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People v. McCurdy

California Court of Appeals, Third District, Shasta
Jun 14, 2011
No. C065382 (Cal. Ct. App. Jun. 14, 2011)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. JULIE RAE MCCURDY, Defendant and Appellant. C065382 California Court of Appeal, Third District, Shasta June 14, 2011

NOT TO BE PUBLISHED

Super. Ct. No. 08F5030

HOCH, J.

Defendant Julie Rae McCurdy, manager of the Tobacco and Brew in Redding, stole several thousand dollars from her employer over the course of nine months. She was arrested after being caught on surveillance video taking over $300 from the cash register. The owner of the store told police he suspected her of stealing a much greater sum during her employment and that he would be “checking into his records to confirm.” Defendant was charged with misdemeanor petty theft, entered a plea of no contest, and was placed on informal probation.

Tobacco and Brew was owned by Joe and Shelly Levy, who will be referred to throughout this opinion, both individually and collectively, as “the owner.”

Investigation into the owner’s allegation of additional thefts continued, and defendant was ultimately charged with felony grand theft and embezzlement for a series of thefts carried out before the theft charged in the misdemeanor prosecution. After an unsuccessful motion to dismiss the charges for violating Penal Code section 654 and Kellett v. Superior Court (1966) 63 Cal.2d 822 (Kellett), defendant entered a negotiated plea of guilty to one count of grand theft. The trial court suspended imposition of sentence for three years and placed defendant on formal probation under various terms and conditions, including a jail sentence of 240 days and an order to pay victim restitution in the amount of $15,977.

Undesignated section references are to the Penal Code.

On appeal, defendant contends that her felony conviction must be reversed because “the prosecution knew or reasonably should have known of the facts giving rise to the felony charges when they earlier prosecuted her on misdemeanor charges.” We disagree and affirm the conviction. However, because the trial court failed to provide a detailed recitation of all fines, fees and penalties on the record during sentencing, we remand so the trial court may properly do so. (People v. High (2004) 119 Cal.App.4th 1192, 1200 (High).)

BACKGROUND

Misdemeanor Prosecution

On November 8, 2007, defendant was working as the manager of Tobacco and Brew in Redding. She was caught on surveillance video stealing $322.49 from the cash register by conducting three fraudulent transactions disguised as customer refunds. The next morning, the owner of the store discovered the theft and confronted defendant. She admitted to taking the money and started to cry. The owner then called the police. When police arrived, defendant again confessed and explained that “her friends needed the money” to “buy marijuana and speed.” She confirmed the amount stolen and explained that she was able to take the money without the cash register being out of balance by conducting phantom refund transactions. The cash register’s backup receipt roll confirmed her explanation. Defendant also stated that two $100 bills in her purse were taken from the cash register the night before. She denied any additional thefts.

Police arrested defendant after a records check revealed a previous embezzlement conviction. After she was booked, the owner called the arresting officer and stated that he believed defendant had stolen a much greater amount during the previous six months, “possibly in the range of $50,000 to $100,000, ” and that he would be “checking into his records to confirm.” The police report stated that the case was closed by arrest, and directed that copies of the police report be forwarded to the District Attorney for review and prosecution and to the Financial Crimes Investigations Unit for follow-up.

On December 4, 2007, defendant was charged with misdemeanor petty theft and embezzlement of $322.49. On December 17, 2007, at her first appearance on the charges, defendant entered a plea of no contest to the petty theft charge and was placed on informal probation.

Felony Prosecution

On November 27, 2007, police followed up on the owner’s allegation of additional thefts and were provided with a series of cash register receipts and a list of transactions in which defendant conducted cash refunds between April 19, 2007, and November 2, 2007. The total amount of refunds “so far discovered” was $2,773.59. However, the owner also pointed out that “several methods of defrauding the business had been used, ” including programming the cash register so that refunds would not be reported, and cutting out sections of the receipt roll where refunds would have been reported and then taping the roll together again. Defendant also held the receipt roll during printing, causing the cash register to print over the same portion of the roll and rendering it unreadable. Because “this went on for an unknown period of time” and “numerous sections of the tape were missing, ” the owner did not know the full amount of fraudulent refunds that may have occurred. Defendant was also suspected of stealing merchandise from the business during her time as manager. A police report was filed indicating that the case remained open, requesting that a copy of the report be forwarded to the Redding Police Department Investigations for review and to the Shasta County District Attorney’s Office for review.

