People v. Ayala
| Decision Date | 21 September 2007 |
| Docket Number | No. H030471.,H030471. |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE, Plaintiff and Respondent, v. Anna AY ALA, Defendant and Appellant. |
General, Gerald A. Engler, Senior Assistant Attorney General, Rene A. Chacon, Supervising Deputy Attorney General, Nanette Winaker, Deputy Attorney General, for Plaintiff and Respondent.
Defendant Anna Ayala appeals from a judgment entered following her pleas of guilty to three felony counts, namely, presenting a false or fraudulent insurance claim (Pen.Code, § 550, subd. (a)(1); count 1),1 attempted grand theft of personal property over $400 (§§ 664/487, subd. (a); count 2), and grand theft of personal property over $400 (§§ 484-487, subd. (a); count 3). The facts underlying the convictions for counts 1 and 2 arose out of the reported discovery of a severed finger in a bowl of Wendy's chili that received national notoriety in 2005. (The grand theft conviction arose out of an unrelated scheme involving defendant's purported sale of a mobile home that she did not own.) Defendant also admitted the special allegation as to the first two counts that she "damaged or destroyed property" in an amount in excess of $2,500,000.00. (§ 12022.6, subd. (a)(4)).
The court sentenced defendant to an upper term of five years in prison on count 1, along with a four-year consecutive sentence for the property damage enhancement. Defendant received an 18-month sentence for the count 2 conviction, along with a four-year enhancement, but execution was stayed pursuant to section 654. The court sentenced defendant to a two-year concurrent term for the count 3 conviction. Defendant was also ordered to make restitution to Wendy's International Corporation (Wendy's), Jem Management (the entity that owned several Wendy's restaurants in Santa Clara County and Fresno; Jem), and Jem's employees.
Defendant presents three challenges on appeal. First, she claims that the order requiring her to pay $170,604.66 to 177 line employees and nine general managers of Jem was an unlawful restitution order under section 1202.4 because they were not direct victims of her crimes. Second, she asserts that sentencing under the property damage enhancement (§ 12022.6, subd. (a)(4)) was improper because the enhancement was based upon losses to Wendy's (lost profits and goodwill) that did not constitute "property damage" under the statute. Lastly, she contends that the court erred in imposing an upper term sentence of five years for count 1 in violation of her Sixth Amendment right to a jury trial and her Fourteenth Amendment right to due process. She claims that under Blakely v. Washington (2004) 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (Blakely), and Cunningham v. California (2007) 549 U.S. ___, 127 S.Ct. 856, 166 L.Ed.2d 856 (Cunningham)), she was entitled to have a jury determine beyond a reasonable doubt any aggravating facts that were used to impose the upper term sentence.
We conclude that the Jem employees were direct victims of defendant's crimes and that the restitution order pursuant to section 1202.4 was therefore proper. Second, we hold that defendant is barred from challenging her sentence under section 12022.6 because of her failure to obtain a certificate of probable cause under section 1237.5. Finally we conclude, based upon Cunningham, that there was Blakely error that was not harmless beyond a reasonable doubt. We therefore reverse the judgment and remand for the limited purpose of resentencing in light of the holding in Cunningham.
Since defendant pleaded guilty to all charges, we present a summary of the evidence relevant to the challenges on appeal based principally upon information contained in the probation report:
I. Counts 1 and, 2
On December 20, 2004, a coworker of defendant's husband, Jaime Plascencia, severed the tip of his finger in a workrelated accident occurring in Nevada. In early 2005—after the coworker returned to the job and showed the fingertip to his coworkers—Plascencia bought the fingertip for $100.00. He told the coworker that "he was going to have his wife place the fingertip in some food."
On the evening of March 22, 2005, defendant and other family members (but not Plascencia) went to a Wendy's fast food restaurant on Monterey Road in San Jose. When she arrived, defendant asked if the restaurant served chili. Sometime later, she claimed that she had bitten into a finger in the chili that she had bought. Defendant "then walked throughout the restaurant with the finger on a napkin as she told customers, `Don't eat the chili[;] look what I found in mine.'"
After the incident, defendant's attorney contacted Wendy's. Defendant made various public statements about the incident, including television interviews. She was quoted in one such interview as saying, " " She also denied planting the finger in her chili, saying, " "Where would I get a damn finger, for God's sake[?]'"
On April 12, 2005, there was a public announcement that Ayala was no longer seeking compensation from Wendy's. Plascencia later told his coworker that his wife had placed the finger in Wendy's chili and he offered the coworker $250,000.00 from Plascencia's and Ayala's lawsuit to keep his mouth shut.
It was determined through investigation that the condition of the finger "found" in Ayala's chili was inconsistent with it having been cooked in chili at 170 degrees for three hours, which was Wendy's method of preparing chili. Ultimately, it was determined that the source of the finger was Plascencia's coworker.
