People v. Rader , 175 Cal. Rptr. 3d 65 ( 2014 )

Filed 7/23/14
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B247088
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. KA098088)
v.
KENNETH CHARLES RADER,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County, Victor
D. Martinez, Judge. Affirmed in part; reversed in part; modified in part with directions.
Jin H. Kim, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Victoria B. Wilson and Viet H.
Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.
*Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110(a), parts I, II,
and III (A)-(C) and IV are certified for publication.
I. INTRODUCTION
Defendant, Kenneth Charles Rader, enjoyed a meal at a steakhouse and then paid
$100 of the bill with counterfeit $20 bills. He left the restaurant and was arrested shortly
thereafter. He stands convicted of: one count of second degree burglary (Pen. Code,
§ 459)1; two counts of felony theft (§§ 484, subd. (a) (484), 666); and two counts of
forgery (§§ 472, 476). Defendant admitted he had sustained a prior violent and serious
conviction within the meaning of sections 666, subdivision (b)(1), 667, subdivisions (b)
through (i) and 1170.12. Defendant also admitted he had sustained prior nonviolent and
nonserious theft-related felony convictions within the meaning of sections 666,
subdivisions (a) and (b). Defendant was sentenced to 5 years, 4 months in state prison.
In the published portion of this opinion, we hold defendant can only be convicted of a
single count of theft. Further, we conclude that defendant may be convicted of felony
petty theft rather than the misdemeanor charge of defrauding an innkeeper (or in this case
a restaurant).
II. THE EVIDENCE
On Friday, May 25, 2012, at approximately 2 p.m., defendant entered an Outback
Steakhouse restaurant in the City of Industry. Defendant was joined by a man identified
only as Jeff. When arrested later and interviewed in a nearby mall security office,
defendant claimed the person identified only as Jeff was a nephew. But when
interviewed by a detective at a sheriff’s station, defendant refused to provide any
identifying information including the man’s first and last name. For convenience’s sake,
we shall refer to the otherwise unidentified individual who ate with defendant in the
Outback Steakhouse as Jeff. Jeff was accompanied by a young woman, Julian
1 Further statutory references are to the Penal Code except where otherwise noted.
2
Fernandez. All three ordered food and drinks. The dinner bill came to $100.53.
Someone paid the bill with five counterfeit $20 bills and two $1 bills.
Melissa Rodriguez had waited on defendant’s table. Ms. Rodriguez did not see
who left the cash. But she recognized the $20 bills as counterfeit. Ms. Rodriguez went
outside. She saw defendant, Jeff and Ms. Fernandez walking across the restaurant
parking lot into a mall. Ms. Rodriguez called out to them. Defendant turned his head
slightly to look at Ms. Rodriguez. But he turned back and kept walking. Ms. Rodriguez
described what happened next, “[Defendant] and the other two people that were with him
started zigzagging in and out of cars.” Defendant walked into the mall.
Ms. Rodriguez and the restaurant manager followed defendant into the mall.
Ms. Rodriguez gave a description of the three individuals to a mall security guard.
Ms. Rodriguez located Ms. Fernandez and summoned the security guard. As the security
guard detained Ms. Fernandez, Ms. Rodriguez saw defendant exit one store and enter
another. Defendant glanced in Ms. Rodriguez’s direction, looked down and kept
walking. Ms. Rodriguez, accompanied by a second security guard, approached
defendant. The following transpired, according to Miss Rodriguez: “Q And then what
happened? [¶] A I approached him. He was looking at shirts. He looked up and looked
back down. And I then said, ‘Excuse me.’ And that’s when he looked at me, and I said,
‘We have your friend.’ [¶] And that’s when he said, ‘I know. I heard something about
that. What’s going on?’ [¶] . . . [¶] Q What happened next? [¶] A And I said, ‘Oh,
you know, we have a problem.’ [¶] And he said, ‘Okay. But I didn’t pay the check.’
[¶] . . . [¶] A I said, ‘Okay. But can you just please come with us[?]’ [¶] Q And what,
if anything, did he do? [¶] A He followed.” When Ms. Rodriguez asked defendant
whether he could pay the restaurant bill, he said he did not have any money.
Ms. Rodriguez returned to the restaurant where she was met by Deputy Bob Chu.
Ms. Rodriguez told Deputy Chu she had three customers who paid with counterfeit bills.
Deputy Chu examined the five $20 bills and determined they were counterfeit. Deputy
Chu and Ms. Rodriguez returned to the mall. Defendant was inside the mall security
office. Ms. Rodriguez identified defendant as the person who had been in the restaurant.
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Defendant was advised of his rights. Defendant agreed to talk to Deputy Chu.
Deputy Chu testified: “[Defendant] told me that he was in the area because he saw the
Outback Steakhouse right off the freeway. And he decided to go there and get some
food. He said that - - he told me he went there to eat, and he did not have any money on
him because he had spent his money buying gas going from Oceanside to Riverside.”
Defendant said Jeff paid the restaurant bill. Defendant said he did not know the $20 bills
were counterfeit. Defendant said he did not see Ms. Rodriguez trying to stop him in the
parking lot. Defendant said he was going to Sears to buy a car battery. Defendant did
not have a car battery in his possession when he was detained.
Detective Alfredo Gomez was the detective assigned to the case. On May 26,
2012, Detective Gomez spoke with defendant in a jail cell. The interview, which lasted
10 to 15 minutes, was not recorded. Defendant was advised of his constitutional rights.
Defendant agreed to speak with Detective Gomez. Detective Gomez testified he believed
he was going to be lied to. Thus, while interviewing defendant, Detective Gomez
decided to engage in a ruse. Detective Gomez described the ruse and defendant’s
response as follows: “I told the defendant that the arresting deputy didn’t have an
opportunity to view the surveillance video at the restaurant and that I did. And I told him
I already knew what happened and I saw what happened and who paid for it. So then he
admitted to me that he paid for the -- for the food.” In fact, there was no surveillance
video system at the restaurant. According to Detective Gomez, defendant made the
following statement, “He told me his nephew Jeff had given him the money earlier in the
day for gas and food.” Defendant denied knowing the bills were counterfeit. Detective
Gomez confronted defendant about having lied to Deputy Chu about paying for the food.
