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Name: People v. Belmares
Case #: F039060
Court: CA Court of Appeal
District 5 DCA
Opinion Date: 02/06/2003
Subsequent History: Rev. denied 4/30/03.

Appellant was convicted of a violation of Penal Code section 69 , deterring an executive officer from performing a lawful duty (deterring), and a violation of section 148, resisting arrest (resisting). On appeal he argued that resisting is a lesser included offense of deterring, which violated the rule against multiple convictions in necessarily included offenses, section 954. The appellate court here rejected the argument, finding that the Legislature’s use of markedly different words in the statutes shows an intent not to incorporate into either statute the meanings of the words of the other. Therefore, resisting is not a lesser included offense of deterring. The jury found appellant’s two prior convictions to be true after they were instructed that appellant was the person whose name appeared on the 969b packet documents. On appeal, appellant argued that he was entitled to a jury trial on the identity of the person, and that the court’s instruction violated his right to due process. The appellate court here found no error. Appellant had no constitutional right to a jury trial on his identity as the person in the 969b packet, and therefore no constitutional issue. Further, by failing to object to the instruction, appellant waived any statutory error. However, even if he had objected, there was no error, as the evidence of identity was overwhelming.