Washington woman allegedly embezzles up to $95,000 from employer

SNOHOMISH — A Snohomish woman is accused of embezzling up to $95,000 from the dentist office where she worked for five years.


Terri Kakalecik, 40, was the bookkeeper and office manager for a dental office on Maple Avenue. She resigned last year after her employer confronted her about some discrepancies involving payments from patients. The suspect reportedly told the dentist that she had cooked the books to hide her forging checks from patients and depositing them into her personal account, court papers said.


Prosecutors have charged Kakalecik with first-degree theft, a felony.


Kakalecik made her first appearance Monday in Snohomish County Superior Court. She pleaded not guilty to the charge. She remained out of custody, pending her trial scheduled for October.


The dentist reported the theft to police in summer 2011 after spending hundreds of hours checking patient and payment records. She found more than $25,000 missing.


A certified public accountant was hired to audit the books. Police also seized Kakalecik’s bank records. The investigation uncovered checks written to the dentist that had been altered and deposited in Kakalecik’s account, court papers said. Additionally, thousands of dollars in cash was embezzled.


The accountant determined that upwards of $95,000 was missing.


A detective spoke with Kakalecik earlier this year. She reportedly told the detective she took about $3,500, but then said she had “no idea” how much she had siphoned from her employer, court papers said. She allegedly admitted that she took checks from patients and insurance companies and deposited them in her personal bank account, police wrote in documents. She reportedly told the detective she used the money to pay for her child’s college education and living expenses.


The detective reported that Kakalecik said she planned to pay back the money when she could, but admitted that she didn’t know how much she had taken. She reportedly said she was keeping a “running total in her head with the intent of paying it all back.”

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Content retrieved from: Woman allegedly embezzles up to $95,000 from employer | HeraldNet.com – Local News

New Jersey woman gets probation for stealing $75K from employer

sabraRandolph woman gets probation for stealing $75K from employer

A married mother of three was sentenced Friday to five years’ probation and ordered to undergo a mental health evaluation on her guilty plea to stealing $75,000 over a three-year period from her former employer, a dentist in Randolph.

Defendant Sabra Aschenbrenner, 46, repaid her victim, Dr. Sharon Brackelmanns, the full $75,000 on Friday but offered no explanation why she systematically stole between February 2010 and January 2013, mostly by using credit cards in the name of the victim.”I’ve learned a lot about myself,” Aschenbrenner told Judge Stephen Taylor in Morristown. “Hopefully this restitution will bring some peace to the victim.

“Defense lawyer Christopher Porreca said his client, who is involved in ongoing counseling, has taken full responsibility and is sorry for her actions as an office manager/bookkeeper for the dentist.”This matter has taken a serious emotional toll on my client,” Porreca said but noted that Aschenbrenner’s thefts have scarred the victim also.Aschenbrenner pleaded guilty on Dec. 1 to theft by unlawful taking and the plea agreement negotiated between Porreca and Morris County Assistant Prosecutor Michael Rappa recommended a lengthy term of probation and no time behind bars. Rappa said a long probation term was warranted because of the “cool and calculated” way the stealing occurred, with Aschenbrenner facing and interacting with her employer on a regular basis.

“This was not a single event. This was not a result of one bad day,” Rappa said.

The judge wanted to know what the money was used for, saying that in his sentencing analysis he wanted to examine whether hardship was present and whether Aschenbrenner appeared likely to re-offend. While Aschenbrenner remained silent, Porreca and Rappa said they could not specifically say where the money went but Porreca said the money was spent on “personal items, nothing extravagant” and Rappa said financial necessity was not the reason.

“Did she want to drive a Mercedes Benz she couldn’t otherwise afford?” Taylor queried.”This is a significant embezzlement of funds,” the judge said. “Instead of robbing a bank she embezzles funds from her employer.” Taylor highlighted portions of the victim-impact statement the dentist provided the court and noted how she had trusted Aschenbrenner.

“She was severely disabled financially as well as emotionally by this defendant,” Taylor said of the victim. The judge warned Aschenbrenner that she can be spent to prison for up to five years if she violates probation.  Rappa said the victim has the ability to file a lawsuit against Aschenbrenner if she believes further restitution is warranted.

Eight months ago, Aschenbrenner and her family were the recipients of $22,403 raised through a GoFundMe site established by a concerned resident of Randolph after the Aschenbrenner family’s home on South Road burned down on May 24 while the family was away for the Memorial Day holiday.

A fire official previously said the blaze was not criminal in nature and appeared to have originated in the garage. The family dog, Bogey, perished in the fire.

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Content retrieved from: Randolph woman gets probation for stealing $75K from employer

Michigan dental bookkeeper gets jail for stealing $50-100,000

An Alma woman was ordered to spend six months in jail and pay back an as-of-yet undetermined amount of restitution when she was sentenced Monday for embezzling money from her former employer.

Wendi Torres, 48, of Alma pleaded in October to embezzling between $50,000 and $100,000 from Mid Michigan Dental Excellence of Alma, her employer of about 10 years.

Gratiot County Circuit Court Judge Randy Tahvonen also ordered that Torres’ new employer be notified of the conviction.

Chief Assistant Gratiot County Prosecutor Jennifer Shephard said Torres was an office manager at the business.

As part of her duties, Torres handled payroll, and from 2012 until March of 2015 she claimed more hours and overtime pay than she actually worked.

By her calculations, Torres claimed more than 2,000 unearned hours over three years, Shephard said.

Those hours were reported on W2 forms, but it wasn’t until the most recent tax year that the owner of the business noticed the discrepancy. “She was a trusted employee,” Shephard said. “Her employer indicated (the embezzlement) affected his personal finances, but it also impacted the morale of the office staff, and that he was unable to give bonuses because of it.”

Torres, who has no previous criminal record, was put on five years of probation, and ordered to pay restitution within that same time.

Restitution is still being calculated, Shephard said.

