Opinion
H047304
06-23-2021
THE PEOPLE, Plaintiff and Respondent, v. LAMONICA M. LEDESMA, Defendant and Appellant.
NOT TO BE PUBLISHED
Monterey County Super. Ct. No. 18CR001226
ELIA, ACTING P. J.Defendant Lamonica M. Ledesma was convicted by a jury of eight felony counts of forgery of checks (Pen. Code, § 476), six felony counts of altering entries in books and records (§ 471), and several misdemeanor counts. The court imposed a six-year sentence, which consisted of consecutive terms for each of the felony forgery counts and concurrent terms for each of the felony altering counts. On appeal, her sole contention is that the court's imposition of concurrent terms for the altering counts violated section 654. We reject her contention and affirm the judgment.
All further statutory references are to the Penal Code.
Defendant was charged with 18 counts: eight counts of felony forgery, six counts of felony altering, two counts of misdemeanor forgery, misdemeanor shoplifting (§ 459.5, subd. (a)), and grand theft by an employee (§ 487, subd. (b)(3)). She was convicted of all counts except the grand theft count.
I. FACTS
Studio Schicketanz (the Studio) is an architectural and interior design company in Carmel run by Gabriele Mary Ann Schicketanz. In February 2015, the Studio's longtime bookkeeper, Sri Shankar, left her position. In July 2015, defendant was hired as the Studio's parttime bookkeeper to work five hours a day, five days a week. Shankar trained defendant. Defendant was an hourly employee paid $28 an hour to start and later getting a raise to $30 an hour.
The Studio had a Fremont Bank business account that it used for all operating expenses, and it received the monthly account statements by mail. The Studio utilized QuickBooks, a software program, for paying bills. Defendant's job as bookkeeper involved the preparation of checks using QuickBooks. She was not authorized to decide whether a bill should be paid or to sign any checks. Other employees of the Studio were in charge of determining whether a bill should be paid and were authorized to sign checks on the Studio's Fremont Bank account. The Studio used printable laser checks, and Schicketanz allocated blank checks to defendant only as needed. When each check was printed, the information about the transaction was entered into QuickBooks. The printed check was then required to be reviewed and signed by Schicketanz or Jay Auburn, another employee of the Studio who was authorized to sign checks.
Defendant was not authorized to open the Studio's mail. All of the mail was supposed to go to Schicketanz unopened. Defendant was reprimanded by Schicketanz at one point for opening mail. At some point in 2016, Schicketanz noticed that a Fremont Bank statement had been opened before she received it, and in September 2016 she realized that she had not received some bank statements. The bank statement that had been opened was missing the check copies that normally accompanied the statement. Schicketanz arranged to get electronic copies of the last three months' statements. When she received the statements, she saw that at least six large checks had been written to defendant with memo lines that did not relate to her duties. These checks appeared to bear Auburn's signature, but he had not signed checks to defendant. The QuickBooks reconciliation reports showed different payees for those checks. Schicketanz contacted the Sheriff's office in mid-October 2016.
Defendant was fired on October 25, 2016, and she was interviewed by law enforcement in early December 2016. She told the Sheriff's deputy who interviewed her that all of the checks in question that she received were for reimbursements or possibly for hours she worked offsite. Defendant claimed that Schicketanz was out to get her because defendant had once opened a piece of mail addressed to Schicketanz. Defendant accused Schicketanz of being “dishonest.” Defendant asserted that the QuickBooks reports had been “manipulated” by Schicketanz or Shankar and that other people had remote access to her computer. Defendant insisted that she had done nothing without authorization from Schicketanz, Auburn, or Shankar. She maintained that “the CPA” had also reviewed everything.
Defendant was arrested and charged with numerous counts, including six counts of forgery and six counts of altering associated with the same six checks.
Count 1 (forgery) and Count 2 (altering) concerned check No. 1868. Check No. 1868 was dated September 29, 2016 and made out to defendant for $2,740.50. The memo line said “[r]efund over payment.” None of the Studio's employees with the authority to approve checks had authorized this check. The QuickBooks audit trail showed that defendant had created this check on September 29, 2016 and deleted the QuickBooks transaction record a minute later. She deposited this check into her personal bank account that day. QuickBooks also showed this check as having at some point a payee of Monterey County.