Defendant said nothing in response when confronted about having lied to Deputy Chu.
Detective Gomez then described his efforts to find out about the individual identified
only as Jeff: “I wanted to go into trying to find out who Jeff was, his nephew, and he
didn’t want to give me any details, any identifying information as far as first name, birth
date, last name, you know, so maybe I could speak to Jeff. And that’s where I concluded
the interview.”
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III. DISCUSSION
A. Procedural History
Many of the issues presented by the parties involve the interplay between sections
484, subdivision (a) and 666. We begin by setting forth the information’s allegations
concerning counts 2 and 3. In count 2, the information alleges in part: “On or about May
25, 2012 . . . , the crime of PRIOR [PETTY] THEFT-290/STRIKE, in violation of
PENAL CODE SECTION 666(b), a Felony, was committed by [defendant], who did
unlawfully and in violation of Penal Code section 484(a), steal take and carry away the
personal property of OUTBACK STEAKHOUSE. It is further alleged that defendant
was previously convicted in the State of California of the crime(s) listed below and
served a term for each crime in a penal institution and was imprisoned therein as a
condition of probation.” The information alleges three nonviolent and nonserious felony
convictions sustained in San Diego County: a January 21, 1993 conviction for violating
Vehicle Code section 10851, subdivision (a) (case No. CRN23272); a June 23, 2004
conviction for receiving stolen property in violation of section 496 (case No.
SCN180434); and a September 13, 2011 conviction for second degree burglary in
violation of section 459 (case No. SCN278526). In addition, the information alleges as to
count 2 defendant had sustained a prior violent or serious felony conviction on October
30, 1978, in San Diego County for robbery in violation of section 211 in case
No. CRN5384. Finally, as to count 2, the information concludes, “It is further alleged
that prison custody time for the offense is to be served in state prison.”
Count 3 of the information alleges a theft count arising out of the same incident at
the Outback Steakhouse against defendant: “On or about May 25, 2012 . . . , the crime of
PETTY THEFT WITH 3 PRIORS, in violation of PENAL CODE SECTION 666(a), a
Felony, was committed by [defendant], who did unlawfully and in violation of Penal
Code section 484(a), steal[,] take and carry away the personal property of OUTBACK
STEAKHOUSE. It is further alleged that defendant was previously convicted in the
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State of California of the crimes listed below and served a term for each crime in a penal
institution and was imprisoned therein as a condition of probation.” The three San Diego
County nonviolent and nonserious prior felony convictions are the same as those alleged
in count 2–vehicle theft, receiving stolen property, and second-degree burglary. Count 3
does not reallege the prior October 30, 1978 San Diego County robbery conviction
alleged in count 2. Unlike count 2, count 3 contains no allegation that any sentence must
be served in state prison.
Prior to trial, defendant admitted all the allegations of four prior San Diego County
convictions were true. In this way, defendant precluded the jury from learning of those
prior convictions. (See People v. Bouzas (1991) 53 Cal. 3d 467, 480 [“Under established
case law . . . applying [§§] 666, 1025, and 1093, defendant had a right to stipulate to the
prior conviction and incarceration and thereby preclude the jury from learning of the fact
of his prior conviction.”]; People v. Witcher (1995) 41 Cal. App. 4th 223, 233 [same].)
Consistent with CALCRIM No. 1800, the trial court indicated it would not identify the
charged offense as either a petty or grand theft when explaining the charges to the jury.
With the consent of both counsel, the trial court stated, “I would not identify either as a
petty theft or a grand theft, but it would just be going in as a theft as a felony.”
The trial court stated that only one theft offense would be presented to the jury:
“So based upon counsels’ agreement, the jury will not be presented with the separate
offenses based upon defendant’s request of 666(a) and (b). Those will be considered
sentencing issues for the court if the defendant is convicted of count 2 . . . . [¶] And the
jury will not be making separate findings as to count 2 and 3 but will be relying upon the
modified count 2, again which will only support a sentencing issue if the defendant is
convicted.” The trial court then directed the prosecutor not to mention the alleged prior
convictions. The deputy district attorney, John F. Urgo, was advised to instruct the
prosecution witnesses to make no mention of defendant’s prior convictions. The case
was presented to the jury after renumbering the counts to reflect there was a single theft
charge. The jury was advised that: count 1 involved the burglary charge; count 2
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involved only a single theft charge; count 3 charged defendant with forgery; and count 4
involved possession of a counterfeit government seal.
In compliance with the parties’ agreement, the jury was instructed with a modified
version of CALCRIM No. 1800.2 The jurors returned a single verdict as to the
renumbered theft charge in count 2, “We, the jury in the above-entitled action, find the
defendant . . . GUILTY of the offense charged, to wit: the crime of THEFT, in violation
of Penal Code section 484, a felony, as charged in Count 2 of the Information.” But
defendant was sentenced on two counts of petty theft. As to counts 1 through 4,
defendant received a midterm sentence of two years. The trial court ruled, “Those counts
will merge pursuant to Penal Code section 654.” As to count 5, possession of a
counterfeit seal, the trial court imposed a consecutive term of eight months. Thus, the
trial court orally calculated the sentence of two years, eight months. The trial court
doubled that term because of defendant’s prior San Diego County robbery conviction for
a total sentence of five years, four months. In the unpublished portion of the opinion, we
discuss various sentencing issues.
B. Pleading And Trying Two Petty Thefts
As noted, defendant stands convicted of two counts of petty theft for using
counterfeit bills on a single occasion to pay for a meal. Defendant argues that he may not
be charged in both counts 2 and 3 for the same petty theft. Defendant reasons that counts
2 The jurors were instructed in connection with the theft charge: “The defendant
is charged in count 2 with theft. [¶] To prove that the defendant guilty -- to prove that
the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant
took possession of property owned by someone else; [¶] 2. The defendant took the
property without the owner’s or owner’s agent’s consent; [¶] 3. When the defendant
took the property, he intended to deprive the owner of it permanently; and [¶] 4. The
defendant moved the property, even a small distance, and kept it for any period time,
however brief. [¶] An agent is someone to whom the owner has given complete or
partial authority and control over the owner’s property. [¶] For theft, the property taken
can be of any value, no matter how slight.”
