PEOPLE v. VIDANA

Respondent’s Petition for Review

Cal.February 27, 2015

Jn the Supreme Court of the State of Californta SUPREME COURT FILED FEB 27 2015 | THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, Vv. JUANITA VIDANA, Defendant and Appellant. Frank A. McGuire Clerk. Deputy Case No. 8224546 Fourth Appellate District, Division Three, Case No. G050399 . Riverside County Superior Court, Case No. RIF1105527 The Honorable Edward D. Webster, Judge na —~ PETITION FOR REVIEW KAMALA D. HARRIS Attomey General of California _ GERALD A. ENGLER ChiefAssistant Attorney General JULIEL. GARLAND Senior Assistant Attorney General A. NATASHA CORTINA Supervising Deputy Attorney General - LIsE S. JACOBSON . Deputy Attorney General © . MICHAEL PULOS Deputy Attorney General State Bar No. 246474 . — 110 West A Street, Suite 1100 San Diego, CA 92101 P.O. Box 85266 San Diego, CA 92186-5266 Telephone: (619) 645-3034 Fax: (619) 645-2044 Email: Michael.Pulos@doj.ca.gov Attorneysfor Plaintiffand Respondent TABLE OF CONTENTS Page Issue Presented ..............cccsscccceessceceersreccestecesdeesessaaeassenesseseereasenseessnaseneneessees 1 Reasons for Granting Review .......ccccccescsccececsreceesseeseessecsssssassessssseeeerersaees 1 Statement ofthe Case and Facts.......ccsssscsssssseeseeseeeeevectsceaceaneseceeseeeeceaseneenees 2 ALQUMEMA...ecccsseceenecenaeeceneeesaeeseaacaseeeesccoreeeesssuensnessssecseeuesssarsaseeseeseens 3 COnclusion.....ceeccesscessesesessessecsessessvessessesscssessesssssuesussscsscesssscsssaneesssnsesseenseseees 5 TABLE OF AUTHORITIES Page CASES People v. Ashley (1954) 42 Cal.2d 246 oooceccccccccssssessesssessecesseeesereeneassesssserseseceesbeesenstesesess 4 People v. Gonzalez (2014) 60 Cal4th 533 oeccccccscsccssssssesessssssseseecescesecsscssesessessessssees 2, 3,4 People v. Nazary (2010) 191 CalApp.4th 727.......ccccccsccsssssssesssescsessssssssessessrsrenseseeees 1, 2,3 People v. Williams (2013) 57 Cal4th 776 o..eccccesessecsssessesesseseesesseseseesessssessecscsseesesseesessesensense 4 STATUTES Penal Code § 88a.cesccessescecessecsscsevsssesesessesesseesscscacsesesesenscassceacscssscsceceeseussvesacavases 4 § 28Ba, SUbA. (i) oeceesesesceecssseseseoessesesessesecsescessssesesessssesesesssetsessasstsessssaves 3 § 288a, SUD. (f) .eeeeecessesssecessesesessesssssssescecsssescsessssscssssdecevssseeavanscacavavsuseeeves 3 § B84cscesccecnsneseesessssesssssecscsessenessessuenseaesesseassestuesecscecssesessssesacasvensneees 4 SBTcecl cescsentenesssesseesescesssnscnssesssaessacuecssasscscsesesacaesesarscsescsnsecesevsssacsesseses 4 § 487, SUDA. (A)...eee eeeseseseeseseesescesesensctacsesececvessscesesesesenssesessenseesecsesentense 1,2 § 487, subd. (D)(3)eseseesesscessescnssseseseceacetsnsesssesescsesesesescesscsesssesssnscseacecas 1 § 503cececetenesessecsneseesesssesseesssessecsneeseesesdeveeeaeecenencesscnesseansssesesecenseases 1,2,4 § 508 cecccecseesasssssussusssssssvecuucencsssscesssuegrsescacsuussssssuneessesesssvucessstssucessuceesaseceesse 2 § O54. cccesctsessonsessescessesacenssavssessesesenssssaessssseseatencessesseassnsecscecsessecsecassesesss 3,4 CourT RULES California Rules of Court Uke 8.500 oo.ecsesscssscencscescsesesesscoceeceeresesssssssesessssesenenesesescessscassessssecseseasas 1 Tule 8.500, subd. (D)(1) oo... eeessccscsssesssscsesecsessseeeeescerscencsesecacsesceseesesscsaseeenasses ] ra TO THE HONORABLE TANI CANTIL-SAKAUYE, CHIEF JUSTICE, AND TO THE HONORABLE ASSOCIATE JUSTICES OF THE CALIFORNIA SUPREME COURT: Pursuantto rule 8.500 of the California Rules of Court, petitioner, the People of California, respectfully requests this court to grant review of the . above-entitled matter following the Fourth District Court of Appeal, Division Three’s January 23, 2015 filing of an opinion, which it certified for partial publication. In its opinion, the Court of Appeal struck appellant’s conviction for theft by larceny because, accordingto that court, appellant could not be convicted ofboth theft by larceny and embezzlement for the same act. A copy ofthe Court ofAppeal’s opinion is attached. No petition for rehearing was filed. ISSUE PRESENTED Whether a defendant may be convicted of both grand theft by larceny (Pen. Code, § 487, subd. (a)) and embezzlement (Pen. Code, § 503) based on the sameact. REASONS FOR GRANTING REVIEW Review ofthis case is necessary to secure uniformity of decision and to settle an important question of law. (Cal. Rules of Court, rule 8.500, subd. (b)(1).) The Fourth District Court ofAppeal, Division Three here holds that larceny and embezzlement are merely two ways of committing a single offense(i.c., theft) and, therefore, cannot be the basis of separate convictions for the same act. (Slip opn.at p. 11.) This holding conflicts with People v. Nazary (2010) 191 Cal.App.4th 727 (Vazary), a Fourth District, Division One opinion, which appears to be the only other published case to address this issue. In contrast to this case, the Nazary court correctly held that the different theft crimes, in that case grand theft under Penal Code section 487, subdivision (b)(3), and embezzlement under Penal Code section 508, have different elements and are