Count 3 (forgery) and Count 4 (altering) were based on check No. 1843. This was a check to defendant in the amount of $6,316.65 that she created on September 17, 2016 and deposited into her personal bank account on September 19, 2016. The memo line on this check said “[r]eimbursables.” This check was not authorized by any of the Studio's employees with the power to authorize checks. Defendant deleted this check from QuickBooks within a minute after she created it. The QuickBooks records showed that this check number was used for a payment in the same amount to a different payee.
Count 5 (forgery) and Count 6 (altering) were based on check No. 1842, which was an unauthorized check in the amount of $3,908.60 to defendant dated September 13, 2016 and deposited by her that day into her personal bank account. The memo line on this check said “Webster Residence - Building Permit Application.” Defendant deleted this check from QuickBooks about a minute after the check was created. QuickBooks showed this check number as a September 13, 2016 check to Monterey County in the same amount.
Count 7 (forgery) and Count 8 (altering) were associated with check No. 1836, which was an unauthorized check for $5,299.61 to defendant dated September 2, 2016 and deposited by her into her personal bank account that day. The memo line on this check said “[i]nsurance.” She deleted this check from QuickBooks about a minute after it was created. QuickBooks reflected that in October 2016 this check number was associated with a purported payment to different payees on different dates for the same amount.
Count 10 (forgery) and Count 11 (altering) were both associated with check No. 1752, which was an unauthorized July 8, 2016 check to defendant in the amount of $5,810.98 that defendant deposited into her personal bank account that day. The memo line said “reimburseable travel.” Defendant deleted this check from QuickBooks 11 minutes after she created it. QuickBooks showed that check number to have been a payment in the same amount with Blue Shield as the payee.
Count 12 (forgery) and Count 13 (altering) were associated with check No. 1735, which was an unauthorized June 20, 2016 check to defendant for $2,040, which defendant deposited into her personal bank account that day. The memo line said “professional services.” Defendant deleted this check from QuickBooks a few seconds after she created it. QuickBooks showed this same check number as a payment to Schicketanz in the same amount.
II. DEFENDANT'S TRIAL TESTIMONY
Defendant testified at trial that all of these checks were authorized by Schicketanz. She claimed that in July 2015 Schicketanz agreed to pay her a “ten percent commission” for any “collections” defendant made from Schicketanz's prior company's delinquent accounts. Schicketanz told her to keep separate time records for time she worked “like at home, or anything like that” on these collections so that she also could be separately compensated outside of “payroll” for those hours. This agreement was not in writing.
Defendant testified that she collected over $220,000 in delinquent accounts from Schicketanz's old company and $186,000 in delinquent accounts for the Studio. She claimed that she worked 332 hours on these collections in 2015 and a total of 360 hours on this “project, ” but she received no compensation in 2015 for the commissions or her hours.
In May 2016, defendant met with Schicketanz and Shankar, and they orally authorized her to begin paying herself for the commissions and the hours she had spent collecting on the delinquent accounts. Over the following months, she prepared checks in various amounts to compensate herself for the commissions and hours. Auburn signed these checks.
Defendant testified at trial that check No. 1868, which was for $2,740.50 was for $2,000 in “commissions” and the remainder for her hours earning those commissions. Check No. 1843, which was for $6,316.65 was for $6,000 in commissions and the rest for hours. Check No. 1842, which was for $3,908.60, was either for hours or for commissions or both. Check No. 1836, which was for $5,299.61, was $5,000 for commissions and the remainder for time she had spent researching insurance costs for Schicketanz. Check No. 1752, which was for $5,810.98, was for $5,000 in commissions and the remainder for hours she had spent on delinquent accounts in 2015. Check No. 1735, which was for $2,040.00, was for her hours. Defendant admitted that she did not report any of this income.
