People v. Lentino CA1/1 ( 2014 )

Filed 10/7/14 P. v. Lentino CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE,
Plaintiff and Respondent,
A138719
v.
VANESSA K. LENTINO, (Solano County
Super. Ct. No. FCR288561)
Defendant and Appellant.
INTRODUCTION
Defendant Vanessa Lentino appeals from the sentence and restitution order
imposed by the court. She pled no contest to grand theft by embezzlement of more than
$100,000 from her employer. Defendant argues the court imposed the upper-term
sentence of three years on the basis of improper aggravating circumstances, and that the
amount of restitution ordered by the court is excessive. We find the trial court neither
relied on improper aggravating circumstances nor abused its discretion in setting the
amount of restitution and affirm.
STATEMENT OF THE CASE
On August 21, 2012, the Solano County District Attorney filed an information that
charged defendant with grand theft by embezzlement and further alleged an enhancement
for taking property valued over $65,000. (Pen. Code, §§ 487, subd. (a), 12022.6, subd.
1
(a).)1 On December 20, 2012, defendant pled no contest to grand theft and admitted the
enhancement.
A combined sentence and restitution hearing commenced on March 5 and ended
on March 6, 2013. The sentencing and further restitution hearing took place on March
28, 2013. On that date, the court granted a defense motion to continue the restitution
hearing but declined to continue judgment and sentence. The court denied probation and
imposed a four-year county jail sentence based on the aggravated three-year term for
grand theft and one year for the enhancement. (§ 1170, subds. (h)(1), (2).) The
concluding two years of defendant’s sentence were suspended to allow mandatory
supervision. The trial court entered a preliminary victim restitution order of $132,307.49.
The court set a further restitution hearing allowing additional evidence or briefing on the
disputed amounts for April 29, 2013.
On that day, the parties submitted the matter to the court without presenting
further evidence or briefs. The court indicated it would issue its ruling within 90 days.
On July 23, 2013, the court issued a written order modifying the initial amount of
restitution ($132,307.49) with a final amount of $200,391.63. The court ordered the
abstract of judgment to be amended accordingly, served on the parties, and made part of
the record on appeal.
Defendant’s notice of appeal from the judgment and sentence was filed April 23,
2013.
STATEMENT OF FACTS2
Defendant worked as a bookkeeper for Dr. Prigmore’s dental practice from
October 10, 2009 until July 25, 2011. Dr. Prigmore’s son Matthew succeeded her as
1
All further unspecified statutory references are to the Penal Code.
2
Since defendant resolved the charges by plea, the statement of facts is drawn from the
presentence report, which was in turn based on the police report. The evidence adduced
at the restitution hearing is summarized in the discussion of defendant’s restitution
claims.
2
bookkeeper and soon discovered defendant had forged business checks to herself totaling
$36,515.30. He contacted the police, who travelled to Dr. Prigmore’s dentist office in
Fairfield on August 2, 2011.
Matthew told the police that on July 25, 2011, the West America Bank branch in
Fairfield contacted the dentist office to inquire about an irregular check. Defendant
attempted to impersonate the dentist’s wife, but she could not provide the bank with the
business account password. Dr. Prigmore inspected the check and confirmed he did not
authorize defendant to use his signature stamp on any checks. All checks were to be
personally signed by Dr. or Mrs. Prigmore.
Matthew located 16 checks totaling $14,046.26 drawn on a West America Bank
account that were made out to defendant using two signature stamps. Matthew located
another 22 forged checks totaling $20,869.04 drawn on the dentistry’s Bank of the West
account. In addition, on July 5, 2011, defendant cashed a check for $1,600 drawn on a
personal business account using the same forged signature. After defendant was
confronted about the thefts on July 25, she failed to show up for work or respond to
telephone calls. On July 27, 2011, Dr. Prigmore contacted defendant’s husband, who told
him defendant admitted the thefts and would meet with him to go over the forged checks
and devise a plan for paying back all the money that was owed. After that conversation,
there was no more contact between Dr. Prigmore and defendant or her husband.
