P. v. Carrasco
Filed 6/19/13 P. v. Carrasco CA4/2
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opinion has not been certified for publication or ordered published for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.
THE COURT OF APPEAL OF THE STATE OF
APPELLATE DISTRICT
TWO
THE PEOPLE,
Plaintiff and
Respondent,
v.
GLORIA CARRASCO,
Defendant and
Appellant.
E054770
(Super.Ct.No.
FVA801897)
OPINION
APPEAL from the Superior Court of
County. Steven A.
Mapes, Judge. Affirmed.
James R. Bostwick, Jr., under appointment by the Court of
Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette,
Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General,
Barry Carlton, Garrett Beaumont, and Julianne K. Reizen, Deputy Attorneys
General, for Plaintiff and Respondent.
I
INTRODUCTION
Defendant Gloria Carrasco
appeals from judgment entered following jury convictions for
contracts in which defendant agreed to provide catering services at El Imperio
Restaurant (El Imperio). Then, at the
last minute, right before the date of each party, defendant notified her
clients that they could not use the restaurant and did not refund any of their
money. The trial court sentenced
defendant to three years formal probation and 90 days in jail.
Defendant contends the trial
court erred in granting the prosecution’s Batson-Wheeler
motion and denying defendant’s related motion
for mistrial. Defendant also asserts
there was insufficient evidence to support her four grand theft convictions and
the trial court committed instructional error by not sua sponte instructing the
jury on the contract defenses of frustration of purpose and failure of
consideration. Defendant additionally argues
the trial court erred in failing to instruct the jury that it must deduct the
value of defendant’s contract expenditures from any sums defendant received
from the victims. Finally, defendant
argues the trial court committed prejudicial error by incorrectly instructing
the jury that the threshold amount for grand theft was in excess of $400.
We conclude there was no
prejudicial error or cumulative error, and therefore affirm the judgment.
II
FACTS
Pete Romero
On July 29, 2007, Pete Romero met with defendant to discuss plans for
defendant to cater a Quinceanera party for his daughter on August 23, 2008, at El Imperio.
Romero intended to invite 200 to 300 guests. Defendant told Romero that she was the owner
of El Imperio and had hosted many parties at the restaurant. She said she could handle all aspects of the
event, including providing catering, decorations, and a stage for a
deejay. Defendant also said she had an
Alcoholic Beverage Control liquor license (ABC license).
In a written contract,
Romero agreed to pay $8,500 for defendant’s catering services and use of El
Imperio. Romero made an initial $1,000
down payment, and paid the balance in installments. Romero paid $5,000 on July 8, 2008, and the final payment of $2,500 on July 13, 2008. On August 20, 2008, Romero’s children rehearsed their dance at El
Imperio, and the next day, on August 21, 2008, Romero made an additional
payment of $500 for margaritas to be served at the party.
Late
in the afternoon on August 22, 2008, defendant called Romero
and told him he could not hold his daughter’s Quinceanera party at El Imperio
because the fire department closed the restaurant because of the presence of
carbon monoxide. Defendant told Romero
he would have to hold the party at El Sombrero, another nearby banquet hall in Colton. Romero met defendant at El Sombrero at 6:30
p.m.
that same day. Romero was disappointed
with the facility and asked for his money back but defendant said it was too
late. El Sombrero looked like a
warehouse, with no windows and a low ceiling, and was dark, hot, and
muggy. Defendant promised to decorate
the large room, and said the room would be air conditioned and very
comfortable. It was agreed each table
would have 14 chairs, linen napkins, silverware, toasting glasses, a table with
cake, waiters to serve the guests a sit-down dinner, and three workers at El
Imperio to direct guests to the new location.
Romero felt he had no choice but to agree to holding the party at El
Sombrero, since 200 to 300 people would be arriving for the party at 5:00
p.m.
the following day.
When Romero and his family
arrived at El Sombrero at 5:30 p.m., on August 23, 2008, defendant was not there. It was very hot. Workers were covering the tables with cloth
and there were only 10 chairs per table.
Food was to be served from 5:00 p.m. to 7:00
p.m.
under the contract but no food was being served when Romero arrived. Also in violation of the contract terms,
there were no linen napkins, no cider for the toast, no toast glasses, no
salads, no flower vases on most of the tables, no flowers, and no balloons or
ribbon decorations. Paper napkins and
plastic cups were used. Defendant did
not arrive until 6:45 p.m. She did not
start serving the salads until 6:45 p.m. Bread was served instead of flour tortillas
specified in the contract. Margaritas
were not served.
Romero believed the value of
what he received was $4,000, rather than the $9,000 he paid defendant. The day after Romero’s party, Romero asked
defendant to refund some of his money.