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2 and 3 involve a single offense–the petty theft from the restaurant. (People v. Bouzas,
supra, 53 Cal.4th at p. 469; People v. Witcher, supra, 41 Cal.App.4th at p. 233.) Because
both counts involve a single offense, defendant argues either the conviction under count 2
or 3 must be vacated. We need not address any issue of pleading or trying count 3. As
we will note, the judgment as to count 3 must be reversed.
Defendant correctly argues that section 666 does not define an offense; rather it is
a sentencing provision. Our Supreme Court explained in some detail why section 666 is
not an “offense” as follows: “Section 666 is -- and has been since 1872 -- part of title 16
of the Penal Code, which is directed primarily to sentencing and punishment matters, to
the exclusion of statutes defining substantive crimes (see [People v. Cooks [(1965) 235
Cal. App. 2d 6, [10] [history of former §§ 666 & 667]). This supports our conclusion that
the Legislature has long intended that section 666 establishes a penalty, not a substantive
‘offense.’ [¶] The language of section 666 affirms this view. It is structured to enhance
the punishment for violation of other defined crimes and not to define an offense in the
first instance. It simply refers to other substantive offenses defined elsewhere in the
Penal and Vehicle Codes and provides that if a defendant has previously been convicted
of and imprisoned for any of these theft-related offenses, and thereafter commits petty
theft (defined in section 484), the defendant is subject to punishment enhanced over that
which would apply following a ‘first time’ petty theft conviction. [¶] In other words, a
charge under section 666 merely puts a defendant on notice (see § 969 [prior convictions
must be alleged in the information]) that if he is convicted of the substantive offense and
if the prior conviction and incarceration allegation of section 666 is admitted or found
true, he faces enhanced punishment at the time of sentencing. We conclude that, on its
face, section 666 is a sentence-enhancing statute, not a substantive ‘offense’ statute.’”
(People v. Bouzas, supra, 53 Cal.4th at pp. 478-479; see People v. Shaw (2009) 177
Cal. App. 4th 92, 101.) Section 666 defines the potential penalties for petty theft with
specified theft related prior convictions and incarceration requirements. (§ 666, subd.
(a)-(b); People v. Bouzas, supra, 53 Cal.3d at p. 471 [“section 666 . . . provides that a
defendant who has been convicted of and imprisoned for enumerated theft-related crimes
8
(certain misdemeanors and felonies) and who is subsequently convicted of petty theft ‘is
punishable . . . .’”]; People v. Robinson (2004) 122 Cal. App. 4th 275, 281 [“Section
666 . . . is a discretionary sentencing statute which, upon the establishment of a
qualifying prior conviction, allows the trial court to punish petty theft as either a felony or
a misdemeanor.”].) Thus, counts 2 and 3 charge the substantive offense of petty theft.
We agree defendant may not be convicted under both counts 2 and 3. When a
single theft occurs at the same time as part of one transaction, only one conviction may
be returned. In People v. Nor Woods (1951) 37 Cal. 2d 584, 586-587, a used car dealer
was convicted of two grand theft counts. The used car dealer took both a 1946 Ford and
some cash in exchange for a 1949 Ford. The 1946 Ford was taken as a trade-in for the
newer 1949 model. The used car dealer then failed to deliver the new 1949 Ford or to
return the 1946 Ford and the money to the victim. Our Supreme Court held under these
circumstances only a single theft occurred: “Defendant contends that at most he was
guilty of the commission of one offense. We agree with this contention. It is
unnecessary to determine under what circumstances the taking of different property from
the same person at different times may constitute one or more thefts. (See People v.
Howes [(1950)] 99 Cal. App. 2d 808, 818-821, and cases cited.) In the present case both
the car and the money were taken at the same time as part of a single transaction whereby
defendant defrauded [the victim] of the purchase price of the 1949 Ford. There was,
accordingly, only one theft . . . .” (People v. Nor Woods, supra, 37 Cal.2d at pp. 586-
587; see In re Johnson (1966) 65 Cal. 2d 393, 395; People v. Neder (1971) 16 Cal. App. 3d
846, 853, fn. 3.) Our Supreme Court later characterized the decision in Nor Woods as
holding the used car dealer was improperly convicted of two counts of theft rather than
only one count. (See People v. Correa (2012) 54 Cal. 4th 331, 339-340.) Here, counts 2
and 3 involve the same theft of the identical meal on a single occasion at the Outback
Steakhouse on May 25, 2012. Thus, the judgment as to count 3 must be reversed. Upon
remittitur issuance, count 3 is to be dismissed. We need not address defendant’s
remaining contentions concerning count 3.
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B. Defendant May Be Convicted of Felony Petty Theft
1. Defendant’s contention
Defendant argues his count 2 four-year sentence (§§ 484, 666, subd. (b)) must be
reversed because his conduct can only be prosecuted under section 537, subdivision (a),
not section 484, subdivision (a). Defendant relies on In re Williamson (1954) 43 Cal. 2d
651, 654 (Williamson), and People v. Fiene (1964) 226 Cal. App. 2d 305, 306 (Fiene).
We disagree.
2. The statutes
Both sections 484 and 537, subdivision (a) involve theft-related conduct. Section
484 provides, “Every person . . . who shall knowingly and designedly, by any false or
fraudulent representation or pretense, defraud any other person of money, . . . or personal
property . . . is guilty of theft.” Where the value of the thing taken is less than $950, the
offense is a petty theft. (§§ 487, subd. (a), 488.) Section 490 states, “Petty theft is
punishable by fine not exceeding one thousand dollars ($1,000), or by imprisonment in
the county jail not exceeding six months, or both.” (§ 490.) Petty theft is generally
punished as a misdemeanor. (§ 17, subd. (a); People v. Williams (2004) 34 Cal. 4th 397,
404, fn. 4; People v. Crossdale (2002) 27 Cal. 4th 408, 410-411.)
