Opinion
B224491
09-26-2011
THE PEOPLE, Plaintiff and Respondent, v. PAMELA SHANELL JOHNSON, Defendant and Appellant.
Tamara Zivot, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Stephanie C. Brenan and Peggy Z. Huang, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. TA109685)
APPEAL from a judgment of the Superior Court of Los Angeles County. Gary E. Daigh, Judge. Affirmed in part; modified in part; remanded.
Tamara Zivot, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Stephanie C. Brenan and Peggy Z. Huang, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant Pamela Shanell Johnson pled no contest to one count of grand theft by embezzlement in violation of Penal Code section 487, subdivision (a). In exchange for her no contest plea, a special allegation alleging that she took more than $50,000 was dismissed. Appellant was placed on probation for three years on the condition, inter alia, that she serve 365 days in county jail and pay victim restitution. Following a restitution hearing, appellant was ordered to pay $86,222.56 in restitution to the victim pursuant to section 1202.4, subdivisions (a)(1) and (f). The trial court relied on the total amount on People's Exhibit 1.
Appellant appeals, contending there is insufficient evidence to support the restitution award of $86,222.56. We agree that the evidence does not support an award in the amount of $86,222.56. The evidence does, however, support an award in the amount of $77,581.68. We order the award corrected to reflect that amount. We remand this matter to the trial court for the limited purpose of determining whether six transactions found exclusively on Exhibit 2 should be added to the corrected total. We affirm the judgment of conviction in all other respects.
Facts
In 2008 and 2009, appellant was the branch manager of the Carson branch of Pacific Cash Advance ("Pacific"), a financial company that makes small loans. Pacific uses computer software to keep track of the loans. In November 2009, Brian Stoltz, one of Pacific's owners, discovered irregularities at the Carson store. Stoltz confronted appellant, and she admitted taking money from the store over a period of time. She said that she made adjustments to her computer entries in order to be able to take cash from the drawer.
With the help of the firm who owned the loan software, Stoltz located and printed out a list of all the "miscellaneous" type transactions posted by appellant. The first print-out was the basis of Pacific's claim to its insurance company, and shows a total of $80,042.63. This print-out was marked as People's Exhibit 2. A second print-out was introduced at the restitution hearing. This print-out was prepared after the insurance claim print-out and shows a total of $87,110.21. This later print-out was marked as People's Exhibit 1.
Discussion
Appellant contends that the evidence offered by Stoltz to show his company's losses, specifically People's Exhibits 1 and 2, was conclusory and unreliable and so is insufficient evidence to support the trial court's restitution award.
A trial court has broad discretion in choosing a method for calculating restitution as long as the method is rationally designed to determine the victim's economic loss. (People v. Giordano (2007) 42 Cal.4th 644, 663-664.) "There is no requirement the restitution be limited to the exact amount of the loss in which the defendant is actually found culpable, nor is there any requirement the order reflect the amount of damages that might be recoverable in a civil action." (People v. Carbajal (1995) 10 Cal.4th 1114, 1121.)
The victim's statement of economic loss is prima facie evidence of loss for purposes of restitution. (People v. Gemelli (2008) 161 Cal.App.4th 1539, 1543.) There is no requirement that the victim provide a sworn proof of loss or detailed documentation of costs and expenses. (In re S.S. (1995) 37 Cal.App.4th 543, 548; see also, e.g., People v. Keichler (2005) 129 Cal.App.4th 1039, 1048.) Once the prima facie evidence is established, the burden shifts to the defendant to establish that the amount of loss is less than that claimed by the victim. (People v. Prosser (2007) 157 Cal.App.4th 682, 691.)
There is a presumption that the restitution order is correct. (People v. Giordano, supra, 42 Cal.4th at p. 666.) The standard of proof at a restitution hearing is a preponderance of the evidence. (People v. Tabb (2009) 170 Cal.App.4th 1142, 1153.) A trial court's determination of the restitution amount is reviewed for sufficiency of the evidence. (Ibid.)The party attacking the award has the burden of establishing that the award was irrational or arbitrary. (People v. Balestra (1999) 76 Cal.App.4th 57, 63.)
Here, appellant contends that the trial court erred in considering People's Exhibits 1 and 2, which were print-outs of the results of a computer program, because those exhibits lacked foundation. She contends that the necessary foundation for the exhibits was a demonstration that the computer was operating properly at the time of the print-out. (See People v. Hawkins (2002) 98 Cal.App.4th 1428, 1450.)
Stoltz testified that the software company who owned the loan software designed a special program to extract "miscellaneous" type transactions posted during a specific time period. The result of running the special program was a list of "miscellaneous" type transactions for the period in question. This is sufficient to create an inference that the computer program was working properly. The exhibits themselves were simply print-outs of the special program results and are presumed to be an accurate representation of the computer information they purport to represent. (Evid. Code, § 1552.)