Defendant said she could not refund the money but offered to plan
another Quinceanera party for Romero’s daughter. When Romero requested defendant put the offer
in writing, she became hostile and told Romero he could sue her. Several days later, Romero went to El Imperio
and saw a posted notice stating that El Imperio had been shut down. When Romero drove by again, at 10:00
p.m.,
six days after his daughter’s Quinceanera party, El Imperio was set up for a
party. Romero then drove over to El
Sombrero and saw people unloading deejay equipment from a truck. Romero introduced himself to Citlali Valdez
and her family. While Romero hid
outside, behind an open door, Romero
overheard defendant tell Valdez that defendant had
cancelled Romero’s daughter’s Quinceanera party because Romero would not pay
her. Defendant then came out from behind
the door and said to defendant, “What did you say?†Defendant told Valdez, “Don’t listen to this
guy. He’s just a drunk.â€
Citlali Valdez
Valdez testified that in October
2007, she met with defendant at El Imperio and signed a contract to hold a
Quinceanera party for her niece at El Imperio on August
30, 2008. Defendant agreed to provide
waiters, invitations, music, a Quinceanera dress, and food and drinks for 300
people for $10,500. Valdez paid defendant a $500
deposit, with additional payments made thereafter. The last payment on the contract was made on August 7, 2008. Valdez later paid an additional
$1,800 for videos and photographs. Valdez also had to pay the
photographer $1,000 because defendant did not pay him, plus an additional
$1,300 for the photographs. Despite
repeated requests, defendant did not provide a Quinceanera dress or
invitations, as agreed.
When Valdez arrived at El Imperio on August 28, 2008, for a dance rehearsal, Valdez discovered a city notice on
the door stating that the fire department had closed the restaurant. Defendant did not show up for the scheduled
dance rehearsal. The following day, Valdez went to defendant’s home
and defendant told Valdez El Imperio was closed because it did not pass a fire
inspection. Therefore Valdez could not use the
restaurant. Defendant said she had just
found out the night before. Defendant
also mentioned she did not have a permit for live music at the restaurant or an
ABC license. Later in the day, defendant
met Valdez at El Sombrero and said it was the best she could do
for Valdez. Valdez agreed to hold the party
there because there was insufficient time to make other arrangements. The guests had been told the party would be
held at El Imperio. Only 120 to 150
guests of the anticipated 300 guests attended the party. The food was supposed to be served at 5:00
p.m.
but was not served until 6:30 p.m. No alcohol was served, contrary to the
contract, and many of the decorations, including the flowers and candles, were
not provided as agreed. The hall was not
well lit or air conditioned. There were
no speakers, sound equipment, or lights for the band. In Valdez’s opinion, defendant
provided only $5,000 in services and goods.
Andrea Torres Carbajal
On September 6, 2007, Andrea Torres Carbajal met with defendant to plan
her wedding party on September 27, 2008. Carbajal signed a contract agreeing to pay
defendant $7,500 for her wedding reception, to be held at El Imperio. Carbajal made a $500 down payment, with the
balance paid in installments. Carbajal
planned to have 250 guests at the reception.
Carbajal and defendant met several times to plan the menu and decorations. Carbajal did not receive invitations, as
agreed. Defendant claimed the
invitations were damaged in a car accident and told Carbajal she would have to
provide her own invitations.
On September 20, 2008, defendant phoned Carbajal and told her Carbajal’s
reception could not be held at El Imperio because the city had closed down the
restaurant. Defendant told Carbajal she
would call her back regarding alternative plans for the reception. After a couple of days, Carbajal called
defendant and asked what could be done.
Defendant again said she would call back. She never did, and did not hold Carbajal’s
wedding reception or refund Carbajal’s money ($7,500).
Rocio Palacios
Rocio
Palacios met with defendant on July 16, 2008, to plan her daughter’s
Quinceanera, scheduled for October 18, 2008, at El Imperio. Palacios signed a contract agreeing to pay
defendant $14,500, for a package that included decorations, food, music,
pictures, cake, invitations, a dress, and a limousine. Palacios planned to have 400 guests. She made a $500 down payment, and by October 12, 2008, had paid defendant $9,000.
When
Palacios made a payment on October 9, 2008, defendant told Palacios
her party could not be held at El Imperio because of permit problems but the
party could be held at El Sombrero. When
on October 16, 2008, Palacios brought defendant
the final payment of $5,500, defendant told Palacios that, because the payment
was late, there would be no music, pictures or limousine, and the food and
decorations would have to be simpler than planned. Defendant said she could not do anything
further but she was willing to schedule the party for a later date. Palacios asked for her money back. Defendant said she no longer had the money
but she could get it later from proceeds from another party for someone
else. Palacios never got her money back ($9,000).
Defendant’s Testimony
Defendant
testified that she had intended to fulfill the four contracts signed by Romero,
Valdez, Carbajal, and Palacios (the victims). Between 2007 and when the city closed her
business, defendant had catered about 50 parties and was working for the
restaurant owner, Mr. Hernandez.
When she told Romero the
Quinceanera could not be held at El Imperio, defendant told Romero he could
cancel the party and receive a refund or find another location. Romero agreed to hold the party at El
Sombrero. Everything agreed upon for the
party at El Imperio, took place at El Sombrero, including serving Margaritas at
the party. Defendant made no profit from
the party because of the additional rental fees for using El Sombrero.
Defendant testified that on August 24, 2008, the Sunday after Romero’s party, she told Valdez and her other clients that
El Imperio was no longer available. On
cross-examination, defendant stated she first found out she could no longer use
El Imperio on August 21, 2008. She did
not tell Romero until the afternoon on August 22, 2008.
