People v. Vidana ( 2015 )

Filed 1/23/15
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, G050399
v. (Super. Ct. No. RIF1105527)
JUANITA VIDANA, OPINION
Defendant and Appellant.
Appeal from a judgment of the Superior Court of Riverside County,
Edward D. Webster, Judge. Affirmed as modified.
Valerie G. Wass, under appointment by the Court of Appeal, for Defendant
and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and
Michael Pulos, Deputy Attorneys General, for Plaintiff and Respondent.
*
Pursuant to California Rules of Court, rule 8.1105(b) and 8.1110, this
opinion is certified for publication with the exception of parts II, III and IV of the
discussion section.
A jury found defendant Juanita Vidana guilty of one count of grand theft by
1
larceny (Pen. Code, § 487, subd. (a)) and one count of grand theft by embezzlement
(§ 503). The trial court suspended imposition of sentence and granted defendant 36
months of formal probation. She was ordered to serve 240 days in jail: 30 straight days,
and the remainder to be served on weekends. In addition to the usual fines and fees,
defendant was ordered to pay $58,273.02 in victim restitution. (§ 1203.1, subd. (a)(3).)
Defendant raises four issues on appeal. First, she contends the two counts,
larceny and embezzlement, are not separate offenses, but two ways of committing a
single offense: theft. Second, she contends substantial evidence does not support the
verdict. Third, she contends the court abused its discretion in denying her motion to
reduce the charges to misdemeanors (§ 17, subd. (b)). Fourth, she contends the court
abused its discretion in setting the amount of restitution at $58,273.02. In the published
portion of this opinion, we agree with her first contention and strike her conviction under
count 2 (grand theft). In the unpublished portion of this opinion, we reject her remaining
contentions and affirm the remainder of the judgment.
FACTS
Defendant worked for Robertson’s Ready Mix (Robertson’s), a company
that sells concrete, from 2005 to 2011 as a credit agent. Her duties included ensuring
invoices were paid, and providing a material release once an account was paid (most of
Robertson’s customers would not have to pay for the concrete until the customer was
paid on the particular job). Robertson’s recourse if it did not get paid was to file a lien.
The credit agents were responsible for tracking the relevant time periods to ensure that, if
1
All statutory references are to the Penal Code unless otherwise stated.
2
necessary, a lien was timely filed. Each credit agent was assigned particular customers,
up to as many as 400.
When a customer came into Robertson’s to pay an invoice with cash, the
customer would tender payment to the assigned credit agent. The credit agent would then
write a receipt for the customer. Next, the credit agent would write the customer number
and amount of cash on an envelope, put the cash in the envelope, and take the cash to
either Teri Bernstein or Megan Levato. If neither of them were available, the cash would
go to a backup employee, Rosa. Bernstein or Levato would then count the cash and
double check that the amount written on the envelope was accurate. Once the amount
was verified, Levato would lock the money in her desk to be deposited in the bank. If the
money came in too late to be deposited that day, Levato would put it into a safe. If
Levato were not there, the money could be given to Kaye Bennett (defendant’s
supervisor), the president of the company, or the operations manager, all of whom knew
the combination to the safe. After the money was received and verified, Levato would
instruct another employee to update the company’s computer database with the amounts
received from that particular customer. The credit agent assigned to that particular
customer would then access the customer’s account within the database and apply the
money received to the appropriate invoice.
Every one to two weeks, each credit agent was required to pull up an aging
report, which showed unpaid invoices, to ensure his or her customers were making timely
payments. This was essential to ensure liens were timely filed. If unpaid invoices were
approaching the deadline to file a lien, the credit agent’s job was to call the customer to
inquire about receiving payment.