Appellant also contends, in effect, that there is no evidence that the daily operations software was working properly. The fact that the software was necessary for the business to function and was used daily by all the business's branches over a period of several years creates an inference that it worked properly. Appellant's own admissions also support such an inference. She told Stoltz that she adjusted her virtual drawer in the computer program to create a cash surplus in her physical drawer, and the daily operations program showed many such transactions by appellant.
It is theoretically possible that there were minor problems with the program from time to time, but appellant's theft took place over at least a two year period. There is nothing to suggest serious ongoing malfunctions in the program.
Appellant next contends that even assuming for the sake of argument that the results of the computer program were admissible, there is nothing but speculation to show that the transactions identified by the program were fraudulent.
Appellant is correct that the print-out standing alone does not indicate that there is anything fraudulent about the transactions. Stoltz's testimony provided that link, however.
Stoltz testified that appellant told him that "she was adjusting her cash drawer and taking the cash." He then had the software company design a program to "extract the type of transaction that she was using to steal from us." The program extracted "miscellaneous" transactions, which are reflected on the print-out. Appellant was the only employee who posted any miscellaneous transactions at the Carson store. Stoltz said that such transactions were "unusual."
Stoltz testified that in order to use the loan software, an employee had to log in to the system with his or her own unique user name and password. Once the employee is logged in, his or her transactions are stored in the database associated with employee's name. Only appellant had access to her password.
Stoltz explained that "miscellaneous" transactions were one-sided transactions. The descriptions posted for the miscellaneous transactions were user defined. The descriptions entered by appellant for the miscellaneous transactions were all expenses. There was an expense transaction built into the system that should have been used instead.
The result of each miscellaneous entry would be to reduce the amount which the computer showed belonged in the cash drawer. This would leave an excess amount of money in the cash drawer which could be taken without being noticed when the cash in the drawer was counted. "Miscellaneous" transactions were not reported to the corporate office and were not tracked on reports.
Stoltz himself did not rely exclusively on the print-outs. He "audited [the Carson] store to verify all of the figures" on the print-out.
All of this information together provides sufficient evidence to support the trial court's order awarding restitution based on the transactions shown in the print-outs.
Appellant points out that Exhibits 1 and 2 have different totals on their last page, and that Stoltz did not provide a satisfactory explanation of the differences. Appellant is correct, but it is not the total on the last page which is important, but the individual transactions on the print-outs. In this respect, the two documents are virtually identical. Exhibit 2 does contain eight entries which are not found on Exhibit 1, and which total $1,573.30. Apart from these eight entries, the entries on the two exhibits are identical.
These entries are as follows: 5/1/2008 $300; 5/2/2008 $300; 5/16/2008 $300; 6/16/2008 $300; 8/27/2008 $64.71; 12/1/2008 $176.47; 12/12/2008 $67.41; 5/16/2009 $64.71.
Setting aside these eight entries, the difference in the "totals" on the last page of the two exhibits arises from a mathematical error in Exhibit 1. The amount listed on the last page of Exhibit 1 is not the total of the "Miscellaneous" type transactions listed on the 10 pages of the exhibit. The actual total of those transactions is $78,469.33.
The error occurred as follows: Exhibit 1 sorts the transactions by description first, then date order for each separate description. Page 1 and part of page 2 together have 61 "miscellaneous" transactions of varying descriptions, such as "Adj for m moore loan" and "Bank fees for A gray." About two-thirds of the way down page 2, there is a line item entry which states "Total Amount 5/3/08 to 11/9/09 ($8,640.88)." This amount represents the total of the preceding 61 entries. Following that total, the listing of miscellaneous transactions continues. All of these miscellaneous transactions are described as transfers to drawers 1, 2 or 3. We have added the drawer transactions, and they total $69,828.45. Thus, the entries on Exhibit 1 actually total $78,469.33 ($8,640.88 for the non-drawer entries plus $69,828.45 for the drawer entries). The difference between the actual total we have calculated and the total printed on the last page of the exhibit is $8,640.88. Thus, the program treated the page 2 "Total Amount" entry as an actual stand-alone entry and not a sub-total of the 61 entries to that point.
We requested additional briefing on this mathematical error, and both parties agree that an error occurred and $8,640.88 must be deducted from the restitution award. We order this amount stricken from the total, reducing the award to $78,469.33. (See Code Civ. Proc., § 909.)