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Content retrieved from: Alma dental bookkeeper gets jail for stealing $50-100,000

 

____________________________________

Michigan State Prison (DOC) Booking Details



BIOGRAPHICAL INFORMATION
MDOC Number:
968539
SID Number:
5066159K
Name:
WENDI SUE TORRES
Racial Identification:
White
Gender:
Female
Hair:
Brown
Eyes:
Brown
Height:
5′ 4″
Weight:
170 lbs.
Date of Birth:
05/08/1967  (48)
WENDI SUE TORRES
Image Date:
MDOC STATUS
Current Status:
Probationer
Supervision Begin Date:
11/16/2015
Assigned Location:
Gratiot/Ithaca
Supervision Discharge Date:
11/16/2020
Security Level:
ALIASES
None
MARKS, SCARS & TATTOOS
Scar- Front Left Head – Scar on forehead to the left. Hit by a car when I was 5 yrs. old
PRISON SENTENCES
ACTIVE
None
INACTIVE
None
PROBATION SENTENCES
ACTIVE
Sentence 1
Offense:
Embezzlement – $50,000 Or More But Less Than $100,000
Minimum Sentence:
MCL#:
750.1746
Maximum Sentence:
5 years 0 months
Court File#:
15-7271-FH
Date of Offense:
01/01/2012
County:
Gratiot
Date of Sentence:
11/16/2015
Conviction Type:
Plea
INACTIVE
None
SUPERVISION CONDITIONS
01 – No violations of any criminal law
02 – Not leave state without permission
03 – Monthly reporting
04 – Notify of change of residence
04.2 – You must not change residence w/o permission
04.18 – Behavior
04.19 – Association
04.20 – Not own or possess weapons
04.21 – Contact field agent
04.22 – Comply with field agent
04.23 – Allow Field Agent into your residence
04.24 – Authorize a search if Field Agent has cause
04.25 – Report any arrest or police contact
06.1 – Not employed in a certain positions
06.4 – You must make genuine efforts to find employment
08.0 – Serve jail time as described
08.1 – Pay restitution as described
08.2 – Pay a Crime Victim’s Assessment
08.3 – Pay Supervision Fee pursuant to PA 185 of 1993
08.4 – Court Cost
08.16 – Pay DNA Test Fee
08.18 – State Costs

michigan-doc-map

Probably the Biggest Ever — Guilty Plea in $1.9 Million Washington Embezzlement

fisher
The victims — Drs. Fisher and Jones

jones

 

 

 

 

 

 

 

 

 

 

 

Lori Doughty

OLYMPIA, Wash. — A woman who worked as a dental office bookkeeper and her husband have pleaded guilty to swiping about $1.9 million, one of the biggest and most complex embezzlement cases in the state capital.

In a plea agreement, Thurston County prosecutors said Thursday they would recommend a 10-year prison term for Lori L. Doughty, 39, formerly employed by Fisher Jones Family Dentistry in Olympia, and a year and five months for her husband, Michael G. Doughty, 46, both of Lacey.

Both were allowed to remain free after entering their pleas to multiple felony counts Thursday in Superior Court pending sentencing on May 11.

“I believe we made a statement that embezzlement will not be tolerated in Thurston County,” Deputy Prosecutor Joseph Wheeler said. The dental firm has recovered about $80,000 and the Doughtys will likely be ordered to make restitution after they get out of prison, but lawyers said it was likely that much of the uninsured loss would be recovered.

Co-owner James M. Jones said the business had managed to stay afloat, but he and his partner have had to set back their retirement plans by about a decade. “We feel like we have a great future, and now we can move on,” Jones said.

In documents filed in court, prosecutors wrote that the Doughtys maintained a lavish lifestyle with a scheme so tangled that a forensics examiner had to be hired to trace the funds and determine how much was taken.

Investigators wrote that Lori Doughty forged company checks to pay off credit cards for herself and her husband and laundered some of the money through her husband’s business, First Response Emergency Medical Training Corp. Her parents also used the credit cards but will not be prosecuted, Wheeler said.

After reviewing hundreds of financial records, forensics examiner Ken Wilson wrote that between December 1998 and July 18, 2005, when Lori Doughty was arrested, the couple spent $200,000 on clothes, $100,000 at restaurants, $185,000 on hotels, $74,000 on airline tickets and $32,000 at Starbucks. Her husband, arrested in August, was originally charged with 18 felonies but pleaded guilty to four – unlawful use of criminal proceeds, money laundering and two counts of forgery.

Lori Doughty, initially charged with 19 felonies, pleaded guilty to 15 – first-degree theft and multiple counts of forgery, money laundering and unlawful use of criminal proceeds.

 


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lori doughty (2)

Content retrieved from: https://news.google.com/newspapers?nid=2026&dat=20070406&id=_V8zAAAAIBAJ&sjid=PfAFAAAAIBAJ&pg=2739,786761&hl=en

Ms. Doughty’s husband was also charged with money laundering — see related story here — https://www.prosperident.com/2016/08/26/husband-bookkeeper-accused-laundering/

Embezzles $1.6 million from California dental office — sentenced to 8 years in prison

waffordVicki Wafford

Bookkeeper Victoria “Vicki” Lee Wafford embezzled $1.6 million from the Oceanside dental office where she worked, and gambled it away, authorities said.

Wafford, who was 50 when she was arrested, spent most of the money she stole on luxuries, trips and gambling while her employer and co-workers suffered, Deputy District Attorney Anna Winn said.

Wafford’s attorney said his client’s actions were driven by a prescription drug addiction.

Wafford wrote more than 1,000 checks from the dentist’s account to herself and credit card companies from 2001 to 2008, Winn said.

In the accounting books, however, Wafford listed the payees as dental suppliers and other vendors, according to court documents.

The theft came to light in the summer of 2008, when the dentist launched an extensive audit of the books to get personal loans to cover business expenses.

Federal agents seized everything of worth at Wafford’s Temecula home, including a power boat, multiple sets of golf clubs, a Lexus, a newer Toyota Tundra and about $1,000 in coins, Winn said. She was sentenced to eight years in prison.

 


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http://www.sandiegouniontribune.com/news/2012/may/04/region-notable-local-embezzlement-cases/

Maine orthodontist’s bookkeeper gets 6 months for embezzling $120K

Celine+Davis+Mug1

Augusta dentist Darryl Zeleniak says he and others in his office all felt betrayed by Celine M. Davis, whom he had treated ‘as a friend.’

AUGUSTA — It was the betrayal, not the loss of money, that smarted.

That’s what Darryl Zeleniak told a judge Tuesday at a sentencing hearing for Celine M. Davis, 43, the former bookkeeper at his dental practice, Augusta Orthodontics.

Davis, formerly of West Gardiner and now of Lewiston, embezzled about $120,000 from Zeleniak’s practice between Jan. 19, 2006, and Feb. 14, 2011. She pleaded guilty Oct. 25 to theft by unauthorized taking.

She was sentenced Tuesday to serve six months in jail. The sentence handed down by Nivison totaled five years in prison, with all but six months suspended, and probation for three years after release. Probation conditions stipulate that she has no contact with Zeleniak, his wife and Augusta Orthodontics.

Davis had worked at the dental office for more than 16 years. Zeleniak said he and the other members of the office staff — who attended the hearing — all felt betrayed by the embezzlement.

“You betrayed your husband and your children, and lost their trust,” Zeleniak said in court. “You caused a tremendous amount of pain.”

Davis’ father accompanied her to the hearing. She stood next to her attorney, J. Mitchell Flick, but she did not speak to the judge.

Neither Davis nor Flick offered an explanation for what the embezzled cash was spent on.

Davis also was ordered to pay the remaining restitution of more than $72,500. She previously paid nearly $47,000 through her 401k plan.

Assistant District Attorney Brad Grant said Davis had no prior criminal record.

