Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. LA047735, Katherine Ann Stolz, Judge.
Seymour I. Amster for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Stephanie C. Brenan and Ana R. Duarte, Deputy Attorneys General, for Plaintiff and Respondent.
EPSTEIN, P. J.
Maria Solorio appeals from her conviction of one count of grand theft of personal property (Pen. Code, § 487, subd. (a); all further statutory references are to the Penal Code). She argues the evidence is insufficient to support the conviction, the special enhancement was barred by the statute of limitations, and the victim restitution order is improper. We find sufficient evidence to support the conviction. On this record, a preponderance of the evidence establishes that the enhancement is not barred by the statute of limitations because the prosecution was commenced within four years of discovery of appellant’s crime. We find no abuse of discretion in the amount of restitution ordered.
FACTUAL AND PROCEDURAL SUMMARY
Appellant worked as bookkeeper and office manager for Rand Aire Conditioning from 1998 until July 2004. Roger Pollack was president of the company. Appellant was responsible for accounts payable and receivable, reconciling the bank accounts, and what Pollack described as “all duties pertaining to the financial side of the business.” “[S]he would review the invoice which was due, she would write the check, she would make a copy of the check, she would enter the check in our log of keeping a record of all the checks that were written, and then she would give it to me for signature.” The log was a manual written ledger. Payroll checks with copies were delivered by a payroll service. Pollack reviewed checks written to appellant as the payee. In addition, payroll checks generated by an outside firm also were entered into the ledger.
Appellant’s salary was paid weekly. She received separate checks in reimbursement for expenditures made by appellant on behalf of the business and for additional work she performed (nonpayroll checks). Pollack did not require receipts from appellant for these expenditures; he relied on her.
Pollack did not give appellant or anyone else authority to alter the amount of a business check. Nonpayroll checks made payable to appellant were altered to reflect additional, unauthorized amounts totaling $132,209.40 The parties stipulated that appellant deposited the altered checks into her personal bank account, and that they were negotiated in the amounts and on the dates specified. These altered checks cleared the business bank account, but the ledger appellant kept did not reflect the altered amounts. Pollack recognized appellant’s signature on the back of each check. He had not reconciled his bank statements, relying upon appellant for that task.
In July 2004, Pollack was notified by the bank that his account was overdrawn by $53,000. He asked appellant to find out what had happened, while Pollack had knee surgery. When he returned to the office the following week, appellant said she had been too busy to contact the bank. Alarmed, Pollack spoke to the bank manager, who recommended that he contact his accountant and not let appellant know. Pollack arranged for his accountant to come to the office in several days to audit his books. Two days before the appointment for the audit, appellant telephoned Pollack’s daughter and said she was resigning and would not be back. Pollack talked appellant into coming into the office to finish a few matters. On the day appellant returned for that purpose, Pollack had to leave for a meeting, and appellant was gone when he returned. He discovered problems with the office computer, and some files and other items were missing. The ledger was still in the office. Pollack contacted the police to report the embezzlement. Appellant was charged with seven counts of grand theft in violation of section 487, subdivision (a).
Appellant testified in her own defense. She said that Pollack was heavily involved in the finances of the company, directed her to take various illegal measures to reduce his tax obligations, and was aware that she wrote checks to herself reflecting amounts up to $500 higher than the recorded amount. She said that when Pollack signed these checks, they were made out for the higher amount. When Pollack’s daughter, Lauren Pollack, signed the checks, appellant altered them later because Pollack did not want his daughter to know about the extra money appellant was paid. Appellant admitted that she deposited the checks in her bank account. Her wage was $18 an hour.
Appellant testified that she left her job because of stress over Pollack’s advances to a coworker and his arguments with his daughter and other workers. She denied taking any business records from the office, but later admitted she had taken a tax return and profit and loss statement. She admitted that she was the only employee issued checks in which the duplicate copies had different amounts than the original.