In August, Dr. Prigmore hired a private consultant to investigate the scope of
defendant’s fraudulent behavior. The consultant discovered defendant had (1) taken cash
from deposits made for the dentist office in Vallejo; (2) made online transfers without
approval into her personal accounts; and (3) made purchases and paid personal bills using
Dr. Prigmore’s credit cards. Matthew provided a written statement to police which
included additional losses of $15,275 from Dr. Prigmore’s savings account and charges
of $20,251.22, $8,956.67, and $34,411.69 from three separate credit cards. In addition,
defendant made purchases on a Dell credit account for the Vallejo office, and
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merchandise worth $4,506.66 was delivered to her home. Based on this review, the total
loss was $119,916.54.
Police obtained a search warrant for defendant’s home where they found a photo
printer, laptop carry case, Dell laptop, zoom pocket video camcorder, a 73-inch HDTV,
and a surround-sound system that had been purchased on the Dell line of credit.
DISCUSSION
I. Notice of Appeal
At the outset, we address the Attorney General’s contention that defendant’s
restitution claim must be dismissed because she did not file a notice of appeal from the
final restitution order. Defendant filed a timely notice of appeal from the judgment of
March 28, 2013 which included the preliminary restitution order of $132,307.49. The
court had not issued the final restitution order of $200,391.63 until July 23, 2013, nearly
four months after judgment. The final restitution order is separately appealable as an
order after judgment. (§ 1237, subd. (b); People v. Guardado (1995) 40 Cal. App. 4th 757,
763 (Guardado).) The question here is whether it had to be separately appealed. On
these facts, we think the answer is no.
In Guardado, supra, the trial court ordered victim restitution but did not specify
any amount. (40 Cal. App. 4th 757, 762.) The court of appeal held such an order is
unenforceable, but observed it was not “void” so long as the trial court reserves
jurisdiction on the amount and then enters an enforceable order specifying the amount of
restitution. (Id. at pp. 762-763.) The Guardado court also observed that such an order is
separately appealable. (Id. at p. 763.) However, since no such subsequent order was
made, the timeliness of the defendant’s notice of appeal from the sentence and judgment
was never an issue in Guardado.
Defendant asks us to exercise our discretion to treat her notice of appeal as
embracing the court’s final disposition of previously litigated issues by deeming her
notice of appeal from the judgment premature with regards to the restitution order. In
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People v. Denham (2014) 222 Cal. App. 4th 1210, the court of appeal rejected a similar
argument and declined to entertain an appeal from a restitution order issued several
months after judgment was entered and a timely notice of appeal therefrom was filed. (Id.
at p. 1213.) In that case, when the court pronounced judgment, it reserved the issue of
victim restitution, stating: “ ‘The Court will set a restitution hearing in this matter here
shortly and we’ll deal with that issue.’ Defense counsel inquired whether the time to file
the notice of appeal ran from that day, and the court advised defendant to file his notice
of appeal immediately as ‘restitution is kind of a separate issue.’ ” (Ibid, italics added.)
Defendant filed a notice of appeal 21 days after judgment. (Ibid.) The court commenced
the restitution hearing almost six months later and ordered victim restitution; the
defendant did not appeal that order. (Ibid.) The Denham court concluded: “[T]he notice
of appeal from the judgment should not be treated as a premature notice of the later
victim restitution order. ‘A notice of appeal is premature if filed before the judgment is
rendered or the order is made, but the reviewing court may treat the notice as filed
immediately after the rendition of judgment or the making of the order.’ (Cal. Rules of
Court, rule 8.406(d).) Defendant’s notice of appeal was from the judgment and,
therefore, it would be inconsistent to also treat it as a premature notice of appeal from the
victim restitution order.” (Id. at p. 1214.)
