PEOPLE v. VIDANA

Appellant’s Petition for Review

Cal.February 24, 2015

$224546 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA THE PEOPLE OF THE STATE OF CALIFORNIA, SUPREME COURTFED Plaintiff and Respondent, iat LD Vv. FEB 24 2015 ANITA VID ~ JU ANA, . Franca. McGuire Clerk Defendant and Appellant. noeconcen Deputy Fourth Appellate District, Division Three, No. G050399 Riverside County Superior Court No. RIF 1105527 The Honorable Edward D. Webster, Judge PETITION FOR REVIEW RECEIVED | FEB 202015 CLERK SUPREMECOURT Valerie G. Wass Attorney at Law State Bar No. 100445 556 S. Fair Oaks Ave., Suite 9 Pasadena, CA 91105 vgwassatty@gmail.com (626) 797-1099 Counsel for Appellant JUANITA VIDANA By Appointmentof the Court of Appeal under the Appellate Defenders, Inc. independent case system. TABLE OF CONTENTS Page TABLE OF AUTHORITIES ........... 0.0.0.0. cece een eens ill PETITION FOR REVIEW ......... 0... cece cee cee teens 1 MEMORANDUMIN SUPPORT OF THE PETITION .............. 2 STATEMENT OF THE ISSUES ................0 00 cc cece eee 2 STATEMENT OF THE CASE........... 000 ccc ccc ee cence ees 3 STATEMENTOF FACTS ......... 0... ccc cece cence ences 3 NECESSITY FOR REVIEW .......... 0.0: cc cece ccc te vee e ees 4 ARGUMENT.. 0.ccccee tee teen eee eens 6 I. APPELLANT’S CONVICTION FOR EMBEZZLEMENT MUST BE REVERSED BECAUSE THERE WAS AN ABSENCE OF EVIDENCE TO ESTABLISH THAT SHE TOOK OR CONVERTED MONEY BELONGING TO HER EMPLOYER ........... 0... cc ccc ee cece eee eee 6 A. Introduction ............ 00... ccc ec e eee eee 6 B. Standard of Review .......... 0.00.0. ccc ee eee 6 C. There Is an Absence of Substantial Evidence to Support Appellant’s Convictions Because the Prosecution Failed to Establish That Appellant Converted and/or Took Money FromHer Employer .. 0.2.0... ee eee cee eens 7 II. THE TRIALCOURTABUSEDITSDISCRETION BY ORDERING APPELLANT TO PAY $58,273.02 IN VICTIM RESTITUTION BECAUSE THE ORDER EXCEEDS THE BOUNDS OF REASON AS THE EVIDENCE DOES NOT ESTABLISH THAT APPELLANT WAS RESPONSIBLE FOR TAKING THE ENTIRE AMOUNT OF MONEY THAT WAS MISSING FROM HER EMPLOYER AND THE RESTITUTION ORDERIS CONTRARYTOTHE PROBATION PURPOSE OF REFORMATION AND REHABILITATION ................0 eee .... 19 TABLE OF CONTENTS, Con’t Page A. Introduction & Relevant Procedural History ...............eee eee tne eee eee 19 B. Victim Restitution Imposed Pursuant to Section 1203.1, Subdivision (a) Must Be Reasonably Related to the Crime of Which the Defendant Was Convicted or to Future Criminality ........... 0.0.00. 20 C. The Trial Court Abused Its Discretion By Imposing Victim Restitution in the Amountof$58,273.02 Because It Is Not Reasonably Related to the Offenses of Which Appellant Was Convicted or to the Purposes of Probation ................0 0005 23 CONCLUSION ...... 0... cece eee ene e teen nene 27 CERTIFICATE OF APPELLATE COUNSEL PURSUANT TO CALIFORNIA RULES OF COURT, RULE 8.504 (d)(1)........ 28 li TABLE OF AUTHORITIES Cases Pages Inre Winship (1970) 397 U.S. 358 2.6... ccc ee eee es 6, 18 Jackson v. Virginia (1979) 443 U.S. 307 0.6... eee eee eee 6, 18 Kelly v. Robinson (1986) 479 U.S. 36 «0...ccc eee eee 22 O'Sullivan v. Boerckeli (1999) 526 U.S. 838 2.0... cece eee 4 People v. Carbajal (1995) 10 Cal.4th 1114 ............-... 21, 22, 23 People v. Ceja (1993) 4 Cal.4th 1134 2.0... .. eee eee eee eee eee 7 People v. Lent (1975) 15 Cal. 3d 481 0.0... cece eee eee eee eee 23 People v. Marshall (1997) 15 Cal.4th 1 ......-.- ee eee eee eee 7 People v. Moser (1996) 50 Cal.App.4th 130 .........--.-.005. 21, 22 People v. Rugamas (2001) 93 Cal.App.4th 518 ......--......0005- 21 People v. Welch (1993) 5 Cal.4th 228 . 0.0.0... . 2. cee eee eee eee eee 23 Constitutional Provisions U.S. Const., 14th Amend ....... 0.00. cc eee eee eee 6, 18 Rules of Court Cal. Rules of Court, rule 8.500 ........ 0. c eectete 1 Cal. Rules of Court, rule 8.504 2.0.0.0... cece cc eee eee 1 Statutes Pen. Code § 487, subd. (a)... 6...nets 3 Pen. Code § 503 2...eeneensLae eeee 3 Pen. Code § 1202.4, subd. (f) «0... eee ee ence eens 20 Pen. Code § 1202.4, subd. (f)(3) ... 6.cee ee eee 21 Pen. Code § 1203.1, subd. (a)(3) . 2... eee eee eee 19, 20, 21 Pen. Code § 1203.1, subd. (J) 2.0... eeeeee ee eee 22, 26 lil IN THE SUPREME COURT OF THE STATE OF CALIFORNIA THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, v. JUANITA VIDANA, Defendant and Appellant. PETITION FOR REVIEW TO THE HONORABLE TANI CANTI-SAKAUYE, PRESIDING JUSTICE, AND TO THEHONORABLEASSOCIATEJUSTICES OF THE SUPREME COURT OF THE STATE OF CALIFORNIA: Pursuant to Rules 8.500 and 8.504 of the California Rules of Court, appellant Juanita Vidana respectfully requests that this Honorable Court the decision of the Court of Appeal, Fourth Appellate District, Division Three, whichaffirmed as modified the judgmentofthe superior court. A copy ofthe opinionfiled on January 23, 2015, is attached hereto as Appendix “A.” MEMORANDUM IN SUPPORT OF THE PETITION STATEMENT OF THE ISSUES 1. Isadefendant’s state and federal constitutional right to due process violated when she is convicted of embezzlement and the evidence demonstrates that numerous people had access to the missing money and it fails to establish that the defendant was the individual who embezzled the money? 2. In an embezzlementcase, does a trial court abuse its discretion by ordering the defendant to pay $58,273.02 in victim restitution when | multiple individuals had accessto the cash payments oftheir employerandthe evidence fails to establishes the defendant was responsible for the entire amount ($58,273.02) of missing cash? 3. Doesa trial court abuse its discretion by imposing restitution order in an amountthat it realizes the defendant will not be able to fully or substantially pay, the defendant has four very young children to support. her felony conviction makesit difficult for her to find employment, and the evidence fails to establish that the defendant was responsible for the loss of entire amount of the restitution order? STATEMENT OF THE CASE Following a jury trial, appellant was found guilty of two felonies: embezzlement (Count-1 - Pen. Code § 503)'; and Count2- grand theft (Count 2 - § 487, subd. (a)). (LCT 105, 149-150.) On May 10, 2013, appellant was placed on formal probation for a period of 36 months, and committed to the custody of the Riverside County Sheriff for 240 days. (1CT 151-153; 2RT 501-503.) Appellantfiled a timely notice ofappeal. (1CT 175.) On January 23, 2015,in an opinion certified for partial publication, the Court ofAppeal found that larceny and embezzlement constitute two different ways of committing the single offense of theft. (Slip opn. p. 11.) It struck appellant’s conviction for grandtheft, and it affirmed, as modified, thejudgment. (Slip opn. p. 17.) Appellantdid notfile a petition for rehearing. STATEMENT OF FACTS For purposesofthis Petition for Review, appellant adopts the facts set forth in the “Facts” section of the opinion. (Slip opn. pp. 2-5.) Additional -facts, when relevant, are included in the argumentsthat follow. ’ All further statutory references are to the Penal Code. 3 NECESSITY FOR REVIEW Review of this case is necessary to address two important and recurring questions of law. This petition is also necessary to exhaust appellant’s state remedies before seeking federal review. (See e.g. O'Sullivan v. Boerckeli (1999) 526 U.S. 838 [144 L.Ed.2d 1, 119 S.Ct. 1728].) The first question presented addresses the threshold of evidence necessary to support a defendant’s conviction for embezzlement. It is appellant’s position that her conviction violates her federal constitutional right to due process because there was evidence that multiple people had access to the cash payments that were embezzled andthe prosecution failed to establish that she was the individual who embezzled the moneythat was missing from her employer. The Court of Appeal disagreed, and foundthat