People v. Kent

Full title: THE PEOPLE, Plaintiff and Respondent, v. CINDY DEE KENT, Defendant and…

Court: COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (San Joaquin)

Date published: Mar 28, 2018

C062332 (Cal. Ct. App. Mar. 28, 2018)

Opinion

C062332

03-28-2018

THE PEOPLE, Plaintiff and Respondent, v. CINDY DEE KENT, Defendant and Appellant.

MURRAY, J.

NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. LF010800A)

Defendant Cindy Dee Kent was convicted of multiple counts of grand theft of personal property (Pen. Code, § 487, subd. (a)),¹ fraudulent use of an access (credit) card (§ 484g), forgery (§ 470), and making a check with insufficient funds (§ 476a, subd. (a)), all related to operation of her travel agency. Defendant contended that she had no criminal intent and made mistakes due to overwhelming personal problems stemming from physical health challenges and a divorce. She was sentenced to five years four months in state prison.

1 Undesignated statutory references are to the Penal Code in effect at the time of the charged offenses.

On appeal, defendant contends: (1) the grand theft convictions are not supported by substantial evidence; (2) the trial court erred in failing to instruct the jury on theft by embezzlement rather than theft by larceny; (3) the trial court abused its discretion in denying probation and violated her due process rights by imposing a state prison sentence to punish her for exercising her right to go to trial; and (4) section 654 requires stay of sentence on count 4. The People concede the section 654 issue.

We conclude there was insufficient evidence to support the conviction on count 5. Accordingly, the conviction on count 5 is reversed. We also order the section 654 stay on count 4, as well as the correction of the abstract of judgment to accurately reflect the judgment orally imposed by the sentencing court on counts 7, 8, 9, 10, and 11. We otherwise affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Defendant was charged in a fifteen-count information as follows:

Count 1: Grand theft of personal property (§ 487, subd. (a)), between April 18 and November 6, 2006, to wit: taking $12,459 (victim—Imperial Family Reunion).

Count 2: Fraudulent use of a credit card on May 19, 2006 (§§ 484e [fraudulent acquisition of access card], 484g [fraudulent use of access card]), for the purpose of obtaining money, goods, services, and anything else of value, and the value obtained during a six-month period exceeded $400.²

2 The prosecution did not name the owner of the credit card in the information in the fraudulent credit card use counts.

Count 3: Fraudulent acquisition and use of a credit card (§§ 484e, 484g) between November 15 and 24, 2006, exceeding $400.

Count 4: Check forgery (§ 470) on December 20, 2006, by signing the name of another person to a check for $15,787.83, with intent to defraud (victim—Kenneth Hovatter/Scientific Specialties Inc. (SSI)).³

3 This offense was labeled "forgery of check," but actually involved the forgery of a credit card authorization.

Count 5: Grand theft of personal property (§ 487, subd. (a)) on December 20, 2006, to wit: $15,787.83 (victim—Kenneth Hovatter/SSI).

Counts 6-10: Fraudulent acquisition and use of a credit cards obtained between April 24 and June 13, 2007 (§§ 484e, 484g), at a value of more than $400.

Count 11: Grand theft of personal property (§ 487, subd. (a)) between June 5 and 11, 2007, to wit: $5,525.96 (victim—John Cook/Barefoot Cashback Tours, Ltd.).

Count 12: Grand theft of personal property (§ 487, subd. (a)) between June 6 and 13, 2007 to wit: $8,000 (victim—Edmond Sullivan).

Count 13: Grand theft of personal property (§ 487, subd. (a)) between June 6 and 13, 2007, to wit: $10,000 (victim—Jeanette Fernandez).

Count 14: Nonsufficient Funds/Check (§ 476a, subd. (a)) on July 7, 2007, by making a check for $8,000 drawn on Farmers and Merchants Bank of Lodi, knowing funds were insufficient, with intent to defraud (victim—Edmond Sullivan).

Count 15: Nonsufficient Funds/Check (§ 476a, subd. (a)) on July 7, 2007, by making a check for $10,000 drawn on Farmers and Merchants Bank of Lodi, knowing funds were insufficient, with intent to defraud (victim—Jeanette Fernandez).

Trial Evidence

The Prosecution's Case-in-chief

Defendant's Business and her Bank Accounts

Defendant, along with her husband and son, owned Great Adventure Travel (Great Adventure) in Lodi. Defendant's son and her husband had a minority share in the business and did not participate in its operation. Although defendant had an office manager, Jim Owens,⁴ she handled all the operations and managerial aspects of the business including all accounting. According to Owens, defendant was "very much hands on" in all aspects of the business and "never gave anyone operational control in how the business was run."

4 Owens described his duties as establishing the personnel schedule, dealing with unhappy clients, and dealing with venders when the business missed a payment or a booking was canceled. Additionally, when defendant was not in the office, Owens deposited money, wrote trust account checks to vendors, refund checks to clients for trip cancellations, and checks for office supplies from the operating account. He described his role as labor, not management. He never looked at the bank statements, and defendant never discussed revenues or disbursements with him.

The business had three checking accounts. There was a trust account into which client payments were deposited. These funds were to be used to pay vendors or to return payments to the clients when trips were canceled. There was an account called the ARC (Airline Reporting Commission) account which was used to book reservations for airline travel and other computer reservations, such as hotel and car rentals. Clients' checks or cash for airline fares were deposited into this account. The third account was the operating account, which contained deposits from commissions earned by the business. Business expenses were paid from this account.

The prior owner had an accountant who came to the office once or twice a month, reviewed the books, and sought clarification from the agents on any issue if need be. When defendant took over the business, she let that accountant go and hired her own. Defendant's accountant worked only with defendant and Owens never saw any accounting that was done.

Owens left the business in September 2006, although he continued to come to the office to take care of clients' pending travel plans until they were off the books. He officially left at the end of 2006. Owens testified that, before he left Great Adventure, there were instances where the business credit cards were refused, checks bounced, and payroll stopped. Sometimes the agents would go four to six months without getting paid.

According to defendant's son, Great Adventure dissolved in December 2006. Defendant helped her friend Mary Merrihew open another business called Dreams Vacation.

Defendant's Health and Behavior

In the spring of 2003, Owens learned that defendant had thyroid cancer and that she had undergone radiation and chemotherapy. However, he noticed no changes in her behavior and testified that defendant was upbeat, confident, and positive. She did not appear to be acting erratically. He testified that defendant was a good travel agent and knew the business well. There were times when defendant seemed very tired to Owens. However, it appeared to Owens that defendant's fatigue or her representations that she had suffered a relapse or was experiencing other medical problems "always seemed to occur shortly after we had problems in the office of . . . major proportions."

Owens testified that, beginning in 2005 and into 2006, the operation of the business changed in that there were more serious problems with clients and vendors. Defendant's demeanor began to change. She was defensive about the problems and always had a lot of excuses. She would blame the bank or say the problems were someone else's fault. She was going through a divorce at this time and she was "quite morose" and upset about it. She was also sad and bitter. Nevertheless, Owens never saw any indication that defendant "wasn't totally on top of the business." Throughout, defendant maintained full operational control over the business's three checking accounts.

Defendant's son testified that he did not recall defendant ever exhibiting signs of confusion throughout her cancer treatment. She was upset over the divorce and defendant's son observed her crying more frequently.

The Imperial Family Reunion Trip—Count 1, Grand Theft; Count 2, Fraudulent Credit Card Use

In April 2006, defendant's long-time friend, Emmahilda (Emma) Salazar Imperial, planned a family reunion trip, a Carnival Cruise Line (Carnival) trip to the Mexican Rivera to sail on October 22, 2006. Emma had previously used defendant's travel services. In mid-April 2006, the family attended a cruise presentation at the Great Adventure office and defendant took deposits. Some paid by check. Because the computer system was purportedly down, some members of the family who wanted to pay by credit card were asked to leave their card information with defendant for processing later. Emma's brother, Jesus (Jesse) Salazar, left information for a credit card owned by his wife, Kennetha Salazar. Defendant made a photocopy of the credit card. Jesse and his wife authorized defendant to charge $900 as down payment for the trip. In total, the group paid $5,400 in checks as deposits. Defendant told the group she would make all the bookings and payments.

In August 2006, the Imperial family gave defendant the final payments for the trip. A week or two before the final payment was due, defendant called Emma and told her she had made a mistake regarding the due date and that Emma needed to make the final payment as soon as possible. Emma collected the balance of the payments from the family members, which were all in checks, and gave them to defendant. The total payment to Great Adventure, including the initial deposits made in April and final payments made in August, was $11,660.80.

Defendant did not give the Imperial family booking numbers, which they needed to schedule excursions. In Emma's prior experience arranging trips through Great Adventure, booking numbers were provided when the deposit was made. Jesse had been trying to get the booking numbers since April. He had been on cruises before and had been given reservations almost immediately. He tried again to get the numbers after the payment in August. When Emma asked for the booking numbers, defendant told Emma they would not receive a booking number until later because they had a group booking. Emma told Jesse that she trusted defendant and to be patient.

When Jesse attempted to help his mother get a passport, he was informed it was necessary to provide proof of international travel to get the passport on an expedited basis. When he asked defendant for the booking number for his mother, defendant told him she had left the confirmation numbers at home and instead provided "phony" airline flight confirmation for flights to Mexico that Jesse's parents were not actually taking. She told Jesse they could get the passports without the cruise booking numbers. Jesse refused to use that information. On October 9, 2006, defendant gave Jesse two booking numbers.

The Imperials scheduled a meeting with defendant to be held at Jesse's house on October 15, about a week before the cruise was to sail. Defendant agreed to meet with the family and said she would give them the booking numbers. Defendant failed to appear at the meeting. Emma testified they made multiple calls to defendant while waiting for her to arrive. When they could not reach defendant, the family called Carnival for the booking documentation and they learned that the group had been booked at one time, but the booking was canceled because payment did not go through. Emma contacted defendant, who insisted the family was booked for the cruise.

Either the following day or the day after that, defendant admitted there were no bookings. She claimed that there was a misunderstanding with Carnival and they screwed up. Consequently, the family was not going on the cruise. Several days after the date of the cruise, Jesse went online to check whether the booking numbers he had been given were real and found that the booking had been canceled.

After the date for the cruise passed, defendant met with the family at Emma's house. Defendant blamed Carnival for the mishap, and showed the family three checks she claimed she had sent to Carnival and a document she said was a fax from Carnival confirming her payments on behalf of the family. Defendant told them that each check represented a payment she had made to Carnival for them. Check number 210, dated April 21, 2006, was purportedly for the first deposit. Check number 367, dated August 10, made out in the amount of $7,959, was for the final payment after the Imperials scrambled to pay defendant on short notice in August.

The fax defendant showed the Imperials was labeled, "Statement of Group Request" and also bears the words, "Group Payment Receipt" and "Payments Posted As of 23 Aug 06." (Capitalization omitted.) It purportedly shows five payments, the latter three of which were by check including the final payment of $7,959.90 on August 16, 2006.⁵

5 The payments were listed as follows: April 21, 2006, for $600; April 21, 2006, for $900; April 27, 2006, for $1,800; May 1, 2006, for $1,200; and August 16, 2006, for $7,959.90. The first two payments appear to be by credit card or some form of payment other than check.

The Imperials requested refunds during the meeting with defendant. Jesse suggested they should get Carnival on the phone so defendant could tell them about her payment records, and told defendant " '[m]aybe it's Carnival we should go after.' " Jesse called Carnival but defendant refused to participate in the conversation. Instead, she "got up and stormed out of the house." Before doing so, defendant gave Emma the documentation she brought and said, " 'Here, I paid Carnival, it's on them the trip did not take place. They made the mistake.' "

The prosecution introduced evidence that the checks defendant showed to the Imperials had been from Great Adventure's operating account. The account records revealed that two of the checks defendant supposedly sent to Carnival were actually made payable to different, unrelated payees, in different amounts. As shown to the family, check number 210 was made out on April 21, 2006, payable to Carnival in the amount of $1,800. According to the bank's representative, however, check number 210 was made out on October 30, 2006, payable to the Bank of America in the amount of $19,832.85.⁶ It cleared on November 13, 2006. Check number 367, purportedly a check made out to Carnival on August 10, 2006, in the amount of $7,959 was actually dated October 30, 2006, and made out for $200 to a person named Julie Tozi. It cleared on November 8, 2006. Check number 287, as shown to the Imperials, was written on April 26, 2006, in the amount of $1,200, payable to Carnival. However, this check could not be located in the bank's records. The bank's representative testified this indicated it was never presented for payment.

6 There was no evidence establishing what this payment to the Bank of America was for.

In early November 2006, defendant fully reimbursed the Imperial family members for the money they had paid Great Adventure. Defendant's reimbursement checks were written from the operating account.

Jesse's wife's credit card was never charged for the $900 deposit made in April. Later, Jesse noticed unauthorized charges on his wife's credit card for $500 and $400 to All About Travel on May 19, 2006. Neither Jesse nor his wife had ever heard of that business. All About Travel, which specializes in travel to Hawaii, reversed the charges. They provided Jesse a letter dated November 3, 2006, that said defendant was the agent of record who made those charges through a system only accessible by travel agencies. When Jesse confronted defendant about the charge, defendant denied making it.

Regarding defendant's health, Emma testified that she noticed no changes in defendant between April and October 2006. Emma visited the Great America office once in her effort to get a refund after the cruise sailed and defendant seemed fine.

Scientific Specialties, Inc.—Count 3, Fraudulent Credit Card Use; Count 4 Forgery; Count 5, Grand Theft

In October 2006, SSI's manager, Cindy Schock, contacted Great Adventure to arrange a January 2007 trip to Hawaii as a bonus for employees celebrating their fifth anniversary with SSI. Schock had previously used Great Adventure for a 2006 trip. On this occasion, Schock initially communicated by e-mail with Merrihew. SSI provided its credit card information to Merrihew and authorized Great Adventure to pay $14,475.20 for the Hawaii trip for eight employees and eight significant others. The credit card authorization was for the entire amount. Later, defendant told Schock the trip was booked through Apple Vacations (Apple). Schock asked for documentation to provide to SSI's accounting department, but defendant kept putting her off, saying Apple was slow with paperwork.

On the day of the trip, January 23, 2007, SSI had not received any travel documentation. Schock e-mailed defendant, who responded that she would provide the information in 20 minutes. When Schock did not hear from defendant, she e-mailed defendant again, who responded she would provide the information in 30 minutes. When the SSI employees arrived at the airport, there were no plane reservations. Schock called defendant. Defendant gave Schock different stories. Defendant told Schock that Apple did not give them the "right thing," and that she sent Apple the check but it was lost. SSI had to pay $7,257.70 for last minute airfare to get its group to Hawaii.

Schock subsequently received a credit card statement indicating the SSI credit card had been billed for travel booked through Great Adventure for people not connected with SSI. The charges totaled $18,094. When Schock inquired, defendant told Schock the charges were for SSI's employees. However, the trips were bookings to Mexico booked through Apple. Schock contacted Apple to find out why the SSI card was charged. Apple told her they had authorization and sent Schock documentation for 10 bookings to Tesoro Los Cabos and one booking to Nuevo Vallarta made by defendant for travelers who were strangers to SSI.⁷

7 As we note post, defendant admitted during her testimony that she knew people who went on this trip to Mexico, including her brother and sister-in-law.

Apple also faxed Schock the credit card authorization form provided by Great Adventure used by Apple to book the Mexico trips. The form bore the purported signature of SSI owner Kenneth Hovatter, and indicated authorization to charge the SSI credit card in the amount of $15,787.83. Hovatter testified he did not sign the form, did not authorize anyone else to sign it, and did not authorize the charge.