Section 537, subdivision (a), proscribes conduct including defrauding an
innkeeper. Section 537, subdivision (a), states in part: “Any person who obtains any
food [or] services . . . at a . . . restaurant . . . without paying therefor, with intent to
defraud the proprietor or manager thereof . . . or who, after obtaining . . . food [or]
services . . . at [a] . . . restaurant . . . absconds, . . . with the intent not to pay for his or her
food . . . is guilty of a public offense punishable as follows: [¶] (1) If the value of
the . . . food . . . is nine hundred fifty dollars ($950) or less, by a fine not exceeding one
thousand dollars ($1,000) or by imprisonment in the county jail for a term not exceeding
10
six months, or both.” (Italics added.) The punishment for petty theft and defrauding an
innkeeper are the same.
As noted, the prior conviction facet of section 666 is not an element of section
484. (People v. Bouzas, supra, 53 Cal.3d at pp. 478-479; see People v. Shaw, supra, 177
Cal.App.4th at p. 101.) Thus, a petty theft in violation of section 484, ordinarily a
misdemeanor, may be elevated to a felony when charged as a petty theft with a prior
conviction under section 666. (People v. Williams, supra, 34 Cal.4th at p. 404, fn. 4;
People v. Artis (1993) 20 Cal. App. 4th 1024, 1026.) But felony petty theft is not a
substantively different offense than misdemeanor petty theft. The elements of petty theft
as a misdemeanor or a felony are precisely the same. The difference between the
misdemeanor and felony theft is not because they have different elements. It is because
petty theft is made a felony because of a sentencing statute–section 666. Defendant was
sentenced on count 2 pursuant to section 666, subdivision (b). At the time defendant
committed the present offense, section 666, subdivision (b) stated: “Notwithstanding
Section 490 [specifying the punishment for petty theft], any person [who has a prior
violent or serious felony conviction, as specified in subdivision (c) of Section 667.5 or
subdivision (c) of Section 1192.7] who, having been convicted of petty theft . . . and
having served a term of imprisonment therefor in any penal institution or having been
imprisoned therein as a condition of probation for that offense, who is subsequently
convicted of petty theft, is punishable by imprisonment in the county jail not exceeding
one year, or in the state prison.” (§ 666, subds. (b) & (b)(1); Stats. 2011, ch. 39, § 21, eff.
June 30, 2011.) Section 666 was amended effective January 1, 2014, i.e., subsequent to
the present offense, to add “a conviction pursuant to subdivision (d) or (e) of Section
368” to the qualifying prior convictions in subdivisions (a) and (b). The amendment also
made minor grammatical changes. (Stats. 2013, ch. 782, § 1.)
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3. The Williamson rule
In Williamson, our Supreme Court held: “‘It is the general rule that where the
general statute standing alone would include the same matter as the special act, and thus
conflict with it, the special act will be considered as an exception to the general statute
whether it was passed before or after such general enactment.’” (Williamson, supra, 43
Cal.2d at p. 654, citing People v. Breyer (1934) 139 Cal. App. 547, 550.) We will discuss
the “conflict” aspect of the Williamson rule shortly. The general and special statutes
must be construed to carry out the legislative objective. (Williamson, supra, 43 Cal.2d at
p. 655.) The Williamson rule is further explained in People v. Murphy (2011) 52 Cal. 4th
81, 86: “Under the Williamson rule, if a general statute includes the same conduct as a
special statute, the court infers that the Legislature intended that conduct to be prosecuted
exclusively under the special statute. In effect, the special statute is interpreted as
creating an exception to the general statute for conduct that otherwise could be
prosecuted under either statute. (Ibid.) ‘The rule is not one of constitutional or statutory
mandate, but serves as an aid to judicial interpretation when two statutes conflict.’
(People v. Walker (2002) 29 Cal. 4th 577, 586.) ‘The doctrine that a specific statute
precludes any prosecution under a general statute is a rule designed to ascertain and carry
out legislative intent.’” (Citing People v. Jenkins (1980) 28 Cal. 3d 494, 505-506; accord,
People v. Walker, supra, 29 Cal.4th at pp. 585-586.)
In Williamson, the defendant was charged with conspiring to act as a contractor
without a license in violation of the general conspiracy statute, section 182, subdivision
(a)(1). The charged conspiracy was punishable as a misdemeanor or as a felony under
section 182. However, Business and Professions Code section 7030 specifically provided
that conspiring to act as a contractor without a license was a misdemeanor. Our Supreme
Court held the specific statute controlled over the general one because, “To conclude that
the punishment for the violation of section 7030 of the Business and Professions Code is
stated in section 182 of the Penal Code, which deals with conspiracies in general, would
be inconsistent with the designation of the particular conspiracy as a misdemeanor.” (In
12
re Williamson, supra, 43 Cal.2d at p. 655; see People v. McCall (2013) 214 Cal. App. 4th
1006, 1012-1013.)
4. Fiene
In Fiene, supra, 226 Cal.App.2d at page 306, the defendant was convicted of
violating former section 667—petty theft with a prior felony conviction. (Stats. 1941, ch.
106, § 11, pp. 1082-1083.)3 The defendant had exited a restaurant without paying his
bill. Division Four of this appellate district held section 537 (see Stats. 1959, ch. 1990, §
1)4), prevented the trial court from acquiring jurisdiction in the case. (Fiene, supra, 226
Cal.App.2d at pp. 307-308.) Both parties agreed the elements of section 537 were the
same as those of petty theft in violation of section 484. The Attorney General argued,
however, that the Legislature did not intend that section 537 apply when a defendant who
committed a petty theft had a prior conviction that qualified him for greater penalty under
section 667. The Attorney General asserted, “The Legislature . . . ‘would not want to
give less protection to . . . restaurant proprietors if the defrauding was carried out by a
released felon.’” (Fiene, supra, 226 Cal.App.2d at p. 308.) The Court of Appeal
disagreed. The Court of Appeal held the defendant’s conduct came within a special
statute—section 537. The Fiene opinion does not discuss how the theft and defrauding
an innkeeper statutes were in conflict. The conflict issue was never raised nor discussed.