On April 2, 2008, police again followed up on the alleged thefts. This time, police were informed that the owner had “finished” going through defendant’s transactions. According to the owner, additional fraudulent cash refunds were discovered when the register receipts, which did not reflect the refunds, were compared to the “detail slips, ” which did reflect the refunds. The owner also claimed that, when other employees purchased items, defendant would take the money without ringing up the sale. Defendant was also claimed to have stolen “drop” money from the cash register that she was supposed to place in the safe. The owner further claimed that defendant stole beer from the store, telling other employees that it was “sample” beer. The owner also mentioned that defendant “may have stolen several hundred cases of cigarettes from the store.” On April 7, 2008, the owner gave police a final list of alleged thefts, totaling over $40,000 in stolen cash and merchandise.

On June 17, 2008, defendant was charged with felony grand theft and embezzlement. The offenses were alleged to have occurred between February 7, 2007, and November 7, 2007, prior to the petty theft involved in the previous misdemeanor prosecution.

Defendant moved to dismiss the prosecution under section 654 and Kellett, supra, 63 Cal.2d 822, arguing that the People either knew or should have known about the offenses charged in the felony case when they filed the misdemeanor case. This was so, argued defendant, because the owner notified police on November 27, 2007, that defendant had stolen a much greater amount from the store over the course of several months. The trial court denied the motion, explaining that it could not fault the People for proceeding with their “very good” misdemeanor case against defendant simply because there was also “speculation” about a larger series of thefts, which remained unsubstantiated several months after defendant entered her plea of no contest to the misdemeanor.

After defendant entered a plea of guilty to the grand theft charge, the trial court suspended imposition of sentence for three years and placed her on formal probation under various terms and conditions, including a jail sentence of 240 days and an order to pay victim restitution in the amount of $15,977. This appeal followed.

DISCUSSION

I

Multiple Prosecution Bar of Section 654

Defendant contends that her conviction must be reversed because the statutory bar against multiple prosecutions required dismissal of this case. She is mistaken.

Section 654, subdivision (a), provides: “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other.”

While this provision addresses both multiple punishment and multiple prosecution, these “separate concerns have different purposes and different rules of prohibition.” (People v. Valli (2010) 187 Cal.App.4th 786, 794.) “The purpose of the protection against multiple punishment is to insure that the defendant’s punishment will be commensurate with his criminal liability.” (Neal v. State of California (1960) 55 Cal.2d 11, 20.) At the same time, “[t]he rule against multiple prosecutions is a procedural safeguard against harassment and is not necessarily related to the punishment to be imposed; double prosecution may be precluded even when double punishment is permissible.” (Id. at p. 21.) Thus, “[a] defendant who blows up an airplane killing all on board or commits an act that injures many persons is properly subject to greater punishment than a defendant who kills or harms only a single person. It does not follow, however, that such a defendant should be liable to successive prosecutions. It would constitute wholly unreasonable harassment in such circumstances to permit trials seriatim until the prosecutor is satisfied with the punishment imposed.” (Kellett, supra, 63 Cal.2d at pp. 825-826.)

In Kellett, supra, 63 Cal.2d 822, our Supreme Court held that section 654 prohibits multiple prosecution when the People either know or reasonably should know that “the same act or course of conduct play[ed] a significant part” in both offenses. (Id. at p. 827.) There, the defendant was arrested while standing on the sidewalk with a gun in his hand. (Id. at p. 824.) He was initially charged with exhibiting a firearm in a threatening manner, a misdemeanor. After a preliminary hearing, he was charged in a separate case with felony possession of a firearm by a felon. After pleading guilty to the misdemeanor charge, he unsuccessfully moved to dismiss the felony charge under section 654. (Ibid.)

Our Supreme Court issued a writ of prohibition preventing defendant’s trial. (Kellett, supra, 63 Cal.2d at p. 829.) After explaining the “separate and distinct” purposes behind section 654’s preclusion of multiple punishment and multiple prosecution, the court noted that section 954 “provides for the joinder in a single accusatory pleading of two or more offenses connected in their commission or having a common element of substantial importance in their commission.” (Id. at p. 825.)

