P. v. Turner

Filed 8/29/07 P. v. Turner CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

A jury found Stephanie Lanettia Turner guilty of forgery (Pen. Code,  470) and not guilty of embezzlement (Pen. Code,  487, subd. (a)). As a condition of probation, the trial court ordered Turner to pay restitution. The court based the amount of restitution on both the forgery and embezzlement counts. We reverse for a reconsideration of the amount of restitution. The trial court erred in awarding restitution based on the amount allegedly embezzled. In all other respects, we affirm.

FACTS

The Templeton Education Foundation (TEF) is a nonprofit organization that raises money to pay for educational items in the Templeton school district. Michele Belmonte served as a TEF director and auditor. Belmonte used her credit to obtain a credit card issued in her name for TEF's use. TEF's vice-president for grants was entrusted with the card.

Turner became TEF's treasurer in 2003. As treasurer, she had access to TEF's checking account as well as the credit card number.

FORGERY

In August of 2004, Turner stayed at the Holiday Inn, incurring a bill of $395. She paid the bill with TEF's credit card. Because the card was in Belmonte's name, Holiday Inn required a signed credit authorization. Turner forged Belmonte's name on the authorization form without Belmonte's permission.

EMBEZZLEMENT

In 2003 and 2004, Turner wrote checks on TEF's checking account to pay for personal charges on TEF's credit card. She wrote other checks payable to cash and her husband. On the checkbook memo line for checks written to cash or her husband, turner wrote that the checks were for grants or to pay TEF's vendors. Any payment to a vendor should have been made payable to the vendor and not to cash. There was no legitimate reason to make grants to Turner's husband.

Turner admitted that she used the TEF credit card and checking account for personal reasons. But she denied she did not intend to repay the money. She testified that she made several credit card payments with her own funds, and attempted to deposit $2,672.87 into the TEF checking account, but she discovered the account had been closed.

After the verdict was read, the court allowed a juror to read a statement on behalf of the jury. The statement said: "Our decision to find the defendant not guilty [of embezzlement] was reached with great reluctance based on the jury instructions regarding the law. However, we did not feel justice has been served."

At the sentencing hearing, the trial court stated Turner essentially admitted she forged Belmonte's name. The court also stated Turner admitted some of the charges and checks on TEF's account were inappropriate. The court concluded that it could condition probation on restitution for the checks and charges related to the embezzlement account of which Turner was acquitted. The court granted probation on the condition that Turner pay restitution in the amount of $12,563.87. That amount consists of $395.90 for the forgery, $5,496.87 for unauthorized use of the credit card, $3,150 for checks Turner admitted to writing for personal use, and the balance for unauthorized checks written by Turner.

DISCUSSION

Penal Code section 1203.1 requires the trial court to order for restitution as a condition of probation in appropriate cases. The trial court has broad discretion to impose conditions of probation to foster rehabilitation and to protect public safety. (People v. Carbajal (1995) 10 Cal.4th 1114, 1120.) The question here is whether the trial court may impose restitution based on a charge of which the defendant was acquitted.

In People v. Lent (1995) 15 Cal.3d 481, the defendant was charged with two counts of theft. A jury acquitted him on one count and convicted him on the other. The trial court held an extensive sentencing hearing during which witnesses were called by both sides. After the hearing, the trial court found that the defendant perjured himself at trial. The court concluded that the defendant's culpability was not displayed at trial, but is reflected in the evidence produced at the sentencing hearing. The court conditioned probation on restitution based on the count on which the defendant had been convicted as well as the count on which he had been acquitted. Our Supreme Court affirmed.

In People v. Richards (1976) 17 Cal.3d 614, the defendant was charged with two counts of grand theft. Each count had a different victim. As in Lent, the jury convicted the defendant on one count, but acquitted him on the other count in which William Ward was the alleged victim in the count on which the defendant was acquitted. The trial court conditioned a grant of probation on restitution based on both counts. Our Supreme Court reversed. The Court stated: "The jury did not find overt dishonesty on the part of defendant towards Ward. And, in contrast to the Lent case, the court held no hearing to determine facts other than those which led to defendant's acquittal. No witnesses were heard, and the entire sentencing procedure took only a few minutes. The trial judge is not justified to draw conclusions about an acquitted defendant's responsibility for restitution to persons other than the criminal victim based solely on the trial record." (Id. at p. 624.)

In People v. Carbajal, supra, 10 Cal.4th at p. 1126, our Supreme Court disapproved of the statement in Richards that restitution is proper only where "the act for which the defendant is ordered to make restitution was committed with the same state of mind as the offense of which he was convicted . . . ." (Quoting People v. Richards, supra, 17 Cal.3d at p. 622.) But the Court did not otherwise disapprove of Richards.

This case is like Richards. The trial court ordered restitution on a count of which Turner had been acquitted based solely on the evidence at trial. Unlike Lent, the Court did not hold a post-trial hearing at which additional evidence bearing on Turner's responsibility was considered.

The Attorney General points out that Turner admitted at trial that she wrote checks on TEF's account and used its credit card for her personal benefit. But as the trial court acknowledged, the jury apparently based its acquittal on a finding that she did not intend to permanently deprive TEF of the funds. (See CALCRIM No. 1806.) The trial court considered no additional evidence on the question of intent. The trial court cannot impose restitution based on evidence the jury found insufficient. (See People v. Richards, supra, 17 Cal.3d at p. 624.)

The Attorney General attempts to distinguish Richards on the ground that there the count on which the defendant was convicted involved a different victim than the count on which the defendant was acquitted. The Attorney General points out in this case TEF was the victim in both counts. Although it is true that Richards involved different victims, it is distinguished from Lent principally by the lack of any evidence other than that considered by the jury that acquitted him. Here, unlike Lent and like Richards, the court considered no additional evidence. That there were two victims in Richards is not a rational basis for distinguishing it.

Finally, the Attorney General points to the jury's statement that it found Turner not guilty of embezzlement under the instructions, but that it did not feel justice had been done. The Attorney General cites no authority however for the proposition that a restitution order can be based on the jury's feelings about whether justice was done.

The matter is reversed and remanded for a redetermination of the amount of restitution. In all other respects we affirm.

NOT TO BE PUBLISHED.

GILBERT, P.J.

We concur:

COFFEE, J.

PERREN, J.

John A. Trice, Judge

Superior Court County of San Luis Obispo

______________________________

Jolene Larimore, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lance E. Winters, Supervising Deputy Attorney General, Chung L. Mar, Deputy Attorney General, for Plaintiff and Respondent.

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