3 In 1963, when the defendant in Fiene committed his offense, section 667 stated,
“Every person who, having been convicted of any felony either in this State or elsewhere,
and having served a term therefor in any penal institution, commits petty theft after such
conviction, is punishable therefor by imprisonment in the county jail not exceeding one
year or in the State prison not exceeding five years.” (Stats. 1941, ch. 106, § 11, pp.
1082-1083.)
4 In 1963, when the defendant in Fiene committed his offense, section 537 stated
in part, “Any person who . . . after obtaining . . . food . . . at [a] . . . restaurant
absconds, . . . without paying for his food . . . is guilty of a misdemeanor.” (Stats. 1959,
ch. 1990, § 1, p. 4597.)
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The Court of Appeal reversed the judgment. (People v. Fiene, supra, 226 Cal.App.2d at
p. 308.) Fiene has not been followed for this proposition in any published California
case.
5. Artis
As noted, the Fiene opinion never discussed the “conflict” element of a defense
the accused’s conduct is only subject to a more specific, less onerous offense. Since
Fiene was decided, courts have clarified that there must be a conflict between the general
and specific offense in order for the accused to benefit. For example, in People v. Artis,
supra, 20 Cal.App.4th at pages 1025-1026, the defendant took a refrigerator from his
leased apartment and sold it. The defendant was charged with petty theft with a prior
conviction under sections 484 and 666. A section 995 motion to set aside the information
on grounds defendant should have been prosecuted for embezzlement under section 507
was granted. The Court of Appeal reversed the dismissal order.
Section 507 states in part, “Every person entrusted with any property as bailee,
tenant, or lodger . . . who fraudulently converts the same or the proceeds thereof to his
own use . . . is guilty of embezzlement.” The Court of Appeal for the Fourth Appellate
District, Division One, held: “Although Artis refers to his crime as a mere conversion,
the Legislature has expressly declared it to be a form of embezzlement. As
embezzlement, it is theft. (§ 490a.) As theft it is chargeable as a violation of section 484
and, critical to Artis, it is an offense which may be elevated to felony status when charged
as petty theft with a prior. (§ 666.) [¶] . . . [¶] The starting point is whether the general
and special statutes which include the same subject matter contain provisions which
conflict. (In re Williamson[, supra,] 43 Cal.2d [at p.] 654.) In Williamson, a conflict
existed because a special statute declared an offense to be a misdemeanor, while a
general statute would permit the People to elevate the crime to a felony. . . . [¶] . . . [¶]
Unlike the cases Artis cites, there are no conflicts between the elements to prove, or the
punishment for, embezzlement under section 484 and embezzlement defined in section
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507. Each is punished ‘in the manner prescribed for theft of property of the value or kind
embezzled.’ (§ 514.) Thus, had Artis been a first-time theft offender, he would face a
misdemeanor sentence for this ‘petty’ theft regardless of how it was charged. Because
there is no conflict between these statutes, Artis currently may be charged under section
484 and thus is subject to the felony enhancing provisions of section 666.” (People v.
Artis, supra, 20 Cal.App.4th at pp. 1026-1027, fn. omitted; see 1 Witkin, Cal. Crim. Law
(4th ed. 2012) Introduction to Crimes: Criminal Statutes, ch. I, § 77, p. 136 [“because
there is no conflict between [section] 507 (embezzlement of property by tenant) and
[section] 484 (general theft statute), tenant who embezzles property may be charged
under either statute”].)
The Artis analysis, which clarifies the necessity of a conflict between the general
and specific crimes, is consistent with other authority. While discussing the
general/special statute jurisprudence, the Court of Appeal for the Third Appellate District
explained: “As for the Gilbert-Gasaway interpretive principle of a special statute being
the exception to a general one on the same subject, that principle’s application has been
described succinctly as pivoting on whether there are ‘conflicts between the elements to
prove, or the punishment for,’ the statutes at issue. (Artis, supra, 20 Cal.App.4th at p.
1027.) If so, the special statute is considered an exception to the general statute. ([People
v.] Gilbert [(1969)] 1 Cal.3d [475,] 479; Gasaway [v. Superior Court (1977) 70
Cal. App. 3d 545,] 550.)” (Bradwell v. Superior Court (2007) 156 Cal. App. 4th 265, 271.)
We turn now to Gilbert and Gassaway, the two decisions cited Bradwell.
In People v. Gilbert, supra, 1 Cal.3d at pages 480-481, our Supreme Court
explained the relationship between two misdemeanor welfare fraud and grand theft
statutes. In Gilbert, the defendant was convicted of violating the general grand theft
statute, a felony. Our Supreme Court held the more specific provision, a misdemeanor
violation of former Welfare and Institutions Code section 11482,5 was the greatest
5 As it was in effect at the time pertinent to the Gilbert decision, former Welfare
and Institutions Code section 11482 stated, “Any person other than a needy child, who
15
offense of which the defendant could be convicted. Our Supreme Court then described
the type of conflict Williamson was designed to mitigate: “Inasmuch as the clause as to
false statements applies only to statements made in obtaining unauthorized assistance, it
follows that any conduct which violated that clause would also constitute a violation of
the theft provision of the Penal Code. This overlap of provisions carrying conflicting
penalties typifies the kind of conflict which we envisioned in Williamson; it requires us to
give effect to the special provision alone in the face of the dual applicability of the
general provision of the Penal Code and the special provision of the Welfare and
Institutions Code.” (People v. Gilbert, supra, 1 Cal.3d at p. 481; accord, Patterson v.
Municipal Court (1971) 17 Cal. App. 3d 84, 89 [discussing the Gilbert conflict analysis in
the context of an amendment to an accusatory pleading in welfare fraud case]; People v.
Superior Court (Fuller) (1971) 14 Cal. App. 3d 935, 949 [applying Gilbert conflict
discussion in the context of Vehicle Code violations with varying penalties].)
