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Name: People v. Ayala
Case #: H030471
Court: CA Court of Appeal
District 5 DCA
Opinion Date: 09/21/2007
Subsequent History: 11/28/07: review granted: S157148

The term “victim” in the restitution statutes is not restricted to those who are direct targets or objects of the crime but extends to those who suffer a loss resulting from the crime. In the infamous Wendy’s severed-finger case, appellant concocted a scheme to extort money from Wendy’s restaurant after planting a severed human finger in a bowl of Wendy’s chili and then claiming emotional trauma. The tort scheme unraveled and she ultimately pled guilty to insurance fraud and grand theft, and admitted a property damage enhancement. Thereafter she was sentenced to the upper term for the insurance fraud and was ordered to make restitution to employees of Wendy’s for losses they incurred as a result of loss of customers attributed to the “finger” episode. Appellant’s claim that the employees were not entitled to restitution as they were not the target of the crime was rejected by the court which noted that the California Supreme Court has given the term “victim” a broad and flexible meaning to include those who suffer a loss as a result of the crime. (People v. Broussard (1993) 5 Cal.4th 1067). Appellant additionally claimed that the sentence imposed for the property enhancement was error because the property damage enhancement was based on lost profits and, as such, did not constitute “property” under the statute. The court found that the claim was barred because, in substance, it was a dispute as to the factual basis for the plea and required a certificate of probable cause which appellant had failed to obtain. The appellate court did agree with appellant’s claim of Blakely/Cunningham error as to the upper-term sentence and remanded for resentencing. The trial court imposed the upper term, stating that the crime involved a high degree of callousness and the manner in which it was carried out indicated planning and sophistication. The appellate court found that appellant did not forfeit the claim as it would have been futile to object since sentencing was post-Black I but pre-Cunningham. Blakely error occurred, and the record was so minimal (a one-and-a-half-page description of the offense in the probation report) that it could not be established that the error was harmless beyond a reasonable doubt.