P. v. Bakeer

Filed 9/6/07 P. v. Bakeer CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Allan Preckel, Judge. Affirmed in part; reversed in part.

A jury convicted Taghrid F. Bakeer of grand theft (Pen. Code,^[1] 487, subd. (a), count 1) and embezzlement from her employer, Daniel's Jewelers (Daniel's) ( 508, count 2). The court sentenced her to 5 years of probation on both counts, with 180 days of jail time. She also was ordered to pay $4, 990 in restitution for the wholesale cost of the watches she stole, plus $3,700 to the victims who purchased the watches from her.

Bakeer contends she was erroneously convicted on the two counts because the crimes have the same elements; and, the restitution to Daniel's was excessive because the watches were returned to the store. We affirm in part and reverse in part.

FACTUAL SUMMARY

Taghrid F. Bakeer was a sales associate at Daniel's. In August 2005, another sales associate, Jenille Putrus, informed the store manager that a Movado watch was missing. The manager discovered that eight Movado watches were missing. The company's loss prevention manager investigated and concluded Bakeer had sold one of the watches to a worker at the mall where Daniel's is located. Bakeer admitted in a signed statement that she had taken the watches from the store and sold them. Bakeer also admitted to the police she sold the watches, and identified the purchasers and the prices paid. The police recovered the watches.

DISCUSSION

I

It is well settled that "since the amendment in 1927 to section 484 of the Penal Code defendant may be convicted of grand theft upon proof showing either larceny, embezzlement or obtaining money by false pretenses." (People v. Cook (1935) 10 Cal.App.2d 54, 57.) "[U]nder section 484, there is simply one consolidated crime of theft, which the jury may find upon [any] theory, if there is an 'unlawful [taking]' . . . 'The purpose of the consolidation was to remove the technicalities that existed in the pleading and proof of these crimes at common law. . . . Juries need no longer be concerned with the technical differences between the several types of theft." (People v. Counts (1995) 31 Cal.App.4th 785, 793.) Every person guilty of embezzlement is punishable " 'in the manner prescribed for theft of property of the value or kind embezzled.' " (Accord People v. Artis (1993) 20 Cal.App.4th 1024, 1027 ["[T]here are no conflicts between the elements to prove, or the punishment for, embezzlement under section 484 and embezzlement defined in section 507"].) Based on the foregoing, the trial court erred in convicting Bakeer of both grand theft and embezzlement because under section 484, they are different forms of the same crime. (CALJIC No. 14.00.) The complaint filed "and upon which [plaintiff] was tried, convicted, and sentenced was faulty, because it stated the offense of which the [plaintiff] was convicted in two separate and distinct counts." (Albers v. Superior Court (1916) 30 Cal.App. 772, 776-777.) Accordingly, we reverse the conviction for grand theft.

II

Bakeer contends the amount of restitution ordered for Daniel's is not supported by the evidence. The restitution order was not challenged in the trial court, and therefore the issue is waived. (People v. O'Neal (2004) 122 Cal.App.4th 817, 820.)

At any rate, on the merits, the claim fails. "Section 1202.4 governs a trial court's authority to order a criminal defendant to pay restitution directly to a crime victim. Section 1202.4, subdivision (a)(1) states: '[i]t is the intent of the Legislature that a victim of crime who incurs any economic loss as a result of the commission of a crime shall receive restitution directly from any defendant convicted of that crime.' " (People v. Fulton (2003) 109 Cal.App.4th 876, 882.) Section 1202.4's implementing subdivision, subdivision (f), 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 victim make restitution to the victim or victims in an amount established by court order, based on the amount of loss claimed by the victim or victims or any other showing to the court. . . . The court shall order full restitution unless it finds compelling and extraordinary reasons for not doing so, and states them on the record. . . . [] (1) The defendant has the right to a hearing before a judge to dispute the determination of the amount of restitution. The court may modify the amount, on its own motion or on the motion of the district attorney, the victim or victims, or the defendant . . . [] . . . [] (3) To the extent possible, the restitution order shall be prepared by the sentencing court, shall identify each victim and each loss to which it pertains, and shall be of a dollar amount that is sufficient to fully reimburse the victim or victims for every determined economic loss incurred as the result of the defendant's criminal conduct, including, but not limited to, all of the following:

[] (A) Full or partial payment of the value of stolen or damaged property . . . [ ] . . . [] . . . (D) Wages or profits lost due to injury incurred by the victim . . . [] . . .

[] . . . (H) Actual and reasonable attorney's fees and other costs of collection accrued by a private entity on behalf of the victim."

Sentencing judges are given virtually unlimited discretion regarding the information they can consider and the source of that information; this is so because a hearing to establish restitution " 'does not require the formalities of other phases of a criminal prosecution.' " (People v. Hove ( 1999) 76 Cal.App.4th 1266, 1275.) For example, " 'the trial court is entitled to consider the probation report when determining the amount of restitution.' " (People v. Keichler (2005) 129 Cal.App.4th 1039, 1048.) And "statements by the victims of the crimes about the value of the property stolen constitute 'prima facie evidence of value for purposes of restitution.' " (Ibid.)

We review a trial court's restitution order for abuse of discretion. (People v. Keichler, supra, 129 Cal.App.4th at p. 1045.) Under this standard, "[w]hen considering a trial court's restitution determination, we consider whether it is arbitrary, capricious, or beyond the bounds of reason under all the circumstances." (People v. Hove, supra, 76 Cal.App. 4th at p. 1275.)

When a defendant on appeal challenges the sufficiency of the evidence to support a trial court's restitution order, we apply the substantial evidence standard of review. (People v. Baker (2005) 126 Cal.App.4th 463, 468-469.) Under that standard, the

" '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." (Estate of Leslie (1984) 37 Cal. 3d 186, 201.) "Further, the standard of proof at a restitution hearing is by a preponderance of the evidence, not proof beyond a reasonable doubt. [ Citation.] 'If the circumstances reasonably justify the [trial court's] findings,' the judgment may not be overturned when the circumstances might also reasonably support a contrary finding. [Citation.] We do not reweigh or reinterpret the evidence; rather, we determine whether there is sufficient evidence to support the inference drawn by the trier of fact." (People v. Baker, at p. 469.)

Here, at the sentencing hearing, the court relied on the probation report, which stated that Daniel's requested full restitution because, "Although the watches were recovered, the store only deals in new merchandise and the watches are now useless to them because they have been worn and sized." The trial court consulted the probation officer regarding the exact wholesale cost of the watches, and it was confirmed that they cost Daniel's $4,990. Bakeer agreed to pay that amount. Sufficient evidence supported the trial court's decision.

DISPOSITION

The judgment is modified by reversing the conviction of grand theft (Pen. Code, 487, subd. (a)). In all other respects, the judgment is affirmed.

O'ROURKE, J.

WE CONCUR:

HALLER, Acting P. J.

AARON, J.

Publication courtesy of San Diego pro bono legal advice.

Analysis and review provided by Poway Property line Lawyers.

^[1] All further statutory references are to the Penal Code.