Metropolitan News-Enterprise


Tuesday, September 25, 2007


Page 1


C.A. Orders Resentencing for Woman Who Put Fingertip in Chili

But Panel Upholds Order That San Jose Woman Pay Restitution to Employees Whose Hours Were Cut




The woman who drew national headlines when she claimed to have found a severed human fingertip in a bowl of restaurant chili is entitled to a new sentencing hearing based on a recent U.S. Supreme Court decision, the Sixth District Court of Appeal has ruled.

But while Friday’s ruling gives Anna Ayala a chance to cut a year or two off her five-year base sentence, it was a defeat for her on two other issues. The justices upheld a four-year enhancement for having “damaged or destroyed property”—the restaurant franchisee’s anticipated profits—valued in excess of $2.5 million, and held that restaurant employees whose hours were cut after business fell off as a result of the hoax were direct victims entitled to restitution.

Ayala claimed to have bitten into the finger in a bowl of chili that she ordered in March 2005 at a Wendy’s in San Jose. She showed the finger to several other patrons, suggesting they not eat the chili because “look what I found in mine.”

Tarnished Image

Wendy’s, which claimed to have lost $1 million a day in sales before the hoax was disproved about a month later, had forensic tests done. They showed that the finger could not have been cooked in chili at 170 degreed for three hours, which is the way Wendy’s prepares it.

A $100,000 reward offer produced the truth, that the tip was purchased by Ayala’s husband for $100 from a coworker who had been involved in an on-the-job accident. The coworker said Ayala’s husband, who pled guilty to insurance fraud and attempted grand theft, admitted that his wife put the fingertip in the chili in order to bring a lawsuit, and offered him part of the proceeds to buy his silence.

Prosecutors charged Ayala with insurance fraud and attempted grand theft in the Wendy’s case, and with grand theft in a separate case in which she collected an $11,000 down payment in connection with the sale of a mobile home, without telling the buyer that the loan secured by the property was in default. The buyer lost her savings, along with money she had borrowed to make the downpayment.

Guilty Plea

Ayala pled guilty to all counts and to admit the special allegations regarding damaged and destroyed property. Santa Clara Superior Court Judge Edward Davila sentenced her to the upper term of five years in prison for insurance fraud, plus a four-year property damage enhancement. She received a stayed sentence for attempted grand theft and a concurrent sentence for grand theft, and ordered to pay restitution of more than $21 million to Wendy’s parent company, nearly $500,000 to the franchisee who owned the San Jose restaurant, and over $170,000 to 186 of the franchisee’s workers.

On appeal, Ayala claimed that the employees were not direct victims of the crime and thus were not entitled to restitution. Justice Wendy Clark Duffy, writing for the court, said there is nothing in the statute which limits restitution to the intended victim, and that it was the Legislature’s intent to extend restitution to “those unintentionally—but directly—harmed by [the crime].”

Duffy also said Ayala had forfeited her argument that depriving a victim of its profits is not the same as destroying or damaging its property within the meaning of the applicable enhancement statute, Penal Code Sec. 12022.6(a)(4). Having admitted the allegation, the justice said, Ayala could not appeal without obtaining a certificate of probable cause.

The Penal Code prohibits a defendant who pleads guilty from appealing unless the trial judge finds that there is probable cause to believe that the appeal will succeed. The statute does not apply to post-plea sentencing issues that could not be anticipated at the time of the plea.

Justices’ Reasoning

Ayala’s claim, Duffy concluded, was not, in substance, a challenge to the judge’s sentencing decision but rather an attack on the validity of her admission that the allegation was true, and thus is not exempt from the certificate requirement.

The jurist, however, agreed with the defense that resentencing is required under Cunningham v. California  (2007) 127 S.Ct. 856.

The Sixth Amendment to the U.S. Constitution, as interpreted in that case, prohibits the imposition of an upper term sentence based on judicial factfinding, except as to prior convictions. Davila said Ayala deserved the higher term because of the “callousness” of her actions and because “the manner in which the crime was carried out...indicates planning and sophistication.”

While the court has, in some cases, upheld upper term sentences by finding the lack of jury factfinding to be harmless beyond a reasonable doubt, Duffy said, that cannot be done in this case because the judge based his findings solely on a brief recitation of facts in the probation report, so there is some possibility that a jury would have found otherwise.

The case is People v. Ayala, 07 S.O.S. 5887.


Copyright 2007, Metropolitan News Company