Construing sections 654 and 954 in light of the “growing concern” that prosecution of “closely related individual offenses at separate trials may constitute an impermissible denial of that fundamental fairness required by the due process clause of the Fourteenth Amendment, ” the court stated: “If needless harassment and the waste of public funds are to be avoided, some acts that are divisible for the purposes of punishment must be regarded as being too interrelated to permit their being prosecuted successively. When there is a course of conduct involving several physical acts, the actor’s intent or objective and the number of victims involved, which are crucial in determining the permissible punishment, may be immaterial when successive prosecutions are attempted. [¶] When, as here, the prosecution is or should be aware of more than one offense in which the same act or course of conduct plays a significant part, all such offenses must be prosecuted in a single proceeding unless joinder is prohibited or severance permitted for good cause. Failure to unite all such offenses will result in a bar to subsequent prosecution of any offense omitted if the initial proceedings culminate in either acquittal or conviction and sentence.” (Kellett, supra, 63 Cal.2d at p. 827.)

However, the court was also careful to emphasize: “Cases may also arise in which the district attorney is reasonably unaware of the felonies when the misdemeanors are prosecuted. In such situations the risk that there may be waste and harassment through both a misdemeanor and felony prosecution may be outweighed by the risk that a defendant guilty of a felony may escape proper punishment. Accordingly, in such cases section 654 does not bar a subsequent felony prosecution except to the extent that such prosecution is barred by that section’s preclusion of multiple punishment.” (Kellett, supra, 63 Cal.2d at p. 828.)

In People v. Davis (2005) 36 Cal.4th 510 (Davis), our Supreme Court recognized an exception to section 654’s bar against multiple prosecution “where the prosecutor ‘“‘is unable to proceed on the more serious charge at the outset because the additional facts necessary to sustain the charge have not occurred or have not been discovered despite the exercise of due diligence.’”’ [Citations.]” (Id. at p. 558.) There, the defendant kidnapped and robbed the victim of his car. He was later found driving the stolen vehicle. (Id. at p. 556.) Because the victim could not identify his assailants, defendant was initially charged with misdemeanor unlawful taking of a vehicle and pled guilty. After serving his jail sentence, defendant admitted his involvement in the kidnapping and robbery and was charged with those felonies. (Ibid.) Our Supreme Court upheld the trial court’s decision to allow the prosecution to proceed. Explaining that “[w]hether the government exercised due diligence is a question of fact, ” the court held that substantial evidence supported the trial court’s conclusion that, “notwithstanding reasonable efforts, the prosecution could not have proceeded on the kidnapping and robbery charges earlier because neither [the victim] nor anyone else could identify defendant.” (Id. at p. 558.)

In this case, the trial court implicitly found that the People were unable to proceed against defendant for felony grand theft at the time they proceeded against her for the misdemeanor petty theft, calling the owner’s allegations of a larger series of thefts “speculation.” Substantial evidence supports this conclusion. While the owner brought to the arresting officer’s attention his suspicion that defendant had stolen “possibly” between $50,000 and $100,000 during her employment at the store, he also stated that he would be “checking into his records to confirm.” Then, about a week prior to the filing of the misdemeanor charges, police followed up on this suspicion and were given a preliminary list of fraudulent returns totaling $2,773.59. However, the owner made clear that this was not the final tally. It was not until nearly four months after defendant’s plea in the misdemeanor case that the owner provided police with a final list of alleged thefts, totaling over $40,000. We conclude substantial evidence supports the finding that, despite the exercise of due diligence, the People were unable to proceed on the felony charges at the time they proceeded against defendant on the misdemeanor charges.

We also conclude that the policies underlying section 654, i.e., preventing harassment of the defendant and the waste of public resources, are outweighed by “the risk that a defendant guilty of a felony may escape proper punishment.” (Kellett, supra, 63 Cal.2d at p. 828.) Here, the People proceeded on the felony charges as soon as they had properly investigated the nature and extent of the thefts. Thus, “[t]his is not the case of a prosecutor harassing a defendant with multiple prosecutions for closely related offenses because of dissatisfaction with the punishment previously meted out or because of previous failure to convict.” (People v. Eckley (1973) 33 Cal.App.3d 91, 98.) And the public interest in avoiding the waste of resources is minimal given defendant pled no contest to the misdemeanor charge, dispensing with the need for a trial. (See Davis, supra, 36 Cal.4th at pp. 558-559.) The risk that defendant “may escape punishment for very serious felony crimes[, ] as the result of the premature filing of a relatively minor misdemeanor charge, far outweighs the risk of possible harassment or waste of public funds.” (People v. Eckley, supra, 33 Cal.App.3d at p. 98.)

