P. v. Esquivel

Filed 5/26/10 P. v. Esquivel CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

APPEAL from a judgment of the Superior Court of Los Angeles County. John A. Torribio, Judge. Affirmed as modified.

Syda Kosofsky, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Linda C. Johnson and Robert David Breton, Deputy Attorneys General, for Plaintiff and Respondent.

________________

INTRODUCTION

Appellant, Pablo Parra Esquivel, challenges his conviction of grand theft by false pretenses (count 8), on the ground that evidence of reliance by the intended victim, an essential element of the offense, is missing. Appellant contends that because the intended victim, Mercury Insurance Company (Mercury), was fully aware of the falsity of his statements, due to its participation in an undercover sting operation, it did not rely upon the representations in parting with its money. He seeks modification of the judgment to reflect a conviction of attempted grand theft by false pretenses. We agree, reject respondents arguments to the contrary, and modify the judgment accordingly. Because the trial court suspended imposition of sentence as to all counts and granted probation, we do not remand for resentencing.

BACKGROUND

Appellant was charged with six counts of insurance fraud and three counts of grand theft, and after a jury trial, he was convicted of all nine counts. On October 2, 2008, the trial court suspended imposition of sentence and placed appellant on felony probation for five years, conditioned upon his serving one year in jail, making restitution, and paying fees and fines. Appellant filed a timely notice of appeal from the judgment.

Because appellant challenges only his conviction of grand theft by false pretenses, as alleged in count 8 of the information, we limit our factual summary to evidence relevant to that count.

In late 2005, George Urena (Urena) of the Bureau of Automotive Repair (Bureau), asked Jim Walsh (Walsh), a fraud investigator employed by Mercury, to assist him in a sting operation against Collision Experts, a body shop in South Gate. Walsh issued a fictitious Mercury automobile insurance policy and an insurance card to undercover operative David Novello (Novello). Another employee of the Bureau, Sam Wharton (Wharton), thoroughly inspected the 2001 Honda Prelude to be used in the operation, and found no damage. He then intentionally damaged the car in a manner that would simulate damage caused by a rear-end collision. Wharton then documented the damage with photographs and notes. Wharton also measured the inner structural frame of the car with an electronic measuring system, and determined that the cars frame was straight. The car was then transported by truck to South Gate, and parked.

Novello telephoned Collision Experts, spoke to someone named Irene, and told her that his car had been damaged. Novello later drove the car to the body shop, where he told Irene that his insurance company, Mercury, had not yet inspected the car, and had instructed him to pick any body shop. Novello told Irene that he did not want used parts installed in the car.

Mercury field auditor Nanci Hardege (Hardege) was assigned to inspect the Honda Prelude and adjust the claim. Urena told her about the operation, and instructed her to treat the claim as she would any normal claim. Hardege inspected the car at Collision Experts on November 14, 2005, took photographs of all visible damage, and prepared a repair estimate. On November 17, when she learned that Collision Experts claimed additional damage to the car, she arranged to go back to the shop to reinspect the car once it was torn apart. Hardege went to the shop twice, but the car had still not been torn apart. The second time, Irene telephoned a man who identified himself to Hardege as Ray Flores. He told her that there was clearly damage to both right and left quarter panels and the rear body panel, and that the vehicle required a frame pull. He then asked her to write an estimate based solely upon the information he provided by telephone. Hardege refused and insisted that he either be there to inspect the car with her after it was torn apart, or that he write up a supplemental estimate himself.

On November 22, 2005, Flores faxed Hardege a supplemental estimate showing the claimed damage, and also showing some of the items from the original estimate, but calling for used parts, instead of new. Hardege made another appointment to inspect the car, and when she arrived, appellant was there. She remained on site for approximately an hour and a half, inspecting the car and photographing it. Appellant went over the estimate with her and pointed out damage that she had not seen during her original inspection. The newly visible damage was inconsistent with the type of impact inflicted on the car, and not the kind of damage she expected to find, given the damage that was visible before the car had been torn apart. Hardege testified as to many discrepancies. For example, although only one fender was damaged before, two showed damage during this inspection. The floor pan was substantially damaged, whereas there had been no visible damage during the first inspection.

Hardege doubted the alleged need to replace the rear bumper absorber and asked to see it. Appellant showed her an absorber that was not designed for a Honda Prelude, and when she pointed this out, he found another, but it was not damaged, other than a minor crack. When she told him the damage was minor, he broke it in half with his hands to make sure that his guy would really replace the part. Hardege also questioned the alleged frame damage and consequent need for pull time, and appellant offered to measure it while she was there. She agreed, and although the measurement showed damage, it was not a trustworthy measurement, because appellant had not set the gauge with reference to an operating guide or manual.

