People v. RaderPeople v. Rader
- Reporters:
- , , ,
- Before:
- Turner, Kriegler, Mink
TURNER, P. J.—
I. INTRODUCTION
Defendant, Kenneth Charles Rader, enjoyed a meal at a steak house 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 (
II. THE EVIDENCE
On Friday, May 25, 2012, at approximately 2:00 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
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.
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
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.”
III. DISCUSSION
A. Procedural History
Many of the issues presented by the parties involve the interplay between
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 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 [279 Cal.Rptr. 847, 807 P.2d 1076] [“Under established case law . . . applying sections 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 [48 Cal.Rptr.2d 421] [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
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 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
Defendant correctly argues that
We agree defendant may not be convicted under both counts 2 and 3. When a single theft occurs on a single occasion as part of one transaction, only one conviction may be returned. In People v. Nor Woods (1951) 37 Cal.2d 584, 586-587 [233 P.2d 897], a used car dealer was convicted of two grand theft counts. The used car dealer took both a 1946 Ford and some cash in
C. Defendant May Be Convicted of Felony Petty Theft
1. Defendant‘s contention
Defendant argues his count 2 four-year sentence (
2. The statutes
Both
As noted, the prior conviction facet of
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, quoting People v. Breyer (1934) 139 Cal.App. 547, 550 [34 P.2d 1065].) 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 [127 Cal.Rptr.3d 78, 253 P.3d 1216]: “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 [128 Cal.Rptr.2d 75, 59 P.3d 150].) ‘The doctrine that a specific statute precludes any prosecution under a general statute is a rule designed to ascertain and carry out legislative intent.’ ” (Quoting People v. Jenkins (1980) 28 Cal.3d 494, 505-506 [170 Cal.Rptr. 1, 620 P.2d 587]; 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,
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.
5. Artis
As noted, the Fiene opinion never discussed the “conflict” element of a defense that 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 offenses 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
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 [82 Cal.Rptr. 724, 462 P.2d 580]; Gasaway [v. Superior Court (1977) 70 Cal.App.3d 545,] 550 [139 Cal.Rptr. 27].)” (Bradwell v. Superior Court (2007) 156 Cal.App.4th 265, 271 [67 Cal.Rptr.3d 163].) We turn now to Gilbert and Gasaway, the two decisions cited in 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 Welfare and Institutions Code former
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. (Welf. & Inst. Code, former § 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 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 in 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
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 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 steak house. As to count 2, the jury was instructed in part: “The defendant is charged in count 2 with theft. [¶] . . . [T]o prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant took
The parties agree the following language in
Defendant could be tried either for petty theft or a violation of
We now return to the Fiene decision. As noted in Fiene, 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. 307.) The Attorney General made a vague, generalized, nonfactually supported, legislative intent argument as to why the accused could be convicted of petty theft with a prior conviction. (Id. at p. 308.) At no time did the Attorney General argue
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 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.
D.-G.*
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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
Kriegler, J., and Mink, J.,* concurred.
Appellant‘s petition for review by the Supreme Court was denied October 29, 2014, S220883.