Opinion
H046057
11-13-2019
THE PEOPLE, Plaintiff and Respondent, v. SUSAN MARIE HINKLE, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Cruz County Super. Ct. No. 15CR01369)
Appellant Susan Marie Hinkle sold a cupcake business that she operated from a small store in Capitola to Marco Lopez Garcia (Lopez), who intended to sell fruit. Lopez paid Hinkle $12,000 before learning he would have to make expensive modifications to the store to sell food there, and Hinkle did not intend to pay for those repairs. The prosecution's theory at trial was that Hinkle had lied to Lopez about a variety of topics in connection with the sale. Following her conviction by jury trial of one count of theft by false pretenses, Hinkle challenges the sufficiency of evidence and the imposition at sentencing of various fines and fees. For the reasons explained below, we affirm the judgment.
I. BACKGROUND
A. Procedural Background
The Santa Cruz County District Attorney's Office charged Hinkle by information with obtaining $6,000 on April 17, 2015, from Marco Lopez by false pretenses (Pen. Code, § 532, subd. (a); count one) and $6,000 more on April 23, 2015, (§ 532, subd. (a); count two). The information further alleged that Hinkle had served one prior prison term (§ 667.5, subd. (b)) and had suffered one prior serious felony conviction (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). At trial, Lopez and Andrew Strader, an employee of the Health Services Agency for the County of Santa Cruz (health department), testified on behalf of the prosecution. Michelle Betaubier and Thomas Cummings testified on behalf of the defense. Hinkle did not testify.
Unspecified statutory references are to the Penal Code.
The jurors were asked to complete a general and special verdict form for each of the counts. The special verdict forms for each count listed the same three acts the prosecution alleged constituted false pretenses by Hinkle—Hinkle told Lopez her store had been open for more than 10 years, her store generated sales up to $18,000 per month, and she would install permanent plumbing. The jurors were instructed that they "must not find the defendant guilty unless [all the jurors] agree that the People have proved that the defendant committed at least one [of] these acts and [all the jurors] agree on which act she committed," and their "verdict on each count and any special findings must be unanimous."
The jury did not reach a verdict on count 1 but returned a guilty verdict on count 2. In the special verdict form for count 2, the jury found that it was "[n]ot true" that "[Hinkle] told Mr. Lopez that her business, Butterswirls Cupcakes, had been open for ten (10) years" and "[n]ot true" that "[Hinkle] told Mr. Lopez that the business generated sales up to $18,000/month." The jury found "[t]rue" that "[Hinkle] told Mr. Lopez that she would provide permanent plumbing to the business."
The trial court declared a mistrial as to count 1 and, following a court trial, found true that Hinkle had suffered one prison prior (§ 667.5, subd. (b)) and one strike prior (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). At sentencing, the trial court struck the strike prior and sentenced Hinkle to three years of formal probation and 365 days in the county jail. Hinkle was also ordered to pay a $40 court security fee (§ 1465.8), a $30 court facilities fee (Govt. Code, § 70373), and a $300 restitution fine (§ 1202.4, subd. (b)), as well as restitution to Lopez in the amount of $14,085.55 (§ 1202.4, subd. (f)). Hinkle did not object to the imposition of the fines and fees at sentencing or request a hearing on her ability to pay them.
We refer to the $40 court security fee (§ 1465.8), $30 court facilities fee (Govt. Code, § 70373), and $300 restitution fine (§ 1202.4, subd. (b)) collectively as "fines and fees."
B. Testimony at Trial
1. Prosecution Witnesses
In 2014, Hinkle applied to the County of Santa Cruz for a health permit to sell food from a small store in Capitola. Hinkle planned on selling cupcakes. Strader, a health department employee, reviewed Hinkle's application and spoke with Hinkle several times about her proposal to use a portable hand washing sink in the store. Strader agreed to allow Hinkle to conditionally operate the store using a portable hand washing sink for up to six months but stated that a permanently plumbed sink must be installed within six months. This condition was reflected as condition four in the June 6, 2014 conditional permit approval letter issued by Strader. Strader testified that he "would not have put this condition in the letter had [he and Hinkle] not talked about it in advance." The six-month period began on July 9, 2014.
A health department inspection on April 14, 2015, determined that a permanently plumbed sink had not been installed as required under the conditional health permit. Strader spoke to Hinkle on or about April 27 about the sink. During this conversation, Hinkle indicated that she had run into cost and other problems that prevented her from installing a permanently plumbed sink. Strader did not give Hinkle an extension to comply with the permit or a variance from the applicable regulations and informed Hinkle that she had three options—to install a permanently plumbed sink, sell only food prepackaged at a production facility, or shut down the store.
