In re Sylvia R.

Filed 8/8/07 In re Sylvia R. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Desiree Bruce-Lyle and Lawrence Kapiloff, Judges. Affirmed.

The juvenile court sentenced Sylvia Marie R. (Sylvia) to no more than six months probation after finding she committed one count of misdemeanor fraudulent appropriation by a clerk, agent, or employee (Pen. Code, 508).

On appeal, Sylvia contends the court erred by admitting into evidence her written confession. Sylvia further contends the People failed to establish corpus delicti. Lastly, Sylvia contends the court lacked substantial evidence in finding she had embezzled more than $400 from her employer. We affirm the judgment.

FACTUAL BACKGROUND

Sylvia, her mother Soledad, Sylvia Rudd (Rudd), and Flora Hernandez were all employees of an Arco service station at 4333 Home Avenue when Arken Somo (Somo) bought the business in October of 2005. At this time, Sylvia was a cashier whose shift was from 2:00 p.m. until 10:00 p.m. Sylvia's duties included completing cash transactions, cooking hot dogs, cleaning floors, and stocking shelves.

Between October and November, Somo began noticing cash discrepancies in Sylvia's cash drawer. The drawer sometimes contained more money than indicated, and sometimes less. The discrepancies could range from $5 to $35. Somo spoke with his assistant manager, Rudd, and shift leader, Flora Hernandez. Both supplied information prompting Somo to pay closer attention to Sylvia.

Sometime after the meeting, Somo observed Sylvia take $15 from her pocket and purchase gas for her friend. He also determined Sylvia voided more transactions on her register than other cashiers. Sylvia also occasionally kept her register open for 45 seconds or more, which exceeded the usual 20-25 seconds required to conclude a transaction. On a couple of occasions, Somo observed money on Sylvia's register.

In early November, Somo called Sylvia into his office, and confronted Sylvia with his observations. Rudd was also present during this meeting. Somo shut the door, informed Sylvia of the discrepancies, and asked her to explain them. Sylvia denied taking any money. Somo then told Sylvia he could show her a voided order where she had pocketed the money. Sylvia admitted to stealing $20, and eventually admitted to taking approximately $900 in total. Upon her confession, Somo inquired as to what Sylvia was going to do about the situation, stating he did not want her to go to jail. Sylvia apologized, and asked for the chance to pay the money back. At the request of Somo, Sylvia tearfully wrote what she had stolen, and her promise to pay it back. Somo then suspended Sylvia. When Sylvia failed to pay back any of the money by early December, Somo reported the incident to the police. The police were provided with Sylvia's written confession, but no computer records, or any other documentation concerning the exact amount lost because of computer problems.

PROCEDURAL BACKGROUND

The San Diego County District Attorney filed a Welfare and Institutions Code^[1]section 602 petition on June 26, 2006, charging Sylvia with grand theft from an employer (Pen. Code, 487, subd. (b)(3); count 1), and fraudulent appropriation by a clerk, agent, or employee (Pen. Code, 508; count 2). Both offenses were charged as misdemeanors pursuant to Penal Code section 17, subdivision (b)(4), and allegedly occurred between October 5, 2005 and November 9, 2005 while an employee at the Arco station.

Sylvia appeared before the court on July 18, 2006, denied all allegations and waived time for trial. The court scheduled an adjudication hearing for August 18, 2006. This hearing was continued to August 25, 2006.

On August 25, 2006, the court sustained the petition and found Sylvia violated count 2, misdemeanor fraudulent appropriation by an employee (Pen. Code, 508). The court struck count 1 of the petition.

On September 18, 2006, the court placed Sylvia on probation without wardship for a period not to exceed six months pursuant to section 725, subdivision (a). A restitution fine in the amount of $50 was also ordered pursuant to section 730.6. The court further ordered Sylvia to complete 40 hours of community service and to participate with her parents in a program of counseling or education pursuant to sections 729.2 and 727, subdivision (c).

On October 19, 2006, a restitution status review hearing was held. No restitution was ordered. Sylvia filed her notice of appeal on September 25, 2006.

DISCUSSION

I

ADMISSION OF CONFESSION

An involuntary confession is inadmissible under the due process clauses of both the Fourteenth Amendment of the United States Constitution as well as the California Constitution. (People v. Weaver (2001) 26 Cal.4th 876, 920; People v. Haydel (1974) 12 Cal.3d 190, 197 (Haydel), citing Lego v. Twomey (1972) 404 U.S. 477, 483.) Due process requires a confession be given voluntarily, without coercion, or promise of immunity or reward. (Haydel, supra, 12 Cal.3d at p. 197.) Therefore, an involuntary confession, whether to law enforcement or private individuals, is inadmissible. (Ibid.)

If an individual's will is overborne or the individual's confession was not the product of rational intellect and free will, the confession is inadmissible because it is coerced. (Haydel, supra, 12 Cal.3d at p. 198.) When deciding if a defendant's will was overborne, the court must examine all surrounding circumstances, and both the characteristics of the accused and the details of the interrogation. (Schneckloth v. Bustamonte (1973) 412 U.S. 218, 226; People v. Lewis (2001) 26 Cal.4th 334, 383; Haydel, supra, at p. 198.) Characteristics to be considered include the minor's age, education, emotional state, and prior experience with the criminal justice system, as well as the juvenile's background, sophistication and absence of family. (Lewis, supra, 26 Cal.4th at p. 383.)

