IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Placer)
November 30, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
RAYMOND RICHARD WHITALL, DEFENDANT AND APPELLANT.
(Super. Ct. No. 62-68119)
The opinion of the court was delivered by: Nicholson , Acting P. J.
P. v. Whitall
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury convicted defendant Raymond Richard Whitall of two counts of second degree burglary (Pen. Code, §§ 459/460, subd. (b) -- counts one & five),*fn1 one count of grand theft (§ 484, subd. (a) -- count three), two counts of extortion by force or fear (§ 518 -- counts two & six), and two counts of impersonation of an inspector or investigator of a state department (§ 146a, subd. (b) -- counts four & eight).*fn2 Defendant admitted he had four prior strike convictions (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and had served five prior prison terms (§ 667.5, subd. (b)).
Sentenced to state prison for 54 years to life, defendant appeals, contending the trial court erred when it denied, at the close of the People's case, his motion for acquittal (§ 1118.1) of the extortion conviction charged in count six.*fn3 Alternatively, defendant argues the evidence is insufficient to sustain the conviction on appeal. Because the test for sufficiency of the evidence on appeal is the same for both the motion for acquittal and to sustain the conviction on appeal (People v. Cuevas (1995) 12 Cal.4th 252, 261), we need only one of the two contentions, and we choose the latter.
El Azteca Taqueria
Hipolita Mora and Israel Luna own the El Azteca Taqueria restaurant in Roseville. On February 6, 2007, defendant came to the restaurant and told Mora and Luna that he was an inspector with CAL-OSHA and was there to conduct an inspection for hazardous chemicals. Defendant, who had badges that said CAL-OSHA on his jacket and his belt, then purportedly conducted the inspection.
After the inspection, defendant filled out paperwork labeled CAL-OSHA and told Luna that the violations could total $70,000. Defendant said the paperwork could be fixed and the fines reduced for $3,000 in cash; however, for this to be done, Luna would have to pay at least $1,000 in cash that day. Luna paid defendant $1,000 in cash and Luna said that defendant left to get a receipt from his car, but never returned.
A short time later, after seeing reports on TV regarding a phony CAL-OSHA inspector, Luna contacted the police. Luna identified defendant from a photo lineup and at trial as the individual who claimed to be a CAL-OSHA inspector.
On February 10, 2007, Richard and Jane Glaser were at Denny's Cafe, a small Chinese restaurant in Roseville, for dinner.*fn4 The Glasers frequently ate at the restaurant and knew the two people who ran the restaurant, Kenny Kan-Lai and his brother Tommy. As the Glasers were waiting for their order to be taken, Richard could see Kenny in the back with someone. Kenny came out and handed Richard a piece of paper and then took his "business licenses" off the wall and returned to the back of the restaurant. The piece of paper "had to do with some CAL-OSHA rules and regulations" and Richard read it.
Shortly thereafter, Kenny came back out, got some money from the cash register, and returned to the back of the restaurant. About 10 to 15 minutes later, defendant came out of the back and headed for the door. Richard asked defendant if he was with CAL-OSHA and said he would like to see an "ID and a business card." Defendant said, "Don't have any," and immediately left the restaurant.
On April 14, 2007, Fresno Police Officer Victor Miranda responded to a call by the owners of the Zamora Carnitas restaurant that a "suspicious" inspector was onsite. The owners told Officer Miranda that the CAL-OSHA inspector had been there for several hours inspecting the business and had informed them of several violations and fines which they would have to pay to avoid having to close the restaurant.
Officer Miranda contacted the purported CAL-OSHA inspector, whom the officer identified as defendant, inside the restaurant. Defendant provided Officer Miranda with a CAL-OSHA badge bearing his name and gave Officer Miranda the telephone number of defendant's supervisor. The badge appeared to have been "homemade" and Officer Miranda was unable to contact the person defendant claimed was his supervisor. Officer Miranda ran a warrant check and arrested defendant. A search of defendant's vehicle disclosed a list of Asian and Mexican restaurants.
In relevant part, section 518 provides: "Extortion is the obtaining of property from another, with his consent, . . . induced by a wrongful use of force or fear, or under color of official right." Obviously, the obtaining of property from another is an element of the offense.*fn5
Defendant contends that his conviction for extortion in count six must be reversed because the record does not contain any direct evidence that he obtained money from Kenny Kan-Lai, and that any determination that he did obtain money would have to be based upon a permissive inference arising from circumstantial evidence. Thus, defendant concludes, "the absence of any evidence regarding the disposition of the money removed from the cash register by [Kenny] Kan-Lai reduces the jury's apparent conclusion that [he] obtained the money to no more than conjecture or a guess." We disagree.
"In assessing a claim of insufficiency of evidence, the reviewing court's task is to review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence -- that is, 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. [Citation.] . . . The standard of review is the same in cases in which the prosecution relies mainly on circumstantial evidence. [Citation.] '"Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court[,] which must be convinced of the defendant's guilt beyond a reasonable doubt. '"If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment."' [Citations.]"' [Citation.]." (People v. Rodriguez (1999) 20 Cal.4th 1, 11.)
The undisputed evidence showed that defendant had concocted a scheme for extorting money from owners of Asian and Mexican restaurants by representing himself to the owner(s) as a CAL-OSHA representative, conducting an inspection of the premises, finding several violations and assessing fines amounting to thousands of dollars. Defendant would then offer to fix or reduce the fines in exchange for a much lesser immediate cash payment.
On February 6, 2007, defendant employed his scheme at El Azteca Taqueria: The owners, Mora and Luna, testified that defendant represented himself as a CAL-OSHA inspector, conducted an inspection, told Luna that the violations amounted to $70,000, and threatened to shut the restaurant down unless he was then given $3,000 in cash. The owner only had $1,000 in cash and defendant took that amount and left.
On February 10, 2007, defendant again employed his scheme at Denny's Cafe. Although neither Tommy nor Kenny Kan-Lai testified, Richard Glaser testified that he was in the restaurant to eat; that he saw Kenny in the back of the restaurant with someone; that Kenny came from the back and handed Glaser a paper with CAL-OSHA rules and regulations; that Kenneth removed his business license from the wall and returned to the back of the restaurant; and that Kenny came out from the back again, obtained money from the cash register, and went into the back again. Defendant then emerged from the back and was on his way to the door when he was confronted by Glaser. Glaser asked for CAL-OSHA identification and a business card, but defendant said that he did not have any and hurried out the door.
From the foregoing facts, the jury could reasonably infer beyond a reasonable doubt that Kenny had taken his business license off of the wall and returned to the back of the restaurant because defendant had found violations and threatened to close him down. Similarly, the jury could reasonably conclude that when Kenny again came from the back and obtained money from the cash register, he did so because, as with Luna, defendant had offered Kenny a reduction in the fines in exchange for a lesser amount of cash. And finally, as was the case with Luna, the jury could reasonably conclude that defendant hurriedly exited the restaurant because he had been given the money Kenny obtained from the cash register.
The judgment is affirmed.
We concur: ROBIE , J. MAURO , J.