3
In June 2011 defendant went on maternity leave and another credit agent,
Tina Hawkins, took over defendant’s customer account for Longhorn Pumping. Hawkins
immediately noticed that the account was delinquent. Hawkins called Longhorn
Pumping to inquire about the delinquency. She informed the owner of Longhorn
Pumping that his account was being placed on hold until the payment was made. The
owner disagreed, insisting he had paid cash the day before. He brought in his receipts to
prove that he had paid. The receipts were consistent with defendant’s handwriting. But
there was no record of the money received in the database. Bennett spoke with defendant
on the phone and asked her about the customer’s payment. Defendant stated she had
given the cash to either Bernstein or Levato, pursuant to company policy.
This incident prompted Bennett to review other receipts in defendant’s
receipt book. She discovered a total of $58,273.02 in cash payments reflected on
defendant’s receipts that were missing from the database. The receipts with missing cash
entries span from June 2010 to May 2011 and involve 12 different customers. In some
instances, the entirety of the cash payment reflected on a particular receipt is missing
from the database. In other instances, the database reflected only part of a cash payment
reflected on defendant’s receipt. With respect to those instances, at trial the People
presented four envelopes submitted by defendant on which she wrote an amount less than
what was reflected on the corresponding receipt she had issued. The total amount
missing from those four envelopes was $10,976.00.
Bennett testified that, based on how Robertson’s system works, “a credit
agent in defendant’s position [would] know that money is missing,” and that it would be
impossible for a credit agent to be unaware because the unpaid invoice would show up on
the agent’s aging report, which the agent must check regularly. Indeed, defendant, who
testified, admitted she checked to see if payments had posted approximately once per
week. Over the period of the missing cash entries, however, defendant never approached
Bennett about any missing cash payments.
4
Defendant denied taking any money. She could not explain what happened
to the missing money other than that it may have been applied to the wrong account. She
also testified, however, that she checked her aging reports on a weekly basis. She
testified that an accurate aging report was important to her. She also could not explain
the envelopes that had cash amounts less than what was reflected on the receipt.
DISCUSSION
I. Defendant was Improperly Convicted of Both Larceny and Embezzlement
First, defendant contends that she could not have been convicted of both
larceny and embezzlement because they are not separate offenses; they are two ways of
committing theft. We agree.
Our high court recently described the historical underpinnings of the
various types of theft in People v. Williams (2013) 57 Cal. 4th 776 (Williams), from which
we quote at length:
“Britain’s 18th-century division of theft into the three separate crimes of
larceny, false pretenses, and embezzlement made its way into the early criminal laws of
the American states. That import has been widely criticized in this nation’s legal
community because of the seemingly arbitrary distinctions between the three offenses
and the burden these distinctions have posed for prosecutors. [Citations.] [¶] For
instance, it was difficult at times to determine whether a defendant had acquired title to
the property, or merely possession, a distinction separating theft by false pretenses from
larceny by trick. [Citations.] It was similarly difficult at times to determine whether a
defendant, clearly guilty of some theft offense, had committed embezzlement or
larceny . . . .” (Williams, supra, 57 Cal.4th at pp. 784-785.)
“In the early 20th century, many state legislatures, recognizing the burdens
imposed on prosecutors by the separation of the three crimes of larceny, false pretenses,
5
and embezzlement, consolidated those offenses into a single crime, usually called ‘theft.’
[Citations.] The California Legislature did so in 1927, by statutory amendment.
[Citations.] In a 1954 decision, this court explained: ‘The purpose of the consolidation
was to remove the technicalities that existed in the pleading and proof of these crimes at
common law. Indictments and informations charging the crime of ‘theft’ can now simply
allege an “unlawful taking.” [Citation.] Juries need no longer be concerned with the
technical differences between the several types of theft, and can return a general verdict
of guilty if they find that an “unlawful taking” has been proved.’” (Williams, supra, 57
Cal.4th at pp. 785-786, fn. omitted, italic added; § 484, subd. (a) as amended by Stats.
1927, ch. 619, § 1, p. 1046.)
Section 484, subdivision (a), currently states: “Every person who shall
feloniously steal, take, carry, lead, or drive away the personal property of another [i.e.,
larceny], or who shall fraudulently appropriate property which has been entrusted to him
or her [i.e., embezzlement], or who shall knowingly and designedly, by any false or
fraudulent representation or pretense, defraud any other person of money, labor or real or
personal property [i.e. false pretenses], is guilty of theft.”