Wendy's claimed that it had incurred losses of $1,000,000.00 per day between March 22, 2005, and April 20, 2005, as a result of the hoax. The low sales occurring at the Wendy's restaurant on Monterey Road resulted in the reduction in hours of its employees. Wendy's also paid a reward of $100,000.00 for information concerning the source of the severed fingertip.
II. Count 3
In September 2002, Bertha Davila entered into a contract to purchase a mobile home from defendant at a price of $52,000.00. Davila paid $11,000.00 as a down payment and in October 2002, she moved into the mobile home with her family. The mobile home in fact belonged to Plascencia.
Defendant took Davila to a real estate office to file the necessary papers. The agent said that Davila could not qualify for the purchase because she lacked a credit history or Social Security number. Defendant, acting as translator, did not communicate the agent's statement to Davila. In a final attempt to qualify Davila for the purchase, defendant offered the agent $500.00, which the agent declined. The agent instead gave defendant papers for a "`for sale by owner transaction.'" Davila completed the forms and gave them to defendant, who agreed to return them to the agent.
Davila assumed that the transaction was concluded, but approximately three weeks after she moved in, she received a notice from a bank telling her that she had three days to vacate the mobile home because Plascencia, the owner, had defaulted on his loan. In November 2003, Davila went to Las Vegas and asked defendant for her money back. Defendant told Davila that she didn't know what she was talking about and refused to discuss the matter with her. As a result of this incident, Davila lost her entire savings, plus additional money that she had borrowed to tender the down payment to defendant.
Defendant was charged by second amended complaint with presenting a false or fraudulent insurance claim (§ 550, subd. (a)(1); count 1), attempted grand theft of personal property over $400 (§§ 664/487, subd. (a); count 2), and grand theft of personal property over $400 (§§ 484-87, subd. (a); count 3).2 The complaint contained a special allegation that, as to counts 1 and 2, defendant damaged and destroyed property of a value exceeding $2,500,000.00 within the meaning of section 12022.6, subdivision (a)(4).
On September 9, 2005, defendant entered an unconditional plea of guilty to all three counts and admitted the enhancements. On January 18, 2006, defendant received an upper term sentence of five years in prison for the count 1 conviction, plus an additional four years for the property damage enhancement under section 12022.6, subdivision (a)(4). She also received an 18-month sentence for the count 2 conviction plus a four-year enhancement under section 12022.6, subdivision (a)(4); the sentence on count 2 was stayed pursuant to section 654. The court imposed a two-year, concurrent sentence for the count 3 conviction. In addition, the court ordered that defendant pay restitution to Wendy's ($21,254,307.00), to Jem ($493,343.00), and to Jem employees ($177,604.46). The court ordered further that, as to count 3, defendant pay restitution to Davila in the sum of $18,920.00.
Defendant did not file a timely appeal from the judgment. In August 2006, defendant filed an application for relief from default, asserting that she had mistakenly believed that her trial counsel would file a timely appeal. This court granted the application, and defendant filed a notice of appeal from the judgment on September 27, 2006. The notice of appeal was not accompanied by a certificate of probable cause, but contained a recital that it was (See pt. Ill of Discussion, post.)
Defendant asserts three challenges to the judgment:
1. The restitution order requiring defendant to pay $170,604.66 to the Jem employees was unlawful...
To continue reading
Request your trial
- People v. McNeal
-
In re Eric G., A119782 (Cal. App. 6/26/2008)
...In re ERIC G., a Person Coming Under the Juvenile Court Law ... THE PEOPLE, Plaintiff and Respondent, ... ERIC G., Defendant and Appellant ... Court of Appeal of California, First Appellate District, Division One ... June ... Ayala (2007) 155 Cal.App.4th 604, 613.) ... Defendant's challenge in the present case is one that we may resolve as a matter of law without ... ...
-
People v. Humphrey
... ... Defendant's citation simply underscores the myriad inconsistencies in Rafael's testimony. 20. In his reply brief, defendant cites People v. Ayala (2007) 155 Cal.App.4th 604, arguing it compels a different result. However, after the brief was filed the Supreme Court granted review of that case, depublishing the opinion. 21. Defendant concedes defense counsel failed to raise a Dillon claim at trial. However, defendant points out, we may ... ...
-
People v. Plascencia, H029862 (Cal. App. 10/21/2008)
... ... II. Case Number CC589323 ... After defendant's coworker at an asphalt plant in Las Vegas severed the tip of his finger in a workplace accident, defendant purchased the recovered fingertip for $100. He told his coworker that he would have his wife (Anna Ayala) put it in some food ... On March 22, 2005, Ayala and other family members went to a Wendy's restaurant on Monterey Road in San Jose and ordered chili. (Defendant was not present at that time.) After being served, Ayala claimed to have bitten into a fingertip found in her chili ... ...