thus different substantive offenses. This court’s review is necessary to ensure intra- district—and statewide—uniformity in how prosecutors may charge and prosecute theft crimes. Accordingly,petitioner respectfully requests this courtto grant review to reverse the Court ofAppeal’s decision in this case and to confirm that Nazary, supra, was correctly decided. STATEMENT OF THE CASE AND FACTS © Appellant stole $58,273.02 from her employer. (Slip opn. at pp. 2-5.) She did so mainly by pocketing cash payments and nevernotifying the companythat she had received them. (/bid.) Shewas charged with, and convicted of, one count of embezzlement (Pen. Code, § 503) and one count of grand theft by larceny (Pen. Code, § 487, subd. (a)) for a single act of theft. (Slip opn. at pp. 1-2.) Appellant appealed on various grounds. (Slip opn. at pp. 5-16.) . On January 23, 2015, the Court ofAppealfiledits opinion, whichit certified for partial publication on one issue. In the published portionofits opinion, the Court ofAppeal held that larceny and.embezzlementare merely two ways of committing a single offense(i.c., theft) and, therefore, cannotbe the basis of separate convictions for the sameact. (Slip opn.at p. 11.) In reaching this conclusion, the Court ofAppeal applied this court’s _ recent decision in People v. Gonzalez (2014) 60 Cal.4th 533 (Gonzalez). Concludingthat, under Gonzalez, the issue presented was oneofstatutory interpretation, the court explained that certain “legislative amendments | plainly eliminated the distinction between the various theft offenses[,]” and even though the crimes have different elements—and, in some circumstances, different punishments—theyall constitute a single offense for which a person may be only once convicted based on a single act. (Slip opn. at pp. 9-10.) The Court ofAppeal disposedofthe case by arbitrarily striking appellant’s conviction for theft by larceny, while allowing the embezzlement conviction to stand. (Slip opn. at p. 11.) ARGUMENT Declining to follow Nazary, supra, 191 Cal.App.4th 727, the Court of Appeal here held that that larceny and embezzlement are merely two ways of committing a single offense(i.e., theft) and, therefore, cannot be the ' basis of separate convictions for the same act. (Slip opn. at p. 11.) The Court of Appeal’s analysis here conflicts not only with that ofits sister division, but also with this court’s decision in Gonzalez and a plain application of Penal Code section 954. First, in downplaying the importanceofthe different elements and possible different punishments between embezzlement and larceny, the court contravenesthe California SupremeCourt’s core analysis in Gonzalez, supra, 60 Cal.4th 533. In Gonzalez, this court held that oral copulation of an unconscious person (Pen. Code, § 288a, subd.(f)) and oral copulation of an intoxicated person (Pen. Code, § 288a, subd. (i)) were separate offenses primarily because “these offenses differ in their necessary elements—an act of oral copulation may be committed with a person who is unconscious but not intoxicated, and also with a person whois intoxicated but not unconscious—and neither offense is included within the other.” (Gonzalez, supra, 60 Cal.4th at p. 539.) The Gonzalez court also noted that each “prescribes a specific punishment,” even thoughin that particular case the subdivisions at issue—subdivisions (f) and (1)—carried the exact same punishment. (/bid.) Because they are separate offenses, this court in Gonzalez held that the defendant could sustainconvictions for each, even though based on the sameact. (/bid.) This very same analysis, applied to embezzlementandlarceny at issue here, should yield the same result. As the Court ofAppeal acknowledged (slip opn. at p. 10), embezzlement and larceny have separate elements. (People v. Williams (2013) 57 Cal.4th 776, 784-788 [analyzing the different elements ofvarious types oftheft, including embezzlement and larceny]; People v. Ashley (1954) 42 Cal.2d 246, 258 [even after the amendment ofPenal Code section 484, “elements of the several types of theft included within section 484 have not changed”].) Indeed, as the Court ofAppeal also acknowledged, in some cases embezzlement and larceny carry different punishments. (Slip opn. at pp. 10-11.) Finally, that the crimes here were intended to be separate offenses is even more apparent than it was in Gonzalez, because, unlike the oral copulation offensesat issue in Gonzalez, which all fall under the singular Penal Code section _ 288a, embezzlement and larceny occupy different sections—and, in fact, different chapters—of the Penal Code. (Compare Pen. Code, § 503 [Chapter 6 of Title 13 -- embezzlement] with Pen. Code, § 487 [Chapter 5 of Title 13 -- larceny].) Second, even if embezzlement and theft are not different offenses, this case would present the opportunity to decide whether Penal Code section 954 would authorize a conviction on both. (See slip opn. at p. 8 [applying Penal Code section 954].) Penal Code section 954 provides that the prosecution may charge “different statements of the same offense” and that a defendant may be convicted of any numberofthe offenses charged. In