P. v. Barr
Filed 8/14/12 P. v.
Barr CA3
NOT
TO BE PUBLISHED
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opinion has not been certified for publication or ordered published for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
THIRD APPELLATE
DISTRICT
(Shasta)
THE PEOPLE,
Plaintiff and Respondent,
v.
RANDY SCOTT BARR,
Defendant and Appellant.
C065777
(Super.
Ct. No. 06F5260)
Following his
convictions for embezzlement (Pen.
Code, § 508)
and grand theft (§ 487, subd. (b)(3)), the court ordered defendant to pay
$40,000 in victim restitution and denied his section 17, subdivision (b) motion
to reduce the felony convictions to misdemeanors. On appeal, defendant contends the restitution
order and denial of his motion constituted abuses of discretion. We affirm the judgment.
FACTUAL
BACKGROUND
Between 2003 and 2006,
defendant Randy Scott Barr worked at the Cheese Cakes Unlimited restaurant for
his close friends, Nicholas Parker and Cory Gabrielson. In early 2004, they trained him for a position
as manager, stressing the need for accurate daily record keeping, documenting
daily sales and entering daily financial data in the computer accounting
program.
Among defendant’s
duties as manager was daily bookkeeping.
At the end of each day, the servers would turn in their cash, checks,
and credit card slips. The server would
generate an “X-out” ticket, a calculation of the total sales for each server
generated by a program in the cash register.
The X-out ticket was checked against the cash, check and credit receipts
of the server to ensure they matched. As
the manager, defendant collected these records and then created a “Z-out”
ticket. The “Z-out” ticket was a calculation
of the day’s total sales generated by a program in the cash register. Defendant was responsible for verifying the
server totals and ensuring that cash totals balanced. He then prepared a “daily envelope”
containing all the checks, credit card slips, X-out and Z-out tickets, and
wrote the daily sales amount on the front of the envelope. The cash was placed in a separate bag, which
was deposited in the bank generally once a week. Cheese Cakes Unlimited retained the daily
envelopes as part of their business records. On
February 20, 2006,
defendant abruptly quit his job as manager.
After his departure, Parker resumed responsibility for the financial
records of the restaurant. Almost
immediately, the actual daily cash amounts “increased drastically” from the
periods reported during defendant’s time as manager. Parker and Gabrielson then noticed several
discrepancies between the slips in the daily envelopes and the amounts written
on the outside. Parker examined all the
records for the period of time when defendant was the manager and noted serious
discrepancies on an almost daily basis.
Parker and Gabrielson did a “recomputation” of the restaurant’s daily
sales figures for the period of March 13, 2004, through February 2006. The difference between the collective amount
of revenue taken in, and the revenue reported by defendant, was
$44,141.66.
There were occasional
innocent discrepancies noted in the accounting as a result of human error,
missing server slips, comped meals and tips paid out to cooks and servers. Also, during some of the relevant time frame,
there was another employee suspected of embezzling approximately $5,500 in
cash.
PROCEDURAL
HISTORY
Following a jury
trial, defendant was convicted of embezzlement
(§ 508) and grand theft. (§ 487, subd.
(b)(3).) Prior to sentencing, defendant
moved to have his convictions reduced to misdemeanors under section 17,
subdivision (b). Defendant’s motion
challenged the strength of the evidence at trial, and whether the entirety of
the monetary discrepancies could be attributed to defendant. The motion pointed out defendant’s lack of
any significant criminal history, his active family and community life, the
support of his neighbors and his employment history. The motion also noted the financial burden a
felony conviction would place on defendant’s family. The People opposed the motion. The court considered the parties’ written and
oral arguments on the matter, and denied the motion.
Prior to imposing
sentence, the court specifically asked the parties to address the direct victim
restitution amount noting, “I did have concerns during the trial about the --
the People having established with sufficient certainty that particular amount
[$44,141.66]. There was another person
accused of embezzlement during the same period of time, there were some poor
accounting practices, I thought, and the jury didn’t make any special finding
about the amount embezzled. There were