In our view, Denham is factually distinguishable and not dispositive here.
Defendant Lentino’s pleas to the substantive charge and enhancement contemplated a
restitution hearing would be part and parcel of sentencing. The only contested issue was
victim restitution, which was litigated extensively over two days and included witness
testimony. As of March 28, 2013, the date set for sentencing, the court had resolved
some but not all of the restitution issues and entered a preliminary order of $132,307.49.
Prior to March 28, the date previously set for the restitution order and sentencing,
defendant asked for a continuance to review and address 130 pages of documents relating
to the restitution claim which had been delivered to her counsel since the last hearing.
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The court opted to proceed with sentencing and issued an interim restitution order of
$132,307.49 “that would be subject to amendment or modification down the road
depending upon what additional information I receive.”3 Thus, the court and all parties
understood this was not a final order, and that the court retained jurisdiction to determine
the full amount of restitution.
Under these circumstances, it appears inappropriate to dismiss defendant’s
restitution claim for failure to file a second notice of appeal. As observed in In re Ricky
H. (1992) 10 Cal. App. 4th 552, an appellate court has the discretion to treat a notice of
appeal filed before a final order as timely. (Id. at pp. 558-559.) “Typically, premature
appeals are deemed to be timely when the decision being appealed from has been made
preliminarily, but is not yet final. For instance, premature notices of appeal have been
treated as timely when they were filed after the verdict but before the pronouncement of
judgment [citation], or after a judge announced an intended decision but before a final
judgment was signed [citation].” (Id. at p. 558.) In our view, this case is similar.
Therefore, we will exercise our discretion to review defendant’s challenges to the court’s
final order.
II. Restitution Issues
Dr. Prigmore requested $251,606.57 in restitution for economic losses suffered as
a result of defendant’s embezzlement from his two dental offices in Fairfield and Vallejo.
His claim was supported by an itemized list of 17 categories of losses he provided the
probation department. After two days of testimony from a forensic accountant and a
bookkeeper hired by Dr. Prigmore, as well as a defense expert, the court awarded Dr.
Prigmore $200,391.63 in restitution, a reduction of Dr. Prigmore’s claim by $51,214.94.
3
That sum expressly included full reimbursement for the work performed by Matthew
Prigmore and Ms. Bilicich. The court subsequently reconsidered and reduced its
reimbursement for the work done by Mathew Prigmore, among other issues, as discussed
in its amended restitution order. The court also directed the abstract of judgment to be
amended to reflect the new amount.
6
Defendant challenges the award of (1) $7,906.45 misappropriated from cash fees
patients paid at the Vallejo office; (2) $14,575.00 for fees paid by Dr. Prigmore to
forensic accountant Daphne Bilicich to investigate his losses from the embezzlement;
and (3) $11,051.91 of the $14,735.88 Dr. Prigmore paid his bookkeeper to assists the
accountant in the investigation.
In California, a crime victim has a constitutional right to restitution from the
defendant who causes the victim’s loss. (Cal. Const., art. I, § 28, subd. (b)(13).)
Implementing that right, section 1202.4, subdivision (f) requires the sentencing court to
order restitution for economic losses caused by the defendant, “based on the amount of
loss claimed by the victim . . . or any other showing to the court,” in an amount sufficient
to fully reimburse the victim “for every determined economic loss incurred as the result
of the defendant’s criminal conduct.” (§ 1202.4, subds. (f), (f)(3).) Economic losses
include “[a]ctual and reasonable attorney’s fees and other costs of collection accrued by a
private entity on behalf of the victim.” (§ 1202.4, subd. (f)(3)(H).)
“[T]he party seeking restitution [must] provide an adequate factual basis for the
claim.” (People v. Giordano (2007) 42 Cal. 4th 644, 664.) The burden of proof here is by
a preponderance of the evidence. (People v. Sy (2014) 223 Cal. App. 4th 44, 63.) Once a
prima facie case for restitution is made out, the burden shifts to the defendant to rebut the
showing. (People v. Sy, supra, 223 Cal.App.4th at p. 64; see also People v. Tabb (2009)
170 Cal. App. 4th 1142, 1154.)
We review the trial court’s restitution award for abuse of discretion. (People v.