At a previous hearing, Grant described the embezzlement scheme, which involved Davis accepting cash payments and then deleting or voiding them in the computer system after providing a receipt.

The fraud was uncovered when a customer complained about an erroneous bill. Karen Zeleniak, Darryl Zeleniak’s wife, who also works at the practice, was able to reconstruct the computer records.

Davis was the second woman from Kennebec County to be sentenced in recent days for embezzlement.

On Friday, Bettysue Higgins, of Gardiner, was sentenced to six years in prison with all but three and a half years suspended for embezzling almost $167,000 from the Maine Trial Lawyers Association between May 2006 and September 2010. Higgins, who was the bookkeeper at the association’s two-person Augusta office, spent much of the stolen money on Internet-based games.

Both Higgins and Davis align with the typical profile of embezzlers assembled by Christopher T. Marquet, CEO of Marquet International, based in Wellesley, Mass.

Marquet’s firm specializes in forensic audits, but each year he releases a study describing attributes of those recently convicted of embezzlement. The report on embezzlement is available at www.marquetinternational.com.

He said the perpetrators are more frequently women and the schemes last an average of four and a half years or more.

“Usually what we see is that a lot of these companies are small mom-and-pop shops and they rely completely on this woman to be honest,” Marquet said. “If she has the motivation, access and justification, then you’ve got a high risk. It’s so common and so typical, and sadly this phenomenon is going on daily. The vast majority of cases are really motivated by a lifestyle issue rather than a need issue.”

Marquet said this type of fraud is usually uncovered more often in bad economic times.

“In good times, it’s harder to see the thefts,” he said. “In bad times, they’re detected more frequently because of greater scrutiny that’s going on with company finances.”

 


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California bookkeeper pleads no contest to third embezzlement charge in four years

Jasmine Delafuente

Dental bookkeeper convicted for embezzlement

Daily Journal Staff Report

A former bookkeeper accused of stealing $70,000 from a Redwood City dentist shortly after being fired by a different dentist for embezzlement must spend two years in county jail and repay the stolen money.

Jasmine Delafuente, 31, actually received a four-year prison term after pleading no contest to felony embezzlement and admitting she took more than $65,000. However, under the new state inmate realignment rules, Delafuente will spend two years in the county jail followed by two years on mandatory supervision. She must also pay $70,161.54 to her former employer.

Delafuente has credit of 604 days against the term earned while in custody on $100,000 bail and a no-bail hold for allegedly violating probation in the previous embezzlement case by being arrested again.

Between March 2009 and August 2010, prosecutors said Delafuente took the cash paid by patients and deleted proof of payment from office records.

Delafuente urged patients to pay in cash, according to prosecutors who said she particularly took advantage of Spanish-speaking patients.

Just prior to working for the office, Delafuente had been fired in February 2009 for stealing $6,793 through the same means. Delafuente was prosecuted and convicted of felony embezzlement in August 2010, settling a case that had been pending in court through most of the time she was working for her second alleged victim.

She was sentenced to 60 days jail and felony probation for the first case.

On top of her new jail term, Delafuente also received a concurrent sentence for the probation violation.

Content retrieved from: https://www.smdailyjournal.com/articles/lnews/2012-01-05/dental-bookkeeper-convicted-for-embezzlement/

________________

Update — She’s at it again…

A bookkeeper accused of stealing $3,200 from an East Palo Alto dental office while on probation for ripping off two Redwood City dental offices pleaded no contest Tuesday to a felony embezzlement charge.

 Jasmine Delafuente, 32, skimmed $3,200 from deposits she took to the bank for her employer, 6 to 9 Dental on East Bayshore Road, according to the San Mateo County District Attorney’s Office. The thefts occurred last year from June 29 to July 19 and she was arrested on Aug. 30.
Although she pleaded not guilty in September to an embezzlement charge, Delafuente made a deal with prosecutors and switched her plea to no contest.
In exchange, she’ll receive a maximum prison sentence of three years and eight months, according to the district attorney’s office. She is scheduled to be sentenced on March 1.
Delafuente has been arrested on embezzlement charges a total of three times in four years.
In February 2009, Delafuente was fired from her bookkeeping job with a Redwood City dental office for stealing $6,973.
Delafuente subsequently was sentenced to 60 days in jail and probation in that case, but in the meantime she was hired by another Redwood City dentist and stole $70,000 from that office between 2009 and 2010.

 


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Content retrieved from: http://www.mercurynews.com/ci_22437093/bookkeeper-pleads-no-contest-third-embezzlement-charge-four

Family Charged With Embezzling Almost $2 Million From Georgia Dentist

http://www.wsbradio.com/news/news/bookkeeper-cleaned-dentist-office-out-millions/nX6Sx/

Joseph Rosemary Karen-_embezzlement

By Jennifer Griffies

A Sandy Springs dentist’s office was busy cleaning teeth while their bookkeeper was cleaning them out of millions.

Sandy Springs Police Captain Steve Rose tells WSB 58-year-old Rosemary D’souza had been the office manager and bookkeeper for TLC Dental for nearly 20 years, but suspicions arose during a casual conversation.

“She mentioned that the family owned a couple of houses in Florida. This kind of raised suspicion with the doctor based on – it’s kind of extravagant possessions with somebody with that particular salary base,” said Rose.

An investigation revealed that between 2009 and 2013, D’souza embezzled two-million-dollars.

“From what we can tell, Rosemary paid herself over this period of time over $800,000, paid her husband over $600,000, and then paid her daughter who is a student, over $83,000,” said Rose.

Rose says because D’souza was a longtime employee, they had complete trust in her.

“They believed them to be honest and it’s the misuse and it’s taking advantage of that trust which allowed that person to just go undetected for so long,” said Rose.

Rosemary D’souza has been charged with numerous offenses including theft by taking and financial card fraud.  D’souza’s daughter, 20-year-old Karen and her husband Joseph, have been charged with theft by taking.

 


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NY Woman Sentenced in $1.8 Million Embezzlement Case

Lancaster Woman Sentenced in $1.8 Million Embezzlement Case

Content retrieved from: Lancaster Woman Sentenced in $1.8 Million Embezzlement Case

suzanne glawatz

 

BUFFALO, N.Y. — A Lancaster woman who admitted she stole nearly $2 million from her employer will spend the next four to 12 years in state prison.

Suzanne Glawatz, of Lancaster, pleaded guilty in June to Grand Larceny and Criminal Tax Fraud.

“Ms. Glawatz’s criminal actions have changed my life in immeasurable ways. My plans to retire are completely on hold,” Dr. Marcelle Grassi said Wednesday at Glawatz’s sentencing.

Dr. Grassi trusted Suzanne Glawatz to be her bookkeeper for 16 years. It turns out for the past seven years, Glawatz had been stealing from the doctor who gave her a job

“I am totally aware that I have deceived and betrayed a person who treated me as a friend and a confidante, as well as a trusted employee,” Glawatz read from a prepared statement.