Gonzalez, this court did not reach the issue of “whether section 954 allows conviction of different statements of the same offense.” (Gonzalez, supra, 60 Cal.4th at p. 537.) If this court were to determine thatthe theft crimes charged in this case constitute a single offense, then it could reach and resolve that issue in this case. CONCLUSION The petition for review should be granted. Dated: February 25, 2015 $D2013806208 81022311.doc Respectfully submitted, KAMALA D. HARRIS Attorney General of California GERALD A. ENGLER Chief Assistant Attorney General JULIE L. GARLAND Senior Assistant Attorney General A. NATASHA CORTINA Supervising Deputy Attorney General LISE S. JACOBSON Deputy Attorney General Glo MICHAEL PULOS Deputy Attorney General Attorneysfor Plaintiffand Respondent CERTIFICATE OF COMPLIANCE I certify that the attached PETITION FOR REVIEW usesa 13-point Times New Romanfont and contains 1,210 words. Dated: February 25, 2015 KAMALA D. HARRIS Attorney General of California ave) ~ MICHAEL PULOS © Deputy Attorney General Attorneysfor Plaintiffand Respondent Filed 1/23/15 CERTIFIED FOR PARTIAL PUBLICATION’ IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATEDISTRICT DIVISION THREE THE PEOPLE, Plaintiff and Respondent, G050399 Vv. (Super. Ct. No. RIF1105527) JUANITA VIDANA, OPINION Defendant and Appellant. Appeal from ajudgmentofthe Superior Court ofRiverside County, Edward D. Webster, Judge. Affirmed as modified. Valerie G. Wass, under appointment by the Court of Appeal, for Defendant and Appellant. KamalaD. 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. * Pursuantto California Rules of Court, rule 8.1105(b) and 8.1110, this opinion is certified for publication with the exception ofparts 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 count ofgrand theft by embezzlement (§ 503). Thetrial court suspended imposition of sentence and granted defendant 36 months of formal probation. She was ordered to serve 240 days in jail: 30 straight days, ~ and the remainder to be served on weekends. In addition to the usual fines and fees, defendant was ordered to pay $58,273.02 in victim restitution. (§ 1203.1, subd. (a)(3).) Defendant raises four issues on appeal. First, she contends the two counts, _larceny and embezzlement, are not separate offenses, but two ways of committing a single offense: theft. Second, she contends substantial evidence does not support the | verdict. Third, she contendsthe 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 amount of restitution at $58,273.02. In the published portion of this opinion, we agree with herfirst contention andstrike her conviction under count 2 (grand theft). In the unpublished portion of this opinion, we rej ecther 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 The credit agents were responsible for tracking the relevant time periods to ensure that, if paid on the particular job). Robertson’s recourseif it did not get paid wasto file a lien. All statutory references are to the Penal Code unless otherwisestated. 2 necessary, a lien was timely filed. Each credit agent was assigned particular customers, up to as many as 400. When a customer came into Robertson’s to pay an invoice with cash, the customer would tender 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 amount of cash on an envelope, put the cash in the envelope, and take the cash to either Teri Bernstein or Megan Levato. If neither ofthem were available, the cash would go to a backup employee, Rosa. Bernstein or Levato would then count the cash and double check that the amount written on the envelope was accurate. Once the amount was verified, Levato would lock the moneyin her desk to be depositedin the bank. If the money came in too late to be deposited that day, Levato would putit into a safe. If Levato were notthere, the money could be given to Kaye Bennett (defendant’s supervisor), the president of the company, or the operations manager, all ofwhom knew the combination to the safe. After the money was received andverified, Levato would instruct another employee to update the company’s computer database with the amounts received from that particular customer. The credit agent assigned to that particular customer would then access the customer’s accountwithin the database and apply the money received to the appropriate invoice. Every one to two weeks, each credit agent was required to pull up an aging report, which showed unpaid invoices, to ensure his or her customers were making timely payments. This wasessential to ensure liens were timely filed. Ifunpaid invoices were -approaching the deadlineto file a lien, the credit agent’s job was to call the customer to inquire about receiving payment. In June 2011 defendant went on maternity leave and anothercredit agent, Tina Hawkins, took over defendant’s customer account for Longhorn Pumping. Hawkins immediately noticed that the account was delinquent. Hawkins called Longhorn Pumping to inquire about the delinquency. She informed the owner ofLonghorn . Pumping that his account was being placed on hold until the payment was made. The owner disagreed, insisting he had paid cash the day before. He