Hardege prepared a new estimate before she left Collision Experts. She testified that it was Mercurys practice to approve pull time whenever there was damage to the rear body panel, as in this case. It was also normal to approve doubtful items when necessary to get the insureds car back to him as quickly as possible. Therefore, despite her doubts, Hardege approved the pull time and the other newly claimed items, and gave the approval form to Urena.

Mercury issued two checks to Collision Experts, one for the original estimate, and one for the supplemental estimate. The checks were valid and negotiable, and they were cashed. The Honda was returned to the Bureaus lab, where Wharton undertook another thorough inspection. He compared his prior documentation with the supplemental estimate and examined the parts allegedly repaired or replaced. Wharton testified at length as to unnecessary items, as well as items that had not been repaired or replaced as stated in the supplemental estimate, or that were not new.^[1]

DISCUSSION

Appellants sole contention on appeal is that his conviction on count 8 was unsupported by substantial evidence. Count 8 alleged grand theft of money belonging to Mercury and the Bureau, in violation of Penal Code section 487, subdivision (a). The trial court instructed the jury that the grand theft alleged in count 8 was grand theft by means of false pretense, and the court recited the elements of that offense set forth in Penal Code section 484, subdivision (a), and cases construing that section.

As relevant here, Penal Code section 484, subdivision (a), provides: Every person . . . who shall knowingly and designedly, by any false or fraudulent representation or pretense, defraud any other person of money . . . or personal property, . . . is guilty of theft. To support a conviction of theft for obtaining property by false pretenses, it must be shown: (1) that the defendant made a false pretense or representation, (2) that the representation was made with intent to defraud the owner of his property, and (3) that the owner was in fact defrauded in that he parted with his property in reliance upon the representation. [Citations.] (Perry v. Superior Court (1962) 57 Cal.2d 276, 282283.)

Appellant contends that the evidence was insufficient to support the element of reliance. The reliance element requires a showing that the false representation proximately caused the victim to part with his property. (People v. Whight (1995) 36 Cal.App.4th 1143, 1152.) The false representation need not be the sole inducing cause, so long as it materially influenced the owner to part with his property. (People v. Ashley (1954) 42 Cal.2d 246, 259.) However, no prosecution will lie where the complainant parted with his property to the accused from some cause other than such false representation. . . . (People v. Whight, supra, at p. 1152.)

Respondent contends that we must review the jurys findings under an ordinary substantial evidence standard, giving deference to the jurys resolution of conflicts in the evidence and the credibility of witnesses. Proximate causation is ordinarily a question of fact for the jury. (People v. Roberts (1992) 2 Cal.4th 271, 320, fn. 11.) On appeal, when an issue is presented on undisputed facts, its resolution is a matter of law that we determine de novo. (People v. Dawson (2009) 172 Cal.App.4th 1073, 1090, fn. 4; see People v. Cromer (2001) 24 Cal.4th 889, 900.) Because neither party disputes the evidence relevant to a resolution of appellants contention in this case, we conduct a de novo review to determine whether reliance upon appellants misrepresentations caused either the Bureau or Mercury to part with its money.

Where there is no causal connection between the transfer and the false statements, the element of reliance is absent. (People v. Wooten (1996) 44 Cal.App.4th 1834, 18421843.) Thus, it is impossible to prove causation when the intended victim is not deceived, but agrees to transfer money solely to further an undercover law enforcement operation. (People v. Camodeca (1959) 52 Cal.2d 142, 147; People v. Weltsch (1978) 84 Cal.App.3d 959, 962964.)

Here, whether the Bureau or Mercury was the owner of the insurance proceeds, neither was deceived. None of the Mercury or Bureau employees who took part in the operation testified that the checks were issued to appellant because of a belief, in whole or in part, in the truth of appellants misrepresentations. The Bureau had fully documented the damage to the car, and once it regained possession, the Bureau fully documented the evidence of appellants fraud. Mercury employees Hardege and Walsh knew the claim was a fiction when Hardege wrote up the estimates and gave them to Urena, the Bureaus agent who had devised the operation. Thus, Mercury knew appellants claims were false when it issued the checks.

Reliance is not an element of attempted theft by false pretenses. (People v. Camodeca, supra, 52 Cal.2d at pp. 146147; People v. Grossman (1938) 28 Cal.App.2d 193, 203204.) Thus, when a defendant makes false statements with the requisite intent to steal property, but the intended victim is not deceived, the crime is attempted theft by false pretenses, not the completed offense of theft. (People v. Camodeca, supra, at pp. 145147; People v. Weltsch, supra, 84 Cal.App.3d at pp. 962963; see People v. Rizo (2000) 22 Cal.4th 681, 684685.) When undisputed facts show only an attempt to commit the charged offense, a conviction of the completed offense should be modified accordingly. (People v. Rojas (1961) 55 Cal.2d 252, 260261 [receiving stolen property conviction reduced to lesser-included offense of attempted receiving stolen property]; see also 1 Witkin & Epstein, Cal. Crim. Law (3d. ed. 2000) Elements, 64, p. 273.)