Defendant also gave Valdez
the option of getting her money back or holding the party elsewhere. Valdez decided to hold her party at El
Sombrero. Defendant claimed the contract
did not include centerpieces, candles, flowers, invitations, a band, lighting,
speakers, a Quinceanera dress, a photographer, beer or alcohol. Defendant paid to rent El Sombrero for
Valdez. The rent exceeded defendant’s
profits. The rent for El Sombrero was $5,500,
$2,500 more than El Imperio.
According to defendant,
Carbajal did not receive the agreed upon invitations because Carbajal never
stopped by to pick them up and, when defendant was delivering them, she got
into a car accident and was unable to deliver them as planned. Defendant intended to refund Carbajal’s money
but did not tell Carbajal this or call her when defendant notified her other
customers El Imperio was not available, because defendant did not have Carbajal’s
telephone number or address. Defendant
had all of Carbajal’s centerpieces, had ordered a cake, and had all the
decorations, including table clothes, chair covers, and bows for the
chairs. The food had been prepared the
day before the party. Carbajal did not
cancel the contract. There was no party
because Carbajal did not have the money to pay the outstanding balance.
Defendant
testified that Palacios also did not cancel her contract with defendant. Instead, Palacios offered defendant title to
her car to pay the outstanding contract balance. But defendant could not pay for renting El
Sombrero with the car. Defendant told
Palacios that if she could find a house to hold the party, defendant would
provide tables, chairs, tablecloths, and dinnerware for the party. Defendant had already paid for fabric, bows,
centerpieces, cake, a band, and a limousine.
III
BATSON-WHEELER MOTION
Defendant
challenges the trial court’s rulings granting the prosecution’s
defendant’s related motion for mistrial.
Defendant asserts that the trial court erred in rejecting her peremptory
challenge to prospective Juror No. 43, because the court did not make a sincere
and reasoned attempt to evaluate whether defense counsel’s reasons for the
challenge were nondiscriminatory.
A. Applicable Law
Both the United States and
the California Constitutions prohibit the exercise of peremptory challenges
based solely on group bias. (Batson
v. Kentucky (1986) 476 U.S. 79, 89 (Batson);
on specific bias-on individual biases related to the peculiar facts or the
particular party at trial. (Wheeler,
supra, 22 Cal.3d at pp. 274, 276-277, fn. 17; People v. King (1987)
195 Cal.App.3d 923, 931; see People v. Fuentes (1991) 54 Cal.3d 707,
713.) To do otherwise violates a party’s
federal constitutional right to equal
protection and state constitutional right to a jury drawn from a
representative cross-section of the community.
(See Batson, supra, 476 U.S. at p. 89; Wheeler, supra, 22
Cal.3d at pp. 265-266, 272; People v. Turner (1986) 42 Cal.3d 711,
715-717; see also U.S. Const., 14th Amend.; Cal. Const., art. I, § 16.)
Although there are some
variations, the analysis used to detect a constitutional violation is
substantially the same whether the federal equal protection right or the state
jury trial right underlies the claim of error.
(See People v. Alvarez (1996) 14 Cal.4th 155, 193, cert. den. sub
nom. Alvarez v. California (1997) 522 U.S. 829; People v. Clair
(1992) 2 Cal.4th 629, 652, cert. den. sub nom. Clair v. California
(1993) 506 U.S. 1063.) Courts use a
three-step process to determine whether a defense attorney used peremptory
challenges in an improper manner. Proof
of a pattern or practice is not required because a single challenge for a
discriminatory purpose is not immunized by the absence of other similar
challenges. (Johnson v. California (2005) 545 U.S. 162, 169, fn. 5; People
v. Avila (2006) 38 Cal.4th
491, 553.)
defense counsel exercised the peremptory challenge on a constitutionally
permissible basis. If the prosecutor
makes a prima facie case of discrimination, that presumption is rebutted and
the burden of proof shifts to the defense at the second stage to show, if
possible, that the racial exclusion was not predicated on group
bias. (Johnson v. California, supra,
545 U.S. at p. 168; People v. Johnson, supra, 38 Cal.4th at p.
1099.) At this step, the defense must
offer a permissible race-neutral basis for exercising a peremptory challenge
against that juror. (Johnson v.
California, supra, 545 U.S. at p. 168; People v. Johnson, supra, 38
Cal.4th at p. 1099.)
trial court must determine whether the prosecution has met the ultimate burden
of proving that defense counsel engaged in purposeful discrimination. (Johnson v. California, supra, 545 U
.S. at p. 168; People v. Johnson, supra, 38 Cal.4th at p. 1099.) The trial court must determine whether
defense counsel’s race-neutral reasons are genuine or sham. (See People v. Fuentes, supra, 54
Cal.3d at p. 718; see also People v. Avila, supra, 38 Cal.4th at p.
541.) If defense counsel cannot show an
absence of purposeful discrimination, then the prosecution’s prima facie
showing becomes conclusive and the presumption of constitutionality is deemed
to be rebutted. (People v. Alvarez,
supra, 14 Cal.4th at p. 193.) If
defense counsel does establish an absence of purposeful discrimination, the
presumption of constitutionality is deemed to be reinstated, the prosecution’s
defendant’s peremptory challenge is sustained, and the prospective juror is
removed from the panel. (See People
v. Alvarez, supra, 14 Cal.4th at pp. 198-199.)