“‘In an effort to further clarify its intent to bring all of the theft crimes
under one umbrella,’ section 490a was also enacted in 1927 . . . .” (People v. Nazary
(2010) 191 Cal. App. 4th 727, 740 (Nazary).) Section 490a provides, “Wherever any law
or statute of this state refers to or mentions larceny, embezzlement, or stealing, said law
or statute shall hereafter be read and interpreted as if the word ‘theft’ were substituted
therefor.”
“When the formerly distinct offenses of larceny, embezzlement, and
obtaining property by false pretenses were consolidated in 1927 into the single crime of
‘theft’ defined by . . . section 484, most of the procedural distinctions between those
offenses were abolished. But their substantive distinctions were not: ‘The elements of
the several types of theft included within section 484 have not been changed, however,
6
and a judgment of conviction of theft, based on a general verdict of guilty, can be
sustained only if the evidence discloses the elements of one of the consolidated
offenses.’” (People v. Davis (1998) 19 Cal. 4th 301, 304-305, italics added.)
Defendant contends that this statutory history demonstrates that the
different theft offenses have been merged into a single offense, and thus she could not be
convicted of both larceny and embezzlement. This exact argument was made in Nazary,
and the court rejected it, concluding the argument was “meritless because the elements of
embezzlement and grand theft by an employee, and the distinction between them,
continue to exist.” (Nazary, supra, 191 Cal.App.4th at p. 741.)
Defendant contends Nazary was wrongly decided and instead relies on
People v. Fenderson (2010) 188 Cal. App. 4th 625 (Fenderson). In Fenderson the
defendant was convicted of larceny for taking money belonging to the estate of a
decedent for whom the defendant had been the caretaker. (Id. at p. 628.) The defendant
argued the evidence showed, at most, embezzlement, but that the jury was only instructed
on larceny. (Id.at pp. 635-637.) Although the court affirmed the larceny conviction, it
held, in the alternative, that the conviction could also be sustained under a theory of
embezzlement, even though the jury was never instructed on embezzlement. (Id. at p.
637.) The court noted a conflict in the appellate courts regarding whether a theft
conviction may be upheld on a theory not presented to the jury. (Id. at pp. 640-641.)
Nonetheless, the court held it was appropriate because, as it viewed the two, theft by
larceny was an “‘increased . . . evidentiary burden’” (id. at p. 641) over embezzlement,
and since the People proved larceny, it would make little sense to require a jury to pass
on embezzlement. The court also reasoned that “‘[i]t would obviously be very hard to
explain why a theft conviction should be reversed on the grounds that the evidence
showed the defendant was indeed guilty of theft, but would have been guilty of a
differently denominated type of theft under a common law system which has been
repealed by statute.’” (Id. at pp. 641-642.)
7
The issue confronted by the Fenderson court however, is not before us.
Here, the jury was instructed on both larceny and embezzlement.
Instead, we must decide whether larceny and embezzlement are different
offenses, or merely different ways of committing the single offense of theft. On that
issue, we are guided by our high court’s recent decision in People v. Gonzalez (2014) 60
Cal. 4th 533 (Gonzalez). There, the court was confronted with the question of “whether a
defendant may, consistently with . . . section 954, be convicted of both oral copulation of
an unconscious person [citation] and oral copulation of an intoxicated person [citation]
2
based on the same act.” (Id. at p. 535, fn. omitted.) The court began its analysis by
observing, “We have repeatedly held that the same act can support multiple charges and
multiple convictions. ‘Unless one offense is necessarily included in the other [citation],
multiple convictions can be based upon a single criminal act or an indivisible course of
criminal conduct (§ 954).’” (Gonzalez, at p. 537.) The court treated the issue as one of
statutory interpretation: “[T]he determination whether subdivisions (f) and (i) of section
288a define different offenses or merely describe different ways of committing the same
offense properly turns on the Legislature’s intent in enacting these provisions, and if the
Legislature meant to define only one offense, we may not turn it into two.” (Ibid.)