broughtin his receipts to prove that he had paid. The receipts were consistent with defendant’s handwriting. But there was no record ofthe moneyreceived in the database. Bennett spoke with defendant on the phoneand asked her about the customer’s payment. Defendant stated she had given the cash to either Bernstein or Levato, pursuant to company policy. This incident prompted Bennett to review other receipts in defendant’s receipt book. She discovered a total of $58,273.02 in cash paymentsreflected on defendant’sreceipts that were missing from the database. The receipts with missing cash entries span from June 2010 to May 2011 and involve 12 different customers: In some instances, the entirety ofthe cash paymentreflected on a particular receipt is missing from the database. In other instances, the database reflected only part of a cash payment reflected on defendant’s receipt. With respect to those instances,at trial the People presented four envelopes submitted by defendant on which she wrotean amountless than what was reflected on the corresponding receipt she had issued. The total amount missing from those four envelopes was $10,976.00. ' Bennett testified that, based on how Robertson’s system works, “a credit agent in defendant’s position [would] know that money is missing,” and that it would be impossible for a credit agent to be unaware because the unpaid invoice would show up on the agent’s aging report, which the agent must check regularly. Indeed, defendant, who testified, admitted she checkedtosee if payments had posted approximately once per week. Over the period of the missing cash entries, however, defendant never approached Bennett about any missing cash payments. Defendant denied taking any money. She could not explain what happened to the missing moneyother than that it may have been applied to the wrong account. She also testified, however, that she checked her aging reports on a weekly basis. She testified that an accurate aging report wasimportant to her. She also could not explain the envelopes that had cash amounts less than what wasreflected on the receipt. DISCUSSION I. Defendant was Improperly Convicted ofBoth Larceny and Embezzlement First, defendant contends that she could not have been convicted ofboth larceny and embezzlement because they are not separate offenses; they are two ways of committing theft. We agree. Our high court recently described the historical underpinnings of the various types of theft in People v. Williams (2013) 57 Cal.4th 716 (Williams), from which we quote at length: “Britain’s 18th-century division of theft into the three separate crimes of | larceny, false pretenses, and embezzlement 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 betweenthe three offenses and the burden these distinctions have posed for prosecutors. -[Citations.] [{] For instance, it was difficult at times to determine whether a defendant had acquiredtitle to | the property, or merely possession, a distinctionseparating theft by false pretenses from larceny bytrick. [Citations.] It was similarly difficult at times to determine whether a defendant, clearly guilty of some theft offense, had committed embezzlement or larceny.....” (Williams, supra, 57 Cal.Ath at pp. 784-785.) “Tn the early 20th century, manystate legislatures, recognizing the burdens imposed on prosecutors by the separation ofthe three crimes oflarceny, false pretenses, 5 and embezzlement, consolidated those offenses into a single crime, usually called ‘theft.’ [Citations] The California Legislature did so in 1927, by statutory amendment. [Citations.] In a 1954 decision, this court explained:‘The purposeofthe consolidation _ Was to remove the technicalities that existed in the pleading and proofofthese crimesat common law. Indictments and informations charging the crime of ‘theft’ can now simply allege an “unlawful taking.” [Citation.] Juries need no longer be concerned with the technical differences between the several typesoftheft, and can return a general verdict of guilty if they find that an “unlawful taking” has been proved.” (Williams, supra, 57 Cal.4th at pp. 785-786, fn. omitted,italic added; § 484, subd. (a) as amendedby Stats. 1927, ch. 619, § 1, p. 1046.) Section 484, subdivision (a), currently states: “Every person whoshall feloniously steal, take, carry, lead, or drive away the personal property of another[i.e., larceny], or who shall fraudulently appropriate property which has been entrusted to him or herfi.e., embezzlement], or who shall knowingly and designedly, by any false or fraudulent representation. or pretense, defraud any other person of money, labor or real or personal property [i.e. false pretenses], is guiltyof 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 1927... .” (People v. Nazary (2010) 191 Cal.App.4th 727, 740 (Nazary).) Section 490a provides, “Wherever any law or statute of this state refers to or mentions larceny, embezzlement, or stealing, said law or statute shall hereafter be read and interpreted as if the word ‘theft’ were substituted therefor.” | “When the formerly distinct offenses of larceny, embezzlement, and obtaining property by false