because the receipts from the missing payments werein appellant’s receipt book, and an employee testified appellant’s handwriting was on the envelopes of those payments, substantial evidence support’s appellant’s conviction. (Slip opn. pp. 11-14.) This court should grant review and determine whether the Court of Appeal properly analyzed the issue and correctly rejected appellant’s position. | The second question involves the scopeofthe trial court’s discretion in ordering restitution as a condition ofprobation. On appeal appellant argued that the trial court abused its discretion by imposing a $58,273.02 victim restitution order becausethe order is not reasonablyrelated to the crime for which she wasconvictedor to the purposes ofprobation. Appellant argued that at most a victim restitution order of $10,976.00 would be appropriate, because that was the amount missing from the four envelopes with partial payments. Shealso arguedthat the restitution order was inconsistent with the purposes of probation because her felony conviction limits her ability to obtain gainful employment, she has four very young children to support, the court indicated it did not expect appellant to be able to pay the total amount imposed, and the huge financial burden would interfere with her rehabilitation. The Court ofAppealrejected appellant’s argumentin its entirety. (Slip opn. pp. 15-16.) It found there was circumstantial evidencethat appellant had taken $58,273.02 from her employer, “And havingcredited that evidence, the trial court was required to award full restitution unless clear and compelling reasons dictated otherwise.” (Slip opn. p. 16.) The court held that even though appellant would havedifficulty paying the restitution that “is not a sufficient reason to depart from the constitutional mandate of full victim restitution.” (/bid.) Review should be granted to determineifthe Court of Appeal reached the proper conclusion or whether the $58,273.02 victim restitution order exceeds the boundsofreason and/oris not reasonablyrelated to a purposeofprobation. ARGUMENT I. APPELLANT’S CONVICTIONFOREMBEZZLEMENT MUST BE REVERSED BECAUSE THERE WAS AN ABSENCE OF EVIDENCE TO ESTABLISH THAT SHE TOOK OR CONVERTED MONEY BELONGING TO HER EMPLOYER A. Introduction Appellant was convicted ofone count ofembezzlement and one count of grand theft. The prosecution’s theory of the case was that from June 24, 2010, through June 23, 2011, appellant, while working at Robertson’s as a credit agent, misappropriated and took $58,273.02 from cash paymentsthat she accepted from customers on behalfofRobertson’s. Asillustrated below, there is an absence of substantial evidence to support appellant’s conviction because there were a numberof individuals who handled the cash payments, and the prosecution failed to establish that the cash losses occurred during times when appellant handled the payments and that she wasthe individual whotook the money from her employer. B. Standard of Review The due process clause of the Federal Constitution prohibits the criminal conviction ofany person except upon proof beyond a reasonable doubt. (U.S. Const., 14th Amend.; Jackson v. Virginia (1979) 443 U.S. 307, 319 [61 L.Ed.2d 560; 99 S.Ct. 2781]; Inre Winship (1970) 397 U.S.358, 364 6 [25 L.Ed.2d 368, 90 S.Ct. 1068].) There must be substantial evidence to support a conviction, such that a reasonable jury could find guilt beyond a reasonable doubt. (People v. Ceja (1993) 4 Cal.4th 1134, 1138.) Substantial evidence consists of evidence that reasonably inspires confidence andis of solid value. (People v. Marshall (1997) 15 Cal.4th 1, 34.) Cc. There Is an Absence of Substantial Evidence to SupportAppellant’s Conviction Because the Prosecution Failed to Establish That Appellant Converted and/or Took Money From Her Employer It cannot be disputed that the accounts receivable and accounting practices and procedures in use at Robertson’s during 2010 and 2011 were rudimentary and outdated, especially considering the large amount of cash received at the company’s offices. The evidence established that a customer would come into Robertson’s offices to make a cash payment. When a customer’s paymentincluded cash, the customer would go to the desk of a credit agent, hand the agent the cash, and the agent would use their own receipt book and write a receipt for the customer. The credit agent would thereafter usually take out an envelope, and write on the outside of it information regarding the payment - the identity of the customer, and the amount of cash received. Subsequently the agent would take the envelope with the cash to a designated employee. (1RT 90-91, 167-168, 224-225 , 238- 239, 273.) In 2010 and 2011, the credit agents were directed to take cash payments to Levato, and if she was not available, they were to take them to Therese Bernstein. Megan Levato or Bernstein would count the cash in the presence of the credit agent, verify it matched the amount written on the envelope, andinitial the envelope. (1RT 90-91, 226, 240.) Sometimes they would make a copy of the envelope and provide it to the agent, who then returned to their own desk. (IRT 191, 238-239, 249.) If Bernstein received the money in Levato’s absence, she would place it in her desk draweruntil Levato returned. (1RT 231,245.) Although Bernstein claimed that she would lock the money in her desk drawer, Lori Lannitestified that she never saw Bernstein lock or unlock her drawerand that she did not know if Bernstein kept her drawer locked. (1RT 245; 2RT 281.) Levatotestified that after she received a cash payment, she would lock it in her desk draweruntil she made a bank depositat the end ofthe day, and thatprocedure was confirmed by Bernstein. (LRT 224-225, 229-230.) Levato furthertestified that she would wait until the end ofthe day to make a deposit, regardless of whether she had collected a large amount of cash. (1IRT 229.) Hertestimonyclearly contradicted that ofKaye Bennett, whostated that upon receipt ofa large amountofcash, it would be immediately deposited, Levato would goto the bankas often as needed, and that Levato would only keep up to $5,000.00 in her desk before making a deposit.’ (IRT 169-170.) According to Bennett, Levato, and Bernstein, in 2010 and 2011, the only people who were handled cash payments between the time of the paymentandthe deposit werethe credit agents, Bernstein, and Levato. (1RT 89-90, 226, 240.) While they may have been the only designated personsto regularly handlethe cash, in reality numerousotherindividuals handled cash at various times. The evidenceestablished that RosaVillanueva wasthe back- up person for making cash deposits. (1RT 168.) Levatotestified that when she received a large amount of money from a credit agent, or when she received cash after the bank wasclosed, she gaveit to Bennettto putin the safe. (IRT 230, 232.) When Bernstein received a cash deposit after 5:00 p.m., she gaveit to Bennett to lockit in the safe, and ifBennett wasnotthere, she gaveit to the controller. (1RT 168, 246.) According to Bennett,ifa cash deposit camein late and she wasnotin the office, it could be given to the operations manager. Shetestified that besides herself, only the president of the company and the operations manager knew the combinationto thesafe. (1RT 168-169, 179.) Bennett also testified that if those individuals were absent, the money could be given to the controller. (IRT 180.) Thusthere wasevidencethat at various times, there were at least seven individuals who * Bennett also testified that sometimeswith a large cash payment, such as one over $10,000, the credit agent would ask the customer to meet them at the bank to make the deposit. (1RT 208, 218.) 