Giordano, supra, 42 Cal.4th at p. 663.) “ ‘[T]he court’s discretion in setting the amount
of restitution is broad, and it may use any rational method of fixing the amount of
restitution as long as it is reasonably calculated to make the victim whole.
[Citations.]’ ” (People v. Millard (2009) 175 Cal. App. 4th 7, 26.) We review the court’s
factual findings for substantial evidence. “ ‘ “We do not reweigh or reinterpret the
evidence; rather, we determine whether there is sufficient evidence to support the
7
inference drawn by the trier of fact. [Citation.]” [Citation.]’ ” (People v. Sy, supra, 223
Cal.App.4th at p. 63.) With these principles in mind, we turn to defendant’s claims.
A. Patient Fees
The trial court found that defendant failed to controvert the victim’s restitution
claim with respect to the $7,906.45 in patient fees from the Vallejo office that were
missing. The court further found that the testimony at the hearings, the defendant’s
statements to probation, and the other information contained in the presentence report
provided support for this and other claims. Defendant argues she did not have to
controvert the claim because the prosecution did not make a prima facie showing that the
missing cash was attributable to defendant’s criminal conduct. She argues the testimony
showed she “did not receive cash payments, she did not prepare deposit slips, she did not
enter cash receipts into the system and she did not make bank deposits for the Vallejo
office.” We disagree.
Ms. Bilicich, the forensic accountant, testified some patients in the Vallejo office
paid in cash. The receptionist at the front desk entered the cash amounts in a program
called Dentrix that tracked daily patient sheets. The receptionist would receive the
money and give the patient a receipt. Typically, the receptionist prepared the deposit
slips and balanced them in the Dentrix program. A receipt would be generated to the
patient and another receipt would be kept at the office. At some point, the cash would be
deposited in the bank account and a deposit slip or some other record reflected that cash
deposit. Bilicich compared the receipts for cash and the bank deposit records. The
deposit tickets had been rewritten; copies of the deposit tickets remained with the original
deposit in the Fairfield branch. Bilicich discovered a discrepancy of $7,906.45 between
patient receipts and bank deposit tickets. She also learned it was not defendant’s
responsibility to make those deposits; it was the Vallejo office manager’s responsibility.
However, the doctored deposits were made at the Fairfield branch of the bank rather than
the Vallejo branch.
8
Matthew Prigmore, Dr. Prigmore’s bookkeeper, testified he learned from
defendant’s timesheets, mileage reimbursement sheets, and interviews with the office
managers of both the Fairfield and Vallejo offices that defendant regularly worked six
hours in Vallejo and twelve hours in Fairfield every week. She would travel between
Fairfield and Vallejo two to three times a week.
To the extent this evidence of opportunity failed to establish a connection between
defendant and the doctored bank deposits, defendant’s own admission to probation she
went to the bank provided the missing link. She said she worked 26 hours a week,
Monday through Wednesday from 9:00 a.m. to 4:00 p.m. and Fridays from 8:30 a.m. to
1:30 p.m. She also worked occasionally on Thursdays and “always had to run errands
before [she] went home. Cleaners, bank, back to the Fairfield office [and] any other thing
Dr. Prigmore requested.” (Italics added.) From this evidence the trial court could infer
that on some of her roundtrips, defendant deposited monies from the Vallejo office at the
Fairfield bank. Furthermore, no evidence suggested there was another suspect among Dr.
Prigmore’s employees. These other employees had each been with the dentist for 32, 27,
13, 12 and eight years. Substantial evidence supports the court’s finding that defendant
kept $7,906.45 in cash from Dr. Prigmore’s Vallejo office.