pretenses were consolidated in 1927 into the single crime of ‘theft’ defined by... section 484, most of the procedural distinctions between those- offenses were abolished. Buttheir substantive distinctions were not: “The elements of the several types oftheft included within section 484 have not been changed, however, 6 and a judgment of conviction of theft, based on a general verdict of guilty, can be sustained only if the evidence discloses the elements ofone of the consolidated offenses.”” (People v. Davis (1998) 19 Cal.4th 301, 304-305, italics added.) Defendant contendsthatthis statutory history demonstrates that the different theft offenses have been merged into a single offense, and thus she could not be convicted of both larceny and embezzlement. This exact argument was made in Nazary, and the court rejected it, concluding the argument was “meritless because the elements of embezzlement and grandtheft by an employee, andthe distinction between them, continue to exist.” (Nazary, supra, 191 Cal-App.4th at p. 741.) | Defendant contends Nazary was wrongly decided and instead relies on People v. Fenderson (2010) 188 Cal.App.4th 625 (Fenderson). In Fenderson the defendant was convicted of larceny for taking money belonging totheestate of a decedent for whom the defendant had been the caretaker. (Id. at p. 628.) The defendant argued the evidence showed,at most, embezzlement, but that the jury wasonly instructed on larceny. (Ud.at pp. 635-637.) Although the court affirmed the larceny conviction,it held, in the alternative, that the conviction could also be sustained undera theory of embezzlement, even though the jury was neverinstructed on embezzlement. (/d. atp. 637.) The court noted a conflict in the appellate courts regarding whether theft conviction may be upheld on a theory not presented to the jury. Ud. at pp. 640-641.) Nonetheless, the court held it was appropriate because, as it viewed the two, theft by 299larceny was an “‘increased . . . evidentiary burden’” (id. at p. 641) over embezzlement, and since the People provedlarceny, it would makelittle sense to require a jury to pass on embezzlement. The court also reasoned that “‘[i]t would obviously be very hard to | explain why a theft conviction should be reversed on the groundsthat the evidence showed the defendant was indeed guilty oftheft, 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.) . 7 Theissue confronted by the Fenderson court however, is not before us. Here, the jury was instructed on both larceny and embezzlement. Instead, we must decide whether larcenyand embezzlement are different offenses, or merely different ways of committing the single offense oftheft. On that issue, we are guided by our high court’s recent decision in People v. Gonzalez (2014) 60 Cal.4th 533 (Gonzalez). There, the court was confronted with the question of “whether a defendant may, consistently with .. . section 954, be convicted of both oral copulation of an unconscious person [citation] and oral copulation of an intoxicated person [citation] based on the same act.” (dd. at p. 535, fn. omitted.) ? The court began its analysis by observing, “We have repeatedly held that the same act can support multiple charges and multiple convictions. ‘Unless one offense is necessarily included in the other [citation], multiple convictions can be based upona single criminal act or an indivisible course of criminal conduct(§ 954).”” (Gonzalez, at p. 537.) The court treated the issue as one of statutory interpretation: “[T]he determination whether subdivisions (f) and (i) of section 288adefine different offenses or merely describe different ways of committing the same offense properly turns on the Legislature’s intent in enacting these provisions, andifthe Legislature meant to define only one offense, we may not turn it into two.” (Ibid.) 2 : . Section 954 states, “An accusatory pleading may charge two or more different offenses connected together in their commission, or different statements of the same offense or two or more different offenses of the same class of crimes or offenses, under separate counts, and if two or more accusatory pleadingsare filed in such cases in . the same court, the court may order them to be consolidated. The prosecution is not required to elect betweenthe different offenses or counts set forth in the accusatory pleading, but the defendant may be convicted of any numberofthe offenses charged, and each offense of which the defendant is convicted must be stated in the verdict or the finding ofthe court; provided, that the court in which a caseistriable, in the interests of justice and for good cause shown, may in its discretion order that the different offenses or counts set forth in the accusatory pleading be tried separately or divided into two or more groups and each of said groupstried separately. An acquittal of one or more counts shall not be deemed anacquittal of any other count.” Although oral copulation of an unconscious person andoral copulation of an intoxicated personare reflected in subdivisions ofa single statute, the court held they . are separate offenses. It reasoned, “Section 288ais textually and