On appeal, we review a trial
court’s ruling on the issue of purposeful racial discrimination for substantial
evidence. If the trial court made a
sincere and reasoned effort to evaluate the nondiscriminatory justifications
offered, then we defer to the trial court’s ability to distinguish bona fide
reasons from sham excuses. (
627; People v. Avila, supra, 38 Cal.4th at p. 541.)
B. Procedural Background
In order to determine
whether the trial court erred in granting the prosecution’s
discrimination, we set out the facts as they arose at voir dire. During voir dire, defense counsel exercised
five peremptory challenges. Defense
counsel’s first peremptory strike was against Ms. Martinez. Defense’s second peremptory strike was
against Mr. Santiago. Thereafter the
prosecution waived his right to exercise peremptory challenges and accepted the
jury as constituted. Defense counsel
exercised additional peremptory challenges against Mr. Wren, Mr. Patzold, and
Juror No. 43. Defense counsel made a
peremptory challenge to Juror No. 43.
The prosecutor then made a Batson-Wheeler
motion on the ground defendant was systematically challenging Latino
jurors. The prosecutor argued defendant
had already challenged two prospective jurors who had Hispanic surnames
(Martinez and Santiago), and had just challenged a third Latino juror, Juror
No. 43. The court acknowledged
uncertainty as to whether Juror No. 43 was Latino or Filipino.
When asked why defendant
excused Juror No. 43, Santiago, and Martinez, defense counsel explained that
Juror No. 43 was very soft-spoken and shy and, based on his demeanor and manner
of answering voir dire questions, he did not appear to be the type of juror who
would stand up for his convictions.
Defense counsel said she excused Santiago because of his hunched posture
and opinions regarding the burden of proof.
Martinez was challenged because she appeared not to want to participate
or listen. She had not responded or
reacted to questions unless specifically asked and therefore defense counsel
concluded Martinez did not seem fully committed to serving as a juror. When defense counsel, however, was asked to
state specific examples demonstrating defense counsel’s reasons for challenging
Martinez and Juror No. 43, defense counsel was unable to do so. The trial court found defendant’s objection
to Santiago was not based on race but also found that defense counsel’s reasons
for excusing Martinez and Juror No. 43 were implausible, pretextual
justifications.
The court suggested asking
Juror No. 43 to state his ethnicity. The
prosecutor indicated this was not necessary since systematically challenging
prospective jurors because they appear Hispanic was discriminatory regardless
of whether they were in fact Hispanic.
The court did not inquire further of Juror No. 43’s ethnicity. The trial court noted defense counsel could
not excuse Martinez and Juror No. 43 based on a lack of leadership skills. The court further noted that defense counsel
would not have reason to excuse Hispanic jurors based on the improper
race-based reason that Hispanics might be more sympathetic to the victims, who
were also Hispanic. The court stated
that defense counsel, as a relatively new lawyer, did not appear to have had
tainted or underhanded motives when inappropriately exercising peremptories
based on the jurors’ lack of leadership skills or being inarticulate. The court suggested defense counsel simply
may have been unaware it was not proper to exercise peremptories based on these
grounds or based on race. The court
concluded defense counsel had not met defendant’s burden of showing that her
peremptory against Juror No. 43 was not predicated on race.
The court granted the
prosecution’s Batson-Wheeler motion
and, as a consequence, Juror No. 43 remained on the jury panel over defendant’s
objection. Following defendant’s
conviction, the trial court also denied defendant’s motion for a mistrial
motion challenging the trial court’s ruling allowing Juror No. 43 to serve on
the jury. Defense counsel’s supporting
declaration stated that it was her “understanding†that Juror No. 43 was not of
Hispanic origin.
C. Discussion
Defendant
contends the trial court erred in evaluating defense counsel’s reasons for
peremptory challenges based on an objective standard of reasonableness, instead
of applying the proper standard of subjective reasonableness. (People
v. Reynoso (2003) 31 Cal.4th 903, 925.)
We disagree. The trial court
properly evaluated the reasons for defendant’s peremptory challenges, using the
proper standard. We also conclude
substantial evidence supports the court’s findings that defendant’s peremptory
challenge to Juror No. 43 was based on race.
The prosecution met its
initial burden of producing evidence sufficient to permit the trial court to
draw an inference that discrimination occurred.
Three of the five jurors defendant challenged had Hispanic surnames. It was reasonable to infer that, even though
defendant was Hispanic, the defense did not want Hispanics on the jury because
the jurors would sympathize with the Hispanic victims. (People
v. Clark (2011) 52 Cal.4th 856, 905-906.)
Three of the four victims had relied on defendant to provide food and a
banquet facility for their Quinceanera celebrations. Hispanics would likely empathize with the
victims who suffered emotional and financial loss because of defendant’s
failure to provide the promised facility and services for their special
celebrations.
There
was also substantial evidence supporting the trial court’s finding that
defendant failed to offer a permissible race-neutral
basis for exercising a peremptory challenge against Juror No. 43. Defense counsel’s stated reasons were that
Juror No. 43 was soft-spoken and shy, and Martinez did not seem to want to
participate or listen. Defense counsel
elaborated that Martinez had not responded or reacted to questions unless specifically
asked, and seemed not fully committed to serving as a juror. Defense counsel also noted Martinez appeared
to lack leadership abilities. Yet
defense counsel was unable to state any specific instances in which Martinez
had demonstrated these shortcomings. The
trial court appropriately concluded these reasons were not valid reasons for
removing Martinez and Juror No. 43 from the jury. Because defense counsel failed to show an
absence of purposeful discrimination, the prosecution’s prima facie showing of
discrimination became conclusive and the presumption of constitutionality was
rebutted. (People v. Alvarez, supra,
14 Cal.4th at p. 193; People v. Clair, supra, 2 Cal.4th at p. 652; see Wheeler,
supra, 22 Cal.3d at p. 282.)