In Gasaway v. Superior Court, supra, 70 Cal.App.3d at pages 547-548, the
defendant was accused of four counts of welfare fraud occurring between October 1973
and March 1974. (Former Welf. & Inst. Code, § 11483, subd. (2).6) The information
was filed more than three years after three of the four alleged acts of welfare fraud. The
Court of Appeal ultimately held that the controlling statute of limitations for welfare
fraud was three years. But the statute of limitations for grand theft was three years from
willfully and knowingly, with the intent to deceive, makes a false statement or
representation or knowingly fails to disclose a material fact to obtain aid, or who,
knowing he is not entitled thereto, attempts to obtain and or to continue to receive aid to
which he is not entitled, or a larger amount than that to which he is legally entitled, is
guilty of a misdemeanor.” (Stats. 1965, ch. 1784, § 5, p. 4018.)
6 As it was in effect between 1973 and March 1974, former Welfare and
Institutions Code section 11483, subdivision (2) stated: “Whenever any person has, by
means of false statement or representation or by impersonation of another fraudulent
device, obtained aid for child not in fact entitled thereto, the person obtaining such aid
shall be punished as follows: [¶] . . . (2) If the amount obtained or retained is more than
two hundred dollars ($200), by imprisonment in the state prison for not less than one year
or more than 10 years or by imprisonment in the county jail for not more than one year.”
(Stats. 1970, ch. 693, § 1, p. 1322.)
16
the discovery of the offense, not its commission. Thus, in the view of the Court of
Appeal, the limitations period for theft, with its discovery statute of limitations, was more
onerous than that for welfare fraud. That aspect of the holding is not controlling to our
case. Rather, the relevant discussion in Gasaway relates to the conflict analysis in
Gilbert.
In Gasaway, the Court of Appeal digested the conflict analysis in Gilbert thusly:
“[I]n People v. Gilbert, supra, 1 Cal. 3d 475 at page 479, the Supreme Court specifically
held that ‘welfare fraud cannot be prosecuted under section 484 of the Penal Code.’
Gilbert was convicted of fraudulently obtaining more than $200 in aid to families with
dependent children in violation of section 484 of the Penal Code. The court held that
Welfare and Institutions Code section 11482, as a special provision of the Welfare and
Institutions Code dealing with welfare fraud, precluded prosecution of such fraud under
the older general theft provision of the Penal Code. [Citation.] ‘As we stated in In re
Williamson[, supra,] 43 Cal.2d [at page 654], “It is the general rule that where the
general statute standing alone would include the same matter as the special act, and thus
conflict with it, the special act will be considered as an exception to the general statute
whether it was passed before or after such general enactment.” [Citations.]’ (1 Cal. 3d
475, at p. 479.) The court pointed out the conflict in the penalties provided for in Welfare
and Institutions Code section 11482 (a misdemeanor) and Penal Code section 484 (a
felony if over $200 is taken; see Pen. Code, §§ 19, 487, subd. 1, 489; see also People v.
Legerretta [(1970)] 8 Cal. App. 3d 928).” (Gasaway v. Superior Court, supra, 70
Cal.App.3d at pp. 549-550, fn. omitted.)
In Gasaway, the Court of Appeal noted in the case before it, there was no conflict
in the penalties. The Court of Appeal explained: “Here, there is no conflict in penalties,
since the penalty for violation of either [Welfare and Institutions Code] section 11483,
subdivision (2) or Penal Code section 484 (see Pen. Code, § 489), is imprisonment in
state prison for not more than 10 years or county jail for not more than one year. (Welf.
& Inst. Code, § 11483, subd. (2); Pen. Code, § 489.)” (Gasaway v. Superior Court,
supra, 70 Cal.App.3d at p. 550.) However, the Court of Appeal held that the theft
17
offense with a longer statute of limitations was the more onerous provision. As we will
explain, no such issue is present here.
To sum up, the Williamson decision requires there be a conflict between the two
provisions before the general and specific statutes jurisprudence can limit prosecutorial
charging discretion. Gilbert exemplifies how a conflict can arise in the sentencing
context. Gasaway explains when there is no conflict in the sentencing context. And
Artis describes in the theft-related context how there is no conflict in the elements of an
offense.
6. Conclusion
We respectfully disagree with the Court of Appeal’s decision in Fiene. As noted,
the information alleges in relevant parts in counts 2 and 3 that defendant “did steal[,] take
and carry away the personal property of” the steakhouse. As to count 2, the jury was
instructed in part: “The defendant is charged in Count 2 with theft. [¶] To prove that the
defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant took
possession of property owned by someone else; [¶] 2. The defendant took the property
without the owner’s or the owner’s agent’s consent; [¶] 3. When defendant took the
property he intended to deprive the owner of it permanently; [¶] AND [¶] 4. The
defendant moved the property, even a small distance, and kept it for any period of time,
however brief.” Thus, as charged and as tried, the theft counts were premised on the
following language in section 484, subdivision (a), “Every person who shall feloniously
steal, take . . . the personal property of another . . . is guilty of theft.” The information’s
allegations and instructions were premised on the theory defendant committed a petty
theft by larceny. (See People v. Gomez (2008) 43 Cal. 4th 249, 254-255; People v. Davis
(1998) 19 Cal. 4th 301, 305.) Theft is divided into two degrees, petty and grand theft.
(§ 486; People v. Crossdale (2002) 27 Cal. 4th 408, 410.) The demarcation between
grand and petty theft is now $950. When the value of the property taken exceeds $950,
the crime is grand theft. (§ 487, subd. (a); see Breceda v. Superior Court (2013) 215
18
Cal. App. 4th 934, 953; People v. Wade (2012) 204 Cal. App. 4th 1142, 1150.) The $950
differentiation between grand and petty theft was adopted effective January 1, 2011.
(Stats. 2010, ch. 693, § 1; Cal. Const., art. IV, § 8, subd. (c)(1).) The punishment for
petty theft is as follows, “Petty theft is punishable by fine not exceeding one thousand
dollars ($1,000), or by imprisonment in the county jail not exceeding six months, or
both.” (§490.)