Glawatz plead guilty in June to grand larceny in the first degree and criminal tax fraud.

Not only did she embezzle more than $1.8 million dollars from Dr. Grassi, but also she illegally accepted a $6,900 tax refund from New York State that she didn’t earn.

She has repaid the tax fraud, but only given back less than one-tenth of what she owes Dr. Grassi.

“Her problem is obviously lack of conscience and arrogance and greed,” Grassi said to the judge. “Someone with a stitch of moral fiber could not look at me in the eye every day and do this to me year after year after year.”

Glawatz’s defense attorney, Eric Bloom, tried to explain her actions based on history of depression, and a recent diagnosis of bi polar disorder.

He called the reckless spending a disease.

Still, the judge sentenced her to four to 12 years in state prison, which is one of the highest sentences handed down in embezzlement cases.

“I thought it was pretty much what we expected it to be considering the enormity of the embezzlement,” Bloom said afterward. “It’s truly a tragedy for everyone involved, including the doctor and my client.”

According to the prosecution she stole the money by pocketing cash co-payments and taking loans she falsely claimed to have paid back.

It’s not the biggest embezzlement case Erie County has ever seen, but District Attorney Frank Sedita says it’s up there.

He says embezzlement itself isn’t necessarily on the rise, but the amounts of embezzled funds is, and that overall, white collar crime is up, and violent crime is down.

“It’s stupid to knock off a liquor store or 7-11 nowadays. It’s a lot easier to get somebody’s credit information or bank account information and steal that way,” he said.

Glawatz has paid back about $130,000 so far, and she and her husband have no assets left, according to her attorney.

She continues to pay back Dr. Grassi at a rate of $250 per week, but as Dr. Grassi noted in her statement, at that rate, it would take Glawatz 200 years to pay back everything, making it unlikely the doctor will ever receive full restitution.


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Six-figure restitution sum and jail sentence for California woman convicted of embezzling from local dentist upheld

 

A state appellate court this week upheld the sentence and a six-figure restitution order imposed on a Solano County woman convicted of embezzling from a local dentist.

 

In an opinion filed Tuesday, the state Court of Appeal, First Appellate District upheld a four year county jail sentence and $200,391 restitution order against Vanessa Lentino, a former bookkeeper for the dental offices of Dr. James D. Prigmore, for which there were offices in Vallejo and Fairfield. According to the court filing, Lentino worked as a bookkeeper for Prigmore’s dental practice from October 2009 until July 2011.

Prigmore’s son succeeded her as bookkeeper and soon discovered the defendant had forged business checks to herself totaling $36,515.30.

He contacted the police in August 2011.

After hundreds of hours of investigation, Prigmore submitted to the Solano County Probation Department an itemized list of more than $251,000 in losses he attributed to Lentino’s conduct.

According to the filing, in addition the embezzlement, Lentino made purchases on a Dell credit account for the Vallejo office, and merchandise worth $4,506.66 was delivered to her home.

Police obtained a search warrant for defendant’s home where they found a photo printer, laptop carry case, Dell laptop, zoom pocket video camcorder, a 73-inch HDTV, and a surround-sound system that had been purchased on the Dell line of credit, according to the court filing.

In December 2012, Lentino pled no contest to grand theft by embezzlement of more than $100,000 from her employer and admitted an enhancement for taking property valued over $65,000.

She argued in her appeal that her sentence and restitution order was excessive and based on improper aggravating circumstances.

“We find the trial court neither relied on improper aggravating circumstances nor abused its discretion in setting the amount of restitution and affirm,” the appellate justices wrote in the 17 page opinion.

The appellate court did address a mathematical error and reduced the amount of restitution by 61 cents.

Content retrieved from: http://www.thereporter.com/article/zz/20141007/NEWS/141008707


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Filed 10/7/14  P. v. Lentino CA1/1

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. 

 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

 

FIRST APPELLATE DISTRICT

 

DIVISION ONE

 

 

THE PEOPLE,

Plaintiff and Respondent,

v.

VANESSA K. LENTINO,

Defendant and Appellant.

 

 

A138719

 

(Solano County

Super. Ct. No. FCR288561)

 

INTRODUCTION

Defendant Vanessa Lentino appeals from the sentence and restitution order imposed by the court.  She pled no contest to grand theft by embezzlement of more than $100,000 from her employer.  Defendant argues the court imposed the upper-term sentence of three years on the basis of improper aggravating circumstances, and that the amount of restitution ordered by the court is excessive.  We find the trial court neither relied on improper aggravating circumstances nor abused its discretion in setting the amount of restitution and affirm.

STATEMENT OF THE CASE

On August 21, 2012, the Solano County District Attorney filed an information that charged defendant with grand theft by embezzlement and further alleged an enhancement for taking property valued over $65,000.  (Pen. Code, §§ 487, subd. (a), 12022.6, subd. (a).)[1]  On December 20, 2012, defendant pled no contest to grand theft and admitted the enhancement.

A combined sentence and restitution hearing commenced on March 5 and ended on March 6, 2013.  The sentencing and further restitution hearing took place on March 28, 2013.  On that date, the court granted a defense motion to continue the restitution hearing but declined to continue judgment and sentence.  The court denied probation and imposed a four-year county jail sentence based on the aggravated three-year term for grand theft and one year for the enhancement.  (§ 1170, subds. (h)(1), (2).)  The concluding two years of defendant’s sentence were suspended to allow mandatory supervision.  The trial court entered a preliminary victim restitution order of $132,307.49.  The court set a further restitution hearing allowing additional evidence or briefing on the disputed amounts for April 29, 2013.

On that day, the parties submitted the matter to the court without presenting further evidence or briefs.  The court indicated it would issue its ruling within 90 days.  On July 23, 2013, the court issued a written order modifying the initial amount of restitution ($132,307.49) with a final amount of $200,391.63.  The court ordered the abstract of judgment to be amended accordingly, served on the parties, and made part of the record on appeal.

Defendant’s notice of appeal from the judgment and sentence was filed April 23, 2013.

STATEMENT OF FACTS[2]

          Defendant worked as a bookkeeper for Dr. Prigmore’s dental practice from October 10, 2009 until July 25, 2011.  Dr. Prigmore’s son Matthew succeeded her as bookkeeper and soon discovered defendant had forged business checks to herself totaling $36,515.30.  He contacted the police, who traveled to Dr. Prigmore’s dentist office in Fairfield on August 2, 2011.

Matthew told the police that on July 25, 2011, the West America Bank branch in Fairfield contacted the dentist office to inquire about an irregular check.  Defendant attempted to impersonate the dentist’s wife, but she could not provide the bank with the business account password.  Dr. Prigmore inspected the check and confirmed he did not authorize defendant to use his signature stamp on any checks.  All checks were to be personally signed by Dr. or Mrs. Prigmore.