All dates were in 2015 unless otherwise indicated.
Approximately 10 days before this conversation between Hinkle and Strader, on April 17, Lopez and Hinkle signed a one-page handwritten agreement (April 17 agreement) for Lopez to purchase Hinkle's business for $32,000, which Lopez would pay in several installments. The agreement included a one-page addendum (April 17 addendum) stating that "1. After having received the second payment . . . b. Where to get our water from and the piping will be resolved (OUR plumber)" (plumbing provision).
Lopez testified Hinkle told him that she had been running the store for more than 10 years, the store generated monthly sales revenue of more than $18,000, he "could put any kind of business" he wanted there, and she had "a big person here in the county" helping her. Lopez knew the store did not have permanent plumbing, but Hinkle told him that getting water service from a nearby business would not be a problem and that "after the first [$6,000] deposit, [she] would speak to them [the people from the business nearby] and get water service." Hinkle told Lopez that she would take care of the water service.
When asked by the prosecutor whether Lopez understood that he was required to make the connection to get the water, Lopez stated, "At the beginning, I didn't really understand very well, because she - because she left me a portable sink. . . . [¶] A sink that was connected to the power source. But I was the one who was going to have to go make the water connection so as to hook up the water reservoir for the sink. And she, for the moment, she left me to do the plumbing work. But it was never done." Lopez testified that Hinkle told him she would handle the plumbing, "she had all the relationships, and so that I shouldn't worry myself about it."
During cross-examination, Lopez stated that he believed it was Hinkle's responsibility to install a permanently-plumbed sink, and he did not know the store had been operating under a conditional health permit. When asked on cross-examination if he knew that he needed a "fully functional sink" to sell food products from the store, Lopez stated "I'm sorry, I did not know that. [Hinkle] told me that I could do it because she was committing herself to getting me a permanent sink and permanent plumbing."
Lopez also testified that on April 17, he gave Hinkle $6,000 as the first payment for the purchase of the business. After Lopez gave Hinkle the second payment of $6,000 on April 23, Hinkle gave Lopez a copy of the store key but kept her original key. Lopez testified that, after he made the second payment, he asked Hinkle if she was "going to resolve everything" and if he "was going to be able to open." Hinkle told Lopez "she was going to solve everything, resolve everything, the permits, the lease, the plumbing, that I shouldn't worry, she was going to resolve it all."
Lopez subsequently discovered that Hinkle's "permits were not up to date, that she had not paid her sales permit, she had not paid her taxes, [and] that she did not have a good relationship with her neighbors." A permanently plumbed sink was not installed after Lopez made the second $6,000 payment on April 23, and the health department subsequently notified Lopez that he could not sell food from the store until one was in place. After unsuccessfully trying to get his money back from Hinkle, Lopez filed a report with the Capitola Police Department.
After Lopez made this statement, defense counsel objected and the trial court sustained the objection "as to foundation." However, the trial court never ordered Lopez's testimony stricken, and defense counsel did not request that the testimony be stricken. The jury was instructed to disregard testimony that the trial court had ordered stricken from the record but was not instructed to disregard a witness's answers to which an objection had been sustained but not stricken.
2. Defense Witnesses
Betaubier testified that she contacted Hinkle in March or April 2015 to express interest in purchasing Hinkle's store. Betaubier knew Hinkle's $20,000 to $30,000 asking price did not include a permanently-plumbed sink and installing one would be Betaubier's responsibility. Hinkle never said that she would set up permits for Betaubier. Betaubier understood that Hinkle wanted to sell her store quickly because Hinkle's husband had received a job offer, and they needed to relocate.
Cummings, Betaubier's partner, testified that he went with Betaubier to look at the store and understood that, if Betaubier purchased it, plumbing work would be necessary. Hinkle told Cummings and Betaubier that the health department required a permanently-plumbed sink, but her store did not have one installed. Cummings estimated that the cost of installing one could be anywhere from $5,000 to $30,000.
II. DISCUSSION
Hinkle challenges the sufficiency of evidence supporting her conviction for theft by false pretenses (§ 532) and the trial court's imposition at sentencing of a $40 court security fee (§ 1465.8), a $30 court facilities fee (Govt. Code, § 70373), and a $300 restitution fine (§ 1202.4, subd. (b)).