The trial court dismissed counts two through seven under section 1385. It found appellant guilty of the remaining count of grand theft, and found true a special allegation that the prosecution was commenced within the four-year limitations period of section 803, subdivision (c). It also found true a special allegation that appellant took property exceeding $50,000 in value under section 12022.6, subdivision (a). The court imposed the low term of 16 months in state prison, and struck the section 12022.6 allegation in the interests of justice, pursuant to section 1385. It also imposed a $200 restitution fine, a $20 court security fee, a $200 parole revocation fine (which was stayed), and ordered actual restitution of $132,209.40. Appellant filed a timely appeal.
DISCUSSION
I
Appellant challenges the sufficiency of the evidence to support her conviction for grand theft on the ground that Pollack was not a credible witness. In essence, she asks U.S. to reweigh the evidence heard by the trial court and to disregard the evidence in favor of the verdict. This we may not do. “‘To determine the sufficiency of the evidence to support a conviction, an appellate court reviews the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt.’ (People v. Kipp (2001) 26 Cal.4th 1100, 1128.)” (People v. Bolden (2002) 29 Cal.4th 515, 553.) “In considering the sufficiency of the evidence, we cannot reweigh the evidence, as the credibility of witnesses and the weight to be accorded to the evidence are matters exclusively within the province of the trier of fact. (Evid. Code, § 312.) Rather, we simply consider whether any rational trier of fact could have found the essential elements of the charged offenses beyond a reasonable doubt. (People v. Rich (1988) 45 Cal.3d 1036, 1081.) Unless it is clearly shown that ‘on no hypothesis whatever is there sufficient substantial evidence to support the verdict,’ the conviction will not be reversed.” (People v. Misa (2006) 140 Cal.App.4th 837, 842, quoting People v. Hicks (1982) 128 Cal.App.3d 423, 429.)
Trial counsel for appellant thoroughly tested Pollack’s credibility on cross-examination. Counsel questioned Pollack about his motivation to accuse appellant of theft as part of an effort to conceal his questionable financial practices. Pollack admitted that he had designed a method of paying his employees to avoid taxes. In addition, the trial court heard appellant’s detailed testimony about Pollack’s control of company finances and his direction that she participate in the improper bookkeeping practices. Appellant testified that Pollack authorized the altered amounts deposited into appellant’s account which formed the basis for the theft charge. In closing argument, defense counsel pointed out contradictions and other issues with Pollack’s testimony. He asserted that Pollack’s claim that he left all financial affairs to appellant was not credible. Defense counsel argued that Pollack had a motive to under report and disguise appellant’s compensation. He also argued that when the bank overdraft occurred, Pollack needed a scapegoat. According to defense counsel, appellant was a convenient scapegoat because she was quitting.
After hearing the evidence and argument, the trial court did not credit appellant’s version of events. This was a credibility determination reserved to the trial court and we may not revisit it here. Pollack examined exhibits summarizing the altered checks, with copies of the altered checks attached. The parties stipulated that the altered checks were negotiated and were deposited into appellant’s bank account. Pollack testified that the total of the unauthorized alterations was $132,209.40.
This evidence was sufficient to establish the elements of grand theft in violation of section 487, subdivision (a). “Grand theft ‘“includes larceny, embezzlement, larceny by trick, and theft by false pretenses. [Citations, fn. omitted.] Larceny, larceny by trick, and embezzlement involve taking another’s personal property from the owner’s possession, without the owner’s consent, with the intent to deprive the owner permanently of the property. [Citations.]”’” (People v. Cuccia (2002) 97 Cal.App.4th 785, 796, quoting People v. Miller (2000) 81 Cal.App.4th 1427, 1445-1446.)
II
The trial court found true an enhancement under section 12022.6, subdivision (a), which exposed appellant to an additional sentence of one year for theft of property in excess of $50,000. At sentencing, the trial court struck this enhancement in the interest of justice pursuant to section 1385, subdivision (c)(1). Appellant argues that the trial court should have dismissed this enhancement because it was barred by the statute of limitations.
