The People v. Fisher

Filed 5/10/13
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Lassen)
----
THE PEOPLE,
Plaintiff and Respondent, C070295
v. (Super. Ct. No. CR029160)
TIMOTHY FISHER,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Lassen County, F. Donald
Sokol, Judge. Reversed in part and affirmed in part.
Gregory L. Cannon, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Michael P. Farrell,
Assistant Attorneys General, Carlos A. Martinez and Wanda Hill Rouzan, Deputy
Attorneys General, for Plaintiff and Respondent.
* Pursuant to California Rules of Court, rules 8.1105 and 8.1110, this opinion is certified
for publication with the exception of parts II, III, and IV of the discussion.
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A jury convicted defendant Timothy Fisher of delivering a letter with intent to
extort money or other property (Pen. Code, § 5231) and found a prior prison term
allegation (§ 667.5) to be true.
Sentenced to county jail pursuant to section 1170, subdivision (h), for an aggregate
term of four years, defendant appeals. He contends (1) insufficient evidence supports his
conviction, (2) he was entitled to day-for-day conduct credit, (3) the trial court imposed
an unauthorized sentence when it issued an order restraining defendant from contacting
the victim, and (4) the minute order erroneously reflects he was sentenced as a two-strike
offender. We conclude defendant‟s demand for a job constituted a demand for property
for purposes of the extortion statute. Accordingly, there is sufficient evidence supporting
defendant‟s conviction. As to the conduct credit, restraining order, and sentencing
minutes, defendant‟s contentions have merit. Defendant is entitled to day-for-day credits.
The restraining order must be vacated because there is no authority for such a restraining
order. And the sentencing minutes must be corrected to delete reference to defendant as a
two-strike offender. Thus, we order the trial court to provide day-for-day credits, vacate
the restraining order, and delete the incorrect two-strike offender reference in the
sentencing minutes. In all other respects, the judgment is affirmed.
FACTS
On September 14, 2011, defendant applied for a job at Susanville Towing, giving
a completed job application to Brian Phillips, the owner of the towing company. In his
application, defendant stated he desired a mechanic or shop hand position that paid
“$ 8.15.” Defendant also gave Phillips an envelope. Phillips told defendant his
application would be kept on file and if a job became available, defendant would be
contacted.
1 Undesignated section references are to the Penal Code.
2
Phillips opened the envelope and found a four-page letter signed by defendant.
Defendant began by thanking Phillips for considering him for employment and stated:
“It is important that we acknowledge the fact that this is not a typical situation.”
Defendant described his prior vandalism conviction for sanding paint off of a car, which
he claimed he had committed in the presence of the police.
On the second page, defendant acknowledged the tight job market and
commented, “You need not waste your time or mine with the standard; [sic] „Thank you
for completing the application . . . . We‟ll keep it on-file and notify you should anything
develop.” Defendant said he could pass a drug screen and stated, “I hardly believe that it
is unreasonable to ask that you start me at the minimum wage, part-time if you like.”
Defendant reminded Phillips that defendant‟s parole agent, Robert Hartner, had
made the job referral. Defendant stated he included the personal cell phone number of
his parole agent on his job application without the agent‟s authorization.
Defendant continued: “I intend to visit your office today at five o‟clock p.m. in
order to determine whether or not I am employed by your company; [sic] Susanville
Towing,” commenting that he believed he would more than meet expectations.
Defendant then threatened, “Regretfully, if not however [sic], I will be armed with a
piece of eighty-grit sandpaper that we both know I will not hesitate to use. [¶] I know
how detrimental it would be to your business if the paint on a customers‟ [sic] vehicle
were to be abraded during this endeavor; [sic] and would like to avoid this at all costs.”
Defendant told Phillips he could “avert this situation by informing Mr. Hartner --
preferably sometime before five -- that I have attempted to extort a job from you,” which
would require Phillips “to waste an entire day” testifying against defendant, which was
another “situation I would like to avoid.” Defendant concluded, “please believe me when
I say that I am a true professional, that will be a valuable asset to your company.”
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After Phillips read this letter, he called Agent Hartner to express his concern.