A. Sufficiency of the Evidence of Theft by False Pretense
1. Legal Principles
"On sufficiency review, a reviewing court makes a limited inquiry tailored to ensure that a defendant receives the minimum that due process requires: a 'meaningful opportunity to defend' against the charge against him and a jury finding of guilt 'beyond a reasonable doubt.' " (Musacchio v. United States (2016) 544 U.S. ___, ___ [136 S.Ct. 709, 715] quoting Jackson v. Virginia (1979) 443 U.S. 307, 314-315.) " 'To determine whether sufficient evidence supports a jury verdict, a reviewing court reviews the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable jury could find the defendant guilty beyond a reasonable doubt.' " (People v. Hardy (2018) 5 Cal.5th 56, 89.)
Theft by false pretenses for purposes of section 532, subdivision (a), requires proof that " '(1) the defendant made a false pretense or representation to the owner of property; (2) with the intent to defraud the owner of that property; and (3) the owner transferred the property to the defendant in reliance on the representation.' " (People v. Williams (2013) 57 Cal.4th 776, 787.) To prevent " ' "[o]rdinary commercial defaults" ' from becoming 'the subject of criminal prosecution,' " a false pretenses conviction requires more than " 'mere proof of nonperformance or actual falsity.' " (People v. Hartley (2016) 248 Cal.App.4th 620, 627.)
Section 532, subdivision (b) (hereafter section 532(b)), provides in relevant part, "the defendant cannot be convicted if the false pretense was expressed in language unaccompanied by a false token or writing, unless the pretense, or some note or memorandum thereof is in writing, subscribed by or in the handwriting of the defendant, or unless the pretense is proven by the testimony of two witnesses, or that of one witness and corroborating circumstances."
2. Analysis
The jury returned a general verdict on count 2, finding Hinkle guilty of false pretenses in connection with Lopez's second $6,000 payment to Hinkle on April 23. In its corresponding special verdict, the jury found true that Hinkle "told Mr. Lopez that she would provide permanent plumbing to the business." Hinkle challenges the sufficiency of the evidence supporting this conviction.
"Although not explicitly authorized by statute, special findings like those required in the present case are a valid 'hybrid form of general verdict' consistent with the Penal Code provisions. [Citation.] '[S]pecial "findings" may accompany a general criminal verdict, even if not expressly authorized by statute, so long as they do not interfere with the jury's deliberative process.' " (People v. Davis (1995) 10 Cal.4th 463, 511.) When used properly, as here, hybrid general verdicts contribute to "clarity on appeal." (People v. Vidana (2016) 1 Cal.5th 632, 649.)
In fulfillment of the requirements of section 532(b), the trial court instructed the jury that it could not convict Hinkle of theft by false pretenses unless the prosecution proved "[t]he false pretense was accompanied by a writing"; or "[t]here was a note or memorandum of the pretense signed or handwritten by the defendant"; or "[t]estimony from two witnesses or testimony from a single witness along with other evidence supports the conclusion that the defendant made the pretense." (CALCRIM No. 1804.)
Hinkle's appeal does not argue any instructional error occurred in her trial.
Hinkle contends that the evidence was insufficient under section 532(b). She argues the evidence did not show the false pretense was in writing because the plumbing provision in the April 17 addendum "cannot be construed as a false statement." Hinkle also maintains that the false pretense was not "proven by the testimony of two witnesses, or that of one witness and corroborating circumstances" because Lopez's testimony was uncorroborated by other evidence.
The dispositive inquiry is not whether the evidence could " ' " 'be reasonably reconciled with the defendant's innocence,' " ' " but instead whether "in light of all the evidence, a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt." (People v. Gomez (2018) 6 Cal.5th 243, 278.) Applying this standard, we determine that Lopez's testimony and Strader's corroborating testimony satisfy section 532(b) and constitute substantial evidence supporting Hinkle's conviction for theft by false pretense. In light of this conclusion, we do not address Hinkle's remaining contentions as to the sufficiency of the evidence for the alternate methods of proof under section 532(b).