B. Investigative Costs
Defendant concedes that some “[s]elf-help expenses, such as investigation, are
recoverable, ” but asserts Dr. Prigmore’s investigative expenses are not recoverable
because his justification for using a forensic accountant and bookkeeper to ferret out the
full extent of his losses was based on a lack of confidence in the police department’s
investigation service. Defendant cites no authority for the proposition that a victim’s
reasons for expending funds on investigation of the crime disqualifies his recovery of
investigative costs. Section 1202.4 does not permit a public law enforcement agency to
recover its investigative costs, because “ ‘public agencies are not directly “victimized”
for purposes of restitution under Penal Code section 1202.4 merely because they spend
9
money to investigate crimes or apprehend criminals.’ ” (Luis M. v. Superior Court
(2014) 59 Cal. 4th 300, 305, quoting People v. Ozkan (2004) 124 Cal. App. 4th 1072,
1077.) On the other hand, the statute does permit a direct victim to “recover out-of-
pocket expenses for assisting with the investigation and prosecution of the victim’s case
as these ‘expenses clearly constitute “economic loss incurred as the result of the
defendant’s criminal conduct . . .” ’ (People v. Ortiz (1997) 53 Cal. App. 4th 791, 797-798;
see also People v. Chappelone (2010) 183 Cal. App. 4th 1159, 1182-1183 & fn. 9; People
v. Maheshwari (2003) 107 Cal. App. 4th 1406, 1409, 1411).” (People v. Sy, supra, 223
Cal.App.4th at p. 64.)
In People v. Sy, the victim hired a private investigator who specialized in
infringement investigations to attend a trade show and pose as a buyer of the defendants’
counterfeit goods. (223 Cal. App. 4th 44, 51-52.) The results of the investigation were
turned over to law enforcement officers who, “[w]ith assistance from the investigative
company’s employees, . . . seized over 13,000 counterfeit items.” (Id. at p. 52.) The trial
court ordered restitution for the victims’ investigation costs, and the court of appeal
affirmed. (Id. at pp. 62, 65.) Defendant does not cite People v. Sy, and we discern no
basis for distinguishing it from this case. The trial court did not abuse its discretion in
ordering defendant to reimburse Dr. Prigmore for his investigative costs.
Next, defendant argues the fees paid to the forensic accountant and the bookkeeper
were grossly excessive. Ms. Bilicich was paid $100 per hour for about 145 hours – or
approximately three and one-half weeks – of work. Defendant argues her hourly rate
should be cut, but she did not advance that argument below or present any evidence to
suggest that $100 per hour is an excessive hourly rate for a forensic accountant with
Bilicich’s experience and credentials.
Alternatively, defendant argues the entire claim for Ms. Bilicich’s work should be
cut because the court “never actually explained what Bilicich’s expert review added to
Matthew’s ‘legwork’ to overcome its initial skepticism at the hearing that she was just a
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conduit for hearsay.” 4 The court found “the victim’s employment of and payment to
witness Bilicich to conduct a forensic account examination of his business records in
order to help determine the nature and extent of the losses caused by defendant’s criminal
conduct was reasonable and necessary under the circumstances (losses sustained over a
substantial period of time by multiple means, and at different locations).” This finding is
amply supported by the record.
According to the presentence report, when Matthew first contacted the police on
August 2, 2011, he had uncovered losses of $36,515.30 due to checks defendant had
forged and cashed. As a result of hiring Bilicich to conduct further investigation into the
scope of defendant’s fraudulent behavior, Dr. Prigmore discovered that from October
2009 (the date defendant was hired) until July 2011 (the date of termination), defendant
embezzled more than $119,000 by various means, including taking cash from the Vallejo
office, making online transfers, using Dr. Prigmore’s credit cards, and making purchases
on a Dell credit account and having the merchandise delivered to her home. The results
of her investigation were provided to the police, who secured a search warrant to search
defendant’s house and recovered some of the merchandise she had purchased through
Dell, and to the district attorney’s office for prosecution.
