People v. Hartley

• Decision Date: 27 June 2016
• Docket Number: H041700
• Citation: 248 Cal.App.4th 620,203 Cal.Rptr.3d 770
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Joshua Anthony HARTLEY, Defendant and Appellant.

248 Cal.App.4th 620

203 Cal.Rptr.3d 770

The PEOPLE, Plaintiff and Respondent

v.Joshua Anthony HARTLEY, Defendant and Appellant.

H041700

Court of Appeal, Sixth District, California.

Filed June 27, 2016

Counsels for Plaintiff/Respondent The People: Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General, Dorian Jung, Deputy Attorney General, Lauren Apter, Deputy Attorney General.

Counsel for Defendant/Appellant Joshua Anthony Hartley: Under appointment by the Court of Appeal, Law Office of Alexis Haller, Alexis Haller, Aptos.

Premo

, J.

Defendant Joshua Anthony Hartley arranged for a taxi ride home from a bar, then refused to pay the fare after arguing with the driver, who had missed a turn while Hartley was talking on his cellphone. Hartley accused the driver of trying to run up the meter. Hartley exited the cab and began to walk home. The driver caught up with Hartley in order to make a police report. Hartley confronted the driver and the men continued to argue; at one point, Hartley pulled a knife from his back pocket. A neighbor heard the disturbance and witnessed Hartley advancing on the driver, though the neighbor saw nothing in Hartley's hands. The neighbor called 911. The police arrived after the men had separated and as Hartley was continuing his walk home.

Hartley was charged with felony assault with a deadly weapon (Pen.Code, § 245, subd. (a)(1)

;¹ count 1); felony criminal threats (§ 422; count 2), with an enhancement for personal use of a deadly and dangerous weapon (§ 12022, subd. (b)(1)); and misdemeanor petty theft of labor (§§ 484, 488; count 3). A jury acquitted Hartley of felony assault but convicted him of the lesser included offense of misdemeanor simple assault (§ 240). The jury also acquitted Hartley of making criminal threats but convicted him of misdemeanor petty theft by false pretenses. The trial court sentenced Hartley to two years of probation, imposed conditions including an order to stay away from the victim, and ordered Hartley to pay a fine, penalty assessments, attorney fees, and restitution.

Hartley challenges the conviction for theft by false pretenses as unsupported by substantial evidence and challenges the stay-away probation condition as unconstitutionally vague. Hartley also argues—and the People concede—that the trial court failed to specify the required statutory bases for the fine and penalty assessments in the probation order. The People also request two corrections pertaining to the trial court's imposition of fines.

We find insufficient evidence to sustain the petty theft conviction and reverse judgment. We remand for resentencing on Hartley's conviction for simple assault, at which time the trial court shall specify the appropriate amounts and statutory bases for any fines, fees, and penalty assessments. If the trial court elects to re-impose the probation condition at sentencing, we find the condition adequately describes the proscribed conduct and may remain unchanged.

FACTS

We limit our discussion of the facts and testimony as they pertain to the petty theft conviction. Hartley lives in San Jose and is employed. After work one evening, Hartley met with friends at a bar in Los Gatos. He called for a taxicab around 11:00 p.m. to take him home. While waiting for the cab, Hartley called a friend and began an animated conversation. Hartley remained on the phone with his friend when the cab arrived and while giving the driver directions.

Hartley testified that the driver “seemed confused” about the address, so Hartley told him “I'll make it easy. Let's just—I'll give you directions. Super simple.” Hartley told the driver to take Blossom Hill Road and make a left on Leigh. Hartley was still on the phone with his friend when he looked up and noticed the driver had continued down Blossom Hill and missed the turn on Leigh. Hartley described “a small argument” that quickly intensified over whether Hartley had told the driver where to turn. According to Hartley, the driver “kept arguing back, started to escalate, and he became more angry, started cussing. I started swearing. I was, like, ‘What the fuck, Dude?’ Excuse me. ‘What the F?’ ... [¶] And so he started coming back at me, and at a certain point, he started yelling, ‘Shut the F up. Shut the F up.’ ” The driver made a U-turn in order to take Hartley back toward Leigh. Hartley instead told the driver that he wanted to get out. “The last thing I said was that, ‘I'm not effing paying for this. It's not how you talk to people,’ and I slammed the door and walked.”