Defendant
argues the prosecution’s claim that defendant was systematically exercising
peremptory challenges against Hispanics was undermined by the court not knowing
whether Juror No. 43 was Hispanic. The
trial court acknowledged that, although Juror No. 43 had a Spanish surname, the
court did not know whether Juror No. 43 was Latino or Filipino. The uncertainty as to whether Juror No. 43
was Latino is not dispositive here because Hispanic-surnamed jurors are a
cognizable class under Batson and
of the challenge whether a prospective juror with a Spanish surname is actually
Hispanic. (People v. Davis (2009) 46 Cal.4th 539, 584; People v. Trevino (1985) 39 Cal.3d 667, 686.)
We
likewise reject defendant’s contention that the trial court erred in denying
her motion for mistrial, which was based on the trial court granting the
prosecution’s Batson-Wheeler motion
and leaving Juror No. 43 on the jury panel.
On appeal, a denial of a mistrial motion is reviewed under the abuse of
discretion standard. (
153, 210.) “‘A mistrial should be
granted if the court is apprised of prejudice that it judges incurable by
admonition or instruction. [Citation.] Whether a particular incident is incurably
prejudicial is by its nature a speculative matter, and the trial court is
vested with considerable discretion in ruling on mistrial motions.’†(People
v. Wharton (1991) 53 Cal.3d 522, 565, quoting People v. Haskett (1982) 30 Cal.3d 841, 854.) Defendant was required to show that the trial
court erred in leaving Juror No. 43 on the jury and this was prejudicial to the
outcome of his case.
In ruling on defendant’s
motion for mistrial, the trial court found that defendant’s justifications
proffered by defense counsel for the peremptory challenges were a pretext for
defendant’s true motive to remove jurors based on their Hispanic
ethnicity. The court also found that
granting a mistrial would inappropriately award defendant for discriminating
against Hispanics, and there was no reason to believe that the selected jurors
would not be fair and impartial.
Defendant argues her
mistrial motion should have been granted on the ground that erroneously
granting the prosecution’s Batson-Wheeler
motion led defense counsel to believe she could not exercise any additional
peremptory challenges. As discussed
above, the trial court appropriately granted the prosecution’s
not shown that the trial court improperly dissuaded defense counsel from
exercising proper, neutral-based peremptory challenges.
Defendant further asserts
her motion for mistrial should have been granted on the ground that, after the
trial court granted the prosecution’s Batson-Wheeler
motion, the court gave the prosecution an additional peremptory challenge
as a sanction for asserting the improper peremptory challenge against Juror No.
43. But giving the prosecution an
additional peremptory challenge, instead of dismissing the panel or imposing
monetary sanctions, was a proper remedy within the trial court’s discretion,
particularly since, “[o]n balance, it seems more appropriate, and consistent
with the ends of justice, to permit the complaining party to waive the usual
remedy of outright dismissal of the remaining venire.†(People
v. Willis (2002) 27 Cal.4th 811, 823; see also People v. Muhammad (2003) 108 Cal.App.4th 313, 321-323.)
Defendant
argues the trial court was required to grant her motion for mistrial on the
ground that leaving Juror No. 43 on the panel after defense counsel had
exercised a peremptory challenge against the juror tainted the juror and other
jurors who were aware of defendant’s request to remove the juror from the
panel. Defendant has not established
that Juror No. 43 or the other jurors were actually tainted, such that they
could not be fair and impartial jurors.
No juror bias is apparent from the record. In giving deference to the trial court’s
determination that Juror No. 43 and the other jurors could be fair and impartial,
we reject defendant’s contention that the trial court abused its discretion in
denying her motion for mistrial.
IV
SUFFICIENCY OF EVIDENCE
Defendant
contends there was insufficient evidence to support her four convictions for
grand theft by false pretenses (§ 487, subd. (a)). “The standard of review for sufficiency of
the evidence has been repeatedly stated.
‘“[T]his inquiry does not require a court to ‘ask itself whether it
believes that the evidence at the trial established guilt beyond a reasonable
doubt.’ [Citation.] Instead the relevant question is whether,
after reviewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.â€
[Citation.]’ [Citation.] We examine the record in a light most
favorable to the prosecution to determine if any trier of fact could rationally
find the elements of grand theft.†(
Cal.App.3d 131, 138.) “Simply put, if
the circumstances reasonably justify the jury’s findings, the judgment may not
be reversed simply because the circumstances might also reasonably be
reconciled with a contrary finding.
[Citations.]†(
107, 142.)
“‘Grand theft by false
pretenses “consists of three elements:
(1) the making of a false pretense or representation by the defendant,
(2) the intent to defraud the owner of his property, and (3) actual reliance by
the owner upon the false pretense in parting with his property.†[Citation.]’