The parties agree the following language in section 537, subdivision (a) covers the
same conduct charged in the information. Section 537, subdivision (a) states in part:
“Any person who . . . after obtaining . . . food . . . restaurant . . . absconds . . . therefrom
with the intent not to pay for his or her food . . . is guilty of a public offense punishable as
follows: [¶] (1) If the value of the . . . food . . . is nine hundred fifty dollars ($950) or
less, by a fine not exceeding one thousand dollars ($1,000) or by imprisonment in the
county jail for a term not exceeding six months, or both.” When the value of the food
taken exceeds $950, the defendant can be convicted of a felony. (§ 537, subd. (a)(2).)
The $950 differentiation between section 537, subdivisions (a) and (b) was adopted
effective January 25, 2010. (Stats. 2010, ch. 28, §27; Cal. Const., art. IV, § 8, subd.
(c)(1).)
Defendant could be tried either for petty theft or a violation of section 537,
subdivision (a)(1). The two offenses do not conflict. Both offenses permit conviction
when food is taken and not paid for. When the food’s value is $950 or below, the offense
is a misdemeanor under sections 490 or 537, subdivision (a)(2). And the potential
sentences for petty theft and a violation of section 537, subdivision (a)(1) are the same.
Further, the general misdemeanor statute of limitations applies to both provisions when
there is a taking of food. (§ 802, subd. (a).) There is no conflict in the elements,
punishment or statutes of limitations. Hence, as there is no conflict between the petty
theft statute and section 537, subdivision (a), the Williamson rule is inapplicable. (People
v. Gilbert, supra, 1 Cal.3d at p. 481; Bradwell v. Superior Court, supra, 156 Cal.App.4th
at p. 271; People v. Artis, supra, 20 Cal.App.4th at pp. 1025-1026; Gasaway v. Superior
Court, supra, 70 Cal.App.3d at pp. 547-548.)
19
We now return to the Fiene decision. As noted, the Williamson conflict issue was
not raised by the defendant. (Fiene, supra, 226 Cal.App.2d at p. 307.) Rather, the
Attorney General raised the Williamson issue in this sole context: “However, the
Attorney General, with commendable objectivity, raises a much more serious question,
one which is raised for the first time in these proceedings, and, one which, we believe,
requires a reversal of the judgment. [¶] The question presented is whether the existence
of Penal Code, section 537 (the innkeeper statute), making it a misdemeanor to defraud
an innkeeper, prevents the superior court from acquiring jurisdiction in this matter.”
(Fiene, supra, 226 Cal.App.2d at p. 308.) The Attorney General made a vague
generalized non-factually supported legislative intent argument as to why the accused
could be convicted of petty theft with a prior conviction. (Ibid. at p. 308.) At no time did
the Attorney General argue section 537 was in conflict with the petty theft with a prior
conviction statute.
Here, the Attorney General expressly raised the conflict issue. The language
chosen by our Supreme Court in Williamson requires a conflict exist between the two
offenses. And in the one half-century since Fiene was decided, the California Supreme
Court and the appellate courts have specifically delineated what the conflict language in
Williamson means. Thus, we are more persuaded by those decisions as to what
constitutes a conflict in the statutes than we are by the analysis in Fiene, supra, 226
Cal.App.2d at pages 307-308. The trial court was thus free to sentence defendant for
felony petty theft.
[Parts III(D)-(G) are deleted from publication.]
D. Count 4
Defendant argues that under the Williamson rule, as discussed above, he could not
be prosecuted under a general statute, section 476, because a special statute, section 648,
applied. We disagree. Section 476 states, “Every person who makes, passes, utters, or
20
publishes, with intent to defraud any other person, or who, with the like intent, attempts
to pass, utter, or publish, or who has in his or her possession, with like intent to utter,
pass, or publish, any fictitious or altered bill, note, or check, purporting to be the bill,
note, or check, or other instrument in writing for the payment of money or property of
any real or fictitious financial institution as defined in Section 186.9 is guilty of forgery.”
Section 648 provides, “Every person who makes, issues, or puts in circulation any bill,
check, ticket, certificate, promissory note, or the paper of any bank, to circulate as
money, except as authorized by the laws of the United States, for the first offense, is
guilty of a misdemeanor, and for each and every subsequent offense, is guilty of felony.”
With respect to counterfeit bills, section 476 penalizes the knowing possession or use of
forged bills to defraud. (See People v. Mathers (2010) 183 Cal. App. 4th 1464, 1467-
1468; People v. Franz (2001) 88 Cal. App. 4th 1426, 1454; People v. Gutkowsky (1950)
100 Cal. App. 2d 635, 639; People v. Walker (1911) 15 Cal. App. 400, 403.) Section 648
is directed at circulating counterfeit bills with the intent that they circulate as money.
(People v. Burkett (1969) 271 Cal. App. 2d 130, 133; Cal. Crim. Law (The Rutter Group
2013-2104 ed.) Theft Crimes, § 8.72.) Sections 476 and 648 do not penalize the same
conduct. Here, defendant was not charged with making, issuing or putting in circulation
unauthorized money, as proscribed by section 648. Defendant was charged with passing
a fictitious or altered bill with intent to defraud, as proscribed by section 476. There was
no conflict within the meaning of the Williamson rule.
E. Double Punishment Issues
There are sentencing issues which have been raised by the parties and by us. The
trial court orally ordered that the sentences be merged as to counts 1 though 4 pursuant to
section 654, subdivision (a): “Probation is denied and sentence is imposed as follows:
As to counts 1 through 4 the defendant is sentenced to the midterm of two years. Those
counts will merge pursuant to Penal Code section 654.” As to count 5, forgery, the trial
court imposed a consecutive term of 8 months. The trial court stated: “As to count 5, the
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court is imposing a consecutive term which would be a term of eight months. . . . [A]nd
as a result of the defendants’ strike prior, that term in both of those counts are hereby
doubled. Total term of five years and four months.” Thus, pursuant sections 667,
subdivision (e)(1) and 1170.12 subdivision (c)(1), the determinate stayed terms were
doubled.