Thereafter, on March 28, 2007, Schock sent defendant an e-mail that included a spreadsheet showing the travelers' names and the amounts billed to SSI's credit card for each trip to Mexico. Schock wrote that she had talked to Apple and had been informed that defendant had authorized the charges. Schock asked why these unauthorized charges had been made. Schock testified that she and defendant went back and forth with each other. Defendant told Schock she needed to check with her accountant. Schock told defendant that she did not understand why defendant needed to check with her accountant. When Schock explained the signature was fraudulent and they would have to get the police involved, defendant admitted signing Hovatter's name. Defendant told Schock, " 'Well, my accountant allows me to do that.' "

The prosecution introduced records from Apple. Schock testified that these records included some of the records she used for her March 28 e-mail and spreadsheet she sent defendant. In addition to the spreadsheet, Schock's e-mail included Apple's explanation of the booking for each traveler. The records showed that the trips to Mexico were booked by defendant in November 2006. The original payments were made by a check and some of the bookings were augmented with a credit card in the name of defendant or Mary Merrihew. The check was returned for insufficient funds in early December 2006. On December 21, 2006, payment to cover the bounced check was made using the SSI credit card. The last line of Schock's March 28 e-mail to defendant reads: "An honest explanation would be appreciated." (Boldface & italics omitted.) Defendant responded that she would have to check with her accountant and the accountant was finishing up the SSI transactions, getting it cleared up. Defendant said she would send Schock documentation, but she never did.

SSI disputed the unauthorized Apple charges with its credit card company. When asked if the $18,114.82 was refunded, Schock testified, "The charges never went through. We didn't pay that 18,000 to be refunded." Apple, however, sustained a total loss of $7,257.70.

Seeing no credit card charges for the Hawaiian hotel where the employees stayed, Schock contacted the hotel and asked if payment had been made. The hotel said they had received a check, but it bounced, and they were in collection. Schock asked the hotel if SSI could pay the bill directly but was told she had to go through the travel agent. Schock testified that neither the hotel nor Great Adventure ever sent SSI a bill for the hotel (which cost $7,218).

On April 11, 2007, defendant finally sent SSI an invoice, but it was on Island Resort Tours letterhead and said SSI owed $18,802.80. After speaking with a representative from Island Resort Tours about the document, Schock contacted defendant and told her this was another fraudulent form. Again, defendant said she would have to check with her accountant. She told Schock she would get back to her, but again failed to do so. Schock did not believe SSI owed anything to Great Adventure, because Great Adventure never provided any documentation of a bill to be paid.

Most of Schock's communications with defendant were by e-mail, but on the occasions when they spoke by phone, Schock did not notice defendant slurring or having difficulty speaking. Defendant's communication was clear and she seemed to understand what Schock was saying. Defendant seemed no different than she had been in the past. When asked on cross-examination about whether anything stood out in speaking with defendant, Schock responded, "[T]he part that stands out more to me is that I was frustrated and I couldn't get an answer . . . she wasn't anywhere near as concerned about what was going on with my employees' travel as I was." Defendant had "not a worry in the world about it." Regarding the e-mails defendant sent Schock, they were intelligible and no different from e-mails defendant had sent Schock in the past.

St. Mary's High School Class Trip—Counts 11-13, Grand Theft; Counts 14-15, Nonsufficient Fund/Check

Defendant's long-time friend, Jeanette Fernandez, previously used Great Adventure to book a senior class trip to Hawaii in 2004 when her daughter graduated from St. Mary's High School. Fernandez organized the 2004 trip and accompanied the students as a chaperone. The trip became something of an annual tradition for each senior class.

Fernandez testified that she brought clients, including her sister, Yvonne Tibon, to defendant's business.⁸ Fernandez connected the parent who organized the 2005 class trip with Great Adventure. Owens testified that Fernandez was an "outside agent" who booked travel. According to Owens, Fernandez would get the clients and work directly with defendant, who would make the booking. According to Owens, Fernandez "didn't really know anything about the travel business or how things were done."

8 Tibon later provided a statement to the trial court at the sentencing hearing that is pertinent to the sentencing issue presented in this appeal.

In October 2006, Fernandez referred her friend, Ed Sullivan, to defendant to organize the Hawaii trip for the St. Mary's 2007 senior class, which included Sullivan's daughter. Fernandez asked defendant to put it together. Defendant quoted a price of $1,100 per student on a package through Pleasant Hawaiian Holidays, which Fernandez thought covered airfare, hotel, and ground transfers. Fernandez made up a flyer for the students, which indicated checks were to be made to Great Adventure. The group was to fly out of Sacramento on June 6, 2007, be provided a lei greeting and get picked up by ground transportation at the airport and be taken to the Princess Kaiulani, a moderately priced hotel on Oahu. They were to return to Sacramento on June 13.

At a planning meeting in October or November of 2006, Sullivan collected the $200 deposits in cash and checks, and Fernandez brought the deposits to defendant at Great Adventure. Fernandez understood that defendant would make the flight, hotel, and ground transportation reservations through a package deal with Pleasant Hawaiian Holidays. It was Sullivan's understanding that everything was "going through either [defendant] or . . . Merrihew or that group that was over at their travel agency."

On April 24, 2007, the parents met again and Sullivan collected the $900 balance for each student. Payments were made in cash, check, and credit card. The credit card information was written down on a form and collected by Great Adventure employee, Daniel Ripoyla. Fernandez brought the payments, which totaled over $10,000, to defendant, who by that time was working at Dreams Vacation.

Sullivan was to go on the trip for free, as a chaperone, as was Fernandez and two other persons. There were about 68 students on the trip.⁹

9 Fernandez explained that for every ten students there was to be one chaperone who went free. She testified this is how it normally works and this is how defendant arranged it with the other St. Mary's trip Fernandez brought to her.

Fernandez reserved excursions for the students through Barefoot Cashback Tours (Cashback). Credit card payments were not permitted because they were booking late, so payments were made by checks. Fernandez produced a form with the list of excursions and prices, which directed: "make checks payable to Great Adventure." On May 15, Sullivan had a meeting with the group and collected payment. Fernandez ultimately gave defendant approximately $10,000 for the excursions. Fernandez watched defendant write a check to Cashback which defendant said she would put in the mail. When Fernandez last saw the check, it was on defendant's desk. Fernandez called Cashback to let them know defendant would mail them the check.

The prosecution introduced the records of defendant's operating account at F & M Bank. The May 2007 bank statement reflected deposits totaling $9,542 on May 22, 2007. Copies of numerous checks that were deposited on that day were also introduced. On the memo line of these checks are the names of students who paid for the excursions or other notations such as "Hawaiian Activities."

Fernandez testified that on June 1, 2007, Fernandez, Sullivan, most of the students and the parents met and they went over the itinerary with the parents. On June 4, they had a second meeting for those who could not attend the June 1 meeting. Approximately two hours before the June 4 meeting, defendant called Fernandez to tell her the hotel had canceled due to excessive phone calls from "high maintenance" parents, a mystery to the parents and Fernandez, who had no knowledge of any such calls. Defendant told Fernandez that Pleasant Hawaiian Holidays was putting the group in the Hyatt. Fernandez testified that she had no prior complaints from the parents and the complaints Sullivan had received related only to such things as which students were rooming together. After telling her about the new hotel arrangements, defendant told Fernandez the airlines "got screwed up," and the group now had to leave from San Francisco rather than Sacramento. Some would fly United and others American, but defendant said she did not yet know who was going on which flight. Defendant did not tell Fernandez the tickets had been purchased, but Fernandez assumed they had since defendant was telling her about the switch. The parents were concerned about the last-minute changes.

Sullivan arranged for a bus to transport the group from Stockton to the San Francisco Airport at a cost of $10 per passenger. Fernandez was not sure if she spoke to defendant the day before the flight, and thought she might have done so to tell defendant about the bus and to confirm what time they needed to be at the airport.

The group arrived at the San Francisco Airport around 6:00 a.m. on June 6, 2007, three hours before their scheduled departure. However, the group had no tickets or reservations waiting for them. Fernandez called defendant, who proceeded to provide her with flight information for each student. The group was split between four flights, one without a chaperon.

When the group arrived in Hawaii, there was no lei welcome and no ground transportation. Fernandez called defendant, who gave her a number to call to arrange transportation, and two buses arrived. Four students who came on a later flight were transported by cab to the hotel.

At the hotel, the manager informed Fernandez that the hotel had received payment for only three days. They phoned defendant and placed her on speaker phone. Defendant promised to wire the outstanding payment of $21,000, and stated that she did not know why it had not arrived yet. The hotel required credit cards from someone who was present, just in case defendant did not send the money. Fernandez authorized a $10,000 charge on her credit card, and Sullivan authorized $8,000 on his credit card. Sullivan testified that the hotel management said they doubted defendant would send the funds, that they thought this was "a fraud trip," and that the group had been "set up."

The next day, the hotel did not receive a wire from defendant. Fernandez called defendant and defendant told her the numbers must have been wrong. The following day, the hotel said it needed the $3,000 balance. Fernandez provided another of her own credit cards. The hotel said it would not put the charges through until the last day.

Fernandez received numerous calls from Cashback, which said they had not been paid for the excursions. Fernandez called defendant, who said she would take care of it. Regarding defendant's mental state during these conversations, Fernandez testified that defendant knew what she was talking about, but was very short with Fernandez, a side of defendant Fernandez had not seen before.

The evidence showed defendant used her son's credit card to make a payment for the Cashback excursions. Defendant's son testified that he had previously put his Discover card in the safe at his parents' home. In June 2007, an unauthorized charge was made to Cashback in the amount of $5,164.81. Defendant's son disputed the charge and it was reversed.

Two days before the end of the trip, Fernandez called defendant, concerned about ground transportation and the return flights. Defendant told her to call Robert Tours for transportation to the airport and that they would be flying to Sacramento on Hawaiian Airlines. Defendant gave Fernandez the time for the flight back.

On the group's departure date, June 13, 2007, the hotel still had not received payment from defendant. Fernandez called defendant, who said she would reimburse the credit card charges. The hotel put through close to $13,000 charges on Fernandez's credit cards, and the $8,000 charge on Sullivan's card.

As they were about to board the bus to the airport, defendant called Fernandez and said, " 'You can't leave yet. You guys are going to take a later flight.' " Ultimately, the group arrived at the airport to find no tickets. They were later booked on two one-way flights, requiring additional screenings. Again, defendant communicated the flight information for each student over the phone. It was "[a]bsolutely chaotic." They were late and everyone had to run about a mile from the screening area to their departure gates.

A couple of days after the trip, numerous parents called Fernandez about unauthorized charges on their credit cards. Fernandez called defendant, who said it was mistake and she did not know what happened.

Defendant refused to write Fernandez and Sullivan reimbursement checks for their credit card charges until they provided their statements. She said she needed their statements for bookkeeping purposes. Fernandez subsequently provided her credit card statement, and on July 7, 2007, defendant wrote a $10,000 check payable to Fernandez's credit card account. Fernandez sent the check to the credit card company. She later tried to use her credit card while checking into a hotel for a trip to Disneyland, but it was declined. Fernandez contacted her credit card company and learned her account had been closed because defendant's check bounced. Fernandez called defendant and told her the check bounced. Defendant did not need an explanation as to what check Fernandez was talking about and said, " 'It doesn't surprise me because all the money came out of my account for the people that used credit cards because they are reversing them.' " Fernandez, again told defendant her account had been closed. Defendant "very nonchalantly" said she would see what she could do. Other than not being nice during the call, Fernandez did not notice anything unusual about defendant's mental state and she did not have any problems communicating with defendant. Fernandez added, defendant "was taking vacations and things during the time, . . . she was gone all the time doing stuff, so I don't think her mental state is really . . . I mean, she was going on vacations."

Fernandez made subsequent attempts to call defendant but was unable to reach her. Defendant did not replace the $10,000 check and never reimbursed Fernandez for the nearly $3,000 charge on the other card. After Fernandez went to the police, defendant gave Fernandez a check in August 2007 for $500, which cleared. Fernandez had to refinance her home to pay off her credit cards.

Sullivan testified that he provided his credit card statement to defendant on July 7, 2007. Defendant wrote an $8,000 check payable to his credit card company. Sullivan sent the check to his credit card company, but the check bounced. On August 2, 2007, Sullivan and Fernandez went to defendant's office to complain. They talked with defendant for an hour to an hour and a half. Defendant knew why they were there without explanation, understood what they were complaining about, and spoke intelligibly during the conversation. Defendant told them she would pay them by August 20. Defendant said her mother had some IRAs she was going to cash. She eventually gave Sullivan a check for $1,000, which cleared, but she never paid the rest.

In her interactions with defendant, Fernandez did not find her to be forgetful. Fernandez had no problem communicating with defendant. She did not know defendant was taking medications. She thought everything was fine with defendant, and she had no reason to think anything different. Fernandez knew defendant had been working in travel for 15 or 16 years, and believed defendant was conducting business as usual prior to the trip. Defendant was not frantic during the episode in Hawaii; rather, she was calm. When asked on cross-examination whether defendant was acting out of character at that time, Fernandez said what was different was that defendant was "not nice," "not her friendly self that she normally would be." Instead, defendant was "mean."

Great Adventure's June 2007 F & M Bank statement for the operating account reflected a beginning balance of $15,695.46.¹⁰ There were a number of debits and credits, with the total debit or withdrawals being $18,462.37. One of the debits was for a $10,000 cashier's check dated June 4, 2007, made out to Dreams Vacation, which cleared the same day. One debit was a June 8, 2007, check made out to cash in the amount of $4,000. The ending balance for June was negative $1.48.

10 The beginning balances for previous months were: May $27,977.90; April $139.55; March $1,317.29; February $1,247.80; and January $66.60.

Small deposits were made in July 2007 and the ending balance was negative $10.52. Contrary to what defendant told Fernandez about debits related to the parents' credit card complaints, the only debits for July 2007 were six debits for insufficient funds, a check in the amount of $184, and a $15 service charge.

Counts 6 Through 10—Unauthorized Credit Card Use

Sandra Guzman gave defendant a credit card to purchase a trip to Mexico for her son Ryan in the summer of 2007. In June 2007, she received a statement charging her $436.90 for a one-way flight from Honolulu to Sacramento on June 13, 2007, which she had not authorized. Guzman disputed the charge with her bank, which removed the charge.

Donna Gedda gave defendant a credit card to book two trips to Hawaii. She later received a statement charging her $436.90 for a one-way flight from Hawaii for Danielle Olivas on June 13, 2007. Olivas was one of the St. Mary's students. Gedda disputed the unauthorized charge and the bank removed it.

Julie Cannon-Packard gave her credit card to Great Adventure in August 2006 to pay for a trip to Chicago. In June 2007, she received a statement with unauthorized charges for three June 13, 2007, flights on Hawaiian Airlines charged in Honolulu, which she successfully disputed.

Ann Simons-Filbin visited family in Lodi for 11 days in January 2007. During that time, she made credit card purchases around town, although she never went to Great Adventure and was not familiar with it. In July 2007, her credit card bill showed a charge for a one-way flight from Honolulu to Sacramento on June 13, 2007, for Pareesha Ranchhord. Ranchhord was another of the St. Mary's students. Simons-Filbin disputed the unauthorized charge, and the bank removed it.

Additionally, the parties stipulated that additional named individuals, if called to testify, would testify they did not authorize charges on their credit cards made for flights on June 6, 2007, from San Francisco to Honolulu, and June 13, 2007, for flights from Honolulu to Sacramento. Corresponding credit card statements were received into evidence.