2
Section 954 states, “An accusatory pleading may charge two or more
different offenses connected together in their commission, or different statements of the
same offense or two or more different offenses of the same class of crimes or offenses,
under separate counts, and if two or more accusatory pleadings are filed in such cases in
the same court, the court may order them to be consolidated. The prosecution is not
required to elect between the different offenses or counts set forth in the accusatory
pleading, but the defendant may be convicted of any number of the offenses charged, and
each offense of which the defendant is convicted must be stated in the verdict or the
finding of the court; provided, that the court in which a case is triable, in the interests of
justice and for good cause shown, may in its discretion order that the different offenses or
counts set forth in the accusatory pleading be tried separately or divided into two or more
groups and each of said groups tried separately. An acquittal of one or more counts shall
not be deemed an acquittal of any other count.”
8
Although oral copulation of an unconscious person and oral copulation of
an intoxicated person are reflected in subdivisions of a single statute, the court held they
are separate offenses. It reasoned, “Section 288a is textually and structurally different
from former section 261 [i.e., rape]. Subdivision (a) of section 288a defines what
conduct constitutes the act of oral copulation. Thereafter, subdivisions (b) through (k)
define various ways the act may be criminal. Each subdivision sets forth all the elements
of a crime, and each prescribes a specific punishment. Not all of these punishments are
the same. That each subdivision of section 288a was drafted to be self-contained
supports the view that each describes an independent offense, and therefore section 954 is
no impediment to a defendant’s conviction under more than one such subdivision for a
single act.” (Gonzalez, supra, 60 Cal.4th at p. 539.)
Following the lead of Gonzalez, we view the issue before us as one of
statutory interpretation. However, we confront a much different statutory scheme to that
addressed in Gonzalez. Here, we have two explicit legislative pronouncements. Section
484 defines “tak[ing] away the personal property of another” (i.e., larceny) and
“fraudulently appropriat[ing] property which has been entrusted” (i.e., embezzlement) as
“theft.” Section 490a eliminates any remaining uncertainty by literally excising the
words “larceny” and “embezzlement” from the legislative dictionary: “Wherever any
law or statute of this state refers to or mentions larceny, embezzlement, or stealing, said
law or statute shall hereafter be read and interpreted as if the word ‘theft’ were
substituted therefor.” (Ibid.) Taken at face value, these legislative amendments plainly
eliminated the distinctions between the various theft offenses. This interpretation is not
only the plain reading, but is consistent with the contemporaneous criticisms of the
concept of having three separate offenses, all of which seek to punish unlawful takings of
money or personal property. (See Williams, supra, 57 Cal.4th at pp. 784-785 [collecting
the contemporaneous criticisms of various commentators].)
9
Despite these legislative pronouncements, Nazary held larceny and
embezzlement to be separate offenses on the sole ground that they require different
elements. In our view, that is insufficient because an offense that can be committed in
multiple ways will naturally have varying elements. For example the crime of rape.
Section 261, subdivision (a), defines rape as follows: “Rape is an act of sexual
intercourse accomplished with a person not the spouse of the perpetrator, under any of
the following circumstances . . . .” The statute then lists several quite different ways of
committing rape; for example, where, by reason of a mental disorder, the victim is
incapable of giving consent; by force, violence, duress, menace, or fear; against an
intoxicated person; against an unconscious person; etc. (Id., subds. (a)(1)-(a)(7).) Each
of these subdivisions plainly involves different elements, and if that were the only test,
they should be different crimes. However, they are not, they are all merely different
ways of committing a single offense of rape. (People v. Collins (1960) 54 Cal. 2d 57, 59
superseded by statute on other grounds in People v. Lohbauer (1981) 29 Cal. 3d 364, 372
[“The subdivisions of section 261 do not state different offenses but merely define the
different circumstances under which an act of intercourse constitutes the crime of rape”].)
