Friday, December 5, 2008
Court of Appeal Rules Couple Living Apart Not ‘Living Together’
By STEVEN M. ELLIS, Staff Writer
Two people who falsely claim to be married must be living under the same roof in order to legalize the relationship confidentially, this district’s Court of Appeal has ruled.
Ruling that the notarized license and certificate of confidential marriage Ahmed Ali Hassan signed stating he was “living together as husband and wife” with his purported bride was false because the pair were maintaining separate houses at the time Hassan signed the document, Div. Two affirmed the Lynwood man’s conviction of offering a false or forged instrument for recording in an unpublished opinion issued Wednesday.
Hassan and Ana Beatriz Sequen Deleon claimed to have been married in an Islamic ceremony at a Downey mosque in 2002, but the marriage was not legally recognized, and in 2002 the pair sought a “confidential marriage.”
California encourages unmarried couples who falsely claim to be married to legitimize their status through confidential marriages by dispensing with the usual marriage license requirement that the parties obtain a health certificate, and by closing the recorded confidential marriage license to the public.
However, state law only allows for confidential marriage of people who “have been living together as husband and wife,” and in 2005 federal Immigration and Customs Enforcement agents who suspected the marriage was a sham to obtain a greencard for Deleon obtained evidence that Hassan and Deleon did not begin to reside in the same home together until after signing the certificate.
Hassan was charged with offering a false or forged instrument for recording under Penal Code Sec. 115(a), and convicted at trial before Los Angeles Superior Court Judge William C. Ryan. An Egyptian national, Hassan was also convicted of one count of offering false evidence under Sec. 132 based on documents he provided to ICE during its investigation of the marriage.
On appeal, he challenged both convictions, arguing that the phrase “living together” did not necessarily mean under the same roof, and that the certificate was not an “instrument.” Hassan also claimed that the second charge was improper because his liability arose pursuant to federal, rather than state, criminal law.
Presiding Justice Roger W. Boren agreed with Hassan that reversal of the second conviction was required, but concluded that substantial evidence supported the first conviction given the “overwhelming and uncontradicted evidence that [Hassan] and Deleon were not living together as husband and wife before [Hassan] signed the License attesting that they were,” and the “plain, common sense meaning” of the confidential marriage statutes.
Remarking that Hassan’s interpretation “reads the words ‘living together’ out of Family Code Sec. 500 as completely as if they were not there,” and noting the statutory purpose of shielding parties from the embarrassment and stigma of revealing “that their representations to others that they were married were a sham and that children born of that relationship were illegitimate,” Boren wrote that the Legislature “could have said so” if it intended the phrase to mean that parties did not have to live in the same dwelling together.
The justice similarly rejected Hassan’s arguments that the license and certificate could not be an “instrument” under Penal Code Sec. 115(a).
Despite acknowledging that “several older appellate court opinions adopted a narrow definition” set forth in People v. Fraser (1913) 23 Cal.App.82, Boren concluded that the Fraser court’s “reliance on real property cases overlooked the broader contemporaneous meaning of the word.”
Justices Kathryn Doi Todd and Judith M. Ashmann-Gerst joined Boren in his opinion.
The case is People v. Hassan, B194141.
Copyright 2008, Metropolitan News Company