On review, the appellate court independently examines the record, but, to the extent the facts conflict, accepts the version favorable to the court's ruling if supported by the record. (People v. Farnam (2002) 28 Cal.4th 107, 181; In re Aven S. (1991) 1 Cal.App.4th 69, 76.) Great weight is given to the considered conclusions of the lower court that previously reviewed the same evidence. (People v. Whitson (1998) 17 Cal.4th 229, 248.)

Sylvia contends her written confession was involuntary, the product of coercion and duress. We disagree. The record reflects Sylvia's confession occurred quickly, in a manner not consist with threat, coercion, or a will so overborne as to drive the innocent to confess. Somo's testimony establishes Sylvia confessed to embezzling funds from the register within just a few minutes of confronting her, something Sylvia never contradicted in her testimony. When specifically asked to address this situation by her attorney concerning the period of time in which she confessed to taking the money, Sylvia responded, "he was threatening me saying he knew people, that I would go to jail if I didn't admit to it, and he kept scaring me to force words in my mouth." But, such statements contradict later testimony. The court inquired of Sylvia:

"The Court: When Mr. Somo approached you to come to the office, he indicated he thought you were stealing; is that right?

"The Witness: Yes.

"The Court: And you denied it?

"The Witness: Yes.

"The Court: And then you told him that you did it?

"The Witness: Yes."

The trial court was not required on this record to believe Sylvia's testimony regarding threats or coercion. It could conclude, consistent with her quoted statements, that the discussion was brief and no coercion was involved. If we accept the trial court's implied factual finding, there is no basis to conclude the confession was other than voluntary.

II

CORPUS DELICTI

Sylvia further asserts her conviction for embezzlement must be reversed because the People failed to establish any elements of the crime independent of her admission in violation of the corpus delicti rule. Specifically, Sylvia claims Somo's testimony contained only suspicions and vague references, so as no reasonable factfinder could conclude an actual loss occurred by unlawful action. Sylvia further contends the court abused its discretion by failing to grant a directed finding pursuant to section 701.1 because Somo's testimony failed to establish an actual loss or the loss was a result of criminal action.

The corpus delicti, or the body or elements of a crime, consists of the occurrence of injury, loss, or harm to someone, and a criminal agency that has caused the injury, loss, or harm. (People v. Alvarez (2002) 27 Cal.4th 1161, 1168 (Alvarez).) The prosecution must establish the corpus delicti independent from the admissions of the defendant, therefore assuring the accused does not admit to a crime which did not occur. (Id. at pp. 1168-1169.) The independent proof necessary to satisfy the corpus delicti rule may be circumstantial and need not be beyond a reasonable doubt; it is sufficient if it permits an inference of criminal conduct, although a noncriminal explanation may also be plausible. (Id. at p. 1171.) The amount of independent proof required is "quite small" (People v. Jones (1998) 17 Cal.4th 279, 301-302) and the prosecution only need make a prima facie showing permitting a reasonable inference a crime was committed; the inference does not have to be the only, or even the most compelling, one. (Ibid.) Once corpus delicti is established, the defendant's statements become admissible on the question of the defendant's guilt. (People v. Ochoa (1998) 19 Cal.4th 353, 404-405.)

Here, the People satisfied the corpus delicti requirements. Somo's investigations, conclusions and testimony of such provide the circumstantial evidence to make an inference of criminal conduct.

Since the People established corpus delicti, the court did not abuse its discretion in failing to grant Sylvia's motion for directed finding according to section 701.1.

III

SUFFICIENCY OF THE EVIDENCE

In reviewing the sufficiency of the evidence to support a juvenile court judgment sustaining a criminal allegation, we defer to the court's findings, just as we do in appeals by any criminal defendant challenging the sufficiency of the evidence to support a conviction. (In re Ryan N. (2001) 92 Cal.App.4th 1359, 1371-1372; In re Roderick P. (1972) 7 Cal.3d 801, 809.) In examining Sylvia's claim, we view the entire record in the light most favorable to the court's findings, presuming every possibly deduced fact as true in support of the judgment. The record must contain substantial evidence which is of reasonable, credible and solid value, proving Sylvia committed embezzlement. (People v. Johnson (1980) 26 Cal.3d 557, 578.) We must then determine whether any rational trier of fact could have found Sylvia guilty of the essential elements of the crime beyond a reasonable doubt. (People v. Stanley (1995) 10 Cal.4th 764, 792; People v. Jones (1990) 51 Cal.3d 294, 314.) To do so, we only examine whether the evidence presented before the court was sufficient to support the conviction. (In re Ryan N., supra, 92 Cal.App.4th at p. 1372; People v. Johnson, supra, 26 Cal.4th at p. 578.)

Penal Code section 508 states: "Every clerk, agent, or servant of any person who fraudulently appropriates to his [or her] own use, or secretes with a fraudulent intent to appropriate . . . into his [or her] control or care by virtue of his [or her] employment as such clerk, agent, or servant, is guilty of embezzlement."

Based on our review of the entire record, including Sylvia's confession, we are satisfied there is sufficient substantial evidence to support the trial court's decision.

DISPOSITION

The judgment is affirmed.

HUFFMAN, Acting P. J.

WE CONCUR:

McDONALD, J.

AARON, J.

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^[1] All statutory references are to the Welfare and Institutions Code unless otherwise indicated.