Opinion
D074905
10-25-2019
In re LEILA V., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. LEILA V., Defendant and Appellant.
David Zarmi, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Allison V. Acosta, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. JCM241509) APPEAL from a judgment of the Superior Court of San Diego County, Robert J. Trentacosta, Judge. Affirmed in part, reversed in part, and remanded with directions. David Zarmi, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Allison V. Acosta, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
Leila V. appeals from the juvenile court's judgment declaring her a delinquent minor (Welf. & Inst. Code, § 602) based on a true finding she committed one count of petty theft (Pen. Code, § 484) and one count of battery (§ 242). At the adjudication hearing, the trial court found the minor in violation of both counts. At the disposition hearing, the court committed Leila to the Breaking Cycles program for a period not to exceed 150 days and placed her on home supervision pending an assessment for the program.
Section references are to the Penal Code unless otherwise specified.
On appeal, Leila contends the court erred in finding there was sufficient evidence of intent to defraud to support a petty theft true finding. We conclude there is insufficient evidence to support a petty theft true finding, and accordingly we reverse.
FACTUAL AND PROCEDURAL BACKGROUND
We limit our discussion of the facts and testimony as they pertain to the petty theft true finding.
On the morning of July 22, 2018, Leila and another minor arrived at Star Nails in Santee, California for their scheduled manicure appointments. The other minor finished her manicure first and waited for Leila's service to finish before attempting to make a payment.
After Leila's manicure was complete, both girls walked to the front counter to pay for the services. The other minor attempted to pay for both manicures with a prepaid debit card. After the card was declined for deficient funds, the other minor told a nail salon employee her mother would pay for both services. Though it was untrue, she explained that her mother worked three doors down at Panda Express, and she would go to the store and get her. The other minor left the nail salon and did not return.
Leila stayed at the nail salon for several minutes after the other minor left. While standing inside by the front counter, she made multiple phone calls on her cell phone, including ten unanswered calls to her mother. Salon employees testified they did not hear anything said during Leila's phone conversations. After several minutes, Leila still had not successfully contacted anyone else to pay for her service. She exited the salon and sat on a table, continuing to make calls. Approximately five minutes later, a salon employee followed Leila outside and told her to come back in the nail salon or she would call security.
Shortly after the nail salon employee confronted Leila outside the salon, Leila ran, and three employees chased after her. Two of the employees caught up with Leila, grabbed her arms, and told her to return to the salon to pay for the services. Leila pulled away from the employees' grasp after hitting one of them in the face and walked away. After speaking with one of the employees, a police officer approached Leila and arrested her. Approximately 30 minutes after Leila's arrest, the other minor's mother arrived at the nail salon and paid for both services.
At the adjudication hearing, Leila testified that the other minor showed her the prepaid debit card the night before the nail appointments and told her she was going to pay for both services with it. Leila inquired as to whether there was money on the prepaid card; the other minor assured her there were sufficient funds to cover the services. Leila further testified that the first time she found out there was no money on the card was when it was swiped at the salon to pay for both services.
Leila testified that she knew the other minor's mother did not work at Panda Express but stood by as the minor left the salon. Leila remained inside the store and began to make phone calls to get the services paid for. While making these phone calls, she received a phone call from the other minor. The other minor told her to run because she was not coming back to the salon and did not plan to pay for either service.
Instead of running, Leila sat down inside the salon and continued to make phone calls to her family. After being inside for ten minutes, she testified that she went outside the salon out of frustration and sat on a table. Approximately five minutes later, a salon employee came outside to speak with her. Leila testified that she could not understand what the employee was saying, but she understood that the employee did not want Leila outside. Leila testified she ran because she was scared and wanted to find someone to pay for the manicures. Leila denied hearing the employee say she would call security.
Leila testified that after the nail salon employees caught and grabbed her, she told them she would return to the salon if they let her go. Leila ran across the street after she freed herself from the employees, but when she heard the police sirens, she stopped and waited. Leila called her mother again. When her mother finally answered, Leila explained that she needed her mother to come to the nail salon to pay for her manicure. While she was on the phone with her mother, the police officer approached her and told her to hang up the phone.
Leila's mother, Alexandria V., and the other minor's mother, Jenica C., also testified on behalf of the defense. Alexandria testified that she received ten phone calls from her daughter starting at 11:30 a.m. When she answered the call from her daughter, Leila appeared to be crying and sounded scared. After this call, Alexandria called Jenica and asked her to go to the nail salon and help her daughter.