The same can be said of forgery, which likewise sets forth multiple ways of committing
the offense (i.e. misrepresenting a name, falsifying a will, forging a seal or signature,
etc.). (§ 470.) Yet “the commission of any one or more of the acts enumerated in section
470, in reference to the same instrument, constitutes but one offense of forgery . . . .”
(People v. Ryan (2006) 138 Cal. App. 4th 360, 371.)
Statutory construction cannot consist in merely counting elements. Given
the explicit statutory pronouncements combining the various types of theft into a single
offense, the mere fact that the different theories of theft entail different elements is not
controlling. Rather, we must give effect to the Legislature’s explicit intent. The potential
countervailing statutory considerations are that embezzlement is defined in a separate
statute (§ 503), and where the embezzlement is of government funds, the punishment is
10
harsher (otherwise the punishment is the same as theft) (§ 514). Section 503, however,
predates the 1927 amendments. And the fact that embezzlement carries a harsher
punishment in a very specific situation is not sufficiently indicative of the Legislature’s
intent as to overcome the otherwise explicit indications of its intent embodied in sections
484 and 490a. Accordingly, we conclude larceny and embezzlement are merely two
ways of committing the single offense of theft. Therefore, we will strike defendant’s
3
conviction under count 2 for grand theft (larceny).
II. Substantial Evidence Supports the Verdict
Next, defendant contends the verdict is not supported by substantial
evidence. We disagree.
“To determine the sufficiency of the evidence to support a conviction, an
appellate court reviews the entire record in the light most favorable to the prosecution to
determine whether it contains evidence that is reasonable, credible, and of solid value,
from which a rational trier of fact could find the defendant guilty beyond a reasonable
doubt.” (People v. Kipp (2001) 26 Cal. 4th 1100, 1128.) “An appellate court must accept
logical inferences that the jury might have drawn from the circumstantial evidence.”
(People v. Maury (2003) 30 Cal. 4th 342, 396.) “‘A reasonable inference, however, “may
not be based on suspicion alone, or on imagination, speculation, supposition, surmise,
conjecture, or guess work. [¶] . . . A finding of fact must be an inference drawn from
3
We note that, were the events of this case to repeat themselves today, after
our high court’s decision in People v. Whitmer (2014) 59 Cal. 4th 733, the prosecutor
could charge each of defendant’s takings as a separate theft offense. (Id. at p. 741.) The
rule announced in Whitmer, however, does not apply retroactively. (Id. at p. 742.) And
since the events of this case pre-date Whitmer, defendant’s actions would likely be
interpreted as a single plan or scheme giving rise to only a single court of theft (Id. at p.
739.), which is how the prosecutor charged and tried this case.
11
evidence rather than . . . a mere speculation as to probabilities without evidence.”’”
(People v. Raley (1992) 2 Cal. 4th 870, 891.)
“The elements of theft by larceny are well settled: the offense is committed
by every person who (1) takes possession (2) of personal property (3) owned or possessed
by another, (4) by means of trespass and (5) with intent to steal the property, and (6)
carries the property away.” (People v. Davis, supra, 19 Cal.4th at p. 305.)
“The elements of embezzlement are ‘1. An owner entrusted his/her property
to the defendant; 2. The owner did so because he/she trusted the defendant; 3. The
defendant fraudulently converted that property for his/her own benefit; [and] 4. When the
defendant converted the property, he/she intended to deprive the owner of its use.’”
(Fenderson, supra, 188 Cal.App.4th at p. 636.) Both the larceny and embezzlement
counts were tried as grand theft, and thus the amount stolen had to exceed $950. (§ 487,
subd. (a).)
The focus of defendant’s argument, which applies to both counts, is that
there was no substantial evidence that she took any money from Robertson’s. Defendant
notes there were multiple people at Robertson’s who could have handled the cash she
received. Although company policy was that Bernstein and Levato would take the
money from credit agents, in their absence, as many as three other people could fill that
role. Defendant claims any of those individuals could have stolen the money.