9 could handle the cash that had been turned overby a credit agent. Once the credit agent had turned over a cash payment to another employee, there was ample opportunity for that individual to misappropriate someor all ofthat payment. After Levato received a cash payment, she would provide the relevant information to accounting clerk Villanueva, who entered it into the data base. (IRT 225-226.) Levato could have provided erroneous information to Villanueva - either intentionally or unintentionally - at any time. IfBernstein or Levato or anyoneelse had received money from a credit agent, and failed to have it entered into the database, the credit agent would have nothingto apply to the computerinvoice, and the payment would appear missing. (1RT 93.) Lannitestified that throughout the day, runners from different plants ~ would bring Levato cash bags from C.O.D.s, and Levato kept the moneyin her desk. When customers at Robertson’s needed change to make a cash payment, Levato would sometimes have to start opening envelopes received from other plants to make change. (2RT 279.) The fact that Levato received cash throughout the day and kept most of the cash in her desk, provided her with ample opportunity to steal cash from her employer, especially since the surveillance cameras did not point to her desk. (IRT 219.) ‘Moneythat was had beenplacedin the safe at the end ofthe day would not be entered into Robertson’s database until the following day. (1RT 169, 10 184.) There was evidence that sometimes incidents occurred where money wasnot entered into the database and deposited for a significant period of time. Bennett recalled one occasion when she returned from vacation and learned that Bernstein had collected cash one day that did not appear in the deposit, and it waslater foundin her desk. Bernstein said she had forgotten to turn it in. The credit agent for that customer had noticed the discrepancy. (1RT 196.) Lannitestified about an incident whereit took three weeksfor a $400.00 deposit to be made and posted. A statement had gone out showing the customerthey still owed the money, and Lanni received a call from the customersaying they had already paid. Lanni went to Bennett, who opened the safe, took out the money, and brought it to Levato. (2RT 270-271.) There were also between six and eight credit agents working in Robertson’s offices during the relevant time period, and they worked as a team and covered for each other. (IRT 161, 162; 2RT 264-265.) Although cash payments weretypically made to the customer’s assigned credit agent, one agent would accept payment from the customerof another agent if the assigned agent wasatlunch,sick, or otherwise out ofthe office. (IRT 164, 89, 167.) Accounts were reassigned wheneveran agentleft their employment or went out on maternity leave. (IRT 162; 2RT 287.) Each credit agent had their own receipt bookthat they wereto keep in their desk. (IRT 163-164.) Although each agent was supposedto use their ownreceipt book, there would I] be times when they would not do so, such as whenthey ran out of receipts in their book, or when they had locked their receipt book in their desk and did not have immediate accessto their desk key. (IRT 165.) In fact there was evidence at that another agent had used appellant’s receipt book. A receipt from appellant’s receipt book dated 1-26-11 to Christian Failey for a credit card payment was signed by someoneother than appellant. (Exh. 1C; 1RT 165.) According to Bennett, appellant’s signature appeared on all of the receipts related to the payments where someorall ofthe cash portion thereof was subsequently missing. (1RT 187.) Bennett, however, is not a handwriting expert, and the prosecution did not call any expert to establish that any of the purported signatures or writing on the receipts belonged to appellant. Discernable differences in the handwriting on the signatures is apparent merely by viewingthe signatures on variousreceipts introduced into evidence by the prosecution. (See Exhs. 1A-1H; 2A-2C: 3A-3D; 4A, 5A 6A- 6B, 7A-7B, 8A, 9B, 10A, 11A, 12A.) There was evidence that errors occurred in various stages of the . accounts receivable process. (1RT 137; 2RT 389.) For example, receipt #219681 reflects a $7662.00 check payment Ricardo Gonzalez made on May 12 17, 2011 (Exh. 1F; 1RT 31.) A Payment Hitlist shows that the entire payment wasposted, but it was entered as a cash payment, rather than as a check payment. (Exh. 1L; 1RT 111-112.) There was also a “99999”account where payments were posted when money wasreceived that could not be attributed to any particular customer. (2RT 377-378.) There was conflicting testimonyabouttheability ofvarious employees to go into the database and transfer money between accounts. Bennett testified that unlike accounts receivable clerks, credit agents can transfer money from one accountto another, although they are supposed to cometo her and ask herto do so. (IRT 171-172.) Shealsotestified that credit agents had complete access to get into every account, and that they could switch around credits from cash to check, and post and not post in someone’s account. (1RT 167.) Bennett’s testimony on this subject was not corroborated byany other witness. Appellanttestified that only Bennett could moveor transfer money. (2RT 330.) Lannitestified that if a customer had paid, and it had been applied to the wrong job, she would have to request Bennett to move the moneyto a differentjob number. (2RT 284.) Lannialso testified that all agents other than Maria were blocked from moving money from one accountto another. (2RT 275.) Levato, who had becomea credit * Thereporter’s transcript erroneouslyindicates that the payment was in the amount of $76.62. (1RT 31.) 13 agent three weeksbeforetrial, was not aware if credit agents hadthe ability to credit accounts or move things around from one customerto another. (LRT 233.) Another problem in the accounting system was the mannerin which discounts and deductions were taken by customers and applied to their accounts. Customers came in to pay their accounts and took various deductions that they claimed they were entitled to take. The credit agent would sometimesnot learn until later, whether the sales representative had authorizedall or part ofthe deductions. This matter was complicated further when a credit agent took such a payment from a customer who wasassigned to a different credit agent. (2RT 267-269, 304, 329-330.) The Payment Hitlists introduced into evidence by the prosecution contained zero checks and zero amounts, and the details of such transactions cannot be ascertained from the lists. (Exhs. II, 1J, 1K, 1L, 2D, 3E, 4B, 5B, 6C, 7C, 8B, 9A, 10B, 11B, 12B.) Some of the zero checks occurred at the end ofthe month, which may have beenthe result ofreconciling done by the accounting departmentat the end of each month. (RT 170-171.) Based on the fact that the accounting department reconciles on a monthly basis, they would have knownat that time whether all of the money collected during the previous month had been deposited. (1RT 170-171.) Although Robertson’s contended that appellant had been taking moneyfor a 14 one year period beginning in June of 2010, they were not aware of any cash payments missing from her customers’ accounts until after she went o n maternity leavein late June of 2011. (IRT 138, 178.) Neither Bernstein n or Levato ever came to Bennett indicating there were any issues with appellant, or stating that the cash in an envelope she provided did not match the amoun t written thereon. (1RT 179, 182.) No customers came to Bennett complaining that payments they made were missing from their statements. (1RT 179.) It is significantthat there was no evidencethat any anyone complained about appellant’s work, or that appellant's customers had claimed that the ir cash payments had not beenfully credited to their accounts. (2RT 333.) In fact appellant’s supervisortestified that appellant had been an exceptiona l employee. (1RT 136-137.) Levato testified that she had no problems with appellant or appellant’s work during 2010 and 