Citing People v. Henning (2009) 173 Cal.App.4th 632, 643, Hinkle incorrectly asserts that section 532(b) can only be satisfied by proof of a false token or writing, a writing that contains a false statement, or a memorandum of the pretense signed or handwritten by Hinkle. Hinkle's argument ignores the third method of fulfilling section 532(b)—namely the pretense may be "proven by the testimony of two witnesses, or that of one witness and corroborating circumstances." (§ 532(b).) Furthermore, the facts of Henning are dissimilar. The court in Henning upheld the judgment even though "the jury was not instructed correctly that the corroborating writing must be false and it was not instructed as to the other possible methods of corroboration" because there was "[a]bundant, indeed overwhelming, corroboration was present in the testimony of the multiple victims, as well as the corroborating circumstances." (Henning, at p. 643.) Here, by contrast, the jury was correctly instructed that it could find Hinkle guilty of section 532 if it determined the prosecution proved beyond a reasonable doubt that "[t]estimony from two witnesses or testimony from a single witness along with other evidence supports the conclusion that the defendant made the pretense." As we conclude, post, that there is sufficient evidence of corroborating circumstances, Hinkle's reliance on Henning is misplaced. --------
Lopez's testimony about Hinkle's false promise that she would provide permanent plumbing to the business was supported by evidence other than Lopez's testimony. "Proof of a false representation may be established by either words or conduct, or by both" and the " 'form of the words in which the pretense is couched is immaterial.' " (People v. Fujita (1974) 43 Cal.App.3d 454, 467 (Fujita).) "Corroborative evidence may be found in the defendant's declarations to other persons" (People v. Miller (2000) 81 Cal.App.4th 1427, 1442) or from "behavior on the part of defendants consonant with an intent to defraud or, at least, knowledge that the representations made were false." (Fujita, at p. 469.) We review the totality of the circumstances in evaluating whether the record presents legally sufficient evidence of corroboration. (Miller, at p. 1441.)
Strader provided unrebutted testimony about Hinkle's dealings with the county health department in connection with her application for a health permit to operate her food business. Strader testified that Hinkle understood that a permanently plumbed sink was a necessary condition to operating a food business from the store and that she had six months to install one. Strader's testimony also established that Hinkle knew she was in breach of the conditional health permit three days before selling her "business" to Lopez. Hinkle knew that a health permit was necessary to legally operate a food business from the store and that a permanently plumbed sink was necessary to obtaining a health permit. As there could be no "business" without a health permit and no health permit without a permanently plumbed sink, a reasonably jury could rationally infer that Hinkle's representation in the April 17 agreement about selling her "business" to Lopez meant a business that could operate legally. Strader's testimony, considered with the surrounding circumstances of the transaction, constitutes reasonable and credible evidence of solid value that is "consonant with an intent to defraud or, at least, knowledge that the representations made were false." (Fujita, supra, 43 Cal.App.3d at p. 469.) Therefore, we conclude that Lopez's and Strader's testimony constitute sufficient evidence to support Hinkle's conviction for her false pretense that she would provide permanent plumbing to the business Lopez was purchasing.
B. Ability to Pay
Hinkle contends that under People v. Dueñas (2019) 30 Cal.App.5th 1157 the trial court's imposition at sentencing of fines and fees without first making an ability to pay determination violated her right to due process under the California and federal Constitutions. She asks that imposition of the fines and fees be stayed "unless and until the prosecution proves appellant has the present ability to pay them." Hinkle argues that this issue is not forfeited on appeal because a contemporaneous objection at sentencing would have been futile. She also contends that the "failure" of this court to address this issue directly will "necessitate this court's dealing with it in the context of an ineffective assistance of counsel claim."
We need not reach the issue of forfeiture because any Dueñas error was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24; People v. Jones (2019) 36 Cal.App.5th 1028, 1035.) While Hinkle now contends she lacks the ability to pay the challenged fines and fees, she made contrary assertions during her sentencing hearing. At sentencing, the trial court stated that defense counsel had informed it that Hinkle was "not able to pay restitution. . . . because of the hardships." However, during the sentencing hearing Hinkle herself told the trial court that she "d[id]n't mind . . . making [restitution] payments." Hinkle also told the trial court that she had paid $6,000 in bail and $2,000 for her first attorney in this case. Hinkle's statement of assets as reflected in the probation report indicated that she had $3,400 in her checking account. While " ' "[a]bility to pay does not necessarily require existing employment or cash on hand," ' " Hinkle had cash well in excess of the amount of fines and fees imposed. (People v. Aviles (2019) 39 Cal.App.5th 1055, 1076.) In light of this evidence of Hinkle's ability to pay, any error in the trial court's failure to hold a hearing was harmless beyond a reasonable doubt. For these reasons, we conclude Hinkle has not met her burden of showing prejudice.
III. DISPOSITION
The judgment is affirmed.
/s/_________
DANNER, J.
WE CONCUR:
/s/_________
GREENWOOD, P.J.
/s/_________
GROVER, J.