Additionally, credit agents would often cover for one another if someone was out of the
office. Defendant also notes that for the year she was accused of stealing money, none of
her customers had complained that payments were missing from their statements.
None of this evidence undercuts the judgment. The receipts issued to the
customers at issue were from defendant’s receipt book. Perhaps the most damning
evidence at trial was the four envelopes on which defendant wrote cash amounts that
were less than the corresponding amount she had written on the receipt. Defendant was
the only one to handle the cash received from the customer and to place it in the envelope
12
with the amount written on the outside, and thus she was the only one who could have
taken the difference. Defendant’s only response was that the prosecution failed to call a
handwriting expert as a witness to prove the writing on the envelope was hers. But no
expert was needed. (Evid. Code, §§ 1416 [“A witness who is not otherwise qualified to
testify as an expert may state his opinion whether a writing is in the handwriting of a
supposed writer if the court finds that he has personal knowledge of the handwriting of
the supposed writer”], 1417 [“The genuineness of handwriting, or the lack thereof, may
be proved by a comparison made by the trier of fact with handwriting (a) which the court
finds was admitted or treated as genuine by the party against whom the evidence is
offered or (b) otherwise proved to be genuine to the satisfaction of the court”].) Bennett
testified that the handwriting on the envelopes was defendant’s handwriting. Bennett had
worked with defendant for six years. And the jury was free to compare the handwriting
to uncontested examples of defendant’s handwriting, from, for example, defendant’s
receipt book, to make its own determination. Moreover, with respect to one of the
envelopes in question, defendant admitted it was her handwriting on it.
The envelopes are evidence that defendant stole at least $10,976.00 — an
amount that easily exceeds the $950 threshold for grand theft. Accordingly, this evidence
alone supports the verdict.
III. Refusing to Reduce the Charges to Misdemeanors Was Not an Abuse of Discretion
Next defendant contends the court abused its discretion by refusing to
reduce the theft offenses to misdemeanors. “Under the governing statutes, grand theft is
a so-called ‘wobbler’ — i.e., an offense which may be charged and punished as either a
felony or a misdemeanor [citation] . . . .” (Davis v. Municipal Court (1988) 46 Cal. 3d 64,
70.) Here the district attorney charged the grand theft count as a felony. At the
sentencing hearing, defendant brought an oral motion under section 17, subdivision (b),
to reduce the offenses to misdemeanors. The court denied the motion, stating, “There are
13
at least 24 separate acts of theft, some in the amount of over $6,000. When you take
advantage of a position of trust, I think it would be an abuse of discretion to reduce the
matter to a misdemeanor. This is not misdemeanor conduct, so I’d deny that request.”
Whether to reduce a charge to a misdemeanor under section 17, subdivision
(b), “rests . . . solely ‘in the discretion of the court.’” (People v. Superior Court (Alvarez)
(1997) 14 Cal. 4th 968, 977.) The factors the court should consider include “‘the nature
and circumstances of the offense, the defendant’s appreciation of and attitude toward the
offense, or his traits of character as evidenced by his behavior and demeanor at the trial.’
[Citations.] When appropriate, judges should also consider the general objectives of
sentencing such as those set forth in California Rules of Court, rule 410. The corollary is
that even under the broad authority conferred by section 17(b), a determination made
outside the perimeters drawn by individualized consideration of the offense, the offender,
4
and the public interest ‘exceeds the bounds of reason.’” (Id. at p. 978, fn. omitted.) Our
high court described this as an “extremely deferential and restrained standard by which
appellate courts are bound . . . .” (Id. at p. 981.)