The second altercation with the driver occurred as Hartley was walking home. Sometime during that altercation, or in a third altercation that followed (testimony of the driver and Hartley was conflicting on this point), Hartley drew a four inch pocket knife from his back pocket, though Hartley testified he showed the knife only to intimidate the driver who had “pull[ed] a bottle.”² Also at some point during the second altercation, Hartley offered to pay the fare, saying “ ‘Look. Even though you tried to fuck me over, I'll pay you,’ and [the driver] said ‘No. Fuck you,’ so I threw my arms up and walked away.” Hartley also testified that he had lied to the police officer about pulling out his knife, explaining he was “Just scared. I didn't want to incriminate, didn't want to get in trouble.” The defense called several character witnesses who testified on behalf of Hartley's character for honesty and nonviolence.

The driver testified at trial through a Somali interpreter, though he also speaks English. He had been a cab driver for about eight years when the incident occurred. He responded to the request for a pickup through his cab company. Hartley entered the taxicab while on his phone, and the driver “asked his name. The second question was where was he going to. He told me, ‘Just take this same street we are on, Los Gatos Boulevard, and make a left on Blossom Hill.’ ” The driver testified that he “kept going on Blossom Hill ... and then I again ask him, ‘You want me still to continue?’ ” Hartley responded, “ ‘Where are we?’ ” The driver told him, “ ‘We are [at] the intersection of Blossom Hill and Camden.’ Then he started shouting at me and said, ‘You are supposed to make a turn on Leigh Street,’ but unfortunately, he didn't say that before. [¶] Then he start cursing me and shouting at me, and then he got off the car.” The driver described offensive slurs that Hartley used, including calling him “names, everything that can come to his mind,” “the ‘M–F’ word,” “ ‘nigger,’ ” and asking “ ‘What brought you here to this country?’ ” The driver testified that he responded, “ ‘Just give me my fare, please.’.... I did not ask anything else. I said, ‘Could you please pay me the fare.’ ” The fare was about $16 or $17.

Hartley's friend, who was his girlfriend at the time of the trial, testified about the phone call during the cab ride. Over hearsay objections, the friend testified that she heard Hartley tell the taxi driver to turn on Leigh Street. After a few minutes, she heard Hartley say, “ ‘Hey, you missed my turn,’ and then the other person in the car replied with, ‘No, I didn't. You didn't tell me to turn.’ ” She heard them go back and forth. Hartley accused the driver of trying to run up the meter, after which “the other person began using profanity.” The friend heard additional profanity and the driver “screaming” at Hartley; she did not hear Hartley use any racial slurs. Then Hartley told his friend he would call her back because he was going to try to get out. Hartley called her back about 10 minutes later as he was walking home. He told her that the driver was following him, he was feeling uneasy about being followed, and he would call her again when he got home.

A San Jose police officer interviewed Hartley immediately upon taking him into custody. At trial, the officer did not recall whether he found cash on Hartley. But in the recorded interview, which was played for the jury during Hartley's cross-examination, Hartley told the officer that he had the money for the cab fare in his wallet.

DISCUSSION

I. Petty Theft Conviction

A. Relevant Procedural Background

Hartley was charged with petty theft of labor in violation of sections 484 and 488. The prosecution sought to proceed on the alternative theories of larceny of labor or larceny by false pretenses. Defense counsel objected that “larceny of labor” was not a viable theory because it would have required proof that Hartley had taken or carried away the “personal property of another” within the meaning of the theft statute. (§ 484, subd. (a) [defining “theft” in relevant part as “feloniously steal, take, carry, lead, or drive away the personal property of another....”].) Defense counsel asserted that labor and services were not “personal property.” (See § 7, subd. 12.) The trial court agreed that “here, nothing was taken or moved” and permitted only the theft by false pretenses theory at trial.

The trial court instructed the jury on the theft charge using a modified version of CALCRIM No. 1804

, stating: “To prove that the defendant is guilty of [petty theft by false pretenses], the People must prove that: [¶] One, the defendant knowingly and intentionally deceived a service provider by false or fraudulent representation or pretense; [¶] Two, the defendant did so intending to persuade the service provider to let the defendant use the service; [¶] And three, the service provider let the defendant use the service because the service provider relied on the representation or pretense.” The court further instructed, in relevant part: “A false pretense is any act, word, symbol, or token for the purpose of which is to deceive. [¶] Someone makes a false pretense if, intending to deceive, he or she does one or more of the following: [¶] One, gives information he or she knows is false; [¶] Or, two, makes a promise not intending to do what he or she p...