[Citation.]†“‘“It is well
established that criminal intent may be inferred from the general circumstances
surrounding the transactions, and that other similar transactions carried on by
a defendant are sufficient to prove guilty knowledge and criminal intent.†[Citations.]’
[Citation.]†(
131, 138; see also § 532.)
The
jury found defendant guilty of grand theft under section 487, subdivision (a),
which is the unlawful taking of another’s property with the intent permanently
to deprive the owner of the property. (
258; People v. Creath (1995) 31
Cal.App.4th 312, 318.) Defendant was
prosecuted under the theory of theft by false pretenses. Defendant argues there was insufficient
evidence of intent to defraud the victims.
She claims the evidence established that her ability to perform the
catering contracts was frustrated or made impossible by the city and fire
department’s unexpected closure of El Imperio.
Under
contract law, the obligation to perform under a contract is excused by
impossibility, impracticability, or frustration of purpose. “‘A thing is impossible in legal
contemplation when it is not practicable; and a thing is impracticable when it
can only be done at an excessive and unreasonable cost.’ [Citation.]â€
(Mineral Park Land Co. v. Howard
(1916) 172 Cal. 289, 293.) This does not
mean that a party can avoid performance simply because it is more costly than
anticipated or results in a loss. (
Impracticability does not require literal impossibility but applies when
performance would require excessive and unreasonable expense. (City
of Vernon v. City of Los Angeles (1955) 45 Cal.2d 710, 717.) Similarly, where performance remains
possible, but the reason the parties entered the agreement has been frustrated
by a supervening circumstance that was not anticipated, such that the value of
performance by the party standing on the contract is substantially destroyed,
the doctrine of commercial frustration applies to excuse performance. (Lloyd
v. Murphy (1944) 25 Cal.2d 48, 53.)
“‘In applying the frustration excuse courts look to see if “‘the fundamental
reason of both parties for entering into the contract has been frustrated,’
[citations].†(Waegemann v. Montgomery Ward & Co., Inc. (9th Cir. 1983) 713
F.2d 452, 454.)
Here,
there was substantial evidence from which the jury could reasonably find that
defendant intended to defraud the victims of their money, and the closing of El
Imperio by the city and fire department did not excuse defendant’s criminal
acts of taking the victim’s money under false pretenses, when she never
intended to comply fully with the terms of the contracts. A reasonable inference could be made that
defendant knew all along, or at least when accepting payments from the victims,
that the victims’ parties would not be held at El Imperio. It also could be reasonably inferred from the
evidence that, when defendant entered into the contracts with the victims, and
thereafter when she accepted payments from the victims, she knew she did not
have a business license to conduct parties at El Imperio. The previous owner, Robert Hernandez, had a
business license for El Imperio, which expired on December 31, 2007. Defendant and her husband applied for a
business license in February 2008, as owners of El Imperio. Their application states that, if it was not
approved within 90 days, the application became void. On August 25, 2008, the city posted a
“correction notice†on El Imperio, notifying the owners that they were required
to obtain a business license and could not conduct any business at El Imperio
until doing so. This indicates that the
application was not approved within 90 days and defendant never obtained the
necessary business license, or it was revoked.
The absence of a business
license would have precluded defendant from holding the victims’ parties at El
Imperio. A reasonable inference could be
made that defendant promised to cater the victims’ parties at El Imperio,
knowing she did not have a business license allowing her legally to do so. For this reason, she may have planned all
along not to hold the parties at El Imperio and then, at the last minute, offer
to hold them at El Sombrero, a far less desirable location.
Additional
evidence of theft by false pretenses as to Romero included defendant’s
testimony that she first found out about the restaurant closure on August 21,
2008, yet did not tell Romero until the afternoon of August 22, 2008, the day
before Romero’s party. Yet on August 21,
2008, Romero signed a contract for margaritas and paid defendant an additional
$500 for the margaritas. Defendant made
no mention that the party could not be held at El Imperio. Furthermore, in addition to not providing many
of the catering services agreed to, defendant did not even provide the margaritas
at the alternative party site. When
Romero stopped by El Imperio the weekend after his party, he discovered it was
set up for a party and suspected defendant had defrauded another customer. Romero went to El Sombrero and confirmed his
suspicions. Defendant had forced another
customer, Valdez, to change the venue of her party from El Imperio to El
Sombrero at the last minute. Romero
further heard defendant lie to Valdez that defendant had cancelled Romero’s
party because he had not paid her.
As to
Valdez, a reasonable inference could also be made that, when defendant promised
Valdez a Quinceanera dress and invitations as part of the contract package,
defendant never intended to actually provide them. Defendant continually made excuses to Valdez
for not providing either the dress or invitations, even though they were
included in the package. There was also
evidence that, when defendant contracted to provide Valdez with photos and a
video for an additional $1,800, and received payments for these items on August
7, 2008, and August 30, 2008, defendant did not intend to pay the photographer,
resulting in Valdez being forced to pay the photographer $1,000. In addition, there was evidence that,
contrary to what defendant had promised Valdez as part of the package, there
was no equipment for entertainment or lighting, no DJ, and the band played only
40 minutes, which was less time than agreed.
There was also no liquor at the party, even though defendant agreed to
provide it as part of the package, according to Valdez. Defendant later told Valdez on August 28,
2008, the day before the party, that she did not have a liquor license or a
permit for live music.