2011. (IRT 233.) Sin ce appellant was missing alot ofwork during her last pregnancy andother agen ts covered for her, and it was knownthat appellant was going to be taking a maternity leave, other credit agents would have had the opportunity to take or misappropriate cash from payments made by appellant’s customers, and in t he process, they may have framedher. (2RT 317.) Evidence waspresentedthat a $2,000.00 check thatVSP Concrete sent to Robertson’s in April of2011, was deposited and coded to be posted to the ir account,butit was not applied in the way it was intended. Two invoices w ere 15 paid, and the balance of $1,011.32 was put on the account as an opencredit to be used, but it was then transferred to the Unique Concrete Dimension account and used to pay one oftheir invoices that had previously been paid with cash. (1RT 152.) The prosecutor contended that the transfer occurred to cover up a theft of a $1,000 cash payment made by Unique Concrete Dimension in January. (2RT 419.) The evidence, however,failed to establish that appellant even hadthe ability to make such a transfer. Further, there was no evidence presentedto establish, either from coding in the computer system itself, or from anyoneelse, that appellant had posted the payments to the accounts and/or madethe transfer between the accounts. The Payment Hitlist for Long Horn has a 0.00 posting for June 26, 2011, a Sunday, which was 27 days after the $13,900.00 cash payment was made, from which $900.00 was missing. The 0.00 posting represents that someone had goneinto the system that day and posted some type of money. (Exh. 1L; 2RT 318-320.) It seems strange that an entry had been made on a Sunday, which was not a normal working day at Robertson’s. (2RT 320.) The prosecution offered no explanation for the entry or the fact that it was made on a Sunday. Perhapsthe strongest evidence in the prosecution’s case consisted of the four envelopes that had contained cash payments (Exhs. 28-31), because the amountofcash designated on each one, which had allegedly been written 16 by appellant, was significantly less than that contained on the corresponding receipts foundin appellant’s receipt book. (Exhs. 1-D, 1-E, 1-G, 7-A.) There wasa total of $10,976.00 missing from those four payments. (See Exh. 33.) Bernsteintestified that the customer number and amountofcash appearing on the envelopes had been written by the credit agent, except for the corrected amount of$9,000 on one ofthem (Exh.30). (IRT 244.) Bennett testified that she recognized that the customer numbers and amounts of cash were in appellant’s handwriting. (1RT 156-159.) A majorflaw in the prosecutions’ case is that neither Bennett nor Bernstein are handwriting experts, and their testimonyfailed to establish that appellant’s handwritingis actually on any of the four envelopes. The prosecution did not introduce any evidence to establish that appellant took or misappropriated the missing cash andusedit for her own benefit. Not only were no bank accountrecords ofappellantor other financial documents introduced into evidence, there was also an absence of evidence that appellant had made any unusualor expensive purchasesin 2010 or 2011. Bennett testified that appellant never spoke about being independently wealthy or not having to depend on her paycheck. In fact appellant told Bennett that, “pretty much she was always out of money.” (1RT 140.) There were simply two manyholes in Robertson’s accountsreceivable and accounting systems, and too many people handling the cash withoutit 17 necessarily being documented andtracked,to establish that appellant was the individual responsible for the missing money. Accordingly, her convictions violate her constitutional right to due process, and they must be reversed. (U.S. Const., 14th Amend.; Jackson v. Virginia, supra, 443 U.S. at p. 319; In re Winship, supra, 397 U.S.at p. 364.) 18 Il. THE TRIAL COURT ABUSED ITS DISCRETION BY ORDERING APPELLANT TO PAY VICTIM RESTITUTION IN THE AMOUNT OF $58,273.02 BECAUSE THE ORDER EXCEEDS THE BOUNDS OF REASON UNDER THE CIRCUMSTANCESIN THAT THE EVIDENCE DID NOT ESTABLISH THAT APPELLANT WAS RESPONSIBLE FOR TAKING THE ENTIRE AMOUNT OF MONEY THATWASMISSING AND THE RESTITUTION ORDER IS CONTRARY TO THEPROBATIONPURPOSE OFREFORMATIONAND REHABILITATION A. Introduction & Relevant Procedural History The court ordered appellant to pay $58,273.02 in victim restitution pursuantto section 1203.1, subdivision (a)(3). The prosecutor contendedthat $58,273.02 was the appropriate amountofrestitution becauseitwas “the total amount that was proven upattrial.” (2RT 497.) Defense counsel did not dispute that “the amountthat wastestified to was $58,273.02,” and the court thereafter ordered appellant to pay victim restitution in that amount, with interest at the rate of 10 percent per annum. (1CT 151; 2RT 497, 502.) Asillustrated below, this court should find thatthetrial court abused its discretion by imposing victim restitution in the amount of $58,273.02 because: the evidence failed to establish that appellant was the person responsible for taking all of the missing money; the jury’s verdict only established that it found that appellant had taken more than $950.00; and requiring appellant to pay such a substantial amount ofrestitution is 19 inconsistent with the reformation and rehabilitative purposes ofprobation and therefore the restitution order exceeds the bounds of reason. Appellant requeststhatthe victim restitution order be reduced to $10,976.00, because the evidence failed to support a finding that appellant was responsible for any greater loss to Robertson’s, and such an order would promote the reformation and rehabilitative purposes ofprobation. B. Victim Restitution Imposed Pursuant to Section 1203.1, Subdivision (a) Must Be Reasonably Related to the Crime ofWhich the Defendant Was Convicted or to Future The victim restitution order was imposed pursuantto section 1203.1, subdivision (a)(3). This statute provides: The court shall provide for restitution in proper cases. The restitution order shall be fully enforceable as a civil judgmentforthwith and in accordance with Section 1202.4 of the Penal Code. . Victim restitution is mandated by section 1202.4, subdivision (f). Said section provides in pertinentpart: ... in every case in which a victim has suffered economicloss as a result of the defendant’s conduct, the court shall require that the defendant makerestitution to the victim or victims in an amountestablishedby court order, based on the amount ofloss claimed by the victim or victims or any other showingto the court. Ifthe amountofloss cannotbe ascertainedat the time of sentencing, the restitution order shall include a provision that the amountshall be determined at the direction of the court. The court shall order full restitution unlessit finds compelling and extraordinary reasonsfor not doing so and states them on 20 the record. The dollar amount of therestitution must be “sufficient to fully reimbursethe victim or victims for every determined economic loss incurred as the result of the defendant’s criminal conduct... .” (§ 1202.4, subd. (f)(3).) Such losses include, butare not limited to: (E) Wagesorprofits lost by the victim,. . . * OR ok (G) Interest, at the rate of 10 percent per annum,that accruesas ofthe date of sentencingorloss, as determined by the court. When a trial court orders restitution pursuant to section 1203.1, subdivision (a)(3) as a condition of probation, the discretion of the court is only restricted by the purposes of probation. A restitution order imposed pursuantto section 1203.1, subd. (a)(3), as a condition of probation must be “reasonablyrelated either to the crime ofwhich the defendantis convicted or to the goal of deterring future criminality.” (People v. Carbajal (1995) 10 Cal.4th 1114, 1121; see also People v. Rugamas (2001) 93 Cal.App.4th 518, 521.) In People