THE PEOPLE, Plaintiff and Respondent, v. TIMOTHY FISHER, Defendant and Appellant.
No. C070295
Third Dist.
May 10, 2013.
216 Cal. App. 4th 212
[CERTIFIED FOR PARTIAL PUBLICATION*]
Gregory L. Cannon, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attоrney General, Dane R. Gillette and Michael P. Farrell, Assistant Attorneys General, Carlos A. Martinez and Wanda Hill Rouzan, Deputy Attorneys General, for Plaintiff and Respondent.
HOCH, J.—A jury convicted defendant Timothy Fisher of delivering a letter with intent to extort money or other property (
Sentenced to county jail pursuant to
FACTS
On September 14, 2011, defendаnt 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.
Phillips opened the envelope and found a four-page letter signed by defendant. Defendant began by thanking Phillips for considering him for employmеnt 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
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 appliсation 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. Defendаnt 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 concludеd, “please believe me when I say that I am a true professional, that will be a valuable asset to your company.”
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 acceptаble 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 defendant 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.”
In rеbuttal, 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
“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
Certain words used in the Penal Code are defined “unless otherwise apparent from the context.” (
“[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 [117 Cal.Rptr.2d 504] (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 оwn 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. (Kozlowski, supra, 96 Cal.App.4th at p. 867; see People v. Baker (1978) 88 Cal.App.3d 115, 119 [151 Cal.Rptr. 362] [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 [75 Cal.Rptr.2d 40] (Kwok), Kozlowski reasoned that “[t]he intangible property taken—the PIN codes—were the means to obtain the more tangible 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 defendаnt‘s unauthorized copying 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
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. (Spatarella, supra, 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 inducеs 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 the defendant‘s contention, concluding the defendant‘s business competitor “possessed an advantageous business relationship,” which the defendant 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 [130 N.Y.S. 698, 26 N.Y. Cr. 285] (Short) in which Short committed extortion when he obtained a position for a paintеr and thereafter threatened the painter with the loss of his job unless he paid Short 50 cents a day from his weekly salary. (Id. at pp. 862-863.) Short determined the threat to have the painter discharged was a threat to injure the painter‘s business, “an injury to his property.” (Id. at p. 864Short and the other cases construed the tеrm 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 bеcame 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,
II-IV*
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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 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 prеpare an amended abstract of judgment and to forward a certified copy to the county sheriff.
Nicholson, Acting P. J., and Murray, J., concurred.
*See footnote, ante, page 212.