Agent Hartner contacted defendant who admitted he had written and given the letter to
Phillips. Defendant stated he intended “to carry out the threat of sandpapering the
vehicles.” Agent Hartner arrested defendant and found on him a piece of 80-grit
sandpaper.
Defendant testified at trial. He claimed his prior act of vandalism and his threat in
the present case resulted in “self-imposed arrest[s]” because he “decided to take three
hots and a cot in lieu of not being able to locate a steady source of income through
employment.” Upon release from prison on September 6, 2011, he was unable to find
employment or acceptable housing. He claimed Hartner had referred him to some
housing that was “dilapidated,” “deplorable,” and associated with “drug use.”
An abandoned vehicle in which defendant lived had been towed by Phillips‟s tow
truck company. On September 13, 2011, defendant asked Phillips for a job. Phillips
gave appellant a job application. The next day, when defendant returned the application,
Phillips told defendant he would keep the application on file. Defendant handed Phillips
the demand letter “as a last resort.” He added, “[A]t that point, of course, I knew I would
be coming to jail.”
Defendant had hoped the letter would persuade the victim to hire him. Defendant
said the letter was not “intended to be taken at face value” and “[t]he part about extorting
a job, that was kind of humorous, also.” Although he wanted to be hired, he “figured that
[the result] would be an arrest.” He was stopped while trying to secure his belongings in
anticipation of being arrested. He had the sandpaper because, “in a worst case scenario,
if [Phillips] did take the letter as a joke, I might have to brand-ish [sic] the sandpaper and
make a little noise in order to complete the self-imposed arrest.” He explained, “[T]his
isn‟t my normal routine, I don‟t run around, you know, delivering ultimatums to
prospective employers. I was trying to get a job.” Defendant thought the entire situation
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had been “entirely blown out of proportion here” and he did not attempt to extort money
or property but instead requested a job.
In rebuttal, Agent Hartner testified the living arrangements defendant rejected
provided safe, drug-free environments.
DISCUSSION
I
Insufficient Evidence
Defendant contends insufficient evidence supports his conviction for delivering a
letter with intent to extort because his demand for a job was not a demand for money or
property within the meaning of section 523.2 The People respond that defendant‟s hand-
written letter expressly demanded money, namely minimum wage. In his job application
submitted with the letter, defendant wanted a position that paid $8.15 an hour. Thus,
defendant‟s demand for a job was a demand for a paycheck, i.e., money. The People
further respond that defendant‟s demand for a job was a demand for property. We
conclude defendant‟s demand for a job constituted a demand for “property” as that term
is broadly construed in cases and statutes. Thus, we conclude sufficient evidence
supports his conviction.
“Every person who, with intent to extort any money or other property from
another, sends or delivers to any person any letter or other writing, whether subscribed or
not, expressing or implying, or adapted to imply, any threat such as is specified in Section
2 The trial court instructed the jury on the elements of the charged offense as follows:
“One, the defendant sent or delivered a threatening letter to another person. [¶] Two, in
the letter, the defendant threatened to unlawfully injure the property of the other person
or someone else. [¶] And three, when sending or delivering the letter, the defendant
intended to use fear [to] obtain money with the other person‟s consent.” (Italics added.)
The form or pattern jury instruction (CALCRIM No. 1831) refers to money or property.
Defendant does not challenge the jury instruction as given here.
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519, is punishable in the same manner as if such money or property were actually
obtained by means of such threat.” (§ 523.) “Fear, such as will constitute extortion, may
be induced by a threat, either: [¶] 1. To do an unlawful injury to the person or property
of the individual threatened or of a third person.” (§ 519.)
Certain words used in the Penal Code are defined “unless otherwise apparent from
the context.” (§ 7.) “The word „property‟ includes both real and personal property.”
(§ 7, subd. 10.) “The words „real property‟ are coextensive with lands, tenements, and
hereditaments.” (§ 7, subd. 11.) “The words „personal property‟ include money, goods,
chattels, things in action, and evidence of debt.” (§ 7, subd. 12.)