Jenica testified that the minors discussed getting their nails done the night before, but it was not a certain plan. Though Leila denies saying it, Jenica testified that the night before, Leila told the other minor that Leila was going to have another friend pay for both manicures. Jenica took both minors to the trolley station the following day around mid-morning, but her phone was off at the time the minors would have been at the nail salon. When she turned her phone back on, she received a phone call from Alexandria, who told her that "the girls needed me to hurry up and go over there." She then went to the salon and paid for the manicure services. On direct examination, Jenica testified as to Leila's character, explaining she had known Leila since Leila was four years old and knew Leila to be an honest person. She further testified it was not in Leila's character to leave a place without paying.
At the close of evidence, the trial court determined that the prosecution met its burden and proved intent to defraud beyond a reasonable doubt. In announcing its ruling, the court stated: "[S]omewhere in all of this, the court does believe there was an intent to commit a theft, that it was formed. An intent to steal, commit theft can occur in a matter of a second or so. And under these circumstances maybe going in, that was not the intent. I'm not even so sure, it could have very well been the intent summing up all the circumstances I just described. But in any event, the court does believe beyond a reasonable doubt that at some point there she did form the intent to steal."
Following the adjudication hearing, the juvenile court found the allegation of petty theft in count 1 true in violation of section 484, subdivision (a). The court also found true the allegation that Leila committed battery in violation of section 242. At Leila's disposition hearing, the juvenile court continued her as a ward and granted her probation.
Leila timely appealed.
DISCUSSION
Leila contends the evidence is insufficient to support a finding that she committed petty theft in violation of section 484, subdivision (a). She specifically argues the evidence does not support a finding that she intended to defraud the nail salon and receive free services, and therefore, the prosecutor did not prove each element of the offense beyond a reasonable doubt. We agree. Accordingly, we reverse the judgment on this count and remand the matter to the juvenile court with instructions to dismiss count 1 of the petition.
A. Legal Principles
The standard of review for a sufficiency of the evidence claim is well established. We review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Steele (2002) 27 Cal.4th 1230, 1249; People v. Stanley (1995) 10 Cal.4th 764, 792.) We do not make credibility findings; nor do we reweigh the evidence. (People v. Jones (1990) 51 Cal.3d 294, 314.) Our task is to determine if there is sufficient, substantial evidence from which the trial judge could have found every element of the offense to have been proved beyond a reasonable doubt. (Ibid.) We apply the same standards in reviewing a claim of insufficiency of the evidence in juvenile proceedings. (In re Aaron J. (2018) 22 Cal.App.5th 1038, 1058.)
Section 484, subdivision (a), provides in relevant part, "[e]very person . . . who shall knowingly and designedly, by any false or fraudulent representation or pretense, defraud any other person of money, labor or real or personal property . . . is guilty of theft." Accordingly, theft of labor or service is analyzed as theft by false pretenses. (People v. Hartley (2016) 248 Cal.App.4th 620, 628 (Hartley).) "[A]ny false or fraudulent representation or pretense made shall be treated as continuing, so as to cover any money, property or service received as a result thereof." (§ 484, subd. (a).) However, the crime of theft by false pretenses ends the moment title to the property or service is acquired. (People v. Williams (2013) 57 Cal.4th 776, 787 (Williams); Hartley, at p. 628.)
A false pretense may consist of a false promise or a misrepresentation of fact. (People v. Ashley (1954) 42 Cal.2d 246, 264 (Ashley).) Proof of a false representation may be established by words or conduct, or by both. (People v. Fujita (1974) 43 Cal.App.3d 454, 467 (Fujita).) But mere nonperformance or falsity of such promise or representation is not sufficient to support a conviction. (Ibid.) Proving fraudulent intent as to the false promise or misrepresentation is an additional and equally necessary element of the offense as to prevent " 'ordinary commercial defaults' " from becoming the "subject of criminal prosecution." (Ashley, at p. 265.) The defendant's intent to make a false promise or misrepresentation, like the false promise or misrepresentation itself, must be proved by something more than mere nonperformance or falsity. (Id. at p. 264.)
Thus, the crime of theft by false pretenses consists of three elements: " '(1) the defendant made a false pretense or representation to the owner of the 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 that representation.' " (Williams, supra, 57 Cal.4th at p. 787, quoting People v. Wooten (1996) 44 Cal.App.4th 1834, 1842.)