By the time she and Matthew concluded the investigation, an additional $100,000
worth of economic losses had been discovered. As a result of Ms. Bilicich’s audits, total
losses of $251,606.57 were documented and provided to the probation department in
January 2013. Ms. Bilicich testified at the hearing about how she uncovered and
4
In fact, the court did not express the view that Ms. Bilicich was “just a conduit for
hearsay.” The court expressed frustration with the prosecutor’s questions to her about
where the equipment ordered from Dell was delivered, since she had already testified
Matthew Prigmore had contacted Dell. The court stated: “She can base her opinion on
hearsay, even double hearsay, but just to have her as a conduit to recite double hearsay.”
The prosecutor rephrased his question and eventually got his answer.
11
documented the losses. The evidentiary record before the trial court provides substantial
evidence to support its finding and order with respect to Ms. Bilicich.
With respect to Matthew Prigmore’s services, the court reduced the award by 25
percent, or $3,683.97, because “[t]here was some duplication of effort between Matthew
Prigmore and Ms. Bilicich . . . [but] it would be unduly time consuming and burdensome
to conduct further hearings to determine the extent of that duplication.” However, the
court evidently credited Matthew’s and Bilicich’s testimony about the amount of work
Matthew performed and the time it took him to do it. The court found: “It is clear that
Matthew Prigmore did an extensive amount of legwork (records review, telephone calls,
etc.) independently of Ms. Bilicich’s efforts . . . in ascertaining the nature and extent of
the loss caused by the defendant’s criminal conduct.”
The record supports the trial court’s findings. In response to the court’s
questioning, Matthew testified he was paid $24.50 per hour for his work “to try to get to
the bottom of the restitution.” Without looking at his timecards, he was not able to say
how many hours he “worked on this case, as opposed to any other work [he] did.” Ms.
Bilicich had computed the $14,735.88 figure for his pay, and he was not “privy to these
numbers” and did not “know how they were derived.” However, he knew the
bookkeeping job took 25 to 30 hours per week, and he would “spend extra time on top of
that” working on the investigation. Matthew began working as his father’s bookkeeper
“the week previous to Ms. Lentino stopping work,” in July 2011. On July 25, 2011, the
Fairfield branch of the West America Bank called the dentist office to inquire about
irregular signatures on checks, the event which triggered the investigation of defendant’s
malfeasance.
Defendant embezzled from Dr. Prigmore’s offices for 21 months, from October
2009 to July 2011. In the two and one-half years from July 2011 until January 2013,
when Dr. Prigmore submitted to the probation officer an itemized list of $251,606.57 in
losses he attributed to defendant’s conduct, Matthew had expended 601 hours, or roughly
12
20 hours per week, investigating and documenting defendant’s embezzlement schemes.
In addition to contacting banks about cancelled checks, deposits, and deposit slips, he
contacted credit card issuers about statements. Matthew went over every billing charge
on every credit card statement with his father. He investigated most of the fraudulent
credit card charges himself, totaled them, and made a spreadsheet. His efforts also
included hunting down and checking defendant’s timecards and paychecks, calculating
discrepancies between the payroll actually paid to defendant and payroll receipts,
comparing his calculations with Bilicich’s, putting together documents for Bilicich’s
review, manually entering items into and making calculations on spreadsheets, bringing
matters he found questionable to Bilicich’s attention, reviewing check signatures for
forgeries, accessing the QuickBooks program and talking to Dr. Prigmore, and
identifying personal charges on credit cards for Bilicich. He also contacted Dell about
charges and tracked deliveries to defendant’s home. The defense did not introduce any
evidence showing that Matthew did not do what he said he did, or was paid a different
amount than he said he was paid, or worked fewer than 601 hours. In our view,
substantial evidence supports the court’s reduced award of $11,051.91. No abuse of
discretion appears.