A prosecution for grand theft must be commenced “within four years after discovery of the commission of the offense, or within four years after the completion of the offense, whichever is later.” (§ 801.5, see also § 803, subd. (c).) Under section 804, subdivision (a), a prosecution is commenced with the filing of an information. Once the prosecution is commenced, the statute of limitations is tolled. (§ 803, subd. (b).) Here, the information was filed on May 18, 2005, charging appellant with seven counts of grand theft in the period between January 1, 1998 and July 16, 2004.
Pollack testified that he became aware that checks had been altered after he was notified by his bank, in July 2004, that he was overdrawn by some $53,000. Pollack asked appellant to find out about the problem, then left for knee surgery. When he returned to the office the following week, appellant said she had been too busy to contact the bank about the overdraft. Pollack spoke with the bank manager, who suggested that appellant might be involved. Pollack brought his accountants in to check the books later the same week, and then contacted the police.
Appellant argues that Pollack did not exercise reasonable diligence in reviewing the financial affairs of the business, which would have led to earlier discovery of the theft. In People v. Zamora (1976) 18 Cal.3d 538, the Supreme Court set the standard for reasonable diligence in discovery of a crime for purposes of the statute of limitations. It concluded: “[W]e have already indicated that lack of actual knowledge is not required to bring the ‘discovery’ provision of [former] section 800 into play. The crucial determination is whether law enforcement authorities or the victim had actual notice of circumstances sufficient to make them suspicious of fraud thereby leading them to make inquiries which might have revealed the fraud. Judged by that standard of reasonable diligence the uncontradicted evidence which we have set forth compels the conclusion that a prudent man apprised of the information known in 1968 would have pursued a more vigorous inquiry.” (Id. at pp. 571-572, italics added.)
“Although the statute refers to ‘discovery of an offense,’ the courts have read a requirement of diligence into the limitations statutes. (1 Witkin & Epstein, Cal. Criminal Law [(2d ed. 1988)] Defenses, § 375, p. 430.) ‘On its face the 1969 amendment [to Penal Code section 800] appears to set the limitation period running from the actual “discovery” of a theft. The new provision has nevertheless been interpreted to include the same requirement of “reasonable diligence” in discovering the facts of a theft that the courts have read into the “discovery” provision of statute of limitations for tort actions based on fraud as set forth in Code of Civil Procedure section 338, subdivision 4. [Citation.] In that context we have held that the word “discovery” is not synonymous with actual knowledge. [Citation.] “The statute commences to run . . . after one has knowledge of facts sufficient to make a reasonably prudent person suspicious of fraud, thus putting him on inquiry. . . .”’ (People v. Zamora, supra, 18 Cal.3d at pp. 561-562, fn. omitted.)” (People v. Lopez (1997) 52 Cal.App.4th 233, 246.) The prosecution has the burden of proving the timeliness of the prosecution by a preponderance of the evidence. (People v. Zamora, supra, 18 Cal.3d at p. 565, fn. 27.)
Appellant argues that the prosecution was not commenced in a timely manner because, if Pollack had exercised reasonable diligence in examining his financial documents, he would have discovered the embezzlement. She argues, without citation to authority, that “a business bank account requires balancing on a daily basis.” She also argues, without citation to the record, that Pollack collected the mail and “reviewed several checks which would have caused a reasonable corporate president to become suspicious.” She seems to argue that because the altered checks were included in the monthly bank statements, Pollack should have become suspicious about appellant’s activities. Alternatively, appellant argues that a negative cash balance reflected on Rand Aire’s tax returns prior to 2004 constituted actual notice sufficient to have caused Pollack to conduct an investigation.