To begin with, the concept of merger has no application in the section 654,
subdivision (a) context. (People v. Miller (1977) 18 Cal. 3d 873, 884-887; People v. Wein
(1977) 69 Cal. App. 3d 79, 93; People v. Mulqueen (1970) 9 Cal. App. 3d 532, 547.) The
correct order is to impose a principal term of two years on count 2 and then stay the
sentences under counts 1 and 4. (As noted, count 3 has been reversed and there will be
no retrial.) (People v. Pearson (1986) 42 Cal. 3d 351, 360; In re Wright (1967) 65 Cal. 2d
650, 654.)
Defendant asserts his count 5 forgery conviction under section 472 should have
been stayed pursuant to section 654, subdivision (a). Our review is for substantial
evidence as to whether defendant had more than one intent and objective when he
committed the present crimes. (People v. Osband (1996) 13 Cal. 4th 622, 730-731;
People v. Islas (2012) 210 Cal. App. 4th 116, 129.) We agree with the Attorney General
that substantial evidence supports the trial court’s decision not to stay defendant’s count 5
forgery conviction under section 472.
Section 472 states: “Every person who, with intent to defraud another, forges, or
counterfeits [any public seal of this State or the federal government], or who falsely
makes, forges, or counterfeits any impression purporting to be an impression of any such
seal, or who has in his possession any such counterfeited seal or impression thereof,
knowing it to be counterfeited, and willfully conceals the same, is guilty of forgery.” In
the trial court, Deputy District Attorney Miriam Avalos argued: “[C]ount [5] is that the
People have to prove that [defendant] possessed a counterfeit seal. And, again, we’ve
proven he possessed the bills. [¶] The defendant knew the seal was counterfeit, and the
defendant willfully concealed the fact that the seal was counterfeit. And when he
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possessed the seal, he intended to defraud. [¶] Again, it all goes to the defendant and his
state of mind.”
As noted, defendant was interviewed by Deputy Gomez in the mall security office.
Defendant claimed to have received the counterfeit bills from Jeff. Defendant stated he
had been given the counterfeit bills earlier in the day for gas and food. Deputy Gomez
testified, “He told me his nephew Jeff had given him the money earlier in the day for gas
and food.” The trial court could reasonably infer defendant possessed the counterfeit
bills with multiple criminal objectives. That is, defendant possessed the counterfeit bills
not simply to acquire a free meal at the Outback Steakhouse, but also to acquire gasoline
without paying for it. This was substantial evidence defendant had multiple criminal
objectives with respect to his possession of the counterfeit bills. (See People v. Neder,
supra, 16 Cal.App.3d at pp. 853-854 [defendant could be punished for multiple forgeries
where codefendant used credit card to forge three separate sales slips for purchase of
different goods]; compare People v. Hawkins (1961) 196 Cal. App. 2d 832, 838 [defendant
could not be punished for both signing or forging a single check and making or passing
the same check].)
F. Pitchess
Defendant requested that we independently review the record of the trial court’s in
camera hearing for review of peace officer personnel records. (People v. Mooc (2001) 26
Cal. 4th 1216, 1228-1232; Pitchess v. Superior Court (1974) 11 Cal. 3d 531, 535.) We
have reviewed the transcripts of the in camera hearing. The trial court did not abuse its
discretion in any respect. (People v. Myles (2012) 53 Cal. 4th 1181, 1209; People v.
Mooc, supra, 26 Cal.4th at pp. 1228, 1232.)
23
G. The Local Crime Prevention Programs Fine
The trial court could properly impose a $10 crime prevention programs fine (§
1202.5, subd. (a)) together with penalties and a surcharge as follows: a $10 state penalty
(§ 1464, subd. (a)(1)); a $7 county penalty (Gov. Code, § 76000, subd. (a)(1)); a $5 state
court construction penalty (Gov. Code, § 70372, subd. (a)(1), Stats. 2011, ch. 304, § 5,
eff. Jan. 1, 2012); a $1 deoxyribonucleic acid penalty (Gov. Code, § 76104.6, subd.
(a)(1)); a $3 state-only deoxyribonucleic acid penalty (Gov. Code, § 76104.7, subd. (a),
Stats. 2011, ch. 36, § 16, eff. June 30, 2011-June 26, 2012); a $2 emergency medical
services penalty (Gov. Code, § 76000.5, subd. (a)(1)); and a $2 state surcharge (§ 1465.7,
subd. (a)). The abstract of judgment must be amended to reflect the fine, penalties and
surcharge. (People v. Hamed (2013) 221 Cal. App. 4th 928, 940 [abstract of judgment
must list fines, penalties, surcharge]; People v. Sharret (2011) 191 Cal. App. 4th 859, 864
[superior court clerk must specify fines, penalties, surcharge in abstract of judgment].)
[The balance of the opinion is to be published.]
IV. DISPOSITION
The judgment as to count 3 is reversed. Upon remittitur issuance, count 3 is to be
dismissed. The judgment is modified to impose four Penal Code section 1465.8,
subdivision (a)(1) court operations assessments in the sum of $160. Further, the
judgment is modified to impose only four Government Code section 70373, subdivision
(a)(1) court facilities assessments in the sum of $120. The abstract of judgment is to be
so modified. In addition, the abstract of judgment must be amended to include the $10
local crime prevention programs fine (Pen. Code, § 1202.5, subd. (a)) together with
penalties and a surcharge as ordered by the trial court, specifically: a $10 state penalty (§
1464, subd. (a)(1)); a $7 county penalty (Gov. Code, § 76000, subd. (a)(1)); a $5 state
court construction penalty (Gov. Code, § 70372, subd. (a)(1)); a $1 deoxyribonucleic acid
24
penalty (Gov. Code, § 76104.6, subd. (a)(1)); a $3 state-only deoxyribonucleic acid
penalty (Gov. Code, § 76104.7, subd. (a)); a $2 emergency medical services penalty
(Gov. Code, § 76000.5, subd. (a)(1)); and a $2 state surcharge (§ 1465.7, subd. (a)). The
clerk of the superior court is to deliver a copy of the amended abstract of judgment to the
Department of Corrections and Rehabilitation. The judgment is affirmed in all other
respects.
CERTIFIED FOR PARTIAL PUBLICATION
TURNER, P. J.
We concur:
KRIEGLER, J.
MINK, J.
 Retired judge of the Los Angeles Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
25