Mario Dominguez testified that his son was a St. Mary's student. Dominguez signed an authorization for his son's school to charge him $900 towards the class trip. His credit card statement showed an unauthorized $900 charge to Cashback on June 8, 2007. Dominguez testified he did not recall whether the charge had been removed.

Prior Uncharged Conduct—Unauthorized Credit Card Use

Owens left the business because of "several credit card abnormalities and irregularities." He did not want to be part of unethical and fraudulent practices.

Owens testified about two occasions when defendant used credit cards without authorizations. On one occasion, Owens booked an $18,000 trip to Italy, Greece, and Egypt for a couple. The payment went into the operating account when it should have gone into the trust account. Owens wrote three checks and put them in priority envelopes for the vendors. Owens himself was scheduled to go on vacation and, before he left, defendant told him she would pay the vendors when the couple's check cleared. Upon his return, defendant told Owens she sent the checks to the vendors, but Owens later learned she had not. New checks were sent to the vendors, but they bounced. Defendant attempted to make the payments on her own credit card, but it was declined. Owens testified that the vendor informed him that defendant attempted to use credit cards that belonged to five other people to make the payments, and, when Owens told the vendor that the credit card holders were not associated with the trip, the vendor refused to accept the payments. Defendant told Owens she had the authorizations to use the credit cards. Owens paid $6,500 on his own credit card to save the trip from cancellation and defendant eventually reimbursed him several months later.

On the other occasion, a client booked airfare to South Africa, paying Great Adventure $4,000. Defendant wrote a check from the trust account which bounced. Owens testified that defendant used a credit card owned by Tibon and faxed a copy of Tibon's driver's license to a vendor as proof defendant was authorized to use the card. Later, the charge was disputed and the airfare was canceled.

Evidence Presented by the Defense

Defendant's Health, Divorce, and Behavior

In 2003, defendant was diagnosed with early-stage papillary thyroid cancer. She had surgery to remove her thyroid, underwent radiation therapy for a year, and then was in remission and taking a replacement hormone. Defendant previously had surgery for ovarian cancer in September 2001.

Merrihew, who considered herself best friends with defendant and had been friends with her for 35 years, testified that defendant changed after her thyroid cancer diagnosis. She became lethargic and absentminded. She was disoriented as a result of her medications. She exhibited slurred speech and difficulty making decisions. According to Merrihew, defendant was not the same person, and she was not able to do her job as well. It got worse when defendant learned her husband was cheating on her. In October 2006, after she caught her husband with another woman, defendant became depressed and Merrihew thought she may have been suicidal. Merrihew testified it got to the point where defendant was physically incapable of coming to work. According to Merrihew, defendant "spent all of her time crying," worrying about her home situation, or going to doctors' appointments.

Merrihew believed the mistakes with the Imperial family cruise occurred during the time defendant was ill and her divorce was pending. She believed defendant was at her worst during the time Fernandez initiated the St. Mary's group trip.

Defendant's mother and Ripoyla testified that defendant's behavior changed after the thyroid cancer diagnosis. Defendant became depressed and had trouble with her memory. According to Ripoyla, defendant would sometimes mix up dates and times. He said she deteriorated physically and that the divorce "accelerated" it. He also testified that defendant sometimes became emotional and broke down in public, behavior that was uncharacteristic for her. Defendant's mother testified that sometimes defendant appeared disoriented and at times made no sense when she spoke. Defendant's mother was taking care of defendant and testified that defendant's health was getting worse by the time of trial.

The oncologist who treated defendant testified defendant was fine after thyroid radiation therapy in 2003 through April 2004. She was in remission. She was supposed to follow up but failed to do so. When defendant finally returned to the oncologist in December 2006, she had lost 20 to 25 pounds. She was slow and was having difficulty expressing herself. She was complaining of body aches and skin dryness. She was unfocused and unhappy. All but the weight loss were symptoms of low thyroid. The oncologist thought defendant was not taking the thyroxin which was prescribed to replace the function of the thyroid. Her blood work was initially normal.

In January 2007, defendant's blood tests came back abnormal and she was referred to an endocrinologist in Stockton. The oncologist increased her thyroid medication and gave her pain medication for her body aches, but this did not help. Ultimately, the oncologist referred her to an endocrinologist at UCSF to determine why she continued to be low thyroid, despite the medications.

At the time of trial in April 2009, the oncologist was still seeing defendant every few months. She had not improved. From a cancer perspective, defendant's prognosis remained excellent, but from a "functional perspective," she continued to have metabolic problems, and her blood-work numbers were still abnormal. The oncologist diagnosed defendant with profound hypothyroid. However, she had no active cancer at the time of trial. The oncologist had been treating her for pain, while endocrinologists treated her hormone issues. According to the oncologist, profound hypothyroid "completely changes the personality of a human being in terms of how they are, what they can do, and in terms of being functional and being alert and being able to respond to things that normally they would have responded relatively quickly."

On cross-examination, the oncologist described what he meant when he said defendant was having difficulty expressing herself. He said, for example, that at the end of a two-minute discussion with her, he was not able to put together a conclusion based on what she said. He was left confused, so he would have to ask her for clarification a couple of times. He said he would expect this to be something defendant exhibited all the time.

Defendant testified. The transcript of her testimony does not reflect the doctor's description of her inability to communicate.

Defendant described her cancer and other medical problems. She said she stopped going to the oncologist because her husband did not like sickness or any inconvenience. In September 2006, she caught her husband with another woman. Her husband later asked for a divorce around the same time she was having arthroscopic knee surgery. He told her to dissolve Great Adventure because he did not want his name on it. Defendant was seeing a psychiatrist at that time. She needed another knee surgery, her muscles hurt, she could not eat, and she had stomach cramps. She had a hard time focusing and her vision was deteriorating. Defendant also testified that she was disoriented. In December 2006, after seeing her blood results and a chest x-ray, defendant's oncologist contacted her to tell her to come in to see him. At some point, she was prescribed Norco and then Percocet for the pain. She testified that sometimes she had "really bad days and some days [she is] coherent."

The Business and Finances

Defendant testified that in October or November 2006, she told her employees she was closing Great Adventure. She testified she dissolved the business in December 2006, but the business office closed in March 2007. She said that all she wanted to do at that point was take care of one booking for a cruise on the books (not the Imperials) and made clear to the other agents as early as October they needed to handle everything themselves because she was not of a mind to handle anything.

According to Merrihew, towards March 2007, before Great Adventure finally closed, only she and Ripoyla were working. Between December 2006 and March 2007, defendant would come by the office once or twice a week, but when she did, she would just lay behind her desk on a blanket and pillow.

Regarding the business finances, Merrihew and Ripoyla took payments from clients and put them in the office safe. Defendant and sometimes Merrihew or Ripoyla made deposits. According to Merrihew, defendant was solely responsible for the accounting. Regarding the business finances, Merrihew testified she "didn't know any of that. Still don't know how to do any of that." Merrihew did not believe Ripoyla had anything to do with the accounting either.

Ripoyla, who is defendant's nephew, testified that he never made any deposits for Great Adventure. Defendant never asked him to. He testified he knew nothing about the financial side of the business, including which banks held the business accounts. He said he never paid any attention to the banking.

At various times during her testimony, defendant referred to her accountant, who she identified as Kim Maynard. For example, when asked if Great Adventure was registered with the Attorney General, defendant replied she did not know but her "accounting person" would know. Defendant also claimed that Maynard processed commissions and payroll. Defendant testified she did not know the financial condition or profitability of the business in 2006, but Maynard would know.

Merrihew started Dreams Vacation in March 2007, with defendant's help.¹¹ There were things Merrihew did not know how to do and she needed defendant's credentialing. Defendant did not bring her Great Adventure clients to Dreams Vacation. Rather, defendant used Dreams Vacation office space to conclude business with Great Adventure clients.

11 Merrihew testified that Dreams Vacation was only open about seven months.

At some point, defendant did not have a stable residence. According to Merrihew, defendant would tell her on a day-to-day basis where she was going to spend the night. Defendant eventually moved in with her mother.

On cross-examination, defendant admitted that her personal financial situation was difficult in 2006. Defendant did not receive alimony from her husband in 2006. She did not receive any payment from him up to March 2007, when he paid her $300. In March, a court ordered him to pay her $2,600 per month, but he never did. Defendant had no other sources of income. Defendant testified that Great Adventure never made money. It was just for tax write-offs and for family and friends to travel together.

Defense Evidence Concerning the Imperial Family Reunion

Defendant testified Emma Imperial had worked at Great Adventure as an outside sales agent and was being trained by Owens and Merrihew. Defendant helped Emma book the Imperial Family Reunion cruise, but, according to defendant, Emma was responsible for putting that vacation together. Emma collected the money and was "supposed to bring [it] into the office." According to defendant, the money was deposited into the trust account. However, defendant never introduced any documentation showing the deposit or any trust fund account activity.

Originally, the vacation was to be a Royal Caribbean cruise. Defendant testified she got involved in the situation when Carnival contacted Emma and told her they could offer a better deal. Thereafter, the cruise was changed from Royal Caribbean to Carnival. After Emma's son canceled at the end of September 2006, Carnival switched the booking from a group cruise to less advantageous individual cruises. At this time, defendant was not working regularly. She said she was "trying to figure out what was going on with [her] marriage."

Defendant testified that when the Imperials did not go on the cruise, she refunded their money as fast as she could, though the cruise line had purportedly not given it back at that point. Because she felt bad, she offered the Imperials a free cruise of three or four days, which some declined and others said they would get back to her.

Defendant testified about the statement of group request form she showed the Imperials along with the checks that purportedly represented payments to Carnival. She denied creating the form fraudulently to cover her tracks. Rather, according to defendant, it was created on Carnival's website either by her or Ripoyla.¹² Defendant testified, "Basically they have a website that you put in your payments and stuff and you print them out."

12 Ripoyla made no mention of the form during his testimony.

During cross-examination, the prosecution introduced evidence from Carnival that the statement of group request form is not a Carnival document. Carnival always provides a booking number and there is no booking number on the document.

Carnival provided documentation showing a history of Great Adventure's bookings and final payment statements. While there is one entry listing defendant as the agent contact in April 2006, the "Lead Guest Name" was not anyone in Imperial party. There were also no Carnival bookings from Great Adventure in June or July 2006 under the Imperial name. There were no bookings to Carnival in August, September, or October 2006 showing defendant as the agent contact and no bookings during that time under the Imperial name. Throughout the entire history, dating back to 2003, there were no bookings indicating that Emma Imperial was the agent contact.

Regarding the checks defendant had shown the Imperials, defendant testified she paid for the bookings by giving the check information over the phone. However, she also testified that they could have used the checks for payment over the Internet. Defendant said she was not sure. Defendant testified that, "what I was doing at that time is I was just grabbing a check and I would write on them or I would make a copy and write on them so I had them in my files that I actually made those payments." She testified she used whatever check "was laying there" and she "used check numbers over." She did not use the next checks in numerical order because the business was closing and did not have very many checks left. Defendant did not explain why check numbers 210, 287, and 367 as shown to the Imperials, which defendant testified represented payments by phone or Internet, were completely filled out for negotiation, including her signature.

Defendant insisted she made the payments. She further testified that she got her money back from Carnival after she refunded the Imperials. But defendant never introduced into evidence any documentation reflecting Carnival's purported payment to her or Great Adventure. When shown her bank statement for August 2006 on cross-examination, defendant acknowledged there was no debit reflecting a payment for $7,959.90 as reflected in the purported check payment on the form she had shown the Imperials. There was, however, a deposit of $7,759 on August 8. Nor were there any debits for $1,200 or $1,800 reflecting payments in April 2006 consistent with those amounts on the statement of group interest form.

Defendant testified that she did not collect the money from the Imperial family to "rip them off." Because she was under a lot of personal stress, she took the Imperial's word for how much she owed them when she made the refunds and later learned she had overpaid. She did not seek reimbursement because she "just didn't want to hurt them."

Defendant claimed she did not recall using Jesse's credit card for a group's trip to Hawaii. She testified that Jesse "basically attacked [her]" at the meeting they had. He was "very angry." Defendant acknowledged that Jesse threatened to complain to the Better Business Bureau. She also said he came to the office and "threatened everybody."

Defense Evidence Concerning SSI

Defendant remembered dealing with SSI and Schock in November of 2006. Great Adventure was booking their trip to Hawaii through Apple. Defendant testified that this booking got "messed up" because SSI only paid for the employees and spouses, and the employees had to pay to bring their children. Defendant claimed she ended up paying about $7,000 for the hotel for SSI, because there was a mistake somewhere, and she did not want to hold up the trip. She did not take any steps to obtain reimbursement from SSI. Defendant denied knowing of Apple's $7,257.70 loss.

Defendant acknowledged she filled out the credit card authorization form with Hovatter's purported signature, but denied signing his name and denied telling Schock that she had signed Hovatter's name. Defendant testified "somebody in our office signed it." Defendant further testified her accountant, Maynard, told her "that with corporations that are on file that we can sign them."

Defendant admitted that the authorization form bearing Hovatter's signature had nothing to do with SSI. She was handling the travel for another group, members of an Elks Club, and the trips "got mixed up." She testified she did not remember charging SSI's credit card for the trip to Mexico by the Elks Club members. Defendant admitted she knew a few of the people who went on the Elks Club trip, including her brother and sister-in-law.

Defendant denied any intent to steal money from SSI or "rip SSI off" by charging its credit card for someone else's vacation. The SSI trip occurred after defendant went back to her oncologist and during the time she was closing her business. She testified, "I wasn't handling all the finances . . . . [Ripoyla] and [Merrihew] and [Fernandez] would also go over and make sure that they had everything added and collected right." Defendant said she made deposits, but so did the others. She testified that at that time, on the advice of counsel, she had only one bank account because she was closing the business.

Defense Evidence Concerning the St. Mary's High School Class Trip

Merrihew testified that Fernandez was a travel agent at Great Adventure. According to Merrihew, Fernandez did not book a lot of trips, but she booked the St. Mary's trips and a trip for a business.

Ripoyla testified that Fernandez was a contract agent for Great Adventure, and that she was the agent for the 2007 St. Mary's trip. Ripoyla testified that he helped by collecting credit card information at one of the group meetings, which he gave to Fernandez.

Defendant testified that the planning for the 2007 St. Mary's trip began in September 2006, and she was having problems with her husband and health at that time. She did not want to do the trip. Fernandez convinced defendant that there would be a lot of kids and it could help Great Adventure financially. Defendant testified that Fernandez told her she would handle it.

According to defendant, Fernandez was responsible for the trip, and defendant's role was "to oversee" it. Defendant testified that Fernandez "had done three Hawaii groups" and "a Disney group" prior to this St. Mary's trip.¹³ As with trips normally handled by her agents, "overseeing" meant that if Fernandez needed anything, she could come to defendant.

13 Defendant testified Great Adventure had handled a few prior class trips for St. Mary's high school students. A 2005 trip involved Fernandez's daughter and Fernandez put that one together. The 2006 trip was booked by someone else.

Defendant testified that neither agents nor chaperones got a free trip. Instead, they would have to "build in the commission" to cover the cost, divide the cost between the paying travelers, or bring in enough kids that the hotel or someone would offer a free trip. Defendant testified she told Fernandez she could not travel for free as a chaperone. According to defendant, chaperones always paid.

Defendant closed Great Adventure before the St. Mary's trip. She testified that she assumed Fernandez was going to work for Merrihew at Dreams Vacation and thought Fernandez re-booked the trip through that agency. Merrihew provided no testimony that corroborated defendant's belief on this point. As for her relationship with Dreams Vacation, defendant testified that she had no ownership interest; she just helped out with office management.