Defendant does not contend the court acted capriciously, but instead
contends the general objectives of sentencing set forth in California Rules of Court, rule
4.410 counsel a different result. Those objectives include, “(1) Protecting society; [¶]
(2) Punishing the defendant; [¶] (3) Encouraging the defendant to lead a law-abiding life
in the future and deterring him or her from future offenses; [¶] (4) Deterring others from
criminal conduct by demonstrating its consequences; [¶] (5) Preventing the defendant
from committing new crimes by isolating him or her for the period of incarceration; [¶]
(6) Securing restitution for the victims of crime; and [¶] (7) Achieving uniformity in
sentencing.” Defendant notes that she has no prior criminal record, has a family to
support, would suffer a similar punishment if reduced to a misdemeanor, and that it
4
Those standards are now set forth in California Rules of Court, rule 4.410.
14
would be easier for defendant to pay the restitution if her crime were a misdemeanor
because it would be easier to get a job.
This all may be true, and potentially it would have been within the court’s
discretion to reduce the charges, but defendant has not suggested any consideration upon
which we could conclude the court abused its discretion. The court determined that
based on the severity of the crime, the number of incidents, and the duration of the
conduct, a felony charge was appropriate. These were proper considerations for the court
to weigh. We find no abuse of discretion.
IV. The Restitution Order Was Not an Abuse of Discretion
Next defendant claims the court abused its discretion by awarding
$58,273.02 in victim restitution. Defendant contends the evidence supports a restitution
award of at most $10,976.00 — the amount missing from the envelopes with partial
5
payments. We disagree.
“Victim restitution is mandated by the California Constitution, which
provides in relevant part that ‘[r]estitution shall be ordered from the convicted persons in
every case, regardless of the sentence or disposition imposed, in which a crime victim
suffers a loss, unless compelling and extraordinary reasons exist to the contrary.’”
(People v. Brown (2007) 147 Cal. App. 4th 1213, 1225 [citing Cal. Const., art. I, § 28,
subd. (b)].) “The court shall order full restitution unless it finds compelling and
extraordinary reasons for not doing so and states them on the record.” (§ 1202.4, subd.
(f).) “[T]he trial court has really very little discretion under section 1202.4 in this regard.
The statute requires the award be set in an amount which will fully reimburse the victim
5
Defendant did not object to the amount of restitution at trial. The People
contend this resulted in a forfeiture of the issue. Defendant argues it was ineffective
assistance of counsel. In the interests of efficiency, we bypass the forfeiture question and
address the merits.
15
for his or her losses unless there are clear and compelling reasons not to do so.” (People
v. Rowland (1997) 51 Cal. App. 4th 1745, 1754.)
Although there was no direct evidence at trial that defendant took the entire
$58,273.02, there was circumstantial evidence. To begin with, defendant wrote receipts
for the entire $58,273.02, none of which ended up in the Robertson’s database. With the
exception of the $10,976.00 on the envelopes, defendant contends there are multiple
people who could have taken the money. While that is true in theory, defendant’s
argument is belied by Bennett’s testimony that if someone else had taken that money,
defendant, as the credit agent for those customers, would have noticed delinquencies on
the aging report. This testimony is corroborated by the fact that, when defendant went
out on maternity leave, the credit agent that took over her accounts noticed a delinquency
within one or two days, leading to an investigation that quickly revealed the full extent of
the problem. The trial court was entitled to rely on this evidence in setting the amount of
restitution. And having credited that evidence, the trial court was required to award full
restitution unless clear and compelling reasons dictated otherwise.
Defendant argues that the restitution award conflicts with the rehabilitative
purposes of probation. She argues that, with interest tacking on, she would have to pay
$500 per month just to get ahead, and that with the conviction limiting her ability to get a
job, it is unlikely she will be able to pay the amount back, particularly since she has four
young children.
The fact of the matter, however, is that defendant took $58,273.02. That
she would have difficulty paying it back is not a sufficient reason to depart from the
constitutional mandate of full victim restitution. We review the court’s judgment for
abuse of discretion. No such abuse has been shown.
16
DISPOSITION
Defendant’s conviction under count 2 for grand theft is stricken. In all
other respects, the judgment is affirmed.
IKOLA, J.
WE CONCUR:
FYBEL, ACTING P. J.
THOMPSON, J.
17