Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 06F06590
BUTZ, J.Defendant Victor Manuel Perez appeals from the sentence imposed following his conviction for grand theft by embezzlement. (Pen. Code, § 487, subd. (b)(3).) He contends the trial court failed to exercise its discretion in denying defendant’s request to reduce his offense to a misdemeanor under section 17, subdivision (b). Finding no error, we shall affirm.
Undesignated statutory references are to the Penal Code.
FACTUAL BACKGROUND
Defendant began working for Hispanic Distribution LLC as a sales representative in January 2006. Hispanic Distribution LLC is a wholesale seller of prepaid phone cards to retailers.
Each sales representative has a unique identification number and password for the inventory tracking system. Each phone card has a unique serial number. The cards are scanned into the system and coded to particular sales people. The representatives are equipped with portable computers through which the receipt of inventory and sales are recorded in real time.
Upon selling the phone cards, the sales person would scan the cards’ serial numbers into the portable computer and an invoice would be printed. No handwritten invoices were permitted. If the scanner was not operating, the sales person would have to get authorization from the manager to utilize a handwritten invoice. This was rarely authorized. Phone cards received into inventory by a particular sales person could not be sold by a different sales person.
The phone cards were sold either for cash or on a consignment basis. When the invoices for the cards were paid, the sales person would enter that information into the computer. Again, only the particular sales representative could mark an invoice paid for one of his particular accounts. Sales representatives would then turn in the money submitted to them approximately twice a week. Every one to two months, the representatives’ actual inventory would be calculated and reconciled with the company’s records.
Shortly after Humberto Lopez became the sales manager of the Sacramento office in June 2006, he and Tanya Karin, the systems administrator, noticed discrepancies in defendant’s invoices. Specifically, a number of invoices had been marked paid by defendant, but the company had not received money for those invoices.
Lopez asked defendant about the accounts and he gave various excuses, none of which rang true to Lopez. This continued for a few weeks. Ultimately, Lopez contacted the customers and then the police, and defendant was fired on July 27, 2006. In the course of the investigation, a variety of discrepancies were discovered. There were unauthorized handwritten invoices created by defendant. These were not in the computer system. Defendant received cash payments for those invoices from the customer, but did not turn in the cash to the company. Defendant also created invoices for retailers who did not do business with Hispanic Distribution LLC and for which no inventory was received by the retailer.
On the date defendant was terminated, his phone card inventory showed $6,681 in phone cards were missing. In addition, approximately $41,000 in cash from invoices paid to defendant had not been received by the company.
PROCEDURAL BACKGROUND
Defendant was charged with embezzling over $400 from his employer between January 1 and July 27, 2006. A jury found defendant guilty as charged.
Defendant filed a sentencing memo requesting the court exercise its discretion under section 17, subdivision (b) and reduce the offense from a felony to a misdemeanor. Attached to the motion, and the sole reason supporting the motion, was a letter from a juror. This letter indicated, among other things, that “though we [the jury] found [defendant] guilty, I will explain how we arrived at a guilty verdict and at the same time found in our deliberation that he was guilty of depriving his employer of $402.00. [¶] . . . [¶] The testimony given by both employees of Hispanic was discounted either in part or, as in my case, totally. However, two pieces of evidence submitted by the prosecution were compelling. The invoice dated sometime in July for the store that was documented as closed 6-8-06 by the dissatisfied customer was accepted by us as being dummied. We accepted the activation records submitted by Hispanic as authentic. However, the jury did not believe that Hispanic was credible in its attempt to link all of them to [defendant]. [¶] In conclusion, the jury convicted [defendant] of the Grand Theft of $402.00. We, the jury, meticulously went over all of the activation codes on the dummied invoice. We found $402.00. [¶] . . . [¶] . . . I would suggest restitution and punishment to be in line with this amount.”
The court read and considered the sentencing memo, along with the probation report and considered the arguments of counsel at the sentencing hearing. The court denied the motion to reduce. Defendant was placed on five years of felony probation and ordered to serve 180 days in county jail. The matter of victim restitution was set for a later hearing date.
At the subsequent hearing, the parties agreed that defendant would pay $35,000 in restitution to Hispanic Distribution LLC in monthly installments of $100, with interest waived. If defendant were to default for over 30 days, the amount would increase to $40,000, and the statutory interest of 10 percent per year would be added.
DISCUSSION
Defendant’s sole contention on appeal is that the trial court refused to exercise its discretion to reduce the offense from a felony to a misdemeanor. We disagree.
Under section 17, subdivision (b), the trial court has the discretion to reduce a “wobbler” offense from a felony to a misdemeanor by imposing a punishment other than state prison (§ 17, subd. (b)(1)) or by declaring the offense a misdemeanor upon a grant of probation (§ 17, subd. (b)(3)). (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 974 (Alvarez).) The decision whether to reduce a felony to a misdemeanor is dependent on facts specific to the particular defendant being sentenced, including a “reasoned consideration of [the] defendant’s background and circumstances.” (People v. Dent (1995) 38 Cal.App.4th 1726, 1731.)
It is defendant’s burden to demonstrate that the trial court’s denial of his motion to reduce was irrational or arbitrary. (See Alvarez, supra, 14 Cal.4th at pp. 977-978.) “‘In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.’” (Ibid., quoting People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 831.)
Defendant contends the “court never addressed any factors in support of its refusal to reduce the offense to a misdemeanor. The court never exercised its discretion in denying the motion. The court only made a blanket statement that it ‘would not do it.’”
Defendant’s claims do not meet his burden. This record does not show the court failed to properly consider either the law or the facts of defendant’s motion. The court indicated it had read and considered the probation report and read and considered defendant’s sentencing memo. The court also allowed further argument at the hearing. The court’s failure to state reasons for denying the motion does not mean it failed to consider the appropriate factors and exercise its discretion. Further, defendant’s lack of an objection to such a failure forfeits any claim based on the lack of articulated reasons. (People v. Scott (1994) 9 Cal.4th 331, 353; People v. Erdelen (1996) 46 Cal.App.4th 86, 91.) We have no reason to disbelieve the court’s assertion that it considered the information before it in determining not to reduce the offense to a misdemeanor. Defendant has not shown the trial court’s exercise of its discretion was either irrational or arbitrary.
DISPOSITION
The judgment is affirmed.
We concur: BLEASE , Acting P.J., HULL , J.