v. Moser (1996) 50 Cal.App.4th 130, the court explained: Restitution “is an effective rehabilitative penalty because it forces the defendant to confront, in concrete terms, the harm his actions have caused. Such a penalty will affect the defendant differently than a traditionalfine, paid to the State as an abstract and impersonal entity, and often calculated without regard to the harm the defendanthas caused. Similarly, the direct relation 21 between the harm and the punishmentgivesrestitution a more precise deterrent effect than a traditionalfine.” (Ud. at p. 135-136, citing Kelly v. Robinson (1986) 479 U.S. 36, 49, fn. 10 [93 L.Ed.2d 216; 107 S.Ct. 353].) In People v. Carbajal, supra, 10 Cal.4th 1114, the California Supreme Court noted that there is no requirementlimiting the restitution order to the exact amountof the loss for which a defendant is found culpable, and the order need notreflect the amount ofdamagesthat could be recoveredin a civil action. (Ud. at p. 1121.) It also rejected the defendant’s argumentthat the restitution order must be limited to losses that are caused by the crime for which the defendant was convicted. (/d. at p. 1122.) The court held that _ whenthetrial court orders victim restitution as a probation condition, even wherethe victim’s loss did not result from the crime for which the defendant was convicted, the restitution order is proper as long as thetrial court finds thatit will serve one ofthe purposes ofprobation set forth in section 1203.1, subdivision (j). (/bid.) Section 1203.1, subdivision (j) provides in relevantpart: The court may impose and require any or all of the above-mentioned terms of imprisonment, fine, and conditions, and other reasonable conditions, as it may determineare fitting andproperto the end thatjustice may be done,that amends may be madeto society for the breach ofthe law, for any injury done to any person resulting from that breach, and generally and specifically for the reformation and rehabilitation of the probationer, ... 22 The Carbajal court explained the scope ofthetrial court’s discretion to orderrestitution as a condition ofprobation: Thetrial court’s discretion, although broad,nevertheless is not without limits: a condition of probation must serve a purposespecified in the statute. In addition, wehave interpreted Penal Codesection 1203.1 to require that probation conditions which regulate conduct “not itself criminal” be “reasonably related to the crime ofwhich the defendant was convicted or to future criminality.” (People v. Lent, supra,[(1975)] 15 Cal. 3d 481, 486.) As with any exercise of discretion, the sentencing court violates this standard whenits determination is arbitrary or capricious or ‘“““exceeds the bounds ofreason, all of the circumstances being considered.” [Citations.]” (People v. Welch, supra, [(1993)] 5 Cal.4th [228] at p. 233.) (Carbajal, supra, 10 Cal.4th at p. 1121.) Cc. The Trial Court Abused Its Discretion By Imposing Victim Restitution in the Amountof $58,273.02 Because It Is Not Reasonably Related to the Offenses of Which Appellant Was Convicted or to the Purposes of Probation Here the $58,273.02 victim restitution order is not reasonably related to the crimes for which appellant was convicted, or to the purposes of probation. In ArgumentI, ante, appellant presented her argumentthat there wasinsufficient evidence to support her convictions. If this court disagrees and affirms her convictions, it should recognize and consider that the evidence failed to establish that appellant was in fact responsible for the theft of the entire $58,273.02 that was missing from Robertson’s. Atbest, the strongest 23 evidencein the case only suggested that appellant may have been res ponsible for $10,976.00 of the missing money - the amount missing fro m the cash payments that had been turnedinto accounts receivable in the four envelopes admitted into evidence as Exhibits 28, 29, 30 and 31. Written on each of the four envelopes was the amount of cash contained therein and the customer’s number, and these notat ions were allegedly written by appellant. The cash in the four envelopes turne d over to the accounts receivable departmentwas significantly less than the amount of the cash payments as reflected in the corresponding receipts found in appellant’s receipt book, thatwere also purportedly written by appel lant. With regard to the other missing payments, no portion of the cash pay ments had been turned into accounts receivable, but there is a lack of substantial evidenceto establish that appellant had taken that portion of the missing money. No handwriting expert verified the writing on the receipts for any of the payments in question, and there wasno surveillance video showing appellant accepting any ofthe payments, doing anything unusualwith the cash payments, or taking the money for her own personal use. Altho ugh the prosecution contended that appellant misappropriated and took $ 58,273.02 from the various cash paymentsthat she received, the jury’s verdict, finding appellant guilty of grandtheft, reflects only that it found that appel lant had taken more $950.00. As such, the restitution order imposed was not 24 reasonably related to the offenses for which appellant stands convicted. Appellant contends that an $10,976.00 would be the appropriate victim restitution order, because that is the amount of cash missing from the four payments that were submitted in the envelopes introducedinto evidence. The $58,273.02 restitution order is not reasonably related to the reformation and rehabilitative goals of probation. During the probation and sentencing hearing, defense counted pointedout that with ten percentinterest per annum ona restitution order of $58,273.02, appellant would need to pay more than $500.00 a month “to even get ahead, to even makea dentin the amountofrestitution.” (2RT 494.) The court made a statementindicating that it did not expect that appellant would beable to pay the entire amount of restitution, and that it would even besurprised if she paid back a substantial portion of it. (2RT 494.) Subsequently the court reiterated its beliefthat it would be unlikely that appellant would be able to pay the full amount of restitution. (2RT 499.) Thecourt also acknowledgedthat it would be difficult for appellant to get a job in light of her convictions. (2RT 501.) When imposing fines and fees, the court found that appellant lacked the ability to pay the bookingfee, the cost ofthe presentence report investigation, and attorney’s fees. It stated, “Everything that I can find relatedto herability to pay I’m goingto find that she doesnot havethe ability to pay.” (2RT 497.) 25 One ofthe purposesofprobationis “the reformation and rehabilitation of the probationer.” (§ 1203.1, subd. (j).) Imposition of the $58,273.02 restitution order in appellant’s case does not promote this purpose, and it could likely be detrimental to accomplishing this purpose. The record established that at the time ofthe probation and sentencing hearing, appellant had three children under the age of four, and that she wasalso caring for her - one-year old nephew, and trying to obtain permanent custody ofhim. (1CT 155; 2RT 499.) By placing such an onerous financial burden on appellant it will be difficult for appellant to become rehabilitated, because she will already be facing substantial difficulty finding a decent payingjobin light of her convictions, and the fact she and her husband have the financial responsibility of raising four very young children. In light oftheall ofthe relevant circumstances, including the absence of evidenceto establish that appellant had taken the entire sum ofthe missing cash payments, and becausethe victim restitution orderis not consistent with the purposesofprobation, this court should find that the $58,273.02 victim restitution order exceeds the boundsofreason, and that thetrial court abused its discretion by imposing it as a condition of probation. For the reasons discussed hereinabove, the victim restitution order should be modified by reducing it to $10,976.00. 