Finally, we conclude that the felony prosecution was not barred by section 654’s preclusion of multiple punishment. (Kellett, supra, 63 Cal.2d at p. 828.) Defendant asserts that the felony prosecution is barred because all of the thefts were part of an indivisible course of conduct. The thefts “were committed in the same place – the Tobacco and Brew, had the same victim – the Tobacco and Brew, and were committed with arguably the same purpose – to finance drug consumption.” However, “a course of conduct divisible in time, although directed to one objective, may give rise to multiple violations and punishment.” (People v. Beamon (1973) 8 Cal.3d 625, 639, fn. 11; People v. Kwok (1998) 63 Cal.App.4th 1236, 1253.) In determining whether criminal offenses are temporally divisible, courts consider whether the defendant had an “opportunity to reflect and to renew his or her intent before committing the next [offense], thereby aggravating the violation of public security or policy already undertaken.” (People v. Gaio (2000) 81 Cal.App.4th 919, 935.)

Here, the felony prosecution involved a series of thefts over the course of nine months. The misdemeanor prosecution involved a single act of theft admitted by defendant on the morning after the theft occurred. While the objective may have been the same each time defendant stole from her employer, the thefts were separate occurrences. Between each theft, including the day between the theft charged in the misdemeanor prosecution and the thefts charged in the felony prosecution, defendant had the opportunity to reflect and renew her intent to steal.

Prosecution of defendant for felony grand theft and embezzlement was not barred by section 654.

II

Recitation of Fines and Fees

Defendant asserts that the trial court failed to specify the statutory basis for the $200 fine imposed as a condition of probation. We agree.

In High, supra, 119 Cal.App.4th at page 1200, this court required the trial court at sentencing to provide a “detailed recitation of all the fees, fines and penalties on the record, ” including their statutory bases. Recognizing that such a requirement “may be tedious, ” we explained “California law does not authorize shortcuts. All fines and fees must be set forth in the abstract of judgment.” (Ibid.) This requirement also applies where the defendant is granted probation and, rather than an abstract of judgment, the trial court generates a probation minute order requiring confinement in a city or county jail as a condition of probation. (People v. Eddards (2008) 162 Cal.App.4th 712, 717-718.)

Here, the trial court did not provide the statutory basis for the $200 fine imposed. During oral pronouncement of judgment, the trial court referred to the probation report and imposed “terms and conditions, two through eight.” While the probation report provides a detailed list of most of the fines and fees imposed, it does not list the statutory basis for the $200 fine. Nor does the probation minute order set forth the statutory basis for this fine.

There is also a discrepancy that must be addressed in the probation minute order. The trial court orally imposed an order requiring defendant to pay victim restitution to Joe and Shelly Levy from Tobacco and Brew in the amount of $15,977, plus a 10-percent administration fee. The probation minute order erroneously reflects this victim restitution order to be $2,896.08, plus a 10-percent administration fee. The oral pronouncement of judgment controls over any discrepancy with the minutes or the abstract of judgment. (People v. Delgado (2008) 43 Cal.4th 1059, 1070; People v. Mitchell (2001) 26 Cal.4th 181, 185.)

On remand, the trial court shall prepare an order specifying the statutory bases for all fines, fees and penalties imposed upon defendant. This order shall further reflect that defendant is required to pay victim restitution to Joe and Shelly Levy from Tobacco and Brew in the amount of $15,977, plus a 10-percent administration fee.

DISPOSITION

Defendant’s conviction is affirmed. The case is remanded to the trial court for the limited purpose of preparing an amended probation minute order specifying the statutory bases for all fines, fees and penalties imposed upon defendant and

reflecting that defendant is required to pay victim restitution to Joe and Shelly Levy from Tobacco and Brew in the amount of $15,977, plus a 10-percent administration fee.

We concur: RAYE, P. J., BUTZ, J.


Summaries of

People v. McCurdy

California Court of Appeals, Third District, Shasta
Jun 14, 2011
No. C065382 (Cal. Ct. App. Jun. 14, 2011)
Case details for

People v. McCurdy

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. JULIE RAE MCCURDY, Defendant and…

Court:California Court of Appeals, Third District, Shasta

Date published: Jun 14, 2011

Citations

No. C065382 (Cal. Ct. App. Jun. 14, 2011)