structurally different from former section 261 [i.e., rape]. Subdivision (a) of section 288a defines what | conduct constitutes the act of oral copulation. Thereafter, subdivisions (b) through (k) define various ways the act may be criminal. Each subdivisionsetsforth all the elements of a crime, and each prescribes a specific punishment. Not all of these punishments are the same. That each subdivision of section 288a was drafted to be self-contained supports the view that each describes an 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 schemeto that addressed in Gonzalez. Here, we have two explicit legislative pronouncements. Section 484 defines “tak[ing] away the personal property of another”(i.e., larceny) and “fraudulently appropriat[ing] property which has been entrusted”(i.e., embezzlement) as “theft.” Section 490a eliminates any remaining uncertainty by literally excising the | words“larceny” and “embezzlement” fromthe legislative dictionary: “Wherever any law orstatute ofthis state refers to or mentions larceny, embezzlement,or stealing, said law orstatute shall hereafter be read andinterpreted as if the word‘theft’ were substituted therefor.” (ibid.) Takenat face value, these legislative amendmentsplainly eliminated the distinctions between the various theft offenses. This interpretation is not only the plain reading, but is consistent with the contemporaneouscriticisms ofthe concept of having three separate offenses,all ofwhich seek to punish unlawful takings of money or 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 embezzlement to be separate offenses on the sole ground that they require different elements. In our view, that is insufficient because an offense that can be committed in multiple ways will naturally havevarying elements. For example the crimeofrape.’ Section 261, subdivision (a), defines rape as follows: “Rapeis an act of sexual intercourse accomplished with a person not the spouse ofthe perpetrator, under any of the following circumstances ....” The statute then lists several quite different ways of -committing rape; for example, where, by reason of a mental disorder, the victim is incapable of giving consent; by force, violence, duress, menace, or fear; against an intoxicated person; against an unconscious person; etc. (d., subds. (a)(1)-(a)(7).) Each of these subdivisionsplainly involvesdifferent elements, and if that were the only test, they should be different crimes. However, they are not, they are all merely different ways of committing a single offense of rape. (People v. Collins (1960)54 Cal.2d 57, 59 superseded by statute on other grounds in People v. Lohbauer (1981) 29 Cal.3d 364, 372 [“The subdivisions of section 261 donot state different offenses but merely define the different circumstances under which an act of intercourse constitutes the crime of rape”].) The same can besaid of forgery, which likewise sets forth multiple ways of committing the offense (i.e. misrepresenting a name,falsifying a will, forging a seal or signature, etc.). (§ 470.) Yet “the commission of any one or more of the acts enumerated in section. 470, in reference to the same instrument, constitutes but one offense offorgery... .” (People v. Ryan (2006) 138 Cal.App.4th 360, 371.) Statutory construction cannot consist in merely counting elements. Given the explicit statutory pronouncements combining the various types of theft into a single offense, the mere fact that the different theories of theft entail different elements is not controlling. Rather, we mustgiveeffect 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 sameas theft) (§ 514). Section 503, however, predates the 1927 amendments. And the fact that embezzlement carries a harsher punishmentin a very specific situation is not sufficiently indicative ofthe Legisiature’s intent as to overcome the otherwise explicit indications of its intent embodiedin sections 484 and490a. Accordingly, we conclude larceny and embezzlementare merelytwo ways of committing the single offense of theft. Therefore, we will strike defendant’s conviction under count 2 for grand theft (larceny). | I, Substantial Evidence Supports the Verdict Next, defendant contends the verdict is not supported by substantial evidence. Wedisagree. | “To determine the sufficiency of the evidence to support a conviction, an appellate court reviews the entire record in the light most favorable to the prosecution to determine whetherit contains evidencethat 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. [J]... A finding of fact mustbe an inference drawn from ; Wenote that, were the events ofthis 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. (/d. at p. 741.) The rule announced in Whitmer, however, does not apply retroactively. Ud. 