant argued reversal on the grounds of “‘offensive
misconduct’” by the prosecutor in “‘[t]he impeachment of key defense witnesses
for . . . alienage . . . .’” (Viniegra, supra, 130 Cal.App.3d at p. 580.) But the appellate
court found no prosecutorial misconduct or abuse of the trial court’s discretion under
Evidence Code section 352 in the admission of evidence that the witness’s immigration
status gave the defendant leverage over the witness. (Id. at p. 581) Consequently, in
Viniegra, immigration status was relevant.
              Viniegra is distinguishable. For one thing, in Viniegra, the prosecutor
knew the witness’s immigration status and affirmatively demonstrated that the defense
witness actually had a provable motive to lie on the defendant’s behalf in exchange for
her agreement not to turn him in as an illegal alien. Here, defense counsel had no
information about the witnesses’ immigration status, and nothing more than speculation
as to how that status might affect the witnesses’ credibility. Rather, defense counsel
merely assumed the witnesses were undocumented, and then argued the witnesses’
undocumented status was somehow relevant to their credibility. Counsel’s argument was
simply speculative.
              Moreover, under People v. Wheeler (1992) 4 Cal.4th 284, “the admissibility
of any past misconduct for impeachment is limited at the outset by the relevance
requirement of moral turpitude.” (Id. at p. 296, fn. omitted.) Caudillo has not provided
us with published case authority establishing that illegal immigration is a crime involving
moral turpitude, and the California Supreme Court recently decided that the presence of
an undocumented immigrant in the United States without lawful authorization “does not

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itself involve moral turpitude.” (In re Garcia (2014) 58 Cal.4th 440, 460.) Thus, the trial
court retained broad discretion to exclude highly prejudicial and minimally relevant
evidence of immigration status, and properly excluded. (People v. Cunningham, supra,
25 Cal.4th at p. 995.) Because the court’s application of Evidence Code section 352 was
within its discretion, we find no infringement of Caudillo’s constitutional right to
confront and cross-examine witnesses, or due process of law. (Id. at pp. 998-999; see
People v. Sedillo (2015) 235 Cal.App.4th 1037, 1063-1064.)
                                      DISPOSITION
              The judgment is affirmed.


                                                  THOMPSON, J.

WE CONCUR:



ARONSON, ACTING P. J.



IKOLA, J.




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