Respondent argues that Pollack had no actual notice of any irregularity sufficient to make a reasonable person suspicious until he received the letter from the bank in July 2004 notifying him of a significant overdraft. As we have seen, Pollack acted immediately on that information. Respondent also points out that Pollack was involved primarily in the air conditioning side of the business and trusted the financial affairs to appellant. Lehandra Navarete, who was employed by Rand Aire for one and a half years during the period in question, said that Pollack was mostly involved in preparing estimates for work to be done by the company. When asked about appellant’s duties, Navarete said that appellant did accounts payable and receivable, “she was financial.” Pollack testified that he did not reconcile the bank accounts, and that he reviewed the returned checks only to verify his signatures on the checks. He did not look at the balance reflected on the bank statements. He never reconciled the bank statements, trusting that to appellant. Pollack never looked at the register where appellant recorded the original amounts of the checks which were later altered. The issue is not whether Pollack’s trust of appellant was unwise. Rather, it is when Pollack had actual notice of facts which would have caused a reasonable person to investigate.
The trial court credited the evidence demonstrating that because Pollack trusted appellant to handle the financial affairs of his business, he had no actual notice of facts which would cause a reasonable person to investigate until the bank notified him of the overdraft in July 2004. Thus, he had no notice of loss until the investigation that followed that bank notification. A preponderance of the evidence established that the prosecution was commenced within four years of that discovery in satisfaction of the limitations period of section 801.5.
III
The court ordered appellant to pay restitution of $132,209.40 pursuant to section 1202.4, subdivision (f). That statute provides: “[I]n every case in which a victim has suffered economic loss as a result of the defendant’s conduct, the court shall require that the defendant make restitution to the victim . . . in an amount established by court order, based on the amount of loss claimed by the victim . . . . The court shall order full restitution unless it finds compelling and extraordinary reasons for not doing so, and states them on the record.” (Italics added.) Section 1202.4, subdivision (f)(3) directs that the restitution ordered “shall be of a dollar amount that is sufficient to fully reimburse the victim . . . for every determined economic loss incurred as the result of the defendant’s criminal conduct.”
Appellant’s argument is that the amount of restitution is too great because it represents, in part, payment for work she performed on which Pollack should have paid Social Security and disability taxes. She contends that Pollack will be unjustly enriched by the restitution order.
“‘“The standard of review of a restitution order is abuse of discretion. ‘A victim’s restitution right is to be broadly and liberally construed.’ [Citation.] ‘“When there is a factual and rational basis for the amount of restitution ordered by the trial court, no abuse of discretion will be found by the reviewing court.”’ [Citations.]” [Citation.]’ (People v. Baker (2005) 126 Cal.App.4th 463, 467.) ‘In reviewing the sufficiency of the evidence, “‘[t]he power of the appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted,’ to support the trial court’s findings.” [Citations.] Further, the standard of proof at a restitution hearing is by a preponderance of the evidence, not proof beyond a reasonable doubt. [Citation.]’ (Id. at pp. 468-469.) The trial court ‘“must use a rational method that could reasonably be said to make the victim whole, and may not make an order which is arbitrary or capricious.”’ (People v. Mearns [(2002)] 97 Cal.App.4th [493,] 498.)” (People v. Keichler (2005) 129 Cal.App.4th 1039, 1045.)
Appellant failed to raise this issue in the trial court and therefore failed to preserve it for appeal. (People v. O’Neal (2004) 122 Cal.App.4th 817, 820.) Even if it had been preserved, appellant failed to present any evidence from which the calculation she suggests could be made under the standards of section 1202.4, subdivision (f). This distinguishes our case from People v. Hudson (2003) 113 Cal.App.4th 924, which involved restitution in a welfare fraud case. In Hudson, there was a formula to calculate the amount that the defendant was rightfully entitled to, which was to be deducted from the total amount taken. Here, there is no such formula, and no evidence to establish how much of the stolen money, if any, represented compensation for actual work performed by appellant. Pollack’s obligations to taxing or other governmental agencies are not an issue before us. Under these circumstances, we find no abuse of the trial court’s discretion in ordering full restitution of the amounts taken.
DISPOSITION
The judgment of conviction is affirmed.
We concur: WILLHITE, J., SUZUKAWA, J.