People v. Pérez

129 P.3d 1090, 2005 Colo. App. LEXIS 2141, 2005 WL 3544047
CourtColorado Court of Appeals
DecidedDecember 29, 2005
DocketNo. 04CA0537
StatusPublished
Cited by7 cases

This text of 129 P.3d 1090 (People v. Pérez) is published on Counsel Stack Legal Research, covering Colorado Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Pérez, 129 P.3d 1090, 2005 Colo. App. LEXIS 2141, 2005 WL 3544047 (Colo. Ct. App. 2005).

Opinion

Opinion by:

Judge TAUBMAN.

Defendant, Santos Carlos Pérez, appeals the judgment of conviction entered after a bench trial finding him guilty of criminal impersonation. We affirm.

In February 2003, Pérez’s physician reported to the police that Pérez had appeared at his office to seek treatment and to request that his records be changed to reflect his legal name, Santos Carlos Pérez, rather than the name he had given previously, Luis Antonio López Guzmán. The police went to the Department of Motor Vehicles and found that driver’s licenses issued to Pérez and Guzmán were for the same person. Later that month, Pérez gave the police a number of documents under both names, including a driver’s license issued on April 6, 1999, in Guzmán’s name.

The prosecution filed an information charging Pérez with criminal impersonation occurring on or about February 6, 2003. After learning that Pérez had entered the United States illegally in 1996, the prosecution filed an amended information charging him with criminal impersonation occurring on or about January 1996. The People argued that, in assuming the identity of Guzman, Pérez intended to gain benefits for himself, such as legal immigration status, a work permit, and a driver’s license. After a bench trial, Pérez was found guilty of criminal impersonation. This appeal followed.

I. Privileged Information

Pérez contends that the trial court erred in denying his motion to suppress the evidence showing that he requested his phy[1092]*1092sician to change his medical records to reflect his true identity because it was privileged information pursuant to § 13 — 90—107(l)(d), C.R.S.2005. We disagree.

Section 18 — 90—107(l)(d) establishes the parameters of the physician-patient privilege. People v. Covington, 19 P.3d 15 (Colo.2001). The privilege provides that “[a] physician, surgeon, or registered professional ... shall not be examined without the consent of his patient as to any information acquired in attending the patient which was necessary to enable him to prescribe or act for the patient.” Section 13 — 90—107(l)(d). However, patients’ names, addresses, and phone numbers do not fall within the privilege because a doctor does not require them to prescribe or act on behalf of the patient. People v. Covington, supra; Belle Bonfils Mem’l Blood Ctr. v. Dist. Court, 763 P.2d 1003 (Colo.1988).

Here, Perez’s physician notified the police that Pérez was requesting medical services under a name different from that he had used previously. Accordingly, this information does not fall within the ambit of the physician-patient privilege, and the trial court did not err in denying Pérez’s motion to suppress.

II. Continuing Offense

Pérez contends that the trial court erred in finding that the crime of criminal impersonation can be a continuing offense and in allowing the prosecution to charge him with that crime as occurring on or about 1996 but rely on documents obtained after that date to achieve conviction. We disagree.

Section 18-5-113(1), C.R.S.2005, states:

A person commits criminal impersonation if he knowingly assumes a false or fictitious identity or capacity, and in such identity or capacity he: ...
(e) Does any ... act with intent to unlawfully gain a benefit for himself or another or to injure of defraud another.

Determining whether a specific violation of law constitutes a continuing offense is primarily a question of statutory interpretation. Toussie v. United States, 397 U.S. 112, 134-35, 90 S.Ct. 858, 870-71, 25 L.Ed.2d 156 (1970). A crime may be a continuing offense if the nature of the offense indicates that the legislature must assuredly have intended it be treated as one. People v. Thoro Prods. Co., 70 P.3d 1188 (Colo.2003).

In construing a statute, courts strive to give effect to the intent of the legislature and adopt the statutory construction that best effectuates the purposes of the legislative scheme, looking first to the plain language of the statute. Spahmer v. Gullette, 113 P.3d 158 (Colo.2005).

There is a presumption against a crime being a continuing offense. Toussie v. United States, supra; People v. Lopez, — P.3d-, 2005 WL 3211641 (Colo.App. No. 03CA0241, Dec. 1, 2005). Nevertheless, at least three Colorado statutes have been held to create continuing offenses. See People v. Thoro Products Co., supra, 70 P.3d at 1193 n. 5 (unpermitted storage of hazardous waste is continuing offense); People v. Lopez, supra (failure to register as a sex offender is continuing offense); People v. Zuniga, 80 P.3d 965, 969 (Colo.App.2003) (theft by receiving is continuing offense when charge is based on defendant’s retention of stolen property). But see People v. Thoro Prods. Co., supra (inclusion of term “leaking” in statutory definition of “disposal” not evidence that legislature intended for passive migration of previously spilled hazardous waste to constitute a continuing offense of unpermitted disposal of hazardous waste).

A crime may be considered a continuing offense if it is based on a series of acts performed at different times. People v. Zuniga, supra.

Here, § 18-5-113(l)(e) is silent on whether criminal impersonation constitutes a continuing offense. However, the plain language of the statute suggests it constitutes a continuing offense. We conclude that the General Assembly’s use of the phrase “assumes a false or fictitious identity” in § 18-5-113(1) evinces its intent that the offense of criminal impersonation can be continuing or can occur at a specific time. Specifically, Webster’s Third New International Dictionary 133 (1986) defines “assume” as “to invest oneself with (a form, attribute, or aspect).” This [1093]*1093meaning encompasses both conduct continuing for some time and conduct at a particular incident. Therefore, the plain language of § 18-5-113(l)(e) implies that the offense of criminal impersonation may occur over a period of time rather than at a specific moment.

Additionally, another jurisdiction has held that criminal impersonation is a continuing offense because it addresses an ongoing pattern of criminal behavior. People v. Sanchez, 84 N.Y.2d 440, 618 N.Y.S.2d 887, 643 N.E.2d 509 (1994). In Sanchez, the New York Court of Appeals found that the defendant had committed a continuing offense because his impersonation of an FBI agent for a period of five years constituted a pattern of criminal behavior. We agree with the analysis of this case and reach the same result.

Here, we agree with the trial court’s finding that Pérez’s criminal impersonation of Guzmán began in August 1997, the date the birth certificate in Guzmán’s name was issued.

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Bluebook (online)
129 P.3d 1090, 2005 Colo. App. LEXIS 2141, 2005 WL 3544047, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-perez-coloctapp-2005.