This adjustment means that the correct total of Exhibit 1 ($78,469.33) is less than the total of Exhibit 2 ($80,042.63). As we mention, ante, Exhibit 2 contains eight entries which are not found on Exhibit 1. Those entries total $1,573.30. $80,042.63 minus $1,573.30 equals $78,469.33.
We also requested briefing on the issue of the eight entries which are on Exhibit 2 but not on Exhibit 1. There is no dispute that two of those entries fall outside the dates of the information and cannot be included in the restitution award. The parties have no explanation for the omission of the remaining six entries from Exhibit 1. The total of those six entries is $973.30. (5/16/2008 $300; 6/16/2008 $300.00; 8/27/2008 $64.71; 12/1/2008 $176.47; 12/12/2008 $67.41 and 5/16/2009 $64.71.) Accordingly, we remand this matter to the trial court for a determination of whether the six above-described entries should be added to the restitution award.
Those entries are May 1, 2008 for $300 and May 2, 2008 for $300.
As the trial court and the parties recognized during the restitution hearing, both exhibits contain transactions which occurred outside the charging dates of the information and which must be deducted from the total. The entries on Exhibit 1 are: (1) November 5, 2009 miscellaneous cash deposit of $217.65; (2) November 6, 2009 miscellaneous transfer to Drawer 2 of $300; (3) November 7, 2009 miscellaneous Bank fees K. Anderson of $70; and (4) November 9, 2009 miscellaneous transfer to Drawer 2 of $300. These transactions total $887.65. When these transactions are deducted from the corrected total of $78,469.33, the new total is $77,581.68. (See Code Civ. Proc., § 909.)
We note that these four entries are also found in Exhibit 2. As we discuss, ante, there are two entries found exclusively on Exhibit 2 which also fall outside the dates of the information. These two entries occurred on May 1, 2008 ($300) and May 2, 2008 ($300).
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Disposition
The restitution award in the amount of $86,222.56 is corrected to $77,581.68. This matter is remanded to the trial court for the limited purpose of determining whether the victim is entitled to have $973.30 added to that total, representing the value of the six additional entries found only on Exhibit 2. The judgment of conviction is affirmed in all other respects.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
ARMSTRONG, J. I concur:
KRIEGLER, J. Turner, P.J. Concurring and Dissenting
For the following reasons I am entirely unpersuaded by the concession of the Attorney General. The trial court did not abuse its discretion in setting the amount of restitution at $86,222.56. Our Supreme Court has explained the applicable standard of review: "[W]e review the trial court's restitution order for abuse of discretion. (See, e.g., People v. Maheshwari (2003) 107 Cal.App.4th 1406, 1409; People v. Hove (1999) 76 Cal.App.4th 1266, 1275; People v. Draut (1999) 73 Cal.App.4th 577, 581-582.) The abuse of discretion standard is 'deferential,' but it 'is not empty.' (People v. Williams (1998) 17 Cal.4th 148, 162.) '[I]t asks in substance whether the ruling in question "falls outside the bounds of reason" under the applicable law and the relevant facts [citations].' (Ibid.)Under this standard, while a trial court has broad discretion to choose a method for calculating the amount of restitution, it must employ a method that is rationally designed to determine the surviving victim's economic loss. To facilitate appellate review of the trial court's restitution order, the trial court must take care to make a record of the restitution hearing, analyze the evidence presented, and make a clear statement of the calculation method used and how that method justifies the amount ordered." (People v. Giordano (2007) 42 Cal.4th 644, 663; see People v. Jones (2010) 187 Cal.App.4th 418, 423; People v. Phu (2009) 179 Cal.App.4th 280, 285.)
Nonetheless, our Supreme Court made it clear in Giordano, that even if the trial court is imprecise in its restitution calculations, reversal is unavailable unless the accused demonstrates the award was less than the amount ordered. Later in Giordano, our Supreme Court explained: "Despite the trial court's methodological imprecision, defendant has not shown that the amount of restitution ordered was an abuse of the trial court's discretion. On appeal, we presume that a judgment or order of the trial court is correct, "'[a]ll intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown.'" (Denham v. Superior Court of Los Angeles County (1970) 2 Cal.3d 557, 564.) Defendant suggests that, if the court does not limit restitution to the amount permitted by the Restitution Fund, we should limit it to 'the amount of the surviving spouse's demonstrated loss of support.' While we agree with this general principle, defendant has not shown that Patricia Armstrong's loss of support was less than the amount of restitution ordered." (People v. Giordano, supra, 42 Cal.4th at p. 666.)