C. Mathematical Error
The parties ask us to correct a mathematical error. The court reduced the
restitution award by “the sum of $9,327.69” for double-counting that occurred when
defendant used one or more forged checks to pay her fraudulent credit card charges, and
for telephone charges to an 800 number that could not be attributed to her. The sum
should have been $9,328.30 ($6,175.69 [forged checks] plus $3,152.61[telephone
charges] totals $9,328.30). Therefore, this court will order the reduction of the restitution
award by 61 cents.
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III. Issues Related to the Imposition of the Aggravated Term
Defendant argues the imposition of the aggravated term in this case violated
proscriptions against (1) using the fact of any enhancement to aggravate and enhance the
sentence, and (2) using an element of the crime to impose the aggravated term. (§ 1170,
subd. (b); Cal. Rules of Court, rule 4.420, subds. (c) & (d).) We disagree. Preliminarily,
the People argue defendant has waived her appellate challenges to the aggravated term
because she did not object below on these grounds. We reject this argument as well.
The presentence report identified two circumstances in aggravation: (1) the crime
involved planning and sophistication, and (2) defendant took advantage of a position of
trust and confidence. The presentence report also identified two circumstances in
mitigation: (1) defendant’s lack of a prior record, and (2) a gambling addiction, and
recommended probation. During the sentencing hearing, the prosecutor argued against
probation and for imposition of the aggravated term and the enhancement “based upon
the overwhelming preponderance of aggravating factors.” Defense counsel argued for
probation and against a prison sentence, stating: “[G]iven the mitigating circumstances,
given . . . Ms. Lentino’s lack of criminal history, I don’t believe that this crime was
carried out any differently than any other crime of similar circumstances. I don’t know
that there was a – I mean, there was some sophistication, but, again, that’s what
embezzlement is, you violate the trust. That is the way these crimes are committed.”
The court denied probation and imposed the aggravated term and the
enhancement, stating: “I’m denying probation because of the nature, the seriousness and
the very means by which this crime was committed by her compared to others and the
length of time that was involved. This is far and above the most – as embezzlement cases
go, this is a serious one. It’s not a minor one. Also, the degree of loss to the victim
turned out to be more than twice the 12022.6 enhancement that was pled and proven. She
was an active participant, and her actions had a substantial impact on this business and
the people who worked there. [¶] I’ve selected the high term because she violated a
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position of trust over and over and over again, and the crime was carried out with a
degree of planning and sophistication on multiple fronts. So those are the reasons for my
sentencing decision.” (Italics added.)
A. Waiver
The Attorney General argues defendant has forfeited her appellate challenge to the
court’s reasons for imposing the aggravated term because she did not object below. We
disagree. In People v. Scott (1994) 9 Cal. 4th 331 (Scott), our Supreme Court adopted a
waiver doctrine with respect to “claims involving the trial court’s failure to properly
make or articulate its discretionary sentencing choices. Included in this category are
cases in which the stated reasons allegedly do not apply to the particular case, and cases
in which the court purportedly erred because it double-counted a particular sentencing
factor, misweighed the various factors, or failed to state any reasons or give a sufficient
number of valid reasons.” (Id. at p. 353.) Here, the presentence report listed the factors
in aggravation. Counsel argued the reasons why the court should not rely on them. The
court relied on them anyway. Under these circumstances, the defendant’s argument fully
apprised the court of her reasons for objecting to a jail sentence. Lodging an objection
restating the same grounds after the fact would have been futile and would have served
no purpose. Addressing this concern, our Supreme Court observed: “Of course, there
must be a meaningful opportunity to object to the kinds of claims otherwise deemed
waived by today’s decision. This opportunity can occur only if, during the course of the
sentencing hearing itself and before objections are made, the parties are clearly apprised
of the sentence the court intends to impose and the reasons that support any discretionary
choices.” (Id. at p. 356.) The court here did not afford defendant the kind of opportunity
to object envisioned by the Scott decision. Accordingly, we conclude defendant’s
sentencing arguments are not waived.