Such a modification was the result in People v. Lorenzo (1976) 64 Cal.App.3d Supp. 43, cited by appellant to illustrate how the victims knowledge and intent to capture a would-be thief precludes a finding of reliance. There, after a store manager observed the defendant switching price tags on products, intending to purchase them at a lower price, the manager allowed the defendant to check out so that he could be arrested in the parking lot. (Id. at p. 47.) The court held that because the managers knowledge had been properly imputed to the victimthe storereliance could not be established. (Ibid.) Thus, the court modified the defendants conviction of theft by false pretenses to attempted theft by false pretenses. (Id. at pp. 4748.)^[2]

Respondent suggests that the completed crime is committed, even where undercover operatives are not deceived, so long as money or property has actually been transferred to the defendant. None of the authorities cited by respondent so held. (See People v. Camodeca, supra, 52 Cal.2d at pp. 144147; People v. Wallace (1947) 78 Cal.App.2d 726, 741742; People v. Burnett (1937) 21 Cal.App.2d 613, 616617.)

Respondent points out that a finding of reliance is not precluded where the false representation was not the sole cause of the victims decision to part with his money or property, so long as it materially induced the decision. (People v. Ashley, supra, 42 Cal.2d at p. 259.) Respondent argues that this was such a case, and relies on authority in which a finding of reliance was upheld where the victim was suspicious or conducted a partial investigation, or when a third-party error facilitated the theft. (See People v. Singh (1995) 37 Cal.App.4th 1343, 1374 [insurer paid claims considered questionable]; People v. Whight, supra, 36 Cal.App.4th at pp. 11471148 [victims loss was due in part to defendants claim that ATM card was valid, and in part due to banks computer error]; People v. Marghzar (1987) 192 Cal.App.3d 1129, 1140 [police informed insurance adjuster that claim might involve fraud, and requested a call when defendant came to pick up check]; People v. Phillips (1960) 186 Cal.App.2d 231, 239 [partial but ineffectual investigation by victim].)

Respondents authorities are inapposite, as none of the victims in those cases had actual knowledge of the falsity of the defendants representations, as Mercury and the Bureau had in this case. Actual knowledge that a statement is false precludes reliance on it. (People v. Weltsch, supra, 84 Cal.App.3d at p. 963; People v. Lorenzo, supra, 64 Cal.App.3d at p. Supp. 47.)

Respondent also contends that partial reliance was established by Hardeges lack of knowledge, or at least, her partial lack of knowledge. Respondent acknowledges that Hardege was informed of the undercover operation, but points out that she had not been told the full extent of the damage to the Honda or how it had been inflicted. Thus, respondent argues, although Mercurys reliance was less than complete, there was sufficient partial reliance to make appellants crime more than an attempted theft by false pretenses.

As we construe respondents argument, it suggests there is, or should be, a rule of imputed ignorance (or imputed semi-ignorance), and that if there were such a rule, it would eliminateat least partiallythe knowledge of Hardeges principals about the details of their own undercover operation. Respondent cites no authority to justify ignoring a partys actual knowledge, and we have found none. In any event, respondents argument would still fail for lack of evidence that Hardeges partial ignorance was a contributing factor in Mercurys decision to issue the checks, or that Mercury issued the checks for any reason other than to obtain possession of the car, prove appellants statements to be false, and prosecute him for the false claim.

In sum, neither Mercury nor the Bureau was deceived, and thus did not rely on appellants false statements. Without evidence of reliance, the element of causation is missing, and the conviction must be reduced to attempted theft by false pretenses. (See People v. Camodeca, supra, 52 Cal.2d at pp. 146147; People v. Lorenzo, supra, 64 Cal.App.3d at pp. Supp. 4748; Pen. Code, 484, 487, 664.)

DISPOSITION

The judgment is modified to reduce appellants conviction under count 8 to attempted grand theft. As so modified, the judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

____________________, J.

ASHMANN-GERST

We concur:

__________________, P. J. _____________________, J.

BOREN CHAVEZ

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^[1] In his own defense, appellant testified, in essence, that he did not own or run the shop. Appellants nephew, Hector Esquivel, testified that he had extensive body repair experience, and managed the shop after the events in this case. In his opinion, Wharton did not correctly assess the damage to the Honda, because he did not tear down the car to observe hidden damage.

^[2] Appellant notes similar results in other jurisdictions that require a showing of reliance on the false pretense. (See e.g., People v. Davis (1986) 112 Ill.2d 55, 5860; People v. Pisciotta (N.Y.A.D. 1983) 98 A.D.2d 926, 927; State v. Greenberg (1977) 154 N.J.Super. 564, 566567; People v. Wilde (1972) 42 Mich.App. 514, 519520.) Indeed, the Michigan case was decided on facts very similar to those in this case. (See People v. Wilde, supra, at pp. 515516.)