26 CONCLUSION Basedonall ofthe foregoing reasons, appellant respectfully requests this Honorable Court to grant review in this matter. DATED:February 18, 2015 Respectfully Submitted; Valerie G. Wass Attorney for Appellant JUANITA VIDANA 27 CERTIFICATE OFAPPELLATECOUNSELPURSUANT TO CALIFORNIARULES OFCOURT, RULE8.504 (d)(1) I, Valerie G. Wass, hereby certify, pursuant to California Rules of Court, rule 8.504 (d)(1), that I prepared the foregoing Petition for Review, and the computer-generated word count for this brief is 5.872, which does not include the cover, tables, appendixorthis certificate. Dated: February 18, 2015 Valerie G. Wass 28 APPENDIX “A” CERTIFIED FOR PARTIAL PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT THE PEOPLE, Plaintiff and Respondent, Vv. JUANITA VIDANA, Defendant and Appellant. DIVISION THREE G050399 (Super. Ct. No. RIF1105527) OPINION Appeal from a judgmentof 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 exceptionofparts II, III and IV ofthe discussion section. Ajury found defendant Juanita Vidana guilty of one count of grand theft by larceny (Pen. Code, § 487, subd. (a))’ and one countofgrand 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 daysin 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).) Defendantraises 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 abusedits discretion in denying her motion to reduce the charges to misdemeanors (§ 17, subd. (b)). Fourth, she contends the court abusedits discretion in setting the amountofrestitution at $58,273.02. In the published portion of this opinion, we agree with herfirst 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 ontheparticular job). Robertson’s recourseif it did not get paid wasto file a lien. The credit agents were responsible for tracking the relevant time periods to ensure that, if All statutory references are to the Penal Code unless otherwisestated. 2 necessary, a lien wastimely filed. Each credit agent was assignedparticular customers, up to as manyas 400. When a customer came into Robertson’s to pay an invoice with cash,the customer would tender paymentto 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 amountof 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 wasverified, Levato would lock the moneyin her desk to be deposited in the bank. If the money camein too late to be deposited that day, Levato would putit into a safe. If Levato were not there, the moneycould 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 wasreceived andverified, Levato would instruct another employee to update the company’s computer database with the amounts received from that particular customer. Thecredit agent assignedto 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 makingtimely payments. This was essential to ensure liens were timely filed. If unpaid invoices were approaching the deadlineto file a lien, the credit agent’s job wasto call the customer to inquire about receiving payment. In June 2011 defendant went on maternity leave and another cre dit agent, Tina Hawkins, took over defendant’s customer account for Lo nghorn Pumping. Hawkins immediately noticed that the account was delinquent. Hawkin s called Longhorn Pumping to inquire about the delinquency. She informed the o wner of Longhorn Pumping that his account wasbeing placed on hold until the p ayment was made. The owner disagreed,insisting he had paid cash the day before. He broughtin his receipts to prove that he had paid. The receipts were consistent with defe ndant’s handwriting. But there was no record of the moneyreceived in the database. Be nnett spoke with defendant on the phone and asked her aboutthe customer’s payment. De fendantstated she had given the cashto either Bernstein or Levato, pursuant to company policy. This incident prompted Bennett to review other receipts in defen dant’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. Th e receipts with missing cash entries span from June 2010 to May 201 1 and involve 12 diff erent customers. In some instances,the entirety of the cash paymentreflected on a parti cular receipt is missing from the database. In otherinstances, the database reflected o nly part of a cash payment reflected on defendant’s receipt. With respect to those instance s,at trial the People presented four envelopes submitted by defendant on which sh e wrote an amount less than what wasreflected on the correspondingreceipt 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 mi ssing,” and that it would be impossiblefor a credit agent to be unaware because the unpai d invoice would show up on the agent’s aging report, which the agent must check regularly . Indeed, defendant, who testified, admitted she checkedto see if payments had posted approximately once per week. Overthe 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 moneyotherthan 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 envelopesthat had cash amountsless than what wasreflected onthe receipt. | DISCUSSION I. Defendant was Improperly Convicted ofBoth Larceny and Embezzlement First, defendant contendsthat she could not have been convicted of both larceny and embezzlementbecausetheyare not separate offenses; they are two ways of committing theft. We agree. Our high court recently described the historical underpinningsofthe varioustypes oftheft in People v. Williams (2013) 57 Cal.4th 776(Williams), from which we quoteat length: “Britain’s 18th-century divisionoftheft into the three separate crimes of larceny, false pretenses, and embezzlement madeits 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 burdenthese distinctions have posed for prosecutors. [Citations.] [§] For instance, it was difficult at times to determine whether a defendant had acquiredtitle 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 sometheft offense, had committed embezzlementor larceny....” (Williams, supra, 57 Cal.4th at pp. 784-785.) “In the early 20th century, manystate legislatures, recognizing the burdens imposed onprosecutors by the separation of the three crimesoflarceny,false pretenses, 5 and embezzlement, consolidated those offenses into a sin gle crime, usually called ‘theft.’ [Citations.] The California Legislature did so in 1927, by statutory amendment. [Citations.] In a 1954 decision, this court explained: ‘The p urposeof the consolidation was to removethe technicalities that existed in the pleadin g and proofofthese crimesat commonlaw. Indictments and informationscharging the crime of‘theft’ can now simply allege an “unlawful taking.” [Citation.] Juries need nolon ger be concemed with the technical differences between the several types oftheft, a nd can return a generalverdict of guilty if they find that an “wnlawful taking” has been pr oved.” (Williams, supra, 57 Cal.4th at pp. 785-786, fn. omitted,italic added; § 484, sub d. (a) as amended by Stats. 