“[S]ubdivision 12 of section 7 does not create an exclusive list of personal
property limited to those specifically named.” (People v. Kozlowski (2002) 96
Cal.App.4th 853, 865 (Kozlowski).) In construing the term “property” for purposes of the
extortion statute, “a broad interpretation is appropriate.” (Id. at p. 866.) “Property” for
purposes of theft-related crimes means “the exclusive right to use or possess a thing or
the exclusive ownership of a thing. [Citations.] The term is all-embracing, including
every intangible benefit and prerogative susceptible of possession or disposition.
[Citation.] The right to own property implies the right to possess or use a thing to the
exclusion of others. [Citation.]” (Ibid.)
Kozlowski found that a PIN code as a means of access to a bank account was
property within the meaning of the extortion statute because a PIN code is intangible
property, and intangible property is specifically included in the definition of property.
(96 Cal.App.4th at pp. 867; see also People v. Baker (1978) 88 Cal.App.3d 115, 119 [the
right to prosecute a protest with alcohol licensing agency is property]; People v. Cadman
(1881) 57 Cal. 562, 563-564 [the right to prosecute an appeal is property].) Relying upon
People v. Kwok (1998) 63 Cal.App.4th 1236 (Kwok), Kozlowski reasoned that “[t]he
intangible property taken -- the PIN codes -- were the means to obtain the more valuable
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property -- the bank funds -- contained in those accounts” and destroyed the victims‟
“intangible benefit of being able to control access to the bank accounts.” (96 Cal.App.4th
at p. 869.) In Kwok, the court determined that a house key is property and the
defendant‟s unauthorized copy of the victim‟s house key constituted theft because
defendant‟s conduct deprived the victim of something valuable, that is, her right to have
exclusive access to her home. (63 Cal.App.4th at pp. 1240-1245, 1248-1251.)
Here, defendant demanded a job or employment. Neither party cites a case
directly on point that states a job or employment is tangible or intangible property for
purposes of the extortion statute. Defendant simply argues that “[e]mployment provides
only the opportunity to earn money in exchange for labor” and a job “does not give the
employee access to the assets of the employer.” The People cite cases from other
jurisdictions that conclude employment is property for purposes of extortion. We find
persuasive the reasoning in People v. Spatarella (N.Y. 1974) 313 N.E.2d 38 (Spatarella)
and conclude property for purposes of the extortion statute includes a business owner‟s
right to determine whom to employ.
In Spatarella, the defendant threatened a refuse-business competitor to stop
servicing a restaurant customer or face a visit to the hospital. The competitor complied
with the defendant‟s demand, removing his containers from the restaurant. (313 N.E.2d
at p. 39.) The defendant was convicted of grand larceny by extortion. (Id. at p. 38.) The
defendant contended that a business customer was not property within the meaning of the
extortion statute, which provided: “A person obtains property by extortion when he [or
she] compels or induces another person to deliver such property to himself or to a third
person by means of instilling in him a fear that, if the property is not so delivered, the
actor or another will: (i) Cause physical injury to some person in the future.” (Id. at p.
39.) Spatarella rejected defendant‟s contention, concluding the defendant‟s business
competitor “possessed an advantageous business relationship,” which the defendant
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obtained through intimidation. (Id. at p. 40.) Spatarella relied upon case law that
determined an employer‟s business was property. (Ibid.) In particular, Spatarella cited
People ex rel. Short v. Warden of City Prison (N.Y.App.Div. 1911) 145 A.D. 861 (Short)
in which a realtor committed extortion when he obtained a position for a painter and
thereafter the realtor threatened the painter with the loss of his job unless he paid the
realtor 50 cents a day from the painter‟s weekly salary. (Id. at pp. 862-863.) Short
determined the realtor‟s threat to have the painter discharged was a threat to injure the
painter‟s business, “an injury to his property.” (Id. at p. 863.) Although Short and the
other cases construed the term property “for the purpose of defining the kind of property
which can be threatened,” Spatarella concluded there was no reason “to construe the term
differently in defining the sort of property which can be demanded under pain of injury to
the person or other property within the contemplation of the statute. Surely the
extortionist‟s demand for the business itself, or a part of it, is, if anything, more egregious
than the demand simply for money.” (Spatarella, supra, 313 N.E.2d at p. 40.)