The essence of the offense of theft by false pretenses is the fraudulent intent of the defendant. (Ashley, supra, 42 Cal.2d at p. 265.) "This intent must be proved by the prosecution; a showing of nonperformance of a promise or falsity of a representation will not suffice." (Ibid.) The intent to defraud "is a question of fact to be determined from all the circumstances of the case, and usually must be proven circumstantially." (Fujita, supra, 43 Cal.App.3d at p. 469, citing Perry v. Superior Court (1962) 57 Cal.2d 276, 285.) Thus, California courts generally "look for 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.; People v. Brady (1969) 275 Cal.App.2d 984, 995-996.)
To support a petty theft conviction under theft by false pretenses, the evidence must show that the requisite intent to steal arose either before or during the commission of the act of making a false promise or misrepresentation. (Williams, supra, 57 Cal.4th at p. 787; Hartley, supra, 248 Cal.App.4th at p. 628.) The wrongful act must be motivated by the wrongful intent. (People v. Green (1980) 27 Cal.3d 1, 53, overruled on other grounds in People v. Aledamat (2019) 8 Cal.5th 1, 13; see also § 20 [crime or public offense requires a union or joint operation of act and intent, or criminal negligence].) Because the act of making a false promise or misrepresentation is treated as continuing until the property or service is acquired, intent to defraud may be formed at any point concurrent with the continuing false pretense. (§ 484, subd. (a); Hartley, at p. 628.) As we explain post, that did not occur here.
B. Leila V.'s Petty Theft True Finding Lacked Substantial Evidence
Leila contends that insufficient evidence supports her true finding for petty theft (§ 484) because there is insufficient evidence that she intended to defraud the nail salon to receive free services, and therefore, each element of the offense was not proved beyond a reasonable doubt.
Leila does not dispute that she made an implied promise to pay for the manicure service upon its completion and that the manicurist relied on this promise. Nor does she dispute that she ran from the salon and ultimately failed to personally pay for the service. The People argue these facts, viewed in the light most favorable to the verdict, constitute substantial evidence that at some point before payment for the services was received, Leila developed the requisite intent to defraud the manicurist and receive free services.
At the adjudication hearing, the trial court summed up the evidence from which it inferred fraudulent intent beyond a reasonable doubt: "[W]hen I first was listening to this, I wasn't really sure what the intent was, that maybe it was just I'm scared, like you say, nothing is working in terms of the credit card and you know I'm afraid and I don't know what to do and she flees. But there's actually more than that as I look at it. You have the prepaid card that does not work, and that's [the other minor's] card, so we know that. We know that [the other minor] leaves and tells the employee to wait, she's going to Panda Express to get money from her mother, which we know was not the case. She said her mother works at Panda Express, at least that was the communication. We know that's not the case, that was a lie. And then [the other minor] calls the [Leila] and says run, which she does do that, she runs." The court reasoned that "under these circumstances maybe going in, that was not the intent. I'm not even so sure, it could have very well been the intent summing up all the circumstances I just described." Thus, the trial court was not certain of the point at which Leila formed the requisite intent to defraud the nail salon. Nevertheless, the court determined Leila formed the intent to steal "at some point there."
Similarly, the People interpret the "continuing" language of section 484, subdivision (a), to include any period of time up until the point the service is paid for. Thus, in this case, the People assert the intent to defraud could have been inferred at any point—even at the moment Leila decided to run, several minutes after the service was acquired. We disagree with this interpretation.
"For the purposes of this section, any false or fraudulent representation or pretense made shall be treated as continuing, so as to cover any money, property or service received as a result thereof, and the complaint, information or indictment may charge that the crime was committed on any date during the particular period in question." (§ 484, subd. (a), italics added.)
Here, Leila acquired a single service, one manicure, as the result of her implied promise to pay the manicurist. No later acquisition of money, property, or labor was obtained from the initial, implied promise Leila made upon commencing the labor. Therefore, because the crime of theft by false pretenses ends at the moment title to the property or the service is acquired, the intent to defraud must have been formed before or during the service of the manicure itself. Consequently, uncertainty as to when such intent was formed is not sufficient to support a finding of intent beyond a reasonable doubt. (See Ashley, supra, 42 Cal.2d at p. 265; Williams, supra, 57 Cal.4th at p. 787.)