Defendant said the form advertising the list of excursions for the students was prepared by Fernandez. Defendant testified she did not know why the form stated that checks should be made payable to Great Adventure, which had already closed. She said Fernandez actually booked the excursions through Dreams Vacation. Again, defendant provided no documentation corroborating this assertion; nor did Merrihew provide testimony on this point.

Defendant agreed the St. Mary's trip was a "fiasco." She and Fernandez booked the trip through Pleasant Hawaiian Holidays. Defendant testified that, approximately a week before the departure date, some parents were calling the hotel asking why their children were being charged for chaperones, while another travel agency's price for students on other class trips was less and did not charge for chaperones. Three mothers called defendant's office with the same complaint. None of these parents testified.

Defendant testified there had been problems with a prior St. Mary's class trip, with students out of control on the plane, breaking windows at the hotel, and urinating off the top of the hotel onto people. According to defendant, Pleasant Hawaiian Holidays, which had not previously been told the 2007 booking was for St. Mary's students, "dropped" the booking, canceling the flights and hotel when the hotel contacted them about the parental complaints.

Defendant testified she called Fernandez to tell her they were not going to go on the trip because of the cancellation. Defendant wanted to refund everyone's money, but Fernandez pleaded with her. According to defendant, Fernandez said the kids had to go no matter what happens and that they would make it right somehow when they got back. Defendant said she was hardly in the office during this time period. She was having a hard time concentrating. She was in a lot of pain and taking a lot of pain medications. She was dealing with her divorce. She testified, "[M]entally I was not there."

Defendant testified that about a week before the trip she and Fernandez got the students another hotel, the Hyatt. She testified, "We went through the tour operator until we could find a hotel that was available for them." It was better than the original. Fernandez did not want to stay at a lower end hotel and this was the only hotel that had enough available rooms. Defendant did not concern herself with price. She testified, "I was not the one involved in the figuring of the prices or thinking. I couldn't." Inconsistent with her testimony that three parents complained to her about chaperones going for free, defendant testified, she did not know about the chaperons going for free. She trusted Fernandez to handle everything. And she trusted Merrihew and Ripoyla to handle the business. She testified that Fernandez spoke with Ripoyla about the additional cost associated with the hotel. According to defendant, Fernandez and Ripoyla argued "all the time over it," but Ripoyla never mentioned this during his testimony.

According to defendant, the night before the departure date, she and Fernandez scrambled to book new flights. When asked who paid for the flights, defendant initially testified, "She had -- we had credit cards laying there that they were -- we had some of the forms we did. We basically just picked up whatever was on my desk and we went in and started calling numbers." Then she testified that the "St. Mary's stuff" was in boxes that were brought to the Dreams Vacation office after Great Adventure closed. Defendant testified that she and Fernandez "grabbed the box that everything got thrown into from the office," because they knew they would have to call in the credit card numbers. From defendant's kitchen, using whatever credit card numbers they found in the box, the two of them booked the flights. Defendant testified she did not know the names of the St. Mary's parents. She testified that because of her emotional state at that time, "when anybody told me to do anything, I did it."

Defendant initially testified she and Fernandez booked all the flights while at defendant's house the night before the trip. When asked whether she knew if the group had plane tickets when they arrived at the airport the next day, defendant testified, "I did not know anything until [Fernandez] called me, because we called them in the night before." When Fernandez called the next day, defendant "got on the phone with the group department to find out." Later in the trial, after a recess in her testimony, defendant testified Fernandez left her house to pack before they were finished booking all of the flights the night before. The person at the group department said she "can't do anything more because it runs into the next day" at midnight, so defendant had to finish the following morning. Fernandez called defendant the next morning to say it was not done. Defendant called and spoke to the "group person" and was told they had not finished and that they would try to help them, but did not know whether they could get everyone on one flight. Defendant testified she was ill and medicated at the time.

Defendant testified that at some unspecified point she wired $35,000 by MoneyGram through Guaranty Bank to the hotel at Fernandez's request. The Guaranty Bank account was Dreams Vacation's account. Fernandez told defendant the hotel needed that amount. Assuming the total number of travelers at $1,100 per person, defendant agreed the total amount for the St. Mary's trip would have been $74,000. She testified she paid $35,000 out of this amount to the hotel. She did not know if this was enough to cover the entire hotel cost. She was not keeping track of the money Fernandez gave her to deposit. She testified, "We made deposits and then we transferred deposits over into the other bank."

The defense did not introduce documentary evidence of this purported $35,000 MoneyGram transfer. When asked about the documentation, defendant testified that her accountant had it.

Defendant testified she did not know what happened to the approximately $14,000 paid to Great Adventure for the initial deposits on the St. Mary's trip. She said she did not know whether Fernandez brought it in and Merrihew put it in the bank. This happened around the time of her knee surgeries and she was not in the office much during this time. Defendant testified that Fernandez was in charge of this trip, "So if she was depositing checks, then she would be responsible to write out where they were going to go or if they were going to hold until we got enough people." When asked about Fernandez writing checks, defendant stated that Fernandez could make out the check for her for Owens to sign. Regarding the final payments for the trip, defendant testified Fernandez was "bringing in payments early, late, all -- at all different dates. She brought final payment in a week before . . . they left." Defendant testified that credit card payments made for the final payments by the parents were called in to the tour vendor.

Defendant testified that Pleasant Hawaiian Holidays does not require a deposit until the travel agency has the correct number of travelers. They held the Great Adventure credit card instead of taking a deposit. Defendant testified they had not made any payments to Pleasant Hawaiian Holidays. When asked why she did not use the business credit card to book the students' flights after Pleasant Hawaiian Holidays canceled the week before, defendant said Pleasant Hawaiian Holidays had not yet released the charge. Defendant introduced no evidence corroborating the hold by Pleasant Hawaiian Holidays. When defendant was asked why all the credit card statements introduced into evidence show the flights being charged on June 6, 2006, instead of June 5, the night she and Fernandez purportedly called in the reservations, defendant had no explanation.

On cross-examination five days after her initial testimony concerning the documents placed in the box from which she and Fernandez obtained credit card information, defendant testified, "Yes. They picked them all up off the desk and we put them in a box." When asked how Ann Simons-Filbin's credit card information got in the box, defendant replied, "I don't know. Whatever was laying on my desk, we picked up." Defendant said she had nothing to do with the charge to Simons-Filbin's card. When asked again how Simons-Filbin's credit came to be used, defendant replied, "I do not know. All I got is what [Fernandez] gave me. And that's what was . . . on the desk." Defendant said, "I just called in numbers for [Fernandez], who gave me the cards." When it was pointed out on cross-examination that records from Hawaiian Airlines showed that seven flights were paid for by a credit card belonging to Hovatter, defendant blamed the use of that card on Fernandez.¹⁴

14 This unauthorized credit card use was not charged.

When asked whether she had intended to "rip[] people off" when she called in the credit card numbers, defendant testified, "No. I was just doing . . . whatever was in this box, I was trying to get through." When asked whether she was trying to book flights for the students on someone else's credit card the next morning, defendant replied, "No. I thought the money was still in our account. I had not did accounting. I had not taken -- tooken [sic] -- I had not did [sic] anything for this business in the last six or seven months. And so I was just -- anybody who was working, I thought they knew what they were doing. I mean, everybody who was doing their job there had worked there for three to four years?"

Defendant testified that after Fernandez called and told her that she and Sullivan had to pay out of their own pocket for the hotel accommodations, Ripoyla started checking into it because defendant "couldn't figure out why we didn't have the money in our account. Because I didn't look and didn't check." Again, Ripoyla did not testify about this. Defendant testified she planned on paying them when they came back. She testified she assumed the money would be in "my account." When she wrote checks to Fernandez and Sullivan, she believed she had sufficient money in the bank to cover the checks. But she acknowledged that she did not know how much money was in the account and the checks bounced.

Defendant testified she did not know that Fernandez, Sullivan, and others went on the trip for free, although in earlier testimony, defendant said when Fernandez convinced her to do the trip, Fernandez promised to build in enough commission to pay for the extra people. She testified that in collecting money for the trip from the students, Fernandez deposited some in F & M Bank where Great Adventure had its account, and some in Guaranty Bank, where Dreams Vacation had its account. The defense provided no deposit documentation and Merrihew provided no testimony corroborating these purported deposits. Defendant testified that she herself depleted the F & M account by transferring $10,000 via cashier's check to the Dreams Vacation account at Guaranty Bank. However, when shown the June 4, 2007, $10,000 F & M cashier's check made out to Dreams Vacation, Merrihew testified, "I don't know what this is."

Defendant acknowledged on cross-examination that the travel business is regulated by the Business and Professions Code, including handling of customers' money and trust accounts, and registration with the Attorney General.

Defendant also acknowledged that Fernandez was a very close friend. Fernandez accompanied defendant to her divorce court proceedings and testified on her behalf when defendant was being harassed by her husband.

The Prosecution's Rebuttal Evidence

Lupe Duran-Hagelsieb, defendant's former employer from another travel agency, Galaxy Travel, testified that defendant worked at Galaxy Travel between 1998 and 2000 as a travel agent and then office manager. In 2000, Duran-Hagelsieb summoned defendant to her office to discuss a number of "discrepancies." One of these discrepancies was a commission check defendant had Duran-Hagelsieb's husband prepare for her, when she had in fact already been paid that commission. Another discrepancy was when defendant contacted the vendor which supplied travel software to Galaxy Travel and told the vendor that "it was an emergency and she needed that program at her house," which was not true and defendant was not authorized to make that request. Also, while Duran-Hagelsieb was out after surgery, defendant assumed the jobs of counting cash and reporting tickets, which were supposed to be performed separately by two different people as a system of checks and balances. Duran-Hagelsieb also discovered discrepancies in the commission records, with entries having been "whited out and then cleared off." Duran-Hagelsieb filed a complaint with the police.¹⁵ Duran-Hagelsieb's testimony was admitted to show intent.

15 There was no evidence of the disposition of this report.

Kimberly Maynard, an accountant, testified and described the work she did for defendant. She began working for Great Adventure in 2001 or 2002. She merely performed data entry bookkeeping services. Defendant would provide bank statements to Maynard, and Maynard entered the data into QuickBooks on defendant's laptop. Maynard would do multiple monthly statements at a time. Maynard did not keep track of current balances, only the balances on the statements. She did notice a lot of overdraft fees and instances when the bank rejected checks, and suggested a way for defendant to keep better track of the account balances.

Maynard did not advise defendant on business practices. She never talked with defendant about signing customers' names to credit card authorizations and she did not tell defendant it was acceptable to sign Hovatter's name to a credit card authorization. Maynard testified she worked from home and did not have very much contact with defendant. She only saw defendant two or three times a year just to pick up the bank statements and return the information to defendant. Maynard last saw defendant in April or May of 2007, when the business closed.

Maynard did notice that defendant changed over time. She got very thin and weak, "kind of puffy and jaundice[d]," and "seemed very groggy and disconnected" during the limited visits she had with defendant.

Defendant's Surrebuttal Evidence

Defendant testified she left Galaxy Travel because of unethical practices by the owners. Defendant was surprised to learn of Galaxy Travel's complaint to the police, because the police never contacted her.

Defendant provided no response to Maynard's testimony.

The Verdicts and Sentencing

The jury found defendant guilty on counts 1 through 11, 14, and 15. The jury found defendant not guilty on counts 12 and 13, grand theft of personal property from Sullivan and Fernandez.

The trial court imposed an aggregate sentence of five years and four months calculated as follows: count 1, midterm of two years; counts 3, 4, 6, 14, and 15, consecutive eight-month terms (one-third the midterm); three years imposed and stayed pursuant to section 654 on counts 2, 5, 7, 8, 9, 10, and 11.¹⁶ The court ordered defendant to pay victim restitution totaling $82,582.80, payable to: "SSI/APPLE VACATIONS $7,257.70; AMERICAN AIRLINES $17,493.38; HAWAIIAN AIRLINES $27,690.69; BAREFOOT CASHBACK TOURS $3,299.97; ED SULLIVAN $9,300.00; JEANETTE FERNANDEZ $17,541.06."¹⁷

16 As to counts 7, 8, 9, 10, and 11, in pronouncing sentence, the trial court stated that it was imposing, and staying execution of, the full term of three years on each of these counts. However, the abstract of judgment shows that the midterm sentence was imposed on these counts. The midterm for each of these counts is two years, whereas three years represents the upper term. (§18.) Defendant posed no objection in the trial court as to the imposition of an upper term sentence on these counts, as opposed to the midterm like the court imposed on count 1 as the base term. And defendant makes nothing of this on appeal, so any objection is forfeited and we need not address the imposition of the upper term. (See People v. Seumanu (2015) 61 Cal.4th 1293, 1341 (Seumanu); Breneric Associates v. City of Del Mar (1998) 69 Cal.App.4th 166, 188, fn. 8 (Breneric Associates) [arguments not raised on appeal deemed abandoned]; Long v. Cal.-Western States Life Ins. Co. (1955) 43 Cal.2d 871, 883 (Long) [same].) However, "[w]here there is a discrepancy between the oral pronouncement of judgment and the minute order or the abstract of judgment, the oral pronouncement controls." (People v. Zackery (2007) 147 Cal.App.4th 380, 385, citing People v. Mitchell (2001) 26 Cal.4th 181, 185-186, & People v. Mesa (1975) 14 Cal.3d 466, 471.) An appellate court that has properly assumed jurisdiction may order the correction of an abstract of judgment at any time on its own motion where the abstract does not accurately reflect the sentencing court's oral pronouncement of judgment. (Mitchell, at p. 185.) Although this issue was not raised by the parties, we shall order the abstract corrected to reflect the sentence orally imposed, and stayed, by the trial court.

17 Defendant does not challenge the restitution order on appeal.

DISCUSSION

I. Substantial Evidence—Grand Theft Counts

A. Additional Background and Defendant's Contentions

In discussing the proposed jury instructions with the trial court and defense counsel, the prosecutor acknowledged the only theory upon which he was proceeding was larceny, because defendant took property she did not have the authority to take. The defense did not comment or offer any opposition. The trial court ultimately instructed the jury on theft by larceny (CALCRIM No. 1800): "The defendant is charged in Counts 1, 5, 11, 12, and 13 with grand theft in violation of . . . section 487. [¶] To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant took possession of property owned by someone else; [¶] "2. The defendant took the property without the owner's consent; [¶] 3. When the defendant took the property she intended to deprive owner of it permanently; [¶] AND [¶] 4. The defendant moved the property, even a small distance, and kept it for any period of time, however brief."

The trial court also instructed the jury to determine if the crime was grand theft (property worth more than $400). The court further instructed that if the jury found the crime to be grand theft, "the return or offer to return some of the property wrongfully obtained is not a defense to that charge." (See People v. Shannon (1998) 66 Cal.App.4th 649, 656 (Shannon) [" 'Asportation of the property with the intention to appropriate it is sufficient to constitute larceny even though the property may subsequently be returned to the owner' "].)

Defendant contends the grand theft convictions in count 1 (victim—Imperial Family Reunion), count 5 (victim—Hovatter/SSI), and count 11 (victim—Cashback) must be reversed because the convictions are not supported by substantial evidence. Defendant asserts the prosecution failed to prove beyond a reasonable doubt the elements of theft by larceny, which was the only theory of grand theft on which the jury was instructed. As to each of these counts, defendant contends she did not take property by trespass; nor was there asportation of any victim's property. She also asserts that evidence of the requisite criminal intent was lacking. The central theme of defendant's substantial evidence claims, and her instructional error claims which we discuss in part II. of the Discussion, post, is that "the correct theory" of theft in this case was embezzlement, not theft by larceny.