Here, defendant did not apply for a job in the normal course and allow the
employer to evaluate his application when a job became available. Defendant demanded
to be employed by the business owner or face vandalism to vehicles at the business.
Defendant‟s threat to be employed or subject the business to vandalism was a demand for
part of the employer‟s business, i.e., part of the intangible benefit and prerogative of
being able to control whom to employ in one‟s business. (See Kwok, supra, 63
Cal.App.4th at p. 1251.) Based on our conclusion that a demand for a job is a demand for
property, sufficient evidence supports defendant‟s conviction. (People v. Carpenter
(1997) 15 Cal.4th 312, 387.)
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II
Custody Credit
Defendant was in custody from September 14, 2011, through sentencing on
December 13, 2011. As recommended by the probation officer, the trial court awarded
91 actual days and 44 conduct days for a total of 135 days of presentence custody credit
as against defendant‟s four-year term.
Defendant contends he is entitled to day-for-day credit under former section 2933,
subdivision (e), resulting in 91 conduct days, for a total of 182 days of presentence
custody credit. The People concede defendant is entitled to the additional credit claimed.
We agree. Defendant was in custody for a crime committed on September 14, 2011. The
then-applicable law provided for one-for-one credit except for certain prisoners. (Former
§ 2933, subd. (e) [as amended by Stats. 2010, ch. 426, § 1, eff. Sept. 28, 2010].) No
exception is applicable here.
III
Restraining Order
In sentencing defendant to county jail, the court followed the probation officer‟s
recommendation and imposed an order, with an unlimited duration, that defendant “shall
not strike, threaten, stalk, abuse, or harass via telephone, correspondence, or any other
means the victim or his employees; and shall abide by any restraining orders issued
against him pursuant to [s]ection 1203.097[, subdivision](a)(2).” The probation report
included the victim‟s statement and another letter defendant sent to Phillips after trial. In
the letter, defendant stated he would not be pestering Phillips for a job again anytime
soon, apologized for his rude jokes, and asked Phillips to give his regards to a female
employee. Defendant then stated he had been “looking forward to seeing [Phillips] at the
trial . . . [b]ut no matter; [sic] other opportunities will present themselves. Have no
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doubt; [sic] I will be a regular fixture at the races, in the future.” The probation officer
stated Phillips “would like to have all contact from defendant . . . cease.”
Defendant contends and the People concede the order is unauthorized and must be
vacated. We agree and vacate the order.
A trial court may issue a restraining order during the pendency of a criminal
proceeding (§ 136.2; People v. Ponce (2009) 173 Cal.App.4th 378, 381-383), as part of a
sentence in a stalking, domestic violence, or sex crimes against a minor case, or as a
condition of probation (§§ 136.2, subd. (i), 273.5, subd. (i), 646.9, subd. (k)(1), 1201.3,
subd. (a), 1203.1, subds. (i)(2), (j), 1203.097, subd. (a)(2)). Here, the trial court cited no
authority for its restraining order and we cannot find any authority. Since none of the
statutes cited above applies, the order is unauthorized and must be vacated. (People v.
Scott (1994) 9 Cal.4th 331, 354.)
IV
Minute Order
Defendant contends and the People concede the sentencing minutes erroneously
reflect defendant was sentenced as a two-strike offender (“[d]oubled by strike = 4
years”). The trial court imposed the midterm of three years for the extortion offense and
a one-year enhancement for a prior prison term, for an aggregate term of four years.
There was no strike prior alleged, admitted, nor found to be true. Accordingly, we order
the trial court to delete the incorrect two-strike offender reference on the sentencing
minutes.3
DISPOSITION
The judgment is modified to provide 91 days of conduct credit for a total of 182
days of presentence custody credit and to vacate the restraining order. The trial court is
3 The sentence is correctly reflected on the abstract of judgment.
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directed to correct the sentencing minutes to delete reference to defendant as a two-strike
offender. As modified the judgment is affirmed. The trial court is directed to prepare an
amended abstract of judgment and to forward a certified copy to the county sheriff.
HOCH , J.
We concur:
NICHOLSON , Acting P. J.
MURRAY , J.
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