In reaching this conclusion, we are persuaded by the reasoning of our Supreme Court in Williams. There, the defendant fraudulently purchased a $200 Walmart gift card with a third party's credit card information. (Williams, supra, 57 Cal.4th at p. 780.) Upon exiting the store, the defendant pushed a store security guard and was subsequently charged with robbery. (Ibid.) The Supreme Court found that the defendant could not have committed robbery; he was no longer engaged in the commission of theft because he had already acquired title to the gift cards prior to pushing the guard. (Id. at p. 787.) The crime of theft by false pretenses ended the moment the title to property was acquired, and thus, the defendant's later use of force or fear could not become robbery. (Ibid.) The court explained that although section 484 contains " 'continuing' " crime language, that provision "does not contemplate a physical continuation of the taking of property, unlike the asportation element of larceny, where the crime continues until the thief has reached a place of temporary safety. Rather, the provision refers to the later acquisition by the defendant of 'money, property, or service' as the result of the initial fraud involved in theft by false pretenses . . . . In theft by false pretenses, it is the fraud that continues, not the physical taking of the stolen property." (Id. at p. 788.)
Because it is the fraud itself that is treated as continuing, not the actual taking of the property or service, once a defendant receives property or services based on a promise or representation, fraudulent intent can no longer be formed. (See Williams, supra, 57 Cal.4th at p. 787; Hartley, supra, 248 Cal.App.4th at p. 628.) With this principle in mind, the pertinent inquiry here is whether there is substantial evidence of Leila's intent to defraud the manicurist prior to the acquisition of the service, that is, prior to the completion of the manicure. On the record before us, we find no evidence of an intent to defraud the manicurist before title of such service was passed to Leila.
The People emphasize that Leila never intended to personally pay for the services, and she knew the other minor was never going to pay for the services either. The People also note that Leila failed to protest when the other minor lied to the nail salon employee about her mother working at Panda Express, and she ran from the salon and resisted detainment by salon employees after knowing the services had not been paid for. We are not persuaded that these facts can reasonably lead to the conclusion that Leila formed the requisite intent to defraud the manicurist of her labor prior to the completion of services.
The People's argument that Leila never intended to personally pay for the services is immaterial. "[I]n cases of obtaining property by false pretenses, it must be proved that any misrepresentations of fact alleged by the People were made knowingly and with intent to deceive. If such misrepresentations are made innocently or inadvertently, they can no more form the basis for a prosecution for obtaining property by false pretenses than can an innocent breach of contract." (Ashley, supra, 42 Cal.2d at p. 264.) It is a leap in logic to conclude that not intending to personally pay for property or services is the same as knowingly and designedly intending to deprive an owner of their property or labor without compensation.
Moreover, we cannot conclude that the evidence in this matter meets the standard of substantial evidence. (See People v. Johnson (1980) 26 Cal.3d 557, 578 (Johnson) [evidence that is reasonable, credible, and of solid value, such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt].) The evidence that Leila knew that the other minor never planned to pay for the services is tenuous at best. There was no evidence that either minor left any store without paying for items or services in the past. Nor was there any indication that the other minor communicated to Leila her intent to leave without paying, or that Leila was otherwise aware the other minor had deficient funds on her debit card. Even if we disregard Leila's testimony that the other minor assured her the night before the appointments that there were sufficient funds on her debit card, the remaining evidence offered no reasonable basis for a finding that Leila knowingly and designedly made a false promise in order to defraud the manicurist. (See Hartley, supra, 248 Cal.App.4th at p. 629.)
The testimony from Jenica regarding Leila's statement about another friend paying for the services does not alter this conclusion. There is a disconnect between Leila's statement that her friend would pay for the services and the conduct of the minors at the nail salon. Without more, the uncontradicted fact that the other minor attempted to pay for the services when there was no discussion of payment, combined with the uncontradicted fact that the other minor called Leila after she left the nail salon to tell her she was not coming back to pay bars an inference that Leila knew the other minor had no plans to pay at all. It was the prosecution's burden to connect this missing link, and it failed to do so.
Furthermore, the People assert that Leila's "failure to protest" the other minor's lie that her mother worked at Panda Express and that she would return with money leads to the inference that Leila fully anticipated the other minor's efforts to escape without paying. The evidence only shows, however, that the lie was with respect to the mother's employment, not as to whether she would return with payment as there is nothing in the record to indicate that Jenica would not pay for the services. In fact, the opposite is true; the evidence showed that Jenica did return to the salon and pay for both services when she was asked to do so. Based on this conduct, the weak inference that Leila had knowledge that the other minor had no intention of paying is undercut by the evidence that Leila remained in the salon after the other minor left, the other minor later called Leila to inform her that she would not be returning to make a payment, and Jenica eventually paid for both services at the salon.
