Opinion
G050399
01-23-2015
The PEOPLE, Plaintiff and Respondent, v. Juanita VIDANA, Defendant and Appellant.
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.
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.
OPINION
IKOLA, J. A jury found defendant Juanita Vidana guilty of one count of grand theft by 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).)
All statutory references are to the Penal Code unless otherwise stated.
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 In the unpublished portion of this opinion, we reject her remaining contentions and affirm the remainder of the judgment.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 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.
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.
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, 161 Cal.Rptr.3d 81, 305 P.3d 1241 (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, 161 Cal.Rptr.3d 81, 305 P.3d 1241.)
“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, 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, 161 Cal.Rptr.3d 81, 305 P.3d 1241, 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, 120 Cal.Rptr.3d 143 (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, 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, 79 Cal.Rptr.2d 295, 965 P.2d 1165, 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, 120 Cal.Rptr.3d 143.)
Defendant contends Nazary was wrongly decided and instead relies on People v. Fenderson (2010) 188 Cal.App.4th 625, 116 Cal.Rptr.3d 17 (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, 116 Cal.Rptr.3d 17.) The defendant argued the evidence showed, at most, embezzlement, but that the jury was only instructed on larceny. (Id. at pp. 635–637, 116 Cal.Rptr.3d 17.) 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, 116 Cal.Rptr.3d 17.) 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, 116 Cal.Rptr.3d 17.) 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, 116 Cal.Rptr.3d 17 ) 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, 116 Cal.Rptr.3d 17.)
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, 179 Cal.Rptr.3d 1, 335 P.3d 1083 (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] based on the same act.” (Id. at p. 535, 179 Cal.Rptr.3d 1, 335 P.3d 1083, 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, 179 Cal.Rptr.3d 1, 335 P.3d 1083.) 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. ) 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, 179 Cal.Rptr.3d 1, 335 P.3d 1083.)
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.”
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, 161 Cal.Rptr.3d 81, 305 P.3d 1241 [collecting the contemporaneous criticisms of various commentators].)
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, 4 Cal.Rptr. 158, 351 P.2d 326 superseded by statute on other grounds in People v. Lohbauer (1981) 29 Cal.3d 364, 372, 173 Cal.Rptr. 453, 627 P.2d 183 [“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, 41 Cal.Rptr.3d 277.)
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 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 conviction under count 2 for grand theft (larceny).
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, 174 Cal.Rptr.3d 594, 329 P.3d 154, the prosecutor could charge each of defendant's takings as a separate theft offense. (Id. at p. 741, 174 Cal.Rptr.3d 594, 329 P.3d 154.) The rule announced in Whitmer, however, does not apply retroactively. (Id. at p. 742, 174 Cal.Rptr.3d 594, 329 P.3d 154.) 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, 174 Cal.Rptr.3d 594, 329 P.3d 154.), which is how the prosecutor charged and tried this case.
See footnote *, ante .
Defendant's conviction under count 2 for grand theft is stricken. In all other respects, the judgment is affirmed.
WE CONCUR:
FYBEL, ACTING P.J.
THOMPSON, J.