We conclude substantial evidence supports the verdicts as to count 1 on a larceny theory. As to counts 5 and 11, we conclude the evidence was insufficient to support a conviction on a larceny theory. However, as to count 11, we conclude that substantial evidence does support a conviction on an embezzlement theory.

B. Standard of Review and Larceny Elements

"When reviewing the sufficiency of evidence to support a criminal conviction, we ask whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. [Citation.] We view the whole record in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence to determine whether the record discloses substantial evidence. [Citations.] 'Before a judgment of conviction can be set aside for insufficiency of the evidence to support the trier of fact's verdict, it must clearly appear that upon no hypothesis whatever is there sufficient evidence to support it.' " (People v. Kwok (1998) 63 Cal.App.4th 1236, 1245 (Kwok).)

In reviewing for substantial evidence, appellate courts do not resolve credibility issues or evidentiary conflicts. (People v. Zamudio (2008) 43 Cal.4th 327, 357.) It is the exclusive province of the jury to determine the credibility of witnesses and the truth or falsity of facts upon which the jury's determination depends. (Ibid.)

Substantial evidence includes circumstantial evidence and any reasonable inferences that can be drawn therefrom. (People v. Lopez (2013) 56 Cal.4th 1028, 1069-1070, disapproved on other grounds in People v. Rangel (2016) 62 Cal.4th 1192, 1216.) We must accept all logical inferences that the jury may have drawn from circumstantial evidence. (People v. Maury (2003) 30 Cal.4th 342, 396.) " 'If the circumstances reasonably justify the findings made by the trier of fact, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding.' " (People v. Kaufman (2017) 17 Cal.App.5th 370, 380-381 (Kaufman).) "Because intent is rarely susceptible of direct proof, it may be inferred from all the facts and circumstances disclosed by the evidence." (Kwok, supra, 63 Cal.App.4th at p. 1245.)

"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 of trespass and (5) with intent to steal the property, and (6) carries the property away." (People v. Davis (1998) 19 Cal.4th 301, 305 (Davis).)

C. Count 1—Grand Theft (Victim—Imperial Family Reunion)

The trial court imposed, as the base term, a midterm sentence of two years in prison on count 1. As we shall discuss, we conclude there is substantial evidence supporting the jury's verdict on this count.

1. Trespassory Taking

Defendant argues that there was no theft by larceny, because a theft-by-larceny requires that the defendant physically take property from the owner without the owner's consent and move it at least a small distance. We do not disagree with this general description of larceny. But a theft-by-larceny conviction is not precluded by the fact that the victims voluntarily gave defendant their money, checks or credit cards. As our high court has observed, "[t]he act of taking personal property from the possession of another is always a trespass unless the owner consents to the taking freely and unconditionally or the taker has a legal right to take the property." (Davis, supra, 19 Cal.4th at p. 305, fns. omitted, italics added.) The rule from Davis requiring that consent be unconditional is often repeated. (People v. Williams (2013) 57 Cal.4th 776, 800-801 (Williams); Kaufman, supra, 17 Cal.App.5th at p. 382; People v. Fenderson (2010) 188 Cal.App.4th 625, 636 (Fenderson).) Furthermore, as the court in Davis noted, there is no consent where the intent of the taking is to steal. (Davis, at p. 306.) In Davis, the court concluded that a trespassory taking had been proven when a defendant presented merchandise he had not purchased for a refund. (Id. at p. 303.) Our high court reasoned, "a self-service store . . . impliedly consents to a customer's picking up and handling an item displayed for sale and carrying it from the display area to a sales counter with the intent of purchasing it; the store manifestly does not consent, however, to a customer's removing an item from a shelf or hanger if the customer's intent in taking possession of the item is to steal it." (Id. at p. 306.)

Here, the Imperial family's consent to defendant taking possession of their payments was conditioned upon defendant using those payments for a singular purpose—to book their cruise. Indeed, the jury heard evidence of defendant's statutory duty to use checks and credit cards for its intended purpose. (Bus. & Prof. Code, § 17550 et seq.)¹⁸ The family did not consent to the taking for any other reason. It certainly did not consent to the taking for defendant's intended purpose of stealing the payments. (See Davis, supra, 19 Cal.4th at p. 306.) Thus, there is substantial evidence supporting a finding of lack of consent and thereby supporting the element of trespassory taking on count 1.

18 The trial court took judicial notice of these statutes and ultimately provided the packet to the jury. The packet is not in the record on appeal.
Business and Professions Code section 17550 states, in pertinent part: "The Legislature finds and declares that certain advertising, sales, and business practices of sellers of travel have worked financial hardship upon the people of this state; . . . that problems have arisen that are peculiar to sellers of travel business; and that the public welfare requires regulation of sellers of travel in order to eliminate unfair advertising, sales, and business practices . . . ."
The prosecutor referenced Business and Professions Code section 17550.17 in his rebuttal argument to the jury. That section provides in pertinent part: "(b) Upon payment in full by the passenger for air or sea transportation and any related services with a credit card or with cash, the seller of travel shall issue and deliver the ticket or voucher to the passenger or his or her designated agent within 72 hours. [¶] (c) Upon payment in full by the passenger for air or sea transportation and any related services with a check, the seller of travel shall issue and deliver the ticket or voucher to the passenger or his or her designated agent within 72 hours of the earlier of the following: [¶] (1) The time the passenger's payment is credited to the seller of travel's account. [¶] (2) The expiration of the maximum hold period specified in Section 10.190405 of Title 10 of the California Code of Regulations. [¶] (d) Tickets, vouchers, or receipts shall be deemed to have been delivered if they have been turned over to an independent thirdparty delivery service or the United States Postal Service for regular delivery. [¶] (e) If the seller of travel is unable to issue tickets or vouchers upon payment as set forth in subdivisions (b) and (c), the seller of travel may comply with this section by taking either of the following actions: [¶] (1) Timely forwarding to the air or sea carrier or provider of travel services, the portion of the sum paid by the passenger that is required by the air or sea carrier or provider of travel services from the seller of travel in order to provide the transportation or services purchased by that passenger and sending to the passenger within five business days of the date of the purchase or before the date of the passenger's departure, whichever occurs first, a receipt describing the transportation and services that were purchased. The seller of travel may not offset or reduce the amount forwarded by any amounts due or claimed in connection with any other transaction. [¶] . . . [¶] (g) For purposes of this section, '72 hours' means three business days as defined in Section 9 of the Civil Code."

2. Asportation

Defendant asserts the evidence of asportation is lacking. We note that the purpose of the element of asportation is to distinguish a completed crime of theft by larceny from a mere attempt. (Shannon, supra, 66 Cal.App.4th at p. 654 [" ' "The completed crime of larceny--as distinguished from an attempt--requires asportation, or carrying away, in addition to the taking" ' "]; 2 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Carrying Away, § 16, p. 41.) Furthermore, taking payments and keeping them for one's self or otherwise diverting the payments from their intended purpose satisfies the asportation requirement. (Kaufman, supra, 17 Cal.App.4th at p. 387.)

Defendant focuses on the following statement by the prosecutor made during closing argument when discussing the elements of theft: "And that the property was moved even a small distance. Which isn't really an element here."¹⁹ Defendant suggests that, by this statement, the prosecutor admitted that theft by larceny was an inappropriate theory. However, the trial court instructed the jury that asportation is an element and explained to the jury: "You must follow the law as I explain it to you, even if you disagree with it. [¶] If you believe that the attorneys' comments on the law conflict with my instructions, you must follow my instructions." We conclude the prosecutor's misstatement is of no moment.

19 Defense counsel did not object to the prosecutor's remark in his closing argument, and defendant does not claim prosecutorial misconduct on appeal based on this misstatement of law by the prosecutor. Thus, any such contention is forfeited for defendant's failure to raise it. (See Seumanu, supra, 61 Cal.4th at p. 1341; Breneric Associates, supra, 69 Cal.App.4th at p. 188, fn. 8; Long, supra, 43 Cal.2d at p. 883.)

We disagree with defendant's contention that the prosecution failed to prove that defendant moved the victims' property. Defendant took the checks, moved the checks and deposited them into her account, and it can be inferred that she further moved the funds out of that account to use for her own purposes and/or to pay for the travel of other customers. Taking payments and keeping them for herself or otherwise diverting the payments from their intended purpose satisfies the asportation requirement. (Kaufman, supra, 17 Cal.App.4th at p. 387.)

We conclude there is substantial evidence supporting the element of asportation.

3. Criminal Intent

The required intent for theft by larceny is the intent to permanently deprive the owner of the property (Davis, supra, 19 Cal.4th at p. 305), or the main value of their property at the time of the taking. (People v. Avery (2002) 27 Cal.4th 49, 57.) In arguing there was no substantial evidence of criminal intent for count 1, defendant persists in arguing that her cancer and divorce negated the required intent, ignoring the jury's rejection of that claim. The jury was not required to believe that defendant lacked the requisite intent due to those personal challenges; indeed, the jury necessarily rejected the claim that defendant lacked the specific intent to commit theft by larceny. Furthermore, that there was "virtually no chance that her actions would go undetected," as she argues on appeal, does not negate criminal intent. An expectation of not being caught is not an element of the crime.

When defendant took the Imperials' initial payments in April 2006, she told the family she would make all the bookings and payments. The evidence shows defendant never forwarded those funds to Carnival. In August, without apparent warning, defendant called for the remaining payments before they were originally due. A reasonable jury could infer intent to use those monies for purposes other than to book the Imperial cruise from defendant's request for the final payment before it was due. Indeed, by that time, defendant had already used Jesse's wife's credit card to make two unauthorized charges in May for travel for unrelated people. And, like the initial payments, the evidence established that defendant never sent the final payments to Carnival. Further, defendant strung the Imperials along regarding the booking numbers. This was in violation of defendant's obligations under Business and Professions Code section 17550.17. (See fn. 18, ante.) Indeed, she went so far as to give Jesse a "phony" booking to use to obtain his mother's passport. And she failed to show up at a pre-cruise meeting the Imperials had scheduled to get their booking numbers.

Later, after the cruise sailed, defendant blamed Carnival, claiming she had paid the cruise line on behalf of the Imperials. To support this claim, she engaged in an elaborate cover-up in which she created fraudulent documents in an effort to show she made payments she had not made. This cover-up showed consciousness of guilt as to her intent to permanently deprive the Imperials of their money when she took it in April and again in August. (Kaufman, supra, 17 Cal.App.4th at pp. 387-388 [the jury could reasonably infer that the defendant possessed the requisite intent to permanently deprive the owner of his property based on concealment of the theft, which evinced a consciousness of guilt]; People v. Wong (1973) 35 Cal.App.3d 812, 831 [acts of concealment "constitute 'circumstantial evidence of consciousness of guilt and hence of the fact of guilt itself' "].)

Acknowledging the circumstance that defendant refunded the Imperials' money is not a defense, defendant says it is nevertheless "noteworthy" that she made those refunds, presumably because it demonstrates she had no intent to permanently deprive the family of their funds. But a reasonable jury could infer that Jesse's anger and aggressiveness in demanding an explanation and refunds and his threat to complain to the Better Business Bureau is what motivated defendant to refund the monies defendant stole from the Imperials.

We conclude there was substantial evidence supporting the grand theft by larceny conviction on count 1.

E. Count Five (Victim—Kenneth Hovatter/SSI)

On count 5, the trial court imposed a three-year sentence, but stayed execution of that sentence pursuant to section 654. The court implicitly determined that count 5 was part of the same course of conduct as count 3, fraudulent use of the Hovatter/SSI credit card. As we shall explain, we conclude the conviction on count 5 was not supported by substantial evidence.

1. The Parties' Contentions

The victim alleged in count 5 was "Hovatter/SSI." Defendant asserts that Apple, not Hovatter/SSI suffered the loss, there was no evidence that defendant took possession of personal property owned by Apple or intended to steal from them, and the prosecutor in closing argument conceded there was no basis on which to convict defendant of count 5. Defendant further contends that the variance between pleading and proof—in that the information did not mention Apple—violates her constitutional right to due process and notice of the specific charges against her.

The People retreat from the prosecutor's concession to the jury and ask us to affirm the conviction on count 5, arguing that defendant committed a theft of SSI's credit card information and the purchasing power of the credit card. Thus, according to the People, Hovatter/SSI is properly cognizable as the victim in count 5. We reject the People's new theory of prosecution on count 5.

2. Additional Background

As indicated ante, evidence was adduced that defendant took SSI's credit card information and used it in an unauthorized manner to book travel to Mexico through Apple for people unknown to SSI. When SSI disputed the charges, the credit card issuer canceled them. SSI lost no money. Apple took the hit for $7,257.70 in charge-backs related to the unauthorized charges.

In closing argument, the prosecutor stated, "Now with respect to Count 5, I'm gonna ask you or tell you there was not really any proof on that count. Count 5 was a grand theft charged against [defendant] for stealing money against -- from SSI, Mr. Hovatter. And at the time this was charged, that was our belief, the DA's belief. . . . There wasn't actually a grand theft. They didn't actually lose any money. And in fact, there doesn't look like there was an attempt to steal money from SSI. [¶] The people that lost the money was Apple Vacations, right? Apple Vacations lost . . . $17,000 [sic]. That's not charged in Count 5, because there's no basis for you to bring back a conviction on Count 5, so don't." (Italics added.)

During deliberations, the jury sent a note stating, "We would like to clarify that charge . . . #5 has been dropped. We did recieve [sic] a verdict form for charge #5."²⁰ The trial court sent back a written response, "Ct. 5 has not been dropped. Please deliberate as to Ct. 5." The trial court later stated on the record (with no objection from counsel) that the court "had the clerk call [the attorneys] and ask you what you wanted to do about their question on Count 5." The record is silent as to what response, if any, the clerk got from the attorneys.

20 The verdict form for count 5 did not identify the victim or the nature of the property alleged to have been stolen. It read, "We, the Jury, in the above entitled cause, find the defendant, CINDY DEE KENT, GUILTY of a violation of Section 487 of the Penal Code of the State of California, to wit: Grand Theft, a felony, as charged and set forth in Count 5 of the Information on file herein."

When the verdicts were read, a different prosecutor was present than the one who tried the case. After the court dismissed the jury, the court noted that, although the prosecutor had invited the jury to find defendant not guilty on count 5, the prosecutor had not withdrawn the charge. The stand-in said he would talk to the trial prosecutor about it. However, the record does not reveal any further discussion on this issue.

In summarizing the facts underlying count 5 in his sentencing brief, the trial prosecutor wrote: "Defendant, by means of the crimes committed in counts 3 & 4 . . . caused a loss of $7,257.70 to Apple Vacations of Newtown Square, Pennsylvania, a third party tour operator."

In imposing sentence, the trial court said, "As to Count 5, a violation of Section 487 of the Penal Code, the Court will impose and stay the full term of three years pursuant to [section] 654. That was Apple Vacations." Regarding restitution, the court ordered defendant to pay $7,257.70 restitution to "Apple Vacations slash [SSI]."