Matthew located 16 checks totaling $14,046.26 drawn on a West America Bank account that were made out to defendant using two signature stamps.  Matthew located another 22 forged checks totaling $20,869.04 drawn on the dentistry’s Bank of the West account.  In addition, on July 5, 2011, defendant cashed a check for $1,600 drawn on a personal business account using the same forged signature.  After defendant was confronted about the thefts on July 25, she failed to show up for work or respond to telephone calls.  On July 27, 2011, Dr. Prigmore contacted defendant’s husband, who told him defendant admitted the thefts and would meet with him to go over the forged checks and devise a plan for paying back all the money that was owed.  After that conversation, there was no more contact between Dr. Prigmore and defendant or her husband.

In August, Dr. Prigmore hired a private consultant to investigate the scope of defendant’s fraudulent behavior.  The consultant discovered defendant had (1) taken cash from deposits made for the dentist office in Vallejo; (2) made online transfers without approval into her personal accounts; and (3) made purchases and paid personal bills using Dr. Prigmore’s credit cards.  Matthew provided a written statement to police which included additional losses of $15,275 from Dr. Prigmore’s savings account and charges of $20,251.22, $8,956.67, and $34,411.69 from three separate credit cards.  In addition, defendant made purchases on a Dell credit account for the Vallejo office, and merchandise worth $4,506.66 was delivered to her home.  Based on this review, the total loss was $119,916.54.

Police obtained a search warrant for defendant’s home where they found a photo printer, laptop carry case, Dell laptop, zoom pocket video camcorder, a 73-inch HDTV, and a surround-sound system that had been purchased on the Dell line of credit.

DISCUSSION

  1. Notice of Appeal

At the outset, we address the Attorney General’s contention that defendant’s restitution claim must be dismissed because she did not file a notice of appeal from the final restitution order.  Defendant filed a timely notice of appeal from the judgment of March 28, 2013 which included the preliminary restitution order of $132,307.49.  The court had not issued the final restitution order of $200,391.63 until July 23, 2013, nearly four months after judgment.  The final restitution order is separately appealable as an order after judgment. (§ 1237, subd. (b); People v. Guardado (1995) 40 Cal.App.4th 757, 763 (Guardado).)  The question here is whether it had to be separately appealed.  On these facts, we think the answer is no.

In Guardado, supra, the trial court ordered victim restitution but did not specify any amount. (40 Cal.App.4th 757, 762.)  The court of appeal held such an order is unenforceable, but observed it was not “void” so long as the trial court reserves jurisdiction on the amount and then enters an enforceable order specifying the amount of restitution.  (Id. at pp. 762-763.)  The Guardado court also observed that such an order is separately appealable.  (Id. at p. 763.)  However, since no such subsequent order was made, the timeliness of the defendant’s notice of appeal from the sentence and judgment was never an issue in Guardado.

Defendant asks us to exercise our discretion to treat her notice of appeal as embracing the court’s final disposition of previously litigated issues by deeming her notice of appeal from the judgment premature with regards to the restitution order. In People v. Denham (2014) 222 Cal.App.4th 1210, the court of appeal rejected a similar argument and declined to entertain an appeal from a restitution order issued several months after judgment was entered and a timely notice of appeal therefrom was filed. (Id. at p. 1213.)  In that case, when the court pronounced judgment, it reserved the issue of victim restitution, stating:  “ ‘The Court will set a restitution hearing in this matter here shortly and we’ll deal with that issue.’  Defense counsel inquired whether the time to file the notice of appeal ran from that day, and the court advised defendant to file his notice of appeal immediately as ‘restitution is kind of a separate issue.’ ” (Ibid, italics added.)  Defendant filed a notice of appeal 21 days after judgment. (Ibid.)  The court commenced the restitution hearing almost six months later and ordered victim restitution;  the defendant did not appeal that order. (Ibid.)  The Denham court concluded:  “[T]he notice of appeal from the judgment should not be treated as a premature notice of the later victim restitution order. ‘A notice of appeal is premature if filed before the judgment is rendered or the order is made, but the reviewing court may treat the notice as filed immediately after the rendition of judgment or the making of the order.’ (Cal. Rules of Court, rule 8.406(d).)  Defendant’s notice of appeal was from the judgment and, therefore, it would be inconsistent to also treat it as a premature notice of appeal from the victim restitution order.”  (Id. at p. 1214.)
In our view, Denham is factually distinguishable and not dispositive here.  Defendant Lentino’s  pleas to the substantive charge and enhancement contemplated a restitution hearing would be part and parcel of sentencing.  The only contested issue was victim restitution, which was litigated extensively over two days and included witness testimony.  As of March 28, 2013, the date set for sentencing, the court had resolved some but not all of the restitution issues and entered a preliminary order of $132,307.49.

Prior to March 28, the date previously set for the restitution order and sentencing, defendant asked for a continuance to review and address 130 pages of documents relating to the restitution claim which had been delivered to her counsel since the last hearing.  The court opted to proceed with sentencing and issued an interim restitution order of $132,307.49 “that would be subject to amendment or modification down the road depending upon what additional information I receive.”[3]  Thus, the court and all parties understood this was not a final order, and that the court retained jurisdiction to determine the full amount of restitution.

Under these circumstances, it appears inappropriate to dismiss defendant’s restitution claim for failure to file a second notice of appeal.  As observed in In re Ricky H. (1992) 10 Cal.App.4th 552, an appellate court has the discretion to treat a notice of appeal filed before a final order as timely. (Id. at pp. 558-559.)  “Typically, premature appeals are deemed to be timely when the decision being appealed from has been made preliminarily, but is not yet final.  For instance, premature notices of appeal have been treated as timely when they were filed after the verdict but before the pronouncement of judgment [citation], or after a judge announced an intended decision but before a final judgment was signed [citation].” (Id. at p. 558.)  In our view, this case is similar.  Therefore, we will exercise our discretion to review defendant’s challenges to the court’s final order.

  1. Restitution Issues

          Dr. Prigmore requested $251,606.57 in restitution for economic losses suffered as a result of defendant’s embezzlement from his two dental offices in Fairfield and Vallejo. His claim was supported by an itemized list of 17 categories of losses he provided the probation department.  After two days of testimony from a forensic accountant and a bookkeeper hired by Dr. Prigmore, as well as a defense expert, the court awarded Dr. Prigmore $200,391.63 in restitution, a reduction of Dr. Prigmore’s claim by $51,214.94.

Defendant challenges the award of (1) $7,906.45 misappropriated from cash fees patients paid at the Vallejo office; (2) $14,575.00 for fees paid by Dr. Prigmore to forensic accountant Daphne Bilicich to investigate his losses from the embezzlement;  and (3) $11,051.91 of the $14,735.88 Dr. Prigmore paid his bookkeeper to assists the accountant in the investigation.