The information alleges that defendant committed grand theft between May 3, 2008, and November 3, 2009. The trial court accepted the calculations on exhibit No. 1, a spreadsheet, except for several exceptions which we will note, and imposed a restitution award of $86,222.56. Brian Stoltz, one of the owners of the victim, testified exhibit No. 1 illustrated the amounts stolen by defendant. In 2009, Mr. Stoltz's company conducted a reconciliation of receipts and expenses in defendant's store. Mr. Stoltz testified: "We performed a reconciliation of her store and her store's account and came up with a substantial discrepancy." When examined by the deputy district attorney, Mr. Stoltz gave the following testimony: "Q. . . . [A]t some point did you become aware that some case may be coming up short at the Carson store? [¶] A. . . . How did you become aware of that? [¶] Through a reconciliation of her store and her store's bank account. [¶] Q. . . . And was that through an accounting program? [¶] A. It was through our accounting department and our chief financial officer and then myself and [my] other partners. We reviewed the whole process." Mr. Stoltz had the software company that provides support to his company design a program that would identify the transactions where defendant committed the thefts. At the probation and sentencing hearing, Mr. Stoltz explained under oath how the software program worked. Then, Mr. Stoltz personally confronted defendant about the shortages.
In response to inquiries by the deputy district attorney concerning exhibit no. 1, Mr. Stoltz gave the following testimony: Q. . . . The discrepancy was based on these transactions in this document in people's 1? [¶] A. Yes. The discrepancy was based on these transactions. [¶] Q. However, if these were legitimate transactions, there would be no discrepancy? [¶] A. Yes." Mr. Stoltz testified, "I audited her store to verify all of the figures in that document" referring to exhibit No. 1.
Mr. Stoltz testified that exhibit No. 1 reflected the losses sustained by his company: "Q. She was the only employee that actually posted any miscellaneous transactions at that store.? [¶] A. Correct. [¶] Q. And the ten pages that are listed in this report, all the transactions within theses ten pages are all by [defendant] as well? [¶] A. That's correct. [¶] Q. And what's the total amount of loss based on this report that was generated? [¶] A. 87,110 and I'd have to peek at the change. $87,110.21." Defendant confessed to taking in excess of $87,000. Although Mr. Stoltz's company submitted an insurance claim for only $80,042, that was before exhibit No. 1 was prepared which demonstrated the $87,110.21 loss identified by him. Also, according to Mr. Stoltz, the report prepared for the insurance claim involved a different date range from that reflected in exhibit No. 1. Thus, there is evidence: Mr. Stoltz actively participated in the internal investigation after the 2009 audit showed the discrepancy; Mr. Stoltz worked with the software provider to design the program which identified the $87,110.21 figure; Mr. Stoltz personally audited the location where defendant worked to verify the accuracy of the figures on exhibit No. 1; and Mr. Stoltz's computations dovetailed with defendant's confession where she admitted stealing over $87,000.
The trial court indicated it would not allow restitution for thefts occurring after November 3, 2009, the last date specified in the information. The trial court stated it was deducting the losses sustained after November 3, 2009. There are three dates listed on exhibit No. 1 which reflect thefts after November 3, 2009. They are November: 5--$217.65; 6--$300; 7--$70; and 9, 2009--$300. These three post-November 3, 2009 losses total $887.65 which the trial court deducted from the $87,110.21 figure on exhibit No. 1. The $887.65 deduction and the resulting restitution order of $86,222.56 is written on exhibit No. 1 and encircled in red ink. This written and oral evidence demonstrates: the trial court's ruling was mathematically rational; the record contains "a clear statement of the calculation method used and how that method justifies the" $86,222.56 restitution award; and no abuse of discretion occurred.
Defendant raises several other contentions which warrant only brief discussion. Defendant asserts exhibit no. 1 was inadmissible. This contention has been forfeited because no objection was interposed in the trial court. (Evid. Code § 353, People v. Partida (2005) 37 Cal.4th 428, 434.) Further, the argument has no merit because exhibit No. 1 was identified by Mr. Stoltz who supplied adequate foundational testimony for a sentencing proceeding. (People v. Peterson (1973) 9 Cal.3d 717, 726; People v. Hove (1999) 76 Cal.App.4th 1266, 1275.) Defendant asserts there is insufficient evidence her intent was fraudulent or she was responsible for all of the losses. This contention has no merit—defendant admitted she took $87,000 from her employer since 2007 and she knew better. Finally, defendant argues the loss should be that specified in Mr. Stoltz's company's under oath insurance claim. This contention has no merit because the trial court, the trier of fact, accepted Mr. Stoltz's explanation that exhibit No. 1 was a more complete and accurate document than that prepared for submission to the insurance company. (People v. Millard (2009) 175 Cal.App.4th 7, 26; In re Johnny M. (2002) 100 Cal.App.4th 1128, 1132.) Thus, I would affirm the judgment in its entirety.
TURNER, P. J.