2. Trespassory Taking of Credit Card Information

Defendant was charged in count 5 with taking money, $15,787.83, from Hovatter/SSI. The People contend on appeal that defendant committed a trespassory taking from SSI when she removed the credit card information from where she had it stored, wrote that information on the fraudulent credit authorization form, and sent that form to Apple. Although the People provided no analysis on the question of whether credit card information could be property subject to theft, we agree that such could be the case. (See People v. Kozlowski (2002) 96 Cal.App.4th 853, 864-869 [definition of personal property is broader than the list in § 7; ATM pin number was property subject to extortion]; People v. Parker (1963) 217 Cal.App.2d 422, 426 [information on documents taken, copied & returned to the owner was property]; People v. Dolbeer (1963) 214 Cal.App.2d 619, 622 [same]; Williams v. Superior Court (1978) 81 Cal.App.3d 330 [insurance company's investigative file copied was property, even when the insurance company retained the original file].)

The problem with the People's new theory is that defendant was not charged with taking credit card information from SSI in count 5. Rather, as the prosecutor pointed out to the jury, she was charged with taking money from SSI. Theft of credit card information as to count 5 was never mentioned in the trial court, so it cannot be said that defendant forfeited any objection to this charging variance.

The People further argue, in cursory fashion, that by charging the SSI credit card for the Mexico trips "[defendant] deprived Hovatter/SSI of the money charged to its credit card account, and she used the credit card information for her own personal benefit." It is difficult to tell, but it seems the People are arguing that the purchasing power of the credit card was money or property and Hovatter/SSI was deprived of that purchasing power (at least until the charges for the Mexico trips were cleared by the credit card company). We need not address this novel theory because it is completely unsupported by reference to legal authority, and we are aware of none. (People v. Anderson (2007) 152 Cal.App.4th 919, 929 ["[a] point not argued or supported by citation to authority is forfeited"]; In re S.C. (2006) 138 Cal.App.4th 396, 408 ["When a point is asserted without argument and authority for the proposition, 'it is deemed to be without foundation and requires no discussion by the reviewing court' "].)

Finally, we note that the way defendant obtained possession of the credit card information is different from the way she obtained the Imperial family payments in count 1. In count 1, the initial deposits were given by the victims to defendant at her business office. The final payments were brought to defendant by Emma, who was one of the victims. In other words, defendant obtained possession of the payments directly from the victims in count 1. In count 5, the evidence indicates that Schock provided the credit card information to Merrihew, not defendant. Consequently, there can be no trespassory taking because defendant did not take possession of that information from the victim.

We conclude that there is insufficient evidence of trespassory taking of the property alleged in the information to have been stolen. The evidence does not establish defendant took money from Hovatter/SSI in connection with the allegations of count 5. Accordingly, we conclude there is insufficient evidence to support defendant's conviction on count 5.

F. Count 11—Grand Theft (Victim—Cashback)

On count 11, the trial court imposed a three-year sentence, but stayed execution of that sentence pursuant to section 654.

Unlike in count 1, the alleged victim/owner of the money defendant is alleged to have stolen in count 11 never had possession of that money. Consequently, there was no trespassory taking and thus, insufficient evidence supporting theft by larceny. But as we discuss, the evidence was sufficient to establish theft by embezzlement.

1. The Parties' Contentions

Defendant contends that she never took money from Cashback. According to defendant, while Fernandez testified that she gave defendant the payments that were intended to go to Cashback and the evidence shows defendant did not send Cashback those funds, defendant's failure to send those funds does not constitute theft by larceny.

The People argue that once Fernandez gave defendant the money for the Cashback excursions, those funds became the property of Cashback. The People assert: "The students entrusted [defendant] as their travel agent to handle the payment of their excursions. They voluntarily and intentionally entrusted the signed payment checks for the excursions to [defendant] and expected their payments to be forwarded to [Cashback]. Likewise, [Cashback] entrusted [defendant] to forward the payments for the excursions. They did so, however, based upon an undisputed condition. [Defendant] was authorized to cash those checks with the expectation that [defendant] would forward the money to [Cashback]. Based on these conditions, once Fernandez gave [defendant] the money to forward to [Cashback], the money became the property of [Cashback] and was not given to [defendant] freely and unconditionally." Thus, according to the People, defendant committed the requisite trespassory taking.

Defendant responds that any trespassory taking was committed against the students/parents, not Cashback, the victim alleged in count 11. Consequently, according to defendant, the evidence fails to establish a trespassory taking and thus theft by larceny as to Cashback. We agree with defendant.

2. Trespassory Taking

The People's trespassory taking argument is grounded on the notion that defendant took possession of money from Cashback that Cashback never possessed. The People cite no authority for this novel theory and we have found none. Indeed, the People's trespassory taking theory is inconsistent with authority existing long before defendant's trial. In Kaufman, citing older authorities, the court noted that when a sales agent receives payment for delivery to an owner, misappropriation of those funds by the agent is embezzlement unless the funds were placed in the owner's actual or constructive possession. (Kaufman, supra, 17 Cal.App.5th at pp. 383-384, citing 3 Wharton's Criminal Law (15th ed. 2015) § 363 [" 'if the servant, after acquiring possession of the property but before delivering it to his master, appropriates the property to his own use, he cannot be guilty of larceny because there is no taking from the possession of another' "], & People v. Frazier (1948) 88 Cal.App.2d 99, 103 [sufficient evidence to support a theft conviction based on embezzlement where a sales agent received payment for sale of the owner's property, but did not deliver to the owner all of the proceeds to which the owner was entitled].)

Kaufman, supra, 17 Cal.App.5th 370, involves a unique circumstance where the court held there was a trespassory taking despite the fact that the property was never in the owner's actual possession. In Kaufman, the defendant sold person "A" a promissory note on property owned by person "B." Later, the defendant renegotiated the note with B and reconveyed the property to B free and clear without telling B that A owned the note or informing A of the transaction. The defendant deprived A of B's final payment on the note, approximately $36,000. (Id. at pp. 373-374.) Thus, like here, the defendant stole money from an owner that was never transferred by the defendant to the owner. The defendant in Kaufman was convicted of grand theft based on a larceny theory, the only theft theory on which the jury was instructed. (Id. at p. 374.) On appeal, the court concluded there was a trespassory taking supporting the larceny theory. This was so because "[B] did not instruct [the defendant] to direct the final payment to [A], and [A] never consented to [the defendant] taking possession of [B]'s final payment." (Id. at p. 385, fn. omitted.) The defendant was not authorized to accept B's final payment on A's behalf and thus the defendant's "interception" of B's final payment was trespassory as to A. (Id. at p. 386.) "[The defendant]'s wrongful intervention effected a constructive delivery of the payment to [A], making [the defendant] subject to a charge of larceny." (Ibid.) "In this unique scenario, [the defendant's] taking can only be described as trespassory as to[A]." (Id. at p. 385.)

Here, Cashback consented to defendant, a travel agent, taking possession of the payments from customers like the students/parents. Thus, unlike the defendant's unlawful possession of the payment in Kaufman, defendant's possession of the payments here was lawful as to Cashback. And since Cashback never had actual or constructive possession of the funds, defendant cannot be said to have taken those funds from Cashback.

We agree with defendant that the prosecution's evidence did not show a trespassory taking from Cashback, and thus there is insufficient evidence of theft by larceny in count 11. However, the People also contend that defendant committed theft by embezzlement. We agree. As we shall next discuss, there was substantial evidence supporting defendant's conviction under an embezzlement theory and the conviction may be affirmed on that basis even though the jury was not instructed on embezzlement.

3. Embezzlement

As we will discuss, there is a split of authority as to whether a theft conviction may be upheld on a theory of theft as to which the jury was never instructed. We conclude that it may in a case involving substantial evidence of embezzlement.

Similar to the instant case, the defendant's arguments in Kaufman, supra, 17 Cal.App.5th 370, were "premised on the notion that a different theory of theft should have been pursued . . . ." (Id. at p. 379.) With this recognition, the Kaufman court began its analysis with a historical review of common law theft theories we find useful.

"Early criminal laws in most American states adopted Great Britain's 18th century division of theft into three separate crimes. [Citation.] This led to ' "seemingly arbitrary distinctions" ' between the offenses and the burden posed for the prosecution. [Citation.] . . . ' "It was . . . difficult at times to determine whether a defendant, clearly guilty of some theft offense, had committed embezzlement or larceny." ' [Citation.] In 1927 California joined many states in consolidating the separate offenses of larceny, false pretenses, and embezzlement into the single crime of theft. [Citation.] The Legislature also enacted section 490a, which provides: ' "[w]herever 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." ' [Citation.] [¶] ' "The purpose of consolidation [in 1927] was to remove the technicalities that existed in the pleading and proof of these crimes at common law." ' [Citation.] But it did so only to a point. Although the crimes were consolidated under the general crime of 'theft,' the underlying elements did not change; 'to prove its commission, the evidence must establish that the property was stolen by larceny, false pretenses, or embezzlement.' [Citations.] [¶] In its current formulation, larceny is the trespassory taking and carrying away of personal property of another with the intent to permanently deprive the owner of possession. [Citations.] Embezzlement occurs where 'the owner entrusted property to the defendant, the owner did so because he or she trusted the defendant, the defendant fraudulently converted the property for his or her own benefit and, in doing so, the defendant intended to deprive the owner of its use.' " (Kaufman, at pp. 379-380.)

As we have detailed, Kaufman involved facts similar to those presented in count 11 in that the defendant deprived the owner of money payable to him and possession of that money was never transferred by the defendant to the owner. The Kaufman court noted that, in addition to larceny, the prosecution may have been able to present its case on a theory of theft by embezzlement. (Kaufman, supra, 17 Cal.App.5th at p. 381.) It also discussed the split of authority as to whether a theft conviction may be upheld on a theory as to which the jury was never instructed. (Id. at p. 381.) Ultimately, the Kaufman court determined it was not necessary to determine whether the defendant could be convicted of theft based on embezzlement because it concluded the evidence was sufficient to support theft on a larceny theory. (Id. at p. 383.)

The court in Fenderson, supra, 188 Cal.App.4th 625, examined the split of authority and concluded that the defendant's convictions could be affirmed based on substantial evidence of embezzlement whether or not larceny was a proper theory and even though the jury was not instructed on embezzlement. (Id. at pp. 638-642.) We conclude the same here as to count 11.

In Fenderson, the defendant was a caretaker for a woman who passed away. While she was alive, the woman had given the defendant power of attorney to allow the defendant access to her bank accounts. (Fenderson, supra, 188 Cal.App.4th at p. 632.) After the woman's death, the defendant removed money from one of the accounts, claiming that the woman gave it to her. (Id. at pp. 628, 632.) The defendant was convicted of grand theft from the estate. (Id. at pp. 628, 637.) Like here, the jury was instructed on theft by larceny, but not theft by embezzlement. (Id. at pp. 635-636.) The Fenderson court concluded that, while there was substantial evidence of theft by larceny (id. at pp. 635-637), the convictions could nonetheless be affirmed based on substantial evidence of embezzlement. (Id. at p. 637.)

In examining the split of authority, the Fenderson court noted that in People v. North (1982) 131 Cal.App.3d 112, the court held "a theft conviction may be upheld as long as there is sufficient evidence, under any theory of theft, to support the conviction, even if the jury was not instructed on the relevant theory of theft." (Fenderson, supra, 188 Cal.App.4th at p. 637, citing North, at pp. 117-118.) The defendant in North had been convicted of larceny by trick or device even though obtaining the property by false pretenses more accurately described the crime. (North, at p. 117.) The jury was not instructed on false pretenses. (Ibid.) The North court reasoned, " ' "As to the California theft statute (§ 484), . . . the cases all hold that a judgment of conviction must be affirmed if there is sufficient evidence to support a theft conviction on any theory. [Citations.] . . . [citation], 'Juries need no longer be concerned with the technical differences between the several types of theft, and can return a general verdict of guilty if they find that an "unlawful taking" has been proved.' " ' " (Fenderson, at p. 638, quoting North, at pp. 117-118.)

The Fenderson court also observed that the court in People v. Traster (2003) 111 Cal.App.4th 1377 (Traster), "affirmed a conviction where the jury was instructed on theft by false pretenses, when larceny by trick was the appropriate theory. The reviewing court observed that the error 'is merely a technical one in which the jury was instructed on a particular theory of theft which turned out to be the wrong one. In these circumstances, the instructional error is harmless.' " (Fenderson, supra, 188 Cal.App.4th at p. 639, quoting Traster, at pp. 1389-1390.)

Defendant relies upon two cases, People v. Curtin (1994) 22 Cal.App.4th 528 (Curtin), and our court's opinion in People v. Beaver (2010) 186 Cal.App.4th 107 (Beaver), both of which are discussed in Fenderson. Both Curtin and Beaver involve the theory of theft by false pretenses and Curtin also involves the theory of larceny by trick.

Before discussing those cases, it is important to note key elements and special proof requirements for false pretenses. "[T]heft by false pretenses involves the consensual transfer of possession as well as title of property; therefore, it cannot be committed by trespass." (Williams, supra, 57 Cal.4th at p. 788, some italics added.) In addition, theft by false pretenses has a special proof requirement. The prosecution must establish that the false pretense was accompanied by either a writing or a false token, or there was a note or memorandum of the pretense signed or handwritten by the defendant, or there was testimony from two witnesses or testimony from a single witness along with other evidence that supports the conclusion the defendant made the pretense. (Beaver, at pp. 120-121; CALCRIM No. 1804.) Larceny by trick is a close cousin to theft by false pretenses. While false pretenses requires the transfer of both possession and title, larceny by trick requires the transfer of possession only. (Traster, supra, 111 Cal.App.4th at p. 1387.) The necessity of corroboration also distinguishes false pretenses from larceny by trick and further adds to the burden of proof the People must carry to establish false pretenses. (People v. Counts (1995) 31 Cal.App.4th 785, 792 (Counts).)

In Curtin, the court stated that "the offense shown by the evidence must be one on which the jury was instructed and thus could have reached its verdict." (Curtin, supra, 22 Cal.App.4th at p. 531.) It is this language upon which defendant bases her argument. The defendant in Curtin cashed a check at a bank by misrepresenting identity and using a forged signature. (Id. at p. 530.) The jury was instructed on larceny by trick, so the prosecution was required to establish only transfer of possession. (Id. at p. 531.) Moreover, the jury was expressly told it had to find that in surrendering possession of the property, the victim did not intend to transfer ownership. (Ibid.) The Curtin court concluded that the evidence supported theft by false pretenses, not larceny by trick. (Ibid.) There was no evidence the bank teller intended to surrender to defendant only possession, and not title, to the money. (Ibid.) In addition to the element requiring acquisition of title, the jury was not instructed on the special corroboration requirement. (Ibid.) Consequently, the grand theft conviction was reversed. (Id. at p. 532.)

As the court in Fenderson noted, Curtin was criticized and distinguished in Counts, supra, 31 Cal.App.4th 785. In Counts, one of the defendants, Mikels, ordered lumber on credit supposedly for use on a Caltrans project, but moved the lumber from the jobsite and sold it at a discount to his friend and partner, Counts, who owned a lumberyard. (Id. at pp. 787-788.) The defendants were charged with grand theft from the lumber company and prosecuted on the theory of false pretenses. (Id. at p. 788.) Mikels argued that his conviction should have been reversed because the crime he committed was larceny by trick, rather than theft by false pretenses. This was so, according to Mikels, because the lumber company retained a security interest in the stolen lumber and thus did not intend to relinquish title to Mikels. (Ibid.) The Counts court concluded that Mikels was properly convicted on the false pretenses theory, but that even if he was not, a conviction based on larceny by trick was not precluded by the fact the jury was not instructed on that theory. (Id. at pp. 791-792.) The court in Counts rejectedMickel's contention, based on Curtin, that reversal is always required if a defendant is found guilty of theft on the wrong theory. (Id. at p. 791.) The Counts court concluded the failure to instruct on larceny by trick was harmless, noting that any such error caused the prosecution to carry the unnecessary burden of proving corroboration. (Id. at p. 792.) "It is impossible to understand how an error which increased the People's evidentiary burden could have prejudiced appellant." (Id. at p. 793.) The Counts court further reasoned, "[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. In the words of Justice Traynor, 'it is immaterial whether or not [the jurors] agreed as to the technical pigeonhole into which the theft fell.' " (Id. at pp. 793-794.)