In California, a crime victim has a constitutional right to restitution from the defendant who causes the victim’s loss.  (Cal. Const., art. I, § 28, subd. (b)(13).)  Implementing that right, section 1202.4, subdivision (f) requires the sentencing court to order restitution for economic losses caused by the defendant, “based on the amount of loss claimed by the victim . . . or any other showing to the court,” in an amount sufficient to fully reimburse the victim “for every determined economic loss incurred as the result of the defendant’s criminal conduct.” (§ 1202.4, subds. (f), (f)(3).)  Economic losses include “[a]ctual and reasonable attorney’s fees and other costs of collection accrued by a private entity on behalf of the victim.” (§ 1202.4, subd. (f)(3)(H).)

“[T]he party seeking restitution [must] provide an adequate factual basis for the claim.”  (People v. Giordano (2007) 42 Cal.4th 644, 664.)  The burden of proof here is by a preponderance of the evidence.  (People v. Sy (2014) 223 Cal.App.4th 44, 63.) Once a prima facie case for restitution is made out, the burden shifts to the defendant to rebut the showing.  (People v. Sy, supra, 223 Cal.App.4th at p. 64; see also People v. Tabb (2009) 170 Cal.App.4th 1142, 1154.)

We review the trial court’s restitution award for abuse of discretion.  (People v. Giordano, supra, 42 Cal.4th at p. 663.)  “ ‘[T]he court’s discretion in setting the amount of restitution is broad, and it may use any rational method of fixing the amount of restitution as long as it is reasonably calculated to make the victim whole.

[Citations.]’ ” (People v. Millard (2009) 175 Cal.App.4th 7, 26.)  We review the court’s factual findings for substantial evidence.  “ ‘ “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. [Citation.]” [Citation.]’ ” (People v. Sy, supra, 223 Cal.App.4th at p. 63.)  With these principles in mind, we turn to defendant’s claims.

  1. Patient Fees

The trial court found that defendant failed to controvert the victim’s restitution claim with respect to the $7,906.45 in patient fees from the Vallejo office that were missing.  The court further found that the testimony at the hearings, the defendant’s statements to probation, and the other information contained in the presentence report provided support for this and other claims.  Defendant argues she did not have to controvert the claim because the prosecution did not make a prima facie showing that the missing cash was attributable to defendant’s criminal conduct.  She argues the testimony showed she “did not receive cash payments, she did not prepare deposit slips, she did not enter cash receipts into the system and she did not make bank deposits for the Vallejo office.”  We disagree.

Ms. Bilicich, the forensic accountant, testified some patients in the Vallejo office paid in cash.  The receptionist at the front desk entered the cash amounts in a program called Dentrix that tracked daily patient sheets.  The receptionist would receive the money and give the patient a receipt.  Typically, the receptionist prepared the deposit slips and balanced them in the Dentrix program.  A receipt would be generated to the patient and another receipt would be kept at the office.  At some point, the cash would be deposited in the bank account and a deposit slip or some other record reflected that cash deposit.  Bilicich compared the receipts for cash and the bank deposit records.  The deposit tickets had been rewritten; copies of the deposit tickets remained with the original deposit in the Fairfield branch.  Bilicich discovered a discrepancy of $7,906.45 between patient receipts and bank deposit tickets.  She also learned it was not defendant’s responsibility to make those deposits; it was the Vallejo office manager’s responsibility.  However, the doctored deposits were made at the Fairfield branch of the bank rather than the Vallejo branch.

Matthew Prigmore, Dr. Prigmore’s bookkeeper, testified he learned from defendant’s time sheets, mileage reimbursement sheets, and interviews with the office managers of both the Fairfield and Vallejo offices that defendant regularly worked six hours in Vallejo and twelve hours in Fairfield every week.  She would travel between Fairfield and Vallejo two to three times a week.

To the extent this evidence of opportunity failed to establish a connection between defendant and the doctored bank deposits, defendant’s own admission to probation she went to the bank provided the missing link. She said she worked 26 hours a week, Monday through Wednesday from 9:00 a.m. to 4:00 p.m. and Fridays from 8:30 a.m. to 1:30 p.m.  She also worked occasionally on Thursdays and “always had to run errands before [she] went home.  Cleaners, bank, back to the Fairfield office [and] any other thing Dr. Prigmore requested.”  (Italics added.)  From this evidence the trial court could infer that on some of her round trips, defendant deposited monies from the Vallejo office at the Fairfield bank.  Furthermore, no evidence suggested there was another suspect among Dr. Prigmore’s employees.  These other employees had each been with the dentist for 32, 27, 13, 12 and eight years.  Substantial evidence supports the court’s finding that defendant kept $7,906.45 in cash from Dr. Prigmore’s Vallejo office.

  1. Investigative Costs

Defendant concedes that some “[s]elf-help expenses, such as investigation, are recoverable, ” but asserts Dr. Prigmore’s investigative expenses are not recoverable because his justification for using a forensic accountant and bookkeeper to ferret out the full extent of his losses was based on a lack of confidence in the police department’s investigation service. Defendant cites no authority for the proposition that a victim’s reasons for expending funds on investigation of the crime disqualifies his recovery of investigative costs.  Section 1202.4 does not permit a public law enforcement agency to recover its investigative costs, because “ ‘public agencies are not directly “victimized” for purposes of restitution under Penal Code section 1202.4 merely because they spend money to investigate crimes or apprehend criminals.’ ”  (Luis M. v. Superior Court (2014) 59 Cal.4th 300, 305, quoting People v. Ozkan (2004) 124 Cal.App.4th 1072, 1077.)  On the other hand, the statute does permit a direct victim to “recover out-of-pocket expenses for assisting with the investigation and prosecution of the victim’s case as these ‘expenses clearly constitute “economic loss incurred as the result of the defendant’s criminal conduct . . .” ’ (People v. Ortiz (1997) 53 Cal.App.4th 791, 797-798; see also People v. Chappelone (2010) 183 Cal.App.4th 1159, 1182-1183 & fn. 9; People v. Maheshwari (2003) 107 Cal.App.4th 1406, 1409, 1411).”  (People v. Sy, supra, 223 Cal.App.4th at p. 64.)

In People v. Sy, the victim hired a private investigator who specialized in infringement investigations to attend a trade show and pose as a buyer of the defendants’ counterfeit goods. (223 Cal.App.4th 44, 51-52.)  The results of the investigation were turned over to law enforcement officers who, “[w]ith assistance from the investigative company’s employees, . . . seized over 13,000 counterfeit items.” (Id. at p. 52.)  The trial court ordered restitution for the victims’ investigation costs, and the court of appeal affirmed.  (Id. at pp. 62, 65.)  Defendant does not cite People v. Sy, and we discern no basis for distinguishing it from this case.  The trial court did not abuse its discretion in ordering defendant to reimburse Dr. Prigmore for his investigative costs.