1927, ch. 619, § 1, p. 1046.) Section 484, subdivision (a), currently states: “Every pers on whoshall feloniously steal, take, carry, lead, or drive away the personal property of another[i.e., larceny], or whoshall fraudulently appropriate property w hich has been entrusted to him or her[i.e., embezzlement], or whoshall knowingly and d esignedly, by anyfalse or fraudulent representation or pretense, defraud any other pe rson of money,laboror real or personalproperty[i.e. false pretenses], is guilty of theft.” “Tn an effort to further clarify its intent to bring all of the theft crimes under one umbrella,’ section 490a was also enacted in 1 927....” (People v. Nazary (2010) 191 Cal.App.4th 727, 740 (Nazary).) Section 490ap rovides, ‘Wherever any law or statute ofthis state refers to or mentionslarceny, embe zzlement, 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, embezzle ment, 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 distinctio ns were not: ‘The elements of the several types of theft included within section 484 hav e not been changed, however, 6 and a judgment ofconviction 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 contendsthat this statutory history demonstrates that the different theft offenses have been mergedinto 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 embezzlementand grand theft by an employee, and thedistinction between them, continue to exist.” (Nazary, supra, 191 Cal.App.4th at p. 741.) Defendant contends Nazary was wrongly decidedandinstead relies on People v. Fenderson (2010) 188 Cal.App.4th 625 (Fenderson). In Fenderson the defendant wasconvicted of larceny for taking money belongingto theestate of a decedent for whom the defendanthad beenthe caretaker. (Id. at p. 628.) The defendant argued the evidence showed, at most, embezzlement, but that the Jury wasonly instructed on larceny. (/d.at pp. 635-637.) Althoughthe 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 neverinstructed on embezzlement. (id. at p. 637.) The court noted a conflict in the appellate courts regarding whethera theft conviction may be upheld on a theory notpresentedto the jury. (Jd. at pp. 640-641.) Nonetheless, the court held it was appropriate because,as it viewedthe two,theft by larceny was an “increased . . . evidentiary burden’”(id. at p. 641) over embezzlement, and since the People proved larceny, it would makelittle sense to require a jury to pass on embezzlement. Thecourt 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.’” (/d. at pp. 641-642.) The issue confronted by the Fenderson court however,is not before us. Here, the jury wasinstructed on both larceny and embezzlement. Instead, we must decide whether larceny and embezzlementare 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 unconsciousperson [citation] and oral copulation of an intoxicated person [citation] based on the same act.” (/d. 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 includedin 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 (1) 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 notturn it into two.” (/bid.) 2 ; . Section 954 states, “An accusatory pleading may charge two or more different offenses connected together in their commission, or different statements of the sameoffense or two or moredifferent offenses of the same class of crimes or offenses, under separate counts, and if two or more accusatory pleadingsare filed in such cases in the same court, the court may order them to be consolidated. The prosecutionis not required to elect between the different offenses or counts set forth in the accusatory pleading, but the defendant may be convicted of any numberof 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 caseis triable, in the interests of justice and for good cause shown, mayinits discretion order thatthe different offenses or counts set forth in the accusatory pleading be tried separately or divided into two or more groups and each of said groupstried separately. An acquittal of one or more counts shall not be deemedan acquittal of any other count.” Although oral copulation of an unconsciousperson and oral copulation of an intoxicated person arereflected in subdivisions ofa single statute, the court held they are separate offenses. It reasoned, “Section 288ais textually andstructurally different from former section 261 [i.e., rape]. Subdivision (a) of section 288a defines what conductconstitutes the act of oral copulation. Thereafter, subdivisions (b) through (k) define various ways the act may be criminal. Each subdivisionsets forth all the elements of a crime, and each prescribes a specific punishment. Notall 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 independentoffense, and therefore section 954 is no impedimentto 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 muchdifferent statutory schemetothat 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 beenentrusted”(i.e., embezzlement) as “theft.” Section 490a eliminates any remaining uncertaintybyliterally excising the words “larceny” and “embezzlement”from the legislative dictionary: “Wherever any law or statute ofthis state refers to or mentions larceny, embezzlement, orstealing, said law orstatute shall hereafter be read and interpreted as if the word ‘theft’ were substituted therefor.” (Jbid.) Taken at face value, these legislative amendmentsplainly eliminated the distinctions betweenthe various theft offenses. This interpretation is not only the plain reading, but is consistent with the contemporaneouscriticisms of the concept of havingthree separate offenses, all of which seek to punish unlawful takings of moneyor personal property. (See Williams, supra, 57 Cal.4th at pp. 784-785 [collecting the contemporaneouscriticisms of various commentators].) Despite these legislative pronouncements, Nazary held larceny and embezzlementto 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 ofrape. Section 261, subdivision (a), defines rape as follows: “Rapeis 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 unconsciousperson; etc. (/d., subds. (a)(1)-(a)(7).) Each of these subdivisions plainly involves different elements, and if that were the onlytest, 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 supersededbystatute on other grounds in People v. Lohbauer (1981) 29 Cal.3d 364,372 [“The subdivisions of section 261 do notstate different offenses but merely define the different circumstances under which an actofintercourse constitutes the crime of rape”’].) The samecan besaid of forgery, whichlikewise 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 enumeratedin 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 oftheft into a single offense, the mere fact that the different theories of theft entail different elements is not controlling. Rather, we mustgive effect to the Legislature’s explicit intent. The potential countervailing statutory considerations are that embezzlementis defined in a separate statute (§ 503), and where the embezzlement is of government funds, the punishmentis 10 harsher (otherwise the punishmentis the sameastheft) (§ 514). Section 503, however, predates the 1927 amendments. Andthe fact that embezzlementcarries a harsher punishment in a veryspecific situation is not sufficiently indicative of the Legislature’s intent as to overcomethe otherwise explicit indicationsofits intent embodiedin sections 484 and 490a. Accordingly, we conclude larceny and embezzlementare merely two ways of committing the single offense of theft. Therefore, we will strike defendant’s conviction under count 2 for grandtheft (larceny).” I, Substantial Evidence Supports the Verdict Next, defendant contendsthe verdict is not supported by substantial evidence. Wedisagree. “To determine the sufficiency of the evidenceto support a conviction, an appellate court reviews the entire record in the light most favorable to the prosecution to determine whetherit contains evidence that is reasonable, credible, and of solid value, from whicha rational trier of fact could find the defendant guilty beyonda 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 Wenotethat, 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 tule 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 schemegivingrise to only a single court oftheft (Id. at p. 739.), which is how the prosecutor charged andtried this case. 11 evidencerather 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) ownedor possessed by another, (4) by meansoftrespass 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 embezzlementare ‘1. An ownerentrusted his/her property to the defendant; 2. The owner did so because he/shetrusted 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 ownerofits use.”” (Fenderson, supra, 188 Cal.