As the Fenderson court observed, "Counts distinguished Curtin, noting that in Curtin 'the instruction as to larceny by trick required the presence of evidence which did not exist in the record [that the defendant did not take ownership or title], and there was insufficient evidence of corroboration to sustain the conviction on a theory of false pretenses. [Citation.]' [Citation.] Counts criticized the statement in Curtin that 'the offense shown by the evidence must be one on which the jury was instructed and thus could have reached its verdict' [citation] as dictum, and observed that 'neither Curtin nor any decision cited therein actually holds there is a rule of per se reversal in such circumstances.' " (Fenderson, supra, 188 Cal.App.4th at p. 639, quoting Counts, supra, 31 Cal.App.4th at pp. 791-792, italics added.)

In Beaver, supra, 186 Cal.App.4th 107, the second case upon which defendant relies, our court followed Curtin. The Beaver court concluded there was insufficient evidence to support the defendant's conviction based on larceny and the evidence instead suggested theft by false pretenses.²¹ (Beaver, at pp. 123-124.) In Beaver, the defendant staged an accident on his job to obtain medical treatment for a preexisting injury and to obtain a cash settlement. (Id. at pp. 110-111.) The employer's insurance company paid his medical expenses from the employer's worker's compensation policy, but while his civil suit was pending, the defendant was charged with grand theft. (Id. at p. 113.) On appeal from the conviction on the grand theft charge, the defendant argued that the jury was erroneously instructed on theft by larceny when the evidence showed only theft by false pretenses. (Id. at pp. 119-120.) As a consequence, the jury was permitted to convict him of theft without also finding that the defendant intentionally deceived his employer, did so intending his employer to let him take possession and ownership, and the employer relied on his representations or pretenses, all elements of false pretenses. Nor was the prosecution required to satisfy the special corroboration requirement. (Id. at pp. 120-121.)

21 The Beaver court also held that the evidence did not support an embezzlement theory. (Beaver, supra, 186 Cal.App.4th at p. 121.)

The court in Beaver concluded the jury was erroneously instructed on the larceny theory, reasoning that the facts did not involve a taking of property from another without the victim's consent. (Beaver, supra, 186 Cal.App.4th at p. 121.) The Beaver court stated that the larceny instruction applies to situations where a defendant physically takes property from another's actual or constructive possession, and concluded that the defendant did not take his employer's property, rather the employer gave it to the defendant under false pretenses. (Id. at p. 122.)²² The court concluded that the defendant obtained the money to pay his medical expenses with the employer's consent and it was consent that made the case one of false pretenses instead of larceny. (Beaver, at pp. 123-124.) The Beaver court, citing the dicta in Curtin, rejected the People's argument that the precise theory on which the jury was instructed does not matter as long as the evidence supports the elements of any theft theory. (Beaver, at p. 123.)

22 Although not highlighted by the court in Beaver, the defendant never physically took possession of the employer's money; rather as we have noted, the employer's worker's compensation carrier paid defendant's medical bills. (Beaver, supra, 186 Cal.App.4th at p. 121.)

The court in Beaver also considered Counts, supra, 31 Cal.App.4th 785, and concluded Counts does not contradict Curtin. (Beaver, supra, 186 Cal.App.4th at p. 124.) The Beaver court reasoned that since the Counts court found the evidence supported the theory on which the jury was instructed, its discussion of Curtin was itself dictum. (Beaver, at p. 124.) Beaver further observed, "The [Counts] court concluded that even if theft by false pretenses was not established because of the security interest, theft by trick was satisfied, inasmuch as the elements of the latter are subsumed within the former except for the passing of title." (Beaver, at p. 124.) But in Curtin, the opposite happened. The Curtin court concluded the evidence did not establish larceny by trick because both possession and title had passed to the defendant, and even if there was sufficient evidence to support the additional requirements for theft by false pretenses, the jury was not instructed on that theory. (Beaver, at pp. 124-125.)

The court in Beaver further reasoned, "In the present matter, the instructions read to the jury did not include all the elements necessary for a charge of theft by false pretenses. Therefore, even if there was sufficient evidence in the record to support such a charge, the failure to instruct on those elements violated defendant's constitutional rights to have the charges decided by a jury." (Beaver, supra, 186 Cal.App.4th at p. 125.) The Beaver court concluded that, given the evidence, the error was not harmless beyond a reasonable doubt. (Ibid.) The court concluded the instructional error was not a mere technical error, noting that the prosecution was not required to prove to the jury either a representation by the defendant or the special false pretenses corroboration necessary for false pretenses. (Ibid.)

After discussing Beaver, the Fenderson court concluded that the failure to instruct on embezzlement was harmless given the facts before it supporting the theory of embezzlement. (Fenderson, supra, 188 Cal.App.4th at p. 641.) In doing so, it implied that, because grand theft by larceny requires proof of a trespassory taking, and embezzlement does not, the former is more difficult to prove. (Ibid.) Thus, assuming the defendant in Fenderson lawfully acquired possession of the money under the authority of a valid power of attorney, there was substantial evidence of embezzlement. (Ibid.) "Taking money from [the victim]'s accounts for [the defendant]'s own purposes would have been theft while [the victim] was alive, and was theft from her estate, whatever her 'criminal acquisitive technique[].' [Citation.] Thus, there is substantial evidence in the record to support a theory of theft by embezzlement." (Ibid.) As in Counts, " 'It is impossible to understand how an error which increased the People's evidentiary burden could have prejudiced appellant.' " (Fenderson, at p. 641, quoting Counts, supra, 31 Cal.App.4th at p. 793.) Further agreeing with Counts, the Fenderson court declared 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.' " (Fenderson, at pp. 641-642, quoting Counts, at p. 793.)

We agree with the Fenderson analysis related to embezzlement. We further conclude, based on the evidence we outlined ante, that there was substantial evidence of embezzlement here related to the funds entrusted to defendant that should have been delivered to Cashback. Accordingly, we reject defendant's substantial evidence claim as to count 11.²³

23 Similarly, the evidence on count 1 was also sufficient to establish embezzlement. Our view would be the same on count 5, but for the fact that the information did not charge theft of money from Apple.

II. Instructional Error Claim

Defendant contends the trial court committed reversible error by failing to instruct the jury on the theory of theft by embezzlement sua sponte,²⁴ and because the jury was instructed only on theft by larceny, defendant's constitutional rights to due process and a jury trial were violated. In defendant's words, "review of the instructions given for the grand theft offenses necessarily leads to the conclusion that the grand theft by larceny instruction was clearly inapplicable, and that the absence of a grand theft embezzlement instruction violated" defendant's constitutional rights "to have the jury determine every element of the charged offense beyond a reasonable doubt."

24 Defendant argues that, instead of instructing on larceny, the trial court should have instructed sua sponte on theft by embezzlement, CALCRIM No. 1806, which would have told the jury: "The defendant is charged [in Count ___] with [grand/petty] theft by embezzlement [in violation of . . . section 503]. [¶] To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. An owner [or the owner's agent] entrusted (his/her) property to the defendant; [¶] 2. The owner [or owner's agent] did so because (he/she) trusted the defendant; [¶] 3. The defendant fraudulently (converted/used) that property for (his/her) own benefit; [¶] AND [¶] 4. When the defendant (converted/used) the property, (he/she) intended to deprive the owner of (it/its use). . . ."

This contention is rendered moot as to count 1 by our conclusion ante, that substantial evidence supports the conviction based on the theory of theft by larceny. As the court in Kaufman recognized, the fact that there is an alternative theft-related theory does not necessarily make the theory presented to the jury improper. (Kaufman, supra, 17 Cal.App.5th at p. 380.) " '[T]he particular case need not ultimately fit into one category to the exclusion of the others.' " (Id. at p. 381.) Sometimes there are theories that are so related that, on different interpretations of the facts, the same acts may sometimes fall under more than one theory of theft. (Ibid.) Thus, as to count 1, it was unnecessary to instruct on embezzlement.

As to count 11, defendant's contention fails because the error is harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 710-711] (Chapman).)

Defendant argues that the error is not harmless because "the jury was not instructed that the prosecution was required to prove that the victims entrusted their property to [defendant], that they did so because they trusted [defendant], that [defendant] fraudulently converted the property for her own benefit, and that when she converted the property she intended to deprive the owner of its use." Additionally, the jury was not instructed that if defendant "had a good faith belief that she was authorized to use the property, it was a defense to theft by embezzlement."

Like the courts in Counts and Fenderson, we conclude that the error in failing to instruct on embezzlement is harmless beyond a reasonable doubt. (Fenderson, supra, 188 Cal.App.4th at pp. 639-641; Counts, supra, 31 Cal.App.4th at pp. 791-792.) As to count 11, the evidence related to the embezzlement elements defendant highlights is overwhelming. Further, there was no evidence supporting a claim that defendant had a good faith belief she was entitled to use any of the payments for any purpose unrelated to her customers' travel or to pay the venders on behalf of her customers. Rather, there was overwhelming evidence proving defendant knowingly and fraudulently converted the property for her own benefit and, in doing so, she intended to deprive the rightful owners of its use. (See Kaufman, supra, 17 Cal.App.5th at pp. 379-380.)

As to count 11, defendant's intent to deprive Cashback is reflected by her cashing the checks, her failure to pay for the excursions until she had to, and then making a payment by means of an unauthorized charge on her son's credit card instead of forwarding the funds collected from the students/parents. Additionally, a reasonable jury could infer from the evidence that defendant was in a difficult financial situation that got more desperate over time. She was in the process of divorcing her husband. He was not paying her support. The business never made money according to defendant's own testimony, and thus defendant had no source of income. Thus, defendant had insufficient sources of funds to cover for the payments she had misappropriated from her travel agency customers. The evidence shows that having to refund the Imperials' money in November 2006 provided an additional drain on defendant's finances. The evidence showed that in December 2006, defendant used the SSI card to cover a bounced check defendant sent Apple for the Elks Club group's trip to Mexico. As a result, the SSI credit card was not used for the SSI employees' trip to Hawaii in January. Defendant had a clear motive to steal and this is circumstantial evidence of her intent to deprive Cashback of the payments made by the St. Mary's students/parents.

Instructional error related to the elements of the offense is harmless when there is overwhelming evidence establishing the required elements. Such is clearly the case here. Since Chapman, our high court has " 'repeatedly reaffirmed the principle that an otherwise valid conviction should not be set aside if the reviewing court may confidently say, on the whole record, that the constitutional error was harmless beyond a reasonable doubt.' " (People v. Geier (2007) 41 Cal.4th 555, 608.) "The harmless error inquiry asks: 'Is it clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error?' " (Ibid.; People v. Livingston (2012) 53 Cal.4th 1145, 1159.) "[A] Chapman harmless error analysis for instructional error typically includes review of the strength of the prosecution's case. [Citation.] Indeed, the harmless error inquiry for the erroneous omission of instruction on one or more elements of a crime focuses primarily on the weight of the evidence adduced at trial." (People v. Aranda (2012) 55 Cal.4th 342, 367.)

Defendant cites in her opening and reply briefs, without analysis, Neder v. United States (1999) 527 U.S. 1 . Defendant notes only that the high court stated the general Chapman rule, but we also observe that the court held the omission of an element of a charged offense is harmless when "the omitted element was uncontested and supported by overwhelming evidence, such that the jury verdict would have been the same absent the error." (Neder, at p. 17.) Here, as we have noted, the evidence as to the embezzlement elements defendant highlights was overwhelming. Further, the only element contested by defendant was criminal intent, but unlike larceny, which requires an intent to permanently deprive the owner of the property or its main value, embezzlement does not require intent to permanently deprive, but rather only the intent to deprive the owner of the property's use at the time the defendant fraudulently converted or used the property. (See fn. 24, ante.) "An intent to deprive the rightful owner of possession even temporarily is sufficient" for embezzlement. (In re Basinger (1988) 45 Cal.3d 1348, 1363; People v. Nazary (2010) 191 Cal.App.4th 727, 742, disapproved on other grounds in People v. Vidana (2016) 1 Cal.5th 632, 648, fn. 16.) Thus, the prosecutor actually carried and met a higher burden on the only contested embezzlement element. The jury's verdict necessarily reflects a rejection of her mental state defense to the element of intent to permanently deprive.

Like the courts in Counts, supra, 31 Cal.App.4th at pages 791-793, and Fenderson, supra, 118 Cal.App.4th at pages 639-642, we conclude that the error in failing to instruct on embezzlement here is harmless beyond a reasonable doubt.

III. Denial of Probation

Defendant contends the trial court abused its discretion by denying probation, because this is a case where the interests of justice would best be served by a grant of probation. She further asserts that the trial court violated her constitutional right to due process by essentially punishing her for exercising her constitutional right to go to trial.

It is clear from the record that the trial court learned information pertinent to sentencing during trial and post-verdict that was not available pretrial. We have provided a comprehensive factual summary to show the amount of detail the trial court learned from the trial. Further, the record clearly demonstrates that the trial court followed the Rules of Court²⁵ in imposing sentence. Consequently, we disagree that the trial court abused its discretion or violated defendant's due process rights.

25 Undesignated references to rules are to the California Rules of Court in effect at the time of the charged offenses and sentencing.

A. Background

In recommending denial of probation, the probation report noted: (1) defendant had not assumed responsibility; (2) she misused her position of trust; (3) she defrauded multiple victims; (4) she was likely to reoffend; (5) she had failed to modify her behavior since a prior allegation a few years earlier; and (6) the crimes indicated planning, sophistication, or professionalism. In mitigation, defendant had no prior criminal record.

On the original date set for sentencing, the trial court heard from the prosecutor, victims, defendant's character witnesses, and defendant. The prosecutor filed a sentencing brief 13 days before the hearing. The court granted defendant's request for a continuance to allow additional time to file a sentencing brief. In his sentencing brief, the prosecutor set forth the pretrial offers and explained why the evidence the trial court learned from the trial warranted a state prison sentence.²⁶

26 In the sentencing brief, the prosecutor explained that pre-filing, defendant was offered 400 hours community service conditioned on pleading to three felonies, reducible to misdemeanors, and making full restitution. Pre-preliminary hearing, defendant was offered 120 days county jail for a plea to two felonies. Pretrial, defendant was offered 180 days county jail for pleas to counts 1, 3, 4, 6, and 14, with Harvey waivers (People v. Harvey (1979) 25 Cal.3d 754) as to the dismissed counts, an unlimited search waiver and a probation condition prohibiting defendant from handling finances, money, or credit cards of others.

The prosecutor argued three points at the hearing. The reason the St. Mary's students did not suffer harm was because of Fernandez's and Sullivan's efforts, not due to any care exercised by defendant. Defendant committed perjury during her testimony and attempted to engender sympathy by her demeanor, which changed demonstrably during her surrebuttal testimony.²⁷ And defendant had shown no remorse.

27 In his sentencing brief, the prosecutor wrote, "During trial, Defendant presented herself as pitiful and heavily medicated until her former employer . . . confronted her with some very damaging rebuttal testimony. At that point, the real [defendant] came alive and showed the Court her level of contempt for those who dare to come forward against her."