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 schemegiving rise to only a single court oftheft (Jd. at p. 739.), which is how the prosecutor charged andtried this case. 1] 99998evidence rather than . . . a mere speculation as to probabilities without evidence. (People v. Raley (1992) 2 Cal.4th 870, 891.) “The elements of theft by larceny are well settled: the offense is committed by every person who (1) takes possession (2) of personal property (3) owned or possessed by another, (4) by means oftrespass and(5) with intentto steal the property, and (6) carries the property away.” (People v. Davis, supra, 19 Cal.4th at p. 305.) “The elements of embezzlement are ‘1. An ownerentrusted his/her property - to the defendant; 2. The ownerdid so because he/she trusied the defendant; 3. The defendant fraudulently converted that property for his/her own benefit; [and] 4. When the defendant converted the property, he/she intended to deprive the owner ofits use.’” (Fenderson, supra, 188 Cal.App.4th at p. 636.) Both the larceny and embezzlement counts were tried as grandtheft, and thus the amountstolen had to exceed $950. (§ 487, subd. (a).) | | The focus of défendant’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 someone was out ofthe office. Defendantalso notesthat for the year she was accusedofstealing money, none of her customers had complainedthat 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 evidence at trial was the four envelopes on which defendant wrote cash amounts that wereless than the corresponding amount she had written on the receipt. Defendant was the only one to handle the cash received from the customer and to place it in the envelope 12 with the amount written on the outside, and thus she was the only one who could have taken the difference. Defendant’s only response was that the prosecution failed to call a handwriting expert as a witness to prove the writing on the envelope was hers. But no expert was needed. (Evid. Code, §§ 1416 [“A witness whois not otherwise qualified to testify as an expert may state his opinion whethera writing is in the handwriting of a supposedwriter if the court finds that he has personal knowledgeofthe handwriting of the supposed writer”], 1417 [“The genuineness of handwriting, or the lack thereof, may be proved by a comparison made bythetrier of fact with handwriting (a) which the court finds was admitted or treated as genuine by the party against whom the evidenceis offered or (b) otherwise proved to be genuineto the satisfaction of the court”].) Bennett testified that the handwriting on the envelopes was defendant’s handwriting. Bennett had - worked with defendantfor six years. And the jury was free to compare the handwriting to uncontested examples of defendant’s handwriting, from, for example, defendant’s . receipt book, to make its own determination. Moreover, with respect to one ofthe envelopes in question, defendant admittedit was her handwriting on it. | 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 Abuse ofDiscretion Next defendant contends the court abused its discretion by refusing to reduce the theft offenses to misdemeanors. “Under the governingstatutes, grandtheft is _ a so-called ‘wobbler’ — i.e., an offense which may be charged and punished aseither a felony or a misdemeanor[citation] ... .” (Davis v. Municipal Court (1988) 46 Cal.3d 64, 70.) Here the district attorney charged the grand theft count as a felony. At the . sentencing hearing, defendant brought an oral motion under section 17, subdivision (b), to reduce the offenses to misdemeanors. The court denied the motion, stating, “There are 13 at least 24 separate acts of theft, some in the amount of over $6,000. When you take advantage of a position oftrust, I think it would be an abuse ofdiscretion 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 393(b), “rests . . . solely ‘in the discretion of the court.’” (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977.) The factors the courtshould 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 demeanorat the trial.’ [Citations.] | Whenappropriate, 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 ofthe 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... .” (Ud. at p. 981.) | Defendant does not contend thecourt 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 defendantto lead a law-abiding life in the future and deterring him or her from future offenses; [{] (4) Deterring others from criminal conduct by demonstrating its consequences; [{]] (5) Preventing the defendant from committing new crimes by isolating him or her for the period of incarceration; [] (6) Securing restitution for the victims of crime; and [{] (7) Achieving uniformity in sentencing.” Defendant notes that she has no prior criminal record, has a family to support, would suffer a similar punishmentifreduced to a misdemeanor, andthatit Those standards are now set forth in California Rules of Court, rule 4.410. 