-App.4th at p. 636.) Both the larceny and embezzlement counts weretried as grand theft, and thus the amountstolen 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 couldfill that role. Defendant claims any of those individuals could have stolen the money. Additionally, credit agents would often cover for one another if someonewasoutofthe office. Defendantalso notes that for the year she was accusedofstealing money, none of her customers had complained that payments were missing from their statements. Noneofthis evidence undercuts the judgment. Thereceipts issued to the customers at issue were from defendant’s receipt book. Perhaps the most damning evidenceat trial was the four envelopes on which defendant wrote cash amountsthat wereless than the corresponding amountshe had written on the receipt. Defendant was the only oneto handle the cash received from the customerandto placeit in the envelope 12 with the amount written on the outside, and thus she wasthe only one who could have taken the difference. Defendant’s only response wasthat 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 whois not otherwise qualified to testify as an expert may state his opinion whether a writing is in the handwriting of a supposedwriter 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 madebythetrier of fact with handwriting (a) which thecourt finds was admitted or treated as genuinebythe party against whom the evidenceis offered or (b) otherwise proved to be genuinetothe satisfaction ofthe court”].) Bennett testified that the handwriting on the envelopes was defendant’s handwriting. Bennett had worked with defendant for six years. And the jury wasfree 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 handwritingonit. ‘The envelopes are evidence that defendantstole at least $10,976.00 — an amountthat easily exceeds the $950 threshold for grand theft. Accordingly, this evidence alone supports the verdict. Ill. Refusing to Reduce the Charges to Misdemeanors Was Not an AbuseofDiscretion Next defendantcontendsthe court abusedits 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 aseithera felony or a misdemeanor[citation]... .” (Davis v. Municipal Court (1988) 46 Cal.3d 64, 70.) Here the district attorney charged the grand theft countas a felony. At the sentencing hearing, defendant brought an oral motion undersection 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 advantageof 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 undersection 17, subdivision 999(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 circumstancesofthe offense, the defendant’s appreciation of and attitude toward the offense, or his traits of character as evidenced by his behavior and demeanoratthetrial.’ [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, and the public interest “exceeds the bounds of reason.’” (/d. at p. 978, fn. omitted.) * Our high court described this as an “extremely deferential and restrained standard by which appellate courts are bound... .” (d. 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-abidinglife in the future and deterring him or her from future offenses; [§] (4) Deterring others from criminal conduct by demonstratingits consequences; [{] (5) Preventing the defendant from committing new crimesbyisolating him orherfor the period of incarceration; [{] (6) Securing restitution for the victims of crime; and [4] (7) Achieving uniformity in - sentencing.” Defendant notes that she has no prior criminal record, has a family to support, would suffer a similar punishmentifreduced to a misdemeanor,andthatit Those standardsare nowsetforth in California Rules of Court, rule 4.410. 14 would beeasier for defendantto pay therestitution if her crime were a misdemeanor because it would beeasierto get a job. This all may be true, andpotentially it would have been within the court’s discretion to reduce the charges, but defendant has not suggested anyconsideration upon which wecould concludethe court abusedits discretion. The court determined that based on theseverity of the crime, the numberof incidents, and the duration of the conduct, a felony charge was appropriate. These were proper considerations for the court to weigh. Wefind no abuseofdiscretion. IV. The Restitution Order Was Not an Abuse ofDiscretion Next defendantclaimsthe court abusedits discretion by awarding $58,273.02 in victim restitution. Defendant contends the evidence supports a restitution award ofat most $10,976.00 — the amount missing from the envelopeswith partial payments. We disagree.” “Victim restitution is mandated by the California Constitution, which providesin relevantpart 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 orderfull restitution unless it finds compelling and extraordinary reasons for not doing so and states them onthe 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 awardbe set in an amount which will fully reimburse the victim ° ‘Defendantdid not object to the amountofrestitution at trial. The People contendthis 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 unlessthere are clear and compelling reasons not to do so.” (People v. Rowland (1997) 51 Cal.App.4th 1745, 1754.) Although there was no direct evidenceat 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 ofthe $10,976.00 on the envelopes, defendant contends there are multiple people who could have taken the money. While thatis true in theory, defendant’s argumentis 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 testimonyis 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. Thetrial court wasentitled to rely on this evidence in setting the amount of restitution. And having credited that evidence, the trial court was required to awardfull 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 herability to get a job, it is unlikely she will be able to pay the amountback,particularly since she has four youngchildren. | Thefact of the matter, however, is that defendant took $58,273.02. That she would havedifficulty paying it back is not a sufficient reason to depart from the constitutional mandateoffull 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 judgmentis affirmed. IKOLA,J. WE CONCUR: FYBEL, ACTINGP.J. THOMPSON,J. 17 DECLARATION OF SERVICEBY U.S. MAIL & ELECTRONIC SERVICE Case: People v. Juanita Vidana, Court of Appeal Case No. G050399 I, Valerie G. Wass,certify: I am an active memberofthe State Bar of California and am nota party to this cause. My business address is 556 S. Fair Oaks Ave., Suite 9, Pasadena, California 91105. On February 18, 2015, I deposited in a mailbox regularly maintained by the United States Postal Service at Pasadena, California, a copy ofthe attached PETITIONFORREVIEW,ina sealed envelope with postage fully prepaid, addressed to each ofthe following: Alexander Kuznetsov Paulette Norman Deputy District Attorney Deputy Public Defender 3960 Orange Street 4200 Orange Street Riverside, CA 92501 Riverside, CA 92501 Clerk, Superior Court Juanita Vidana (Honorable Edward D. Webster) 347 Maryann Lane Hall of Justice Pomona, CA 91767 4100 Main Street Riverside, CA 92501-3626 Myelectronic service address is wass100445@gmail.com. On February 18, 2015, I transmitted a PDF version of the same document described above by electronic mailto the parties identified below using the e-mail service addresses indicated: Appellate Defenders, Inc. Office of the Attorney General eservice-criminal@adi-sandiego.com adieservice@doj.ca.gov Additionally, on this date I electronically filed a PDF version of the same document described above to the Court of Appeal, Fourth Appellate District, Division Three, on its website Attp://www.courts.ca.gov/4dca-efile.htm, in compliance with the court’s Terms of Use. I declare, under penalty of perjury under the lawsofthe State of California, that the foregoing is true and correct. Executed this 18th day of February, 2015,at Pasadena, California. VALERIE G. WASS