Next, defendant argues the fees paid to the forensic accountant and the bookkeeper were grossly excessive.  Ms. Bilicich was paid $100 per hour for about 145 hours – or approximately three and one-half weeks – of work.  Defendant argues her hourly rate should be cut, but she did not advance that argument below or present any evidence to suggest that $100 per hour is an excessive hourly rate for a forensic accountant with Bilicich’s experience and credentials.

Alternatively,  defendant argues the entire claim for Ms. Bilicich’s work should be cut because the court “never actually explained what Bilicich’s expert review added to Matthew’s ‘legwork’ to overcome its initial skepticism at the hearing that she was just a conduit for hearsay.” [4]  The court found “the victim’s employment of and payment to witness Bilicich to conduct a forensic account examination of his business records in order to help determine the nature and extent of the losses caused by defendant’s criminal conduct was reasonable and necessary under the circumstances (losses sustained over a substantial period of time by multiple means, and at different locations).”  This finding is amply supported by the record.

According to the presentence report, when Matthew first contacted the police on August 2, 2011, he had uncovered losses of $36,515.30 due to checks defendant had forged and cashed.  As a result of hiring Bilicich to conduct further investigation into the scope of defendant’s fraudulent behavior, Dr. Prigmore discovered that from October 2009 (the date defendant was hired) until July 2011 (the date of termination), defendant embezzled more than $119,000 by various means, including taking cash from the Vallejo office, making online transfers, using Dr. Prigmore’s credit cards, and making purchases on a Dell credit account and having the merchandise delivered to her home.  The results of her investigation were provided to the police, who secured a search warrant to search defendant’s house and recovered some of the merchandise she had purchased through Dell, and to the district attorney’s office for prosecution.

By the time she and Matthew concluded the investigation, an additional $100,000 worth of economic losses had been discovered.  As a result of Ms. Bilicich’s audits, total losses of $251,606.57 were documented and provided to the probation department in January 2013.  Ms. Bilicich testified at the hearing about how she uncovered and documented the losses.  The evidentiary record before the trial court provides substantial evidence to support its finding and order with respect to Ms. Bilicich.

With respect to Matthew Prigmore’s services, the court reduced the award by 25 percent, or $3,683.97, because “[t]here was some duplication of effort between Matthew Prigmore and Ms. Bilicich . . . [but] it would be unduly time consuming and burdensome to conduct further hearings to determine the extent of that duplication.”  However, the court evidently credited Matthew’s and Bilicich’s testimony about the amount of work Matthew performed and the time it took him to do it.  The court found:  “It is clear that Matthew Prigmore did an extensive amount of legwork (records review, telephone calls, etc.) independently of Ms. Bilicich’s efforts . . . in ascertaining the nature and extent of the loss caused by the defendant’s criminal conduct.”

The record supports the trial court’s findings.  In response to the court’s questioning, Matthew testified he was paid $24.50 per hour for his work “to try to get to the bottom of the restitution.”  Without looking at his timecards, he was not able to say how many hours he “worked on this case, as opposed to any other work [he] did.”  Ms. Bilicich had computed the $14,735.88 figure for his pay, and he was not “privy to these numbers” and did not “know how they were derived.”  However, he knew the bookkeeping job took 25 to 30 hours per week, and he would “spend extra time on top of that” working on the investigation.  Matthew began working as his father’s bookkeeper “the week previous to Ms. Lentino stopping work,” in July 2011.  On July 25, 2011, the Fairfield branch of the West America Bank called the dentist office to inquire about irregular signatures on checks, the event which triggered the investigation of defendant’s malfeasance.

Defendant embezzled from Dr. Prigmore’s offices for 21 months, from October 2009 to July 2011.  In the two and one-half years from July 2011 until January 2013, when Dr. Prigmore submitted to the probation officer an itemized list of $251,606.57 in losses he attributed to defendant’s conduct, Matthew had expended 601 hours, or roughly 20 hours per week, investigating and documenting defendant’s embezzlement schemes.  In addition to contacting banks about cancelled checks, deposits, and deposit slips, he contacted credit card issuers about statements.  Matthew went over every billing charge on every credit card statement with his father.  He investigated most of the fraudulent credit card charges himself, totaled them, and made a spreadsheet.  His efforts also included hunting down and checking defendant’s timecards and paychecks, calculating discrepancies between the payroll actually paid to defendant and payroll receipts, comparing his calculations with Bilicich’s, putting together documents for Bilicich’s review, manually entering items into and making calculations on spreadsheets, bringing matters he found questionable to Bilicich’s attention, reviewing check signatures for forgeries, accessing the QuickBooks program and talking to Dr. Prigmore, and identifying personal charges on credit cards for Bilicich.  He also contacted Dell about charges and tracked deliveries to defendant’s home.  The defense did not introduce any evidence showing that Matthew did not do what he said he did, or was paid a different amount than he said he was paid, or worked fewer than 601 hours.  In our view, substantial evidence supports the court’s reduced award of $11,051.91.  No abuse of discretion appears.

  1. Mathematical Error

The parties ask us to correct a mathematical error.  The court reduced the restitution award by “the sum of $9,327.69” for double-counting that occurred when defendant used one or more forged checks to pay her fraudulent credit card charges, and for telephone charges to an 800 number that could not be attributed to her.  The sum should have been $9,328.30 ($6,175.69 [forged checks] plus $3,152.61[telephone charges] totals $9,328.30).  Therefore, this court will order the reduction of the restitution award by 61 cents.

 

 

III.  Issues Related to the Imposition of the Aggravated Term

          Defendant argues the imposition of the aggravated term in this case violated proscriptions against (1) using the fact of any enhancement to aggravate and enhance the sentence, and (2) using an element of the crime to impose the aggravated term.  (§ 1170, subd. (b); Cal. Rules of Court, rule 4.420, subds. (c) & (d).)  We disagree.  Preliminarily, the People argue defendant has waived her appellate challenges to the aggravated term because she did not object below on these grounds.  We reject this argument as well.

The presentence report identified two circumstances in aggravation:  (1) the crime involved planning and sophistication, and (2) defendant took advantage of a position of trust and confidence.  The presentence report also identified two circumstances in mitigation: (1) defendant’s lack of a prior record, and (2) a gambling addiction, and recommended probation.  During the sentencing hearing, the prosecutor argued against probation and for imposition of the aggravated term and the enhancement “based upon the overwhelming preponderance of aggravating factors.”  Defense counsel argued for probation and against a prison sentence, stating:  “[G]iven the mitigating circumstances, given . . . Ms. Lentino’s lack of criminal history, I don’t believe that this crime was carried out any differently than any other crime of similar circumstances.  I don’t know that there was a – I mean, there was some sophistication, but, again, that’s what embezzlement is, you violate the trust.  That is the way these crimes are committed.”