Defendant testified that the memo lines had nothing to do with what the checks were for. Instead, she had been told to use a memo line that referred to whatever she was working on at the time she prepared the check. “I was told that I was supposed to charge it to an expense account. And they asked me what task I was doing at the time, and whatever task I was doing is the expense account that they wanted me to charge at that time.” She claimed that the word “reimbursables” on a check's memo line did not mean that it was a reimbursement but that it is was something that could be charged to one of the Studio's clients. Defendant denied deleting or altering any information in QuickBooks. She claimed that Shankar and “the CPA” knew defendant's user name and password and that she and Shankar “shared a computer.”
Defendant testified that she had used the word “reimbursed” during her law enforcement interview to refer to costs chargeable to clients, not to refer to her being reimbursed for costs she had paid. She did not mention any of this during her interview with law enforcement because she “had a brain freeze.”
III. PROCEDURAL BACKGROUND
The jury was instructed that the altering counts required proof that defendant “made or forged, or altered any entry in any book of records” with the intent to defraud. The jury was instructed that the forgery counts required proof that she “made or passed or used a false or altered check” with the intent to defraud.
The prosecutor argued that defendant “just stole... and then tried to cover it up.” “[I]n the course of covering it up, she falsified some records....” He argued that the altering counts were based on “false entries, ” some of which were entries into QuickBooks on October 24, 2016, when defendant changed the records to show that some of the checks had been made out to payees other than her. He argued: “The defendant altered the QuickBooks records and the Fremont Bank statements to try to hide what she had done.” “She made sure that the QuickBooks reflected something other than the money going to her.” The prosecution also argued that it had to have been defendant who made the alterations because many of them were made within a minute of the check to herself being created.
The defense argued that the checks were all authorized and properly signed by Auburn. Defendant's trial counsel maintained that defendant lacked any intent to defraud because she was being compensated in accordance with her agreement with Schicketanz for commissions and hours. He argued that someone else had altered the records.
The jury acquitted defendant of the grand theft count but convicted her of all of the other counts. The probation report recommended probation. The prosecutor sought a sentence of five years eight months.
The trial court rejected the probation recommendation in part because it concluded that defendant had lied to the jury. The court noted that defendant had refused to accept responsibility for her actions and had blamed others, while portraying herself as a victim.
The court imposed a six-year county jail term composed of a two-year base term for one forgery count and consecutive eight-month terms for six other forgery counts. The court imposed a two-year concurrent term for each of the six altering counts and for the remaining felony forgery count, and concurrent jail terms for the two misdemeanor forgery counts. The court also imposed but stayed under section 654 a jail term for the misdemeanor shoplifting count. Two years of the six-year jail term were suspended, with defendant to serve that time on mandatory supervision.
IV. ANALYSIS
Defendant contends that the trial court erred in failing to stay under section 654 the concurrent terms that it imposed for the six altering counts. She contends that “[e]ach act of deleting the record of the forged check was committed to facilitate forging the check, and with the same intent: to defraud the studio of the amount printed on the check.”
“The initial inquiry in any section 654 application is to ascertain the defendant's objective and intent. If he [or she] entertained multiple criminal objectives which were independent of and not merely incidental to each other, he [or she] may be punished for independent violations committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.” (People v. Beamon (1973) 8 Cal.3d 625, 639.) “ ‘The defendant's intent and objective are factual questions for the trial court; [to permit multiple punishments, ] there must be evidence to support a finding the defendant formed a separate intent and objective for each offense for which he [or she] was sentenced.' ” (People v. Coleman (1989) 48 Cal.3d 112, 162.) “A trial court's express or implied determination that two crimes were separate, involving separate objectives, must be upheld on appeal if supported by substantial evidence.” (People v. Brents (2012) 53 Cal.4th 599, 618.)
Defendant relies on the fact that forgery and altering share an intent element: the intent to defraud. She maintains that identifying her intent for the altering offenses as the intent “to conceal the forgeries already committed” “ ‘parses the objectives too finely.' [Citation.]” “Trying to split her intent between committing the forgeries and concealing the forgeries would be splitting hairs.”
The Attorney General argues that the altering counts had an objective separate from the forgeries because the altering was intended to make it possible for defendant to “continue forging checks in the future....” He argues that this was a different intent than the intent to obtain funds from the forged checks because her altering offenses were intended to ensure that her “activities would not be redflagged by anyone looking at the records.” “[Defendant] forged and cashed a series of individual checks over a lengthy period of time. Each time, she altered the computer records so that she would be able to continue stealing from her employer.”