Carbajal
also never received any invitations, even though defendant agreed to provide
them as part of the contract package. A
reasonable inference could be made that, when defendant entered into the
contract and accepted payments from Carbajal, defendant never intended to
provide the invitations.
As to
Palacios, there was evidence that on October 9, 2008, defendant told Palacios
she needed to pay the outstanding balance soon but, when Palacios attempted to
pay the $5,500 balance a week later on October 16, 2008, defendant told her the
final payment was too late. Palacios had
already paid defendant $9,000. A
reasonable inference could be made that defendant used the late payment as an
excuse to back out of holding the party at El Imperio and not provide the items
included in the contract package, such as music, photos, limousine service, and
the agreed upon decorations. The jury
could find that, when defendant led Palacios to believe these items were part
of the contract package, defendant never intended to actually provide them, yet
accepted $9,000 in payments from Palacios.
An intent to defraud could
also be inferred from defendant’s refusal to
refund any of the victims’ money, which she claimed to
have spent before notifying them that their parties could not be held at El
Imperio. Defendant persuaded Romero and
Valdez to agree to holding their parties at an alternative inferior location,
El Sombrero, under the false promise that defendant would provide the same
services and catering at El Sombrero as originally promised. The victims did not receive anywhere near
what defendant had agreed to provide under their contracts, as if defendant had
not fully prepared for the parties and had not intended to provide all of the
services she had originally promised.
Defendant then refused to refund any of Romero and Valdez’s money. Even worse, Carbajal and Palacios received
nothing under their contracts, yet received no refund of any of their money
($7,500 as to Carbajal and $9,000 as to Palacios).
We conclude the totality of
the evidence was sufficient to support a finding that defendant was operating an
illicit scheme of entering into contracts by promising to cater parties at El
Imperio and then, at the last minute, notifying her clients that the restaurant
was unavailable and offering to hold the parties at El Sombrero. By this time, defendant had taken the
victims’ money. Defendant argues there
was evidence she was unable to comply with the contracts because the restaurant
was unavailable but a reasonable inference could be made that defendant never
intended to hold the parties at El Imperio or fully perform the terms of the
contracts. There was more than
sufficient evidence that defendant made a false pretense or representation to
the victims and defendant intended to defraud the victims of their money. The general circumstances surrounding the victims’
similar transactions with defendant further supported defendant’s convictions
for committing grand theft by false
pretenses. (People v. Gentry, supra, 234 Cal.App.3d at p. 138.)
V
INSTRUCTION ON CONTRACT DEFENSES
Defendant
contends the trial court erred in not instructing sua sponte on the contract
defenses of frustration of purpose and failure of consideration (BAJI Nos.
10.80, 10.81, and 10.82). Defendant
argues that, even though she did not request these instructions, the court was
required to give them because there was evidence that defendant’s failure to
perform three of the catering contracts was because the city closed down El
Imperio. There was also evidence
defendant did not comply with the terms of the fourth contract because Palacios
failed to pay the agreed upon consideration.
In
general, a trial court has a sua
sponte duty to
relying on such a defense,
or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant’s theory
of the case.’ [Citation.]†(People v. Breverman (1998) 19 Cal.4th
142, 157.)
Restatement Second of
Contracts, section 265, defines the frustration of purpose defense as
follows: “Where, after a contract is
made, a party’s principal purpose is substantially frustrated without his fault
by the occurrence of an event the non-occurrence of which was a basic assumption
on which the contract was made, his remaining duties to render performance are
discharged, unless the language or the circumstances indicate the
contrary.†In applying the frustration
excuse courts look to see if “the fundamental reason of both parties for
entering into the contract has been frustrated,†Cutter Laboratories, Inc.
v. Twining (1963) 221
Cal.App.2d 315, 324 (emphasis in original).
See also, e.g., Lloyd v. Murphy (1944) 25 Cal.2d 48, 52-53 (quoting 6 Williston, Contracts (rev. ed. 1938) § 1955, pp.
5485-5487, for the proposition that applicability of the doctrine depends on
the near total destruction of “‘the purpose for which, in the contemplation of
both parties, the transaction was entered into’â€); 20th Century Lites, Inc.
v. Goodman (1944) 64
Cal.App.2d Supp. 938, 943 (the doctrine applies in cases of frustration of “the
primary and principal purpose†for which the contract was made).
Here, frustration of purpose
may have been a defense to a breach of contract claim but it was not a defense
to the crime of theft by false pretenses.
The crime of theft by false pretenses was committed at the time the
contracts were executed and when defendant received money from the
victims. This occurred as to all four
victims before El Imperio was closed down.
There was substantial evidence showing that, regardless of whether
defendant was ultimately able to comply fully with the terms of the contracts,
defendant took the victims’ money under false pretenses and did not return the
money. Therefore the trial court did not
have a sua sponte duty to instruct on the contract defense of frustration of
purpose. In fact, such an instruction
arguably would have been inappropriate and confusing for the jury. We note that the only authority defendant
cites in support of her contention that instruction on the frustration of
purpose defense was required, is civil case law on breach of contract. Defendant has not cited any criminal case law
in which the defense is relied upon in refuting criminal theft charges based on
false pretenses.