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B. Dual Use of Enhancement Facts
Defendant argues the court improperly used the fact of the section 12022.6
enhancement – taking property worth more than $65,000 – to aggravate and enhance the
sentence. “[T]he court may not impose an upper term by using the fact of any
enhancement upon which sentence is imposed under any provision of law.” (§ 1170,
subd. (b).) “[A] fact charged and found as an enhancement may be used as a reason for
imposing the upper term only if the court has discretion to strike the punishment for the
enhancement and does so.” (Cal. Rules of Court, rule 4.420(c).) However, the court did
not use the fact of the enhancement (i.e., the amount of the loss) as a reason to impose the
aggravated term. The court cited the amount of the loss as a reason for denying
probation, which is allowed. (Scott, supra, 9 Cal.4th at p. 350, fn. 12.) In our view, the
court’s reliance on defendant’s repeated violations of a position of trust, evidenced by a
high degree of planning and sophistication on multiple fronts, did not reference the dollar
amount of the taking. Defendant’s argument fails.
C. Dual Use of An Element of the Offense
Defendant also argues the court improperly relied on an element of the offense to
impose the aggravated term. A sentencing judge is prohibited from using “[a] fact that is
an element of the crime . . . to impose a greater term.” (Cal. Rules of Court, rule
4.420(d).) “A sentencing factor is an element of the offense if the crime as defined by
statute cannot be accomplished without the performance of the acts which constitute such
factor.” (People v. Clark (1992) 12 Cal. App. 4th 663, 666.) “Embezzlement is the
fraudulent appropriation of property by a person to whom it has been intrusted.” (§ 503.)
The essence of embezzlement is the fraudulent use or conversion of property entrusted to
the defendant by another. (People v. Talbot (1934) 220 Cal. 3, 15.) Thus, violation of a
position of trust is an element of embezzlement, and the court may not rely on it to
aggravate a sentence. (Ibid.)
16
However, in this case, the court did not rely on the bare fact that defendant
violated a position of trust; it relied on the fact that she did so “over and over and over
again, and the crime was carried out with a degree of planning and sophistication on
multiple fronts.” Planning and sophistication are not statutory elements of
embezzlement, inasmuch as that offense can be committed without much of either.
Moreover, “[t]he essence of ‘aggravation’ relates to the effect of a particular fact in
making the offense distinctively worse than the ordinary.” (People v. Moreno (1982) 128
Cal. App. 3d 103, 110.) “[W]here the facts surrounding the charged offense exceed the
minimum necessary to establish the elements of the crime, the trial court can use such
evidence to aggravate the sentence. [Citation.] Stated another way, rule 420(d) [now rule
4.420(d)] does not preclude a court from using facts to aggravate a sentence when those
facts establish elements not required for the underlying crime.” (People v. Castorena
(1996) 51 Cal. App. 4th 558, 562, italics omitted.) That is the case here. To prove
embezzlement, it was not required to show that defendant repeatedly stole from Dr.
Prigmore or used so many different ways to accomplish the thefts.
In any event, assuming arguendo the court erred in relying on defendant’s abuse of
a position of trust, the error was nevertheless harmless. (People v. Osband (1996) 13
Cal. 4th 622, 728-729.) The court’s reliance on planning and sophistication was proper,
given the many different ways in which defendant inventively converted Dr. Prigmore’s
property to her own use over 21 months. Moreover, the court stated among the reasons
for denying probation that it viewed this case as a very serious example of embezzlement.
The error does not require a remand for resentencing. (People v. Osband, supra, 13
Cal.4th at p. 729.)
DISPOSITION
The order awarding restitution of $200,391.63 is reduced by 61 cents to
$200,391.02. As modified, the judgment is affirmed.
17
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Dondero, J.
We concur:
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Humes, P.J.
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Banke, J.
18