Fernandez gave a statement at the sentencing hearing. She had testified at trial that she had to refinance her home to pay off her credit card bills. At the sentencing hearing, she emphasized the "financial and emotional pains" inflicted by defendant, in addition to defendant's betrayal of their friendship. As she did at trial, Fernandez said parents called her complaining about unauthorized use of their credit cards. Fernandez also revealed that one of the female students from St. Mary's was pulled off the plane she boarded for the return flight and strip searched by federal authorities. Her belongings were also searched and she underwent questioning because her flight had been booked with a government credit card, which set off alerts. The Stockton Police Department was notified and they informed the student's parents that the student had been caught using a stolen credit card. The parents could not understand why this happened since they had paid for their daughter's trip. Fernandez told the court defendant was to blame for all of this.²⁸

28 Fernandez also denied that she worked for defendant. She had turned down defendant's multiple offers to do so because of her own health problems. She merely brought customers to defendant's travel agency.

In his statement, Sullivan also referenced the episode with the female student and the "trauma" she underwent. As for him and his family, he emphasized the financial hardship that resulted from defendant's actions and the negative impact on his credit rating. He said the St. Mary's group made defendant "close to or more than $85,000" and that payments were made up front to defendant's travel agency. He said had it not been for him and Fernandez, the students would have been homeless in Hawaii.

Tibon, Fernandez's sister, provided a statement to the court. She explained how she and her husband had used defendant's travel agency for trips associated with her husband's karate school. On one occasion, while her husband was in Finland, their credit card was declined and shut down because of defendant's unauthorized use of the credit card. They had previously made multiple customer referrals to defendant's business through their karate school, yet defendant "put [their] livelihood and [their] family at risk." Tibon told the court defendant's "premeditated deceit deserves the highest level of punishment." She added that they had prevailed in a civil case against defendant.

Anna Costa read to the court a letter defendant had written to her former husband in 2006. In it, defendant stated: " 'I need to be upfront and honest with you. I'm the clutter in your life. I've messed up really bad. The visa bill is not at zero balance and the savings is gone. There were also credit cards. I will take responsibility for my actions. I have talked to a debt counselor and working on them.' " Costa said defendant received $148,000 from the sale of the family home and $31,000 from her husband's retirement, yet had not made restitution to the victims. She said that instead of making restitution, defendant purchased a vehicle.

Defendant made a brief statement to the probation officer. She stated, " 'I don't know how this happened. I am willing to abide by terms of probation.' "

In her oral statement to the court, defendant admitted making "some mistakes." She said she was sorry "if" the victims were "inconvenienced." She said she paid off her own credit cards with the proceeds from the sale of the house and leased a vehicle with her share of her husband's retirement because she did not have transportation after the divorce. She ultimately had to give up the vehicle because she could not make the payments. Defendant implied that Costa was the person with whom her husband had an affair, but she did not dispute that she had written the letter Costa had read to the court.

Defense counsel asserted that defendant needed to receive medical care at UCSF that would not be available in prison. Also, he argued that defendant wanted to make the victims whole, but could not make restitution if she went to prison. He offered that he would provide mitigation at the continued sentencing hearing.

Thereafter, the trial court stated, "I don't think they expected they were going to get any more money at this point. . . . [¶] And the other question I just have for you to think about is that the offer that she had prior to trial, and I am, everyone knows here, a firm believer in the right to a jury trial, but the offer that she had would have given her the opportunity to get her cancer treatments, and it would have given her the opportunity to go out and try to get healthy and then start paying these people back what she really owed, and she decided not to do that. [¶] But then there are consequences for that, and it's hard for me to ignore that she had an opportunity to spend as little as 60 days. She could have done the work project and never spent a night in jail. [The prosecutor] was willing to do that. She wasn't willing to go that route, and I think there's something to be said about what these people on the left side, my left side of the courtroom, [the victims] . . . have gone through because of her maintaining her right to a jury trial, which again is fine with me, but it's -- you know, I learned other things during the trial that I wouldn't have known at the time I took her plea, if she had pled guilty or no contest early on. So I would be interested to have you address that in your sentencing brief . . . . Those things concern me." (Italics added.) The court said it would "continue to keep an open mind" and continued the sentencing hearing.

At the continued sentencing hearing, the trial court indicated it had reviewed defendant's sentencing brief, as well as that of the prosecution, the probation report, and the various letters that had been submitted. The court also indicated it had reviewed the ten pages of notes it had taken from the previous sentencing hearing. The court then indicated its tentative sentence of five years four months.

Defense counsel argued the following from rule 4.414, criteria affecting probation: that defendant's crime was committed because of an unusual circumstance and that she was unlikely to reoffend because she would be unlikely to ever have another business where she could defraud customers; that while defendant's crime showed "some sophistication or professionalism," it was not a crime she could get away with; defendant had no prior criminal convictions, which weighed heavily in her favor; and defendant would be suitable and willing to comply with conditions of probation. Counsel argued that the most compelling factor was the impact imprisonment would have on defendant given her medical condition, emphasizing that defendant was to receive treatment at UCSF.

Defense counsel then argued that the trial court's tentative sentence was excessive. He asserted that, in his experience, the tentative was significantly harsher than sentences imposed for thefts involving greater loss. Defense counsel argued that the students who went to Hawaii did not know what was going on and he asked the court to set aside the emotional element of "every parents' nightmare to have their kids in Hawaii without a hotel room or return flight." According to defense counsel, the kids were not victims. Rather, the case was about a fraud on credit card companies and airlines, and they were not vulnerable victims. Defense counsel asserted that the facts did not justify treating defendant differently than other defendants. Counsel further argued that the tentative sentence was out of line with the prosecution's pretrial offer of community service, and courts do not punish people for going to trial. The offer of four months was open until trial, and, according to defense counsel, going from four months to five years four months was excessive. The tentative sentence was double what the prosecutor recommended after trial, two years eight months. Defense counsel stated that the court's tentative sentence "has the appearance" of punishing defendant for putting everyone through a four-week trial.

In denying probation, the court said that, pretrial, it had looked at this case as a property case and less serious but its opinion changed as the case went on. "[Defendant] is different than the other anecdotal stories" counsel had mentioned. The court stated that after the jury's verdicts, it must be "guided by the Rules of Court and by the Penal Code in determining [the] sentence." The court continued, "I did think about how it appeared to me that it was the kind of case that should have resolved short of going to trial, but then I thought, well, possibly she has a good defense, and I'm all for that . . . . But I think in this case, she made her own bed. She chose to reject the offer for community service. She chose to reject a felony local for 120 days, and that's her right. And I'm fine with that. But once the jury has convicted her of, you know, these numerous felonies, then I'm required to go through an analysis about it. [¶] To this day, I don't think that she has really shown remorse, and that is a problem for me. What she said the other day was she was sorry if these people were inconvenienced. That is her exact words. I wrote them down when she said it. [¶] She still hasn't explained, where did that money go? Where is it? What did she do with it?" (Italics added.)

The trial court noted defendant's cancer and divorce and said, "It's an explanation, which I understand. But it's not an excuse for her behavior, and so, you know, that -- that is just basically what's in my mind, and I want the record to be very clear. I'm not punishing her for having gone to trial, but I do acknowledge in the context of her -- her attempt at an excuse, well, I had cancer. Well, I had a divorce, or all of these things. I wasn't thinking clearly, so I couldn't accept those offers at that time. [¶] I kind of heard that argument the other day when we were in here, and that was my response about she could have. She was in control of her own life at that point in time. And had she been willing to admit responsibility instead of trying to excuse her behavior, point the finger at her husband or point the finger at her illness, she could have -- she had control at that point. She could have done 400 hours of community service. She could have had a felony and 120 days in county jail, and . . . never spent a night in the county jail and she decided to take her chances. And that's what she's done, and then a jury has spoken." (Italics added.)

In sentencing defendant, the trial court expressly stated it had gone through the rule 4.414 analysis. The court acknowledged there are more serious theft offenses, but noted the many victims and the extended period of criminal activity, during which "[t]here were so many occasions where [defendant] made the wrong choices and then could have corrected it but didn't and continued to steal from other people." The court found that the victims were more vulnerable than other victims because they had entrusted defendant with their financial information. Regarding the St. Mary's trip, the court concluded that the students' parents were also victimized by defendant's conduct. Regarding the Imperials, the court noted that they had planned a once in a lifetime trip with their elderly mother. The court found that defendant caused "a lot of emotional wreckage," and the mental impact on the victims was something the court could consider under the Rules of Court. Defendant stole about $82,000²⁹ and in doing so, the court found that defendant exhibited a high degree of criminal sophistication. "It was a very elaborate scheme of collecting money and borrowing from Peter to pay Paul, . . . and then charging others and doing this over and over and over and over again" to close friends and prior clients. The court rejected defendant's claim to the probation officer that she did not know how all of this happened and that she was sloppy or negligent because of her personal challenges. The court found, "[y]ou could not commit these crimes at this level of sophistication in a sloppy or negligent way. It took real thought. It took real preparation." The court further found that defendant was "highly aware." The trial court also noted that defendant took advantage of a position of trust.

29 Actually, this was the amount of restitution the prosecutor argued was owing in his sentencing brief. He also asserted that criminal conduct caused losses of $202,536.07.

The court noted various mitigating factors, including defendant's lack of prior criminal record,³⁰ that defendant had the ability to comply with probation, and she had strong community support. However, the court expressed concern about defendant's ability to obey all laws because she lacked insight into why she committed the crimes. The court also noted that defendant would receive medical treatment in prison.

30 The trial court expressly stated that it was not considering the uncharged conduct related to Galaxy Travel because that evidence was not admitted to show a propensity to commit theft crimes or bad character.

In concluding its denial of probation, the trial court stated, "So when I weigh all of those things together, I think that the probation shall be denied." In addressing defense counsel's excessive sentence claim, the court noted that defendant would serve only half if she earned her good time/work time credits.

B. Analysis

A grant of probation is not a matter of right but an act of judicial clemency. (People v. Covington (2000) 82 Cal.App.4th 1263, 1267.) The grant or denial of probation is within the trial court's discretion, and defendant bears a heavy burden when attempting to show an abuse of discretion. (People v. Weaver (2007) 149 Cal.App.4th 1301, 1311, disapproved on other grounds in People v. Cook (2015) 60 Cal.4th 922, 939.) Our function is to determine whether the trial court's decision is arbitrary or capricious or exceeds the bounds of reason, considering all the facts and circumstances. (Weaver, at p. 1311.)

Defendant argues the trial court decided to deny probation to punish her for going to trial. She asserts in her brief, "Even though the trial court stated it was not punishing [defendant] for going to trial, it is obvious that this was not the case."

To the contrary, it is obvious the trial court did not punish defendant for going to trial. First, it is clear that the trial court first mentioned the pretrial offers in the first sentencing hearing after defense counsel stated defendant needed to be free of custody so she could obtain medical treatment at UCSF. The trial court merely noted that had defendant accepted a pretrial disposition, she could have continued treatment there. The court's observations did not suggest an intent by the court to punish defendant for going to trial. Indeed, the court gave defense counsel extra time to prepare a sentencing brief even though the prosecution had had time to file its sentencing brief and the victims were present in court seeking closure.

Second, the comments the court made concerning the pretrial offers at the continued sentencing hearing were in response to defense counsel's argument that the tentative sentence was excessive and apparently punishment for going to trial. The trial court was entitled to respond to that accusation. And in responding, the trial court expressly stated it was not punishing defendant for having gone to trial.

Third, the trial and sentencing hearing revealed much more than could have been communicated to the court in the context of early case resolution discussion. This is often the case and the trial court said as much here. The harm inflicted by the defendant revealed during the trial and sentencing hearing was not ignored by the trial court.

Fourth, unlike in the context of pretrial negotiations, the trial court recognized that once the jury convicted defendant, it was required to "go through the analysis" concerning sentencing. We understand this as a reference to the trial court's obligation to apply the Rules of Court, which the record demonstrates the trial court did. And there is nothing in the Rules of Court that requires the trial court to consider a pre-trial offer as some sort of baseline or otherwise factor it into the analysis required by the rules.

Finally, despite the trial court's repeated references to defendant's lack of remorse, defendant barely mentions it in her brief on appeal, where she merely argues, "Although the court found that [defendant] was not remorseful, during the sentencing hearing [defendant] addressed the court and indicated that she was sorry for her mistakes." We note that, in addition to the lack of remorse shown by defendant post-conviction, she also demonstrated a lack of remorse during the commission of the crimes. Schock testified, "[T]he part that stands out more to me is that I was frustrated and I couldn't get an answer. . . . [S]he wasn't anywhere near as concerned about what was going on with my employees' travel as I was." Defendant had "not a worry in the world about it." (Italics added.) Fernandez testified that during the episode in Hawaii, defendant was not her normal friendly self. She was "mean." And when Fernandez was unable to check into a hotel later while on a vacation because of defendant's bounced check and the resulting cancellation of her credit card, defendant "very nonchalantly" said she would see what she could do. But she did virtually nothing. When defendant finally met with the Imperials, she concluded the meeting by handing the phony documents she prepared to her long-time friend, and told her, " 'Here, I paid Carnival, it's on them the trip did not take place. They made the mistake.' " She then "stormed out of the house." Characterizing her crimes as "mistakes" post-conviction, defendant continues making excuses. Her apology, "if" the victims were "inconvenienced," understandably rang hollow with the trial court.

On appeal, defendant disputes the trial court's findings, asserting for example that she was confused and not criminally sophisticated. She ignores that the jury also rejected her claim of confusion by finding she had the requisite criminal intent. Her herculean effort to book air flights for 70 people using numerous credit cards during the short period of time as shown by the evidence hardly reflects confusion or a diminished mental state.

Under the heading that the trial court abused its discretion by denying probation, defendant complains the trial court imposed a sentence double the minimum requested by the prosecutor. Actually, the prosecutor recommended that defendant be sentenced to "no less than 2 years and 8 months." (Italics added.) Moreover, considering the relevant sentencing criteria in the Rules of Court, the sentence imposed by the trial court does not demonstrate abuse of discretion in denying probation. To the extent defendant means to challenge the prison sentence, we may disregard contentions not adequately briefed under separate headings. (People v. Turner (1994) 8 Cal.4th 137, 214, fn. 19.)

We conclude the trial court did not abuse its discretion in denying probation.

IV. Section 654

Defendant contends the trial court erred by failing to apply section 654 ³¹ to stay the sentence on count 4, forgery of SSI's credit card authorization form under section 470, because defendant harbored only a single intent and objective in the commission of that offense and count 3, fraudulent use of SSI's credit card. The People concede the point. We agree.

31 Section 654, subdivision (a), provides in pertinent part: "in no case shall [an] act or omission be punished under more than one provision." --------

In sentencing defendant, the trial court said count 4, forging Hovatter's name, was a different crime than count 3. However, Hovatter was SSI's owner, and the only reason for forging his signature was to use SSI's credit card. Section 654 applies to an indivisible course of conduct where all the offenses are incident to a single intent and objective. (People v. Latimer (1993) 5 Cal.4th 1203, 1207-1211.) Such is the case relative to counts 3 and 4.

We order stay of execution of sentence on count 4 pursuant to section 654.

DISPOSITION

The judgment as to count 5 is reversed and that count is ordered dismissed. The judgment as to count 4 is modified to stay execution of the sentence on that count pursuant to section 654. We direct the trial court to amend the abstract of judgment to reflect these changes, and to reflect that the trial court imposed, and stayed execution of, the upper term sentences on counts 7, 8, 9, 10, and 11. The court is directed to send a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.

The judgment is otherwise affirmed.

MURRAY, J. We concur: RAYE, P. J. ROBIE, J.