We also conclude the trial
court did not have a sua sponte duty to instruct on the defense of a failure of
consideration. Palacios was the only
victim who did not pay the full amount agreed to under her contract. Palacios did, however, pay defendant $9,000,
and the jury could reasonably find that this was done under false
pretenses. Palacios also offered to pay
the remaining balance of $5,500, although under the terms of the contract, she
should have paid that amount sooner.
Nevertheless, by the time Palacios attempted to make the final payment,
defendant had already committed the crime of theft by false pretenses, when she
executed the catering contract and received $9,000 from Palacios under false
pretenses. The trial court was therefore
not required to give sua sponte instruction on the contract defense of lack of
consideration.
Furthermore, if there was
any error in not instructing sua sponte
on the contract defenses of frustration of purpose and lack of consideration, the
error was harmless. Even if the trial
court had instructed the jury on the contract defenses, it is not reasonably
probable the jury would have reached a more favorable verdict. (People
v. Watson (1956) 46 Cal.2d 818, 836.) The convictions
reflect that the jury found that defendant’s business dealings with the victims
were a sham and deceitful. The jury
likely would have reached the same conclusion even if the instructions were
given.
VI
DEDUCTING CONTRACT
EXPENDITURES
Defendant
argues that, because she was charged with theft by false pretenses based on
entering into contracts she did not intend to perform, the trial court should
have instructed the jury to deduct from the amount the victims paid defendant,
the value of defendant’s expenses and services incurred in complying with the
contract terms. Defendant asserts that
in most instances the value of defendant’s material and labor costs exceeded
the amount of the payments received from the victims. Defendant concludes that deducting her
contract expenses from the amount received from the victims would have resulted
in a negative balance or a minimal loss that was less than the threshold amount
required for a grand theft conviction.
We
conclude the trial court was not required to instruct the jury sua sponte on
deducting defendant’s contract expenses from the amount the victims paid
defendant. Such an instruction would
have been inappropriate since the amount defendant spent was irrelevant to
whether she took the victims’ money under false pretenses. Regardless of whether defendant ultimately
spent more than she took from the victims, she committed grand theft by false
pretenses when she took in excess of $950 from the victims with intent to
defraud. (§ 487, subd. (a).) The evidence shows defendant received in
excess of $950 from each of the four victims.
Defendant received $5,000 from Romero; $9,000 from Valdez; $7,500 from
Carbajal; and $9,000 from Palacios. Even
if defendant ultimately spent more than she received from the victims, this would
not have converted the unlawful act of theft by false pretenses to a legal
act. There was therefore no error in the
trial court not instructing the jury to deduct defendant’s actual expenses from
the amounts she received from the victims.
VII
ERRONEOUS INSTRUCTION ON
GRAND THEFT AMOUNT
Defendant
correctly asserts that the trial court erroneously instructed the jury that the
threshold amount for a grand theft conviction was at least $400, rather than
$950, under the current version of section 487, subdivision (a). At the time defendant committed the grand
theft crimes in 2007 and 2008, the threshold amount under section 487,
subdivision (a), was at least $400. It
was not until 2010, that the Legislature increased the threshold amount for grand theft under
subdivision (a) of section 487, from $400 to $950. (Stats. 2010, ch. 693, § 1 (Assem. Bill No.
2372, eff. Jan. 1, 2010).)
In People v. Wade (2012) 204 Cal.App.4th 1142, 1152, the court held
that the Legislature intended the amendment to section 487 increasing the
threshold amount be applied retroactively, because there was no express
statement to the contrary. This
retroactive effect is because the increase in the threshold amount to $950
decreased the punishment for a theft offense by requiring a higher threshold
amount. When the Legislature amends a
statute to decrease punishment after the charged crime has been committed but
before final judgment, the new statute applies.
(In re Estrada (1965) 63
Cal.2d 740, 744.)
In the instant case, defendant
was tried and the final judgment was entered in 2011, after the amendment
increasing the threshold amount. The
trial court therefore should have instructed the jury that the threshold amount
for a grand theft conviction was at least $950, the amount required under the
statute in effect at the time of trial.
Defendant argues this
instructional error was prejudicial because the jury could have based its
convictions on only one of the victim’s payments, some of which were under
$950, or the jury could have concluded the victims’ actual losses, when
deducting the value received from defendant, were less than $950. We conclude there was no prejudicial
error. As explained above, the jury was
not required to deduct the value of goods and services received from defendant
from the amount she received from the victims under false pretenses. In addition, it is highly unlikely that, had
the jury been instructed the threshold amount was $950, rather than $400, the
jury would have found defendant not guilty of grand theft. It was undisputed defendant received $5,000
from Romero; $9,000 from Valdez; $7,500 from Carbajal; and $9,000 from
Palacios. Since defendant’s convictions
reflect the jury found defendant committed grand theft by taking in excess of
$400 from each victim based on false pretenses, it is probable that the jury
would have likewise found that defendant took in excess of $950 from the
victims by false pretenses. The
erroneous instruction on the threshold amount for a grand theft conviction was
therefore harmless error. (
836.)
VIII
DISPOSITION
The
judgment is affirmed.
NOT
TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J.
We concur:
KING
Acting P. J.
MILLER
J.
otherwise noted, all statutory references are to the Penal Code.