The court denied probation and imposed the aggravated term and the enhancement, stating:  “I’m denying probation because of the nature, the seriousness and the very means by which this crime was committed by her compared to others and the length of time that was involved.  This is far and above the most – as embezzlement cases go, this is a serious one.  It’s not a minor one.  Also, the degree of loss to the victim turned out to be more than twice the 12022.6 enhancement that was pled and proven.  She was an active participant, and her actions had a substantial impact on this business and the people who worked there.  [¶]  I’ve selected the high term because she violated a position of trust over and over and over again, and the crime was carried out with a degree of planning and sophistication on multiple fronts.  So those are the reasons for my sentencing decision.”  (Italics added.)

  1. Waiver

The Attorney General argues defendant has forfeited her appellate challenge to the court’s reasons for imposing the aggravated term because she did not object below.  We disagree.  In People v. Scott (1994) 9 Cal.4th 331 (Scott), our Supreme Court adopted a waiver doctrine with respect to “claims involving the trial court’s failure to properly make or articulate its discretionary sentencing choices.  Included in this category are cases in which the stated reasons allegedly do not apply to the particular case, and cases in which the court purportedly erred because it double-counted a particular sentencing factor, misweighed the various factors, or failed to state any reasons or give a sufficient number of valid reasons.”  (Id. at p. 353.)  Here, the presentence report listed the factors in aggravation. Counsel argued the reasons why the court should not rely on them.  The court relied on them anyway.  Under these circumstances, the defendant’s argument fully apprised the court of her reasons for objecting to a jail sentence.  Lodging an objection restating the same grounds after the fact would have been futile and would have served no purpose.  Addressing this concern, our Supreme Court observed: “Of course, there must be a meaningful opportunity to object to the kinds of claims otherwise deemed waived by today’s decision. This opportunity can occur only if, during the course of the sentencing hearing itself and before objections are made, the parties are clearly apprised of the sentence the court intends to impose and the reasons that support any discretionary choices.”  (Id. at p. 356.)  The court here did not afford defendant the kind of opportunity to object envisioned by the Scott decision.  Accordingly, we conclude defendant’s  sentencing arguments are not waived.

 

 

  1. Dual Use of Enhancement Facts

Defendant argues the court improperly used the fact of the section 12022.6 enhancement – taking property worth more than $65,000 – to aggravate and enhance the sentence.  “[T]he court may not impose an upper term by using the fact of any enhancement upon which sentence is imposed under any provision of law.”  (§ 1170, subd. (b).)  “[A] fact charged and found as an enhancement may be used as a reason for imposing the upper term only if the court has discretion to strike the punishment for the enhancement and does so.”  (Cal. Rules of Court, rule 4.420(c).)  However, the court did not use the fact of the enhancement (i.e., the amount of the loss) as a reason to impose the aggravated term.  The court cited the amount of the loss as a reason for denying probation, which is allowed.  (Scott, supra, 9 Cal.4th at p. 350, fn. 12.)  In our view, the court’s reliance on defendant’s repeated violations of a position of trust, evidenced by a high degree of planning and sophistication on multiple fronts, did not reference the dollar amount of the taking.  Defendant’s argument fails.

  1. Dual Use of An Element of the Offense

Defendant also argues the court improperly relied on an element of the offense to impose the aggravated term.  A sentencing judge is prohibited from using “[a] fact that is an element of the crime . . . to impose a greater term.”  (Cal. Rules of Court, rule 4.420(d).)  “A sentencing factor is an element of the offense if the crime as defined by statute cannot be accomplished without the performance of the acts which constitute such factor.”  (People v. Clark (1992) 12 Cal.App.4th 663, 666.)  “Embezzlement is the fraudulent appropriation of property by a person to whom it has been intrusted.” (§ 503.) The essence of embezzlement is the fraudulent use or conversion of  property entrusted to the defendant by another.  (People v. Talbot (1934) 220 Cal. 3, 15.)  Thus, violation of a position of trust is an element of embezzlement, and the court may not rely on it to aggravate a sentence.  (Ibid.)

However, in this case, the court did not rely on the bare fact that defendant violated a position of trust; it relied on the fact that she did so “over and over and over again, and the crime was carried out with a degree of planning and sophistication on multiple fronts.”  Planning and sophistication are not statutory elements of embezzlement, inasmuch as that offense can be committed without much of either.  Moreover, “[t]he essence of ‘aggravation’ relates to the effect of a particular fact in making the offense distinctively worse than the ordinary.”  (People v. Moreno (1982) 128 Cal.App.3d 103, 110.)  “[W]here the facts surrounding the charged offense exceed the minimum necessary to establish the elements of the crime, the trial court can use such evidence to aggravate the sentence. [Citation.]  Stated another way, rule 420(d) [now rule 4.420(d)] does not preclude a court from using facts to aggravate a sentence when those facts establish elements not required for the underlying crime.” (People v. Castorena (1996) 51 Cal.App.4th 558, 562, italics omitted.)  That is the case here.  To prove embezzlement, it was not required to show that defendant repeatedly stole from Dr. Prigmore or used so many different ways to accomplish the thefts.

In any event, assuming arguendo the court erred in relying on defendant’s abuse of a position of trust, the error was nevertheless harmless.  (People v. Osband (1996) 13 Cal.4th 622, 728-729.) The court’s reliance on planning and sophistication was proper, given the many different ways in which defendant inventively converted Dr. Prigmore’s property to her own use over 21 months.  Moreover, the court stated among the reasons for denying probation that it viewed this case as a very serious example of embezzlement.  The error does not require a remand for resentencing. (People v. Osband, supra, 13 Cal.4th at p. 729.)

DISPOSITION

          The order awarding restitution of $200,391.63 is reduced by 61 cents to $200,391.02.  As modified, the judgment is affirmed.

 

 

 

 

_________________________

Dondero, J.

 

 

We concur:

 

 

_________________________

Humes, P.J.

 

 

_________________________

Banke, J.

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

[2]  Since defendant resolved the charges by plea, the statement of facts is drawn from the presentence report, which was in turn based on the police report.  The evidence adduced at the restitution hearing is summarized in the discussion of defendant’s restitution claims.

[3]  That sum expressly included full reimbursement for the work performed by Matthew Prigmore and Ms. Bilicich.  The court subsequently reconsidered and reduced its reimbursement for the work done by Mathew Prigmore, among other issues, as discussed in its amended restitution order. The court also directed the abstract of judgment to be amended to reflect the new amount.

[4]  In fact, the court did not express the view that Ms. Bilicich was “just a conduit for hearsay.”  The court expressed frustration with the prosecutor’s questions to her about where the equipment ordered from Dell was delivered, since she had already testified Matthew Prigmore had contacted Dell.  The court stated: “She can base her opinion on hearsay, even double hearsay, but just to have her as a conduit to recite double hearsay.”  The prosecutor rephrased his question and eventually got his answer.