We accept the People's argument that the juvenile court did not believe Leila's testimony that she ran from the salon because she was scared. However, we do not find this fact to prove that Leila knowingly or designedly intended to defraud the salon to satisfy a petty theft conviction. The People contend that Leila's running establishes an inference of guilt. While running can be consistent with guilt, it does not establish preconceived intent here. (See People v. Jurado (2006) 38 Cal.4th 72, 126 [flight of a person immediately after crime not sufficient alone to establish guilt].) All circumstances of the case must be considered (Johnson, supra, 26 Cal.3d at p. 578; Fujita, supra, 43 Cal.App.3d at p. 469), and under these facts, an inference of intent to defraud based on flight is unreasonable.
The minor's flight supports an inference that she knowingly left the nail salon without paying for the service she received, but it is not evidence that reasonably inspires confidence that she knowingly or designedly made an implied promise for the purpose of receiving free service. (People v. Marshall (1997) 15 Cal.4th 1, 34 [supporting evidence must be " 'evidence "that reasonably inspires confidence" ' "].) Nor is it evidence that she formed intent to deprive the manicurist of her labor either before or during such service. Leila remained in the salon for several minutes after the debit card initially declined and, unlike the other minor, she did not lie to nail salon employees and immediately flee. Instead, Leila attempted to call her mother ten times starting at 11:30AM to ask for help. This evidence was corroborated by Jenica arriving at the nail salon to pay for the services after speaking with Leila's mother on the phone. Further, Leila ran only after she received a call from the other minor telling her she would not come back and pay and only after a verbal altercation with the nail salon employee. These events imply that Leila ran only after realizing she could not contact anyone to pay for the services after the other minor informed her she would not be returning with payment. They do not show Leila had a preconceived plan to knowingly and designedly deprive the salon of their labor.
We do not find the facts of this case to be comparable to those in cases finding fraudulent intent. "[E]ach of those cases involve[] a sequence of intentional conduct toward the victims that operated to convince the victims to take the bait on a false promise." (Hartley, supra, 248 Cal.App.4th at p. 630; see, e.g., Ashley, supra, 42 Cal.2d at p. 267 [fraudulent intent inferred from defendant convincing victims to transfer money and property throughout the course of an elaborate operation]; Fujita, supra, 43 Cal.App.3d at p. 469 [fraudulent intent inferred from defendants' contrived false promise to pay off a third party combined with admitted intention to make no such payments].) Here, by contrast, the record is largely silent on the sequence of Leila's conduct toward the nail salon employees prior to the acquisition of the service. The minors made appointments, arrived on time, got manicures by two salon employees, and the other minor finished before Leila and sat next to her to wait for her to be finished. When Leila was finished, both girls approached the counter to pay and used the prepaid debit card that was swiped and declined. The evidence of Leila's implied promise to pay, the salon employee's reliance thereon, the failed purchase attempt, and Leila's ultimate flee without payment several minutes later do not add up to the critical element of fraudulent intent. (See Johnson, supra, 26 Cal.3d at p. 578.)
Finally, the prosecution did not offer circumstantial evidence of motive or any evidence of previous similar conduct from which intent could reasonably be inferred. (People v. Miller (2000) 81 Cal.App.4th 1427, 1447-1448 [evidence of similar, uncharged incidents admissible to prove disputed intent element in prosecution for theft by false pretenses]; People v. Smith (1984) 155 Cal.App.3d 1103, 1148 [for theft by false pretenses other similar transactions carried on by a defendant are sufficient to prove guilty knowledge and criminal intent].)
We conclude that without substantial evidence of an intent to defraud, her failure to pay the nail salon was akin to a transaction gone bad or ordinary commercial default. " ' "That the circumstances were suspicious may be conceded, but mere surmise and conjecture are not enough." Since the evidence falls short of the quantum necessary to overcome the presumption of innocence and to meet the burden resting on the prosecution to establish guilt beyond a reasonable doubt, the conviction cannot stand.' " (People v. Turner (1968) 267 Cal.App.2d 440, 445.)
On the basis of the record before us, we conclude that no substantial evidence exists that the minor intended to deprive Star Nails of their labor prior to the service being acquired. Because we find no substantial evidence supporting the specific intent element of the petty theft offense, we reverse the lower court's true finding.
DISPOSTION
The true finding as to count 1 is vacated. The matter is remanded to the juvenile court with instructions to dismiss count 1 of the petition and resentence the minor accordingly. In all other respects the order is affirmed.
HUFFMAN, J. WE CONCUR: BENKE, Acting P. J. AARON, J.