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The People v. Timothy Fisher

May 10, 2013

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
TIMOTHY FISHER, DEFENDANT AND APPELLANT.



APPEAL from a judgment of the Superior Court of Lassen County, F. Donald Sokol, Judge. (Super. Ct. No. CR029160)

The opinion of the court was delivered by: Hoch , J.

CERTIFIED FOR PARTIAL PUBLICATION*fn1

Reversed in part and affirmed in part.

A jury convicted defendant Timothy Fisher of delivering a letter with intent to extort money or other property (Pen. Code, § 523*fn2 ) and found a prior prison term allegation (§ 667.5) to be true.

Sentenced to county jail pursuant to section 1170, subdivision (h), for an aggregate term of four years, defendant appeals. He contends (1) insufficient evidence supports his conviction, (2) he was entitled to day-for-day conduct credit, (3) the trial court imposed an unauthorized sentence when it issued an order restraining defendant from contacting the victim, and (4) the minute order erroneously reflects he was sentenced as a two-strike offender. We conclude defendant's demand for a job constituted a demand for property for purposes of the extortion statute. Accordingly, there is sufficient evidence supporting defendant's conviction. As to the conduct credit, restraining order, and sentencing minutes, defendant's contentions have merit. Defendant is entitled to day-for-day credits. The restraining order must be vacated because there is no authority for such a restraining order. And the sentencing minutes must be corrected to delete reference to defendant as a two-strike offender. Thus, we order the trial court to provide day-for-day credits, vacate the restraining order, and delete the incorrect two-strike offender reference in the sentencing minutes. In all other respects, the judgment is affirmed.

FACTS

On September 14, 2011, defendant applied for a job at Susanville Towing, giving a completed job application to Brian Phillips, the owner of the towing company. In his application, defendant stated he desired a mechanic or shop hand position that paid "$8.15." Defendant also gave Phillips an envelope. Phillips told defendant his application would be kept on file and if a job became available, defendant would be contacted.

Phillips opened the envelope and found a four-page letter signed by defendant. Defendant began by thanking Phillips for considering him for employment and stated: "It is important that we acknowledge the fact that this is not a typical situation." Defendant described his prior vandalism conviction for sanding paint off of a car, which he claimed he had committed in the presence of the police.

On the second page, defendant acknowledged the tight job market and commented, "You need not waste your time or mine with the standard; [sic] 'Thank you for completing the application . . . . We'll keep it on-file and notify you should anything develop." Defendant said he could pass a drug screen and stated, "I hardly believe that it is unreasonable to ask that you start me at the minimum wage, part-time if you like."

Defendant reminded Phillips that defendant's parole agent, Robert Hartner, had made the job referral. Defendant stated he included the personal cell phone number of his parole agent on his job application without the agent's authorization.

Defendant continued: "I intend to visit your office today at five o'clock p.m. in order to determine whether or not I am employed by your company; [sic] Susanville Towing," commenting that he believed he would more than meet expectations. Defendant then threatened, "Regretfully, if not however [sic], I will be armed with a piece of eighty-grit sandpaper that we both know I will not hesitate to use. [¶] I know how detrimental it would be to your business if the paint on a customers' [sic] vehicle were to be abraded during this endeavor; [sic] and would like to avoid this at all costs."

Defendant told Phillips he could "avert this situation by informing Mr. Hartner -- preferably sometime before five -- that I have attempted to extort a job from you," which would require Phillips "to waste an entire day" testifying against defendant, which was another "situation I would like to avoid." Defendant concluded, "please believe me when I say that I am a true professional, that will be a valuable asset to your company."

After Phillips read this letter, he called Agent Hartner to express his concern. Agent Hartner contacted defendant who admitted he had written and given the letter to Phillips. Defendant stated he intended "to carry out the threat of sandpapering the vehicles." Agent Hartner arrested defendant and found on him a piece of 80-grit sandpaper.

Defendant testified at trial. He claimed his prior act of vandalism and his threat in the present case resulted in "self-imposed arrest[s]" because he "decided to take three hots and a cot in lieu of not being able to locate a steady source of income through employment." Upon release from prison on September 6, 2011, he was unable to find employment or acceptable housing. He claimed Hartner ...


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