Neither defendant nor the Attorney General directs us to any case authority that is on point. Defendant relies on People v. Tatum (1962) 209 Cal.App.2d 179. In Tatum, after the defendant was acquitted of stealing a trailer, he was tried and convicted of violating section 496 (concealing stolen property) by concealing the trailer. The Court of Appeal reversed the section 496 conviction on the ground that section 496 did not apply to a thief's concealment of what he had stolen. It also held that section 654 barred multiple prosecutions against a person for both theft and concealment of the stolen property. (Tatum, at pp. 183, 186.) Since the defendant in Tatum had suffered only a single conviction, the Court of Appeal did not confront any multiple punishment issue. We therefore find Tatum unhelpful.
The Attorney General's reliance on People v. DeVaughn (2014) 227 Cal.App.4th 1092 is also unhelpful. DeVaughn did involve multiple punishment issues, but the Court of Appeal held that many of the offenses in DeVaughn, which included identity theft, money laundering, and theft, could be separately punished because they were committed against several different victims. (Id. at pp. 1096, 1112.) The Attorney General suggests that the same is true here, but we disagree.
But for one count, the altering counts were charged to have occurred on the same date as the forged checks were negotiated, and the jury convicted defendant of the altering counts using verdict forms bearing the charged dates. Thus, the acts underlying the altering counts were necessarily based on defendant's acts of deleting the forged checks from QuickBooks shortly after she created each check. While there was evidence that she also altered the QuickBooks records for some of the checks at other times to attribute these transactions to different payees, those alterations were not charged. For instance, check Nos. 1836 and 1868 were changed to different payees on October 24, 2016, but these checks were written to defendant in September 2016 and deleted the same day each was written. The charges alleged, and the verdict forms bore, the September dates. Check No. 1843 was assigned to two different payees, one shortly before it was written to defendant, and the other more than a month later. Something similar happened with check No. 1752. Check No. 1842 showed a different payee before the check was written to defendant and then deleted, all on the same day. Check No. 1735 was deleted by defendant, but the records did not show that she was the person who changed it to a different payee a month later.
Count 4 is the exception. In that instance, the altering offense was alleged to have occurred two days before the forgery count. This circumstance makes no difference to our analysis.
On this record, we must conclude that the altering counts were based on the deletion of the checks by defendant on the dates that those checks were written to defendant, not on other alterations on other dates. The Attorney General's claim that the altering and forgery counts had different victims because Auburn was a separate victim lacks merit. It is true that defendant fraudulently placed Auburn's signature on each of the checks, but he was not a victim of any of the altering or forgery offenses because he was not defrauded. The forgery counts involved the defrauding of the Studio, by taking the funds in its account. The altering counts involved the altering of the Studio's QuickBooks records, which defrauded the Studio, not Auburn. Nor can we accept the Attorney General's suggestion that the alternate payees involved in some of the alterations were victims, as there was no evidence that any of them were defrauded.
Nevertheless, even though the alterations of the QuickBooks records took place on the same dates as the forged checks were created, in most instances with the deletion taking place within a minute of the check's creation, we do not find this fact determinative on the question of whether defendant entertained separate intents and objectives. Although this is a close case, we are bound to uphold the trial court's implied finding that defendant had separate intents and objectives if substantial evidence supports such a finding. That determination rests on whether we can “parse” her objectives into an intent to obtain the Studio's funds by writing forged checks to herself and a separate (but simultaneous) intent to conceal her fraudulent scheme by deleting the records of those forged checks so as to ensure that she would be able to continue writing more forged checks. In our view, there is substantial evidence to support a reasonable inference that defendant in fact harbored these two intents and that they were sufficiently separate to support separate punishments for the altering counts on top of the punishments imposed for the forgery counts. Her intent to continue defrauding the Studio in the future was not subsumed by her intent to obtain funds from each individual check that she forged. Accordingly, we reject defendant's contention.
V. DISPOSITION
The judgment is affirmed.
WE CONCUR: BAMATTRE-MANOUKIAN, J. DANNER, J.