14 would be easier for defendant to pay the restitution if her crime were a misdemeanor because it would be easier to get a job. This all may be true, and potentially it would have been within the court’s discretion to reduce the charges, but defendant has not suggested any consideration upon which we could concludethe court abusedits discretion. The court determined that based on the severity ofthe crime, the numberofincidents, 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 defendantclaims the 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 envelopes with partial payments. We disagree.” “Victim restitution is mandated’by theCalifornia Constitution, which provides in relevant part that ‘[r]estitution shall be ordered from the convicted persons in every case, regardless of the sentence or disposition imposed, in which a crime victim _ suffers a loss, unless compelling and extraordinary reasonsexist to the contrary.” (People v. Brown (2007) 147 Cal.App.4th 1213, 1225 [citing Cal. Const., art. I, § 28, subd. (b)].) “The court shall order full restitution unlessit finds compelling and | extraordinary reasons for not doing so and states them on the record.” (§ 1202.4, subd. (f).) “[T]hetrialcourt hasreally very little discretion under section 1202.4 in this regard. The statute requires the award be set inan 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 arguesit was ineffective assistance of counsel. In the interests of efficiency, we bypass the forfeiture question and address the merits. 15 for his or her losses unless there are clear and compelling reasons not to do so.” (People v. Rowland (1997) 51 Cal.App.4th 1745, 1754.) Although there was no direct evidenceat trial that defendanttooktheentire $58,273.02, there was circumstantial evidence. To begin with, defendant wrote receipts for the entire $58,273.02, none of which ended up in the Robertson’s database. With the exception of the $10,976.00 on the envelopes, defendant contendsthere are multiple people who could have taken the money. While that is true in theory, defendant’s argument is belied by Bennett’s testimony that if someone else had taken that money, defendant, as the credit agent for those customers, would havenoticed delinquencies on the aging report. This testimony is corroborated by the fact that, when defendant went out on maternity leave, the credit agent that took over her accounts noticed a delinquency within one or two days, leading to-an investigation that quickly revealed the full extent of the problem. Thetrial court was entitled to rely on this evidence in setting the amount of restitution. And having credited that evidence, the trial court was required to award full restitution unless clear and compelling reasons dictated otherwise. Defendant argues that the restitution award conflicts with the rehabilitative purposes of probation. She argues that, with interest tacking on, she would have to pay $500 per month just to get ahead, and that with the conviction limiting herability to get a job,it is unlikely she will be able to pay the amount back,particularly since she has four young children. | The fact of the matter, however, is that defendant took $58,273.02. That _ she would havedifficulty paying it back is not a sufficient reason to depart from the constitutional mandateoffull victim restitution. We review the court’s judgmentfor abuse of discretion. No such abuse has been shown. 16 DISPOSITION Defendant’s conviction under count 2 for grand theft is stricken. In all other respects, the judgment is affirmed. IKOLA,J. WE CONCUR: FYBEL, ACTINGP.J. - THOMPSON,J. 17 DECLARATION OF SERVICE BY U.S. MAIL & ELECTRONIC SERVICE Case Name: The People v. Vidana No.: §224546 I declare: I am employedin theOffice ofthe Attorney General, whichis the office of a memberofthe California State Bar, at which member's direction this service is made. I am 18 years of age or older and nota party to this matter. I am familiar with the business practice at the Office of the Attorney General for collection and processing of correspondence for mailing with the United States Postal Service. In accordance with that practice, correspondence placed in the internal mail collection system at the Office of the Attorney General is deposited with the United States Postal Service that same day in the ordinary course of business. On February 26, 2015, I served the attached PETITION FOR REVIEW byplacing a true copy thereof enclosed in a sealed envelope with postage thereon fully prepaid,in the internal mail collection system at the Office of the Attorney General at 110 West A Street, Suite 1100, P.O. Box 85266, San Diego, CA 92186-5266, addressed as follows: Appellate Division Court ofAppeal of the State of California Riverside County District Attorney's Office Fourth Appellate District, Division Three 3960 Orange Street Riverside, CA 92501 County of Riverside Superior Court of California . Criminal Department- Hall of Justice 4100 MainStreet . Riverside, CA 92501-3626 and furthermore, I declare in compliance with California Rules of Court, rules 2.251(i)(1) and 8.71(£)(1), I electronically served a copy of the above document on February 26, 2015, on Appellate Defenders, Inc.'s electronic service address eservice-criminal@adi-sandiego.com and on Appellant's attorney Valerie G. Wass via the registered electronic service address wass100445@gmail.com by 5:00 p.m. on the close of business day. The Office of the Attorney General's electronic service address is ADIEService@doj.ca.gov.. I declare under penalty ofperjury underthe laws of the State of California the foregoingis true and correct and that this declaration was executed on February 26, 2015_at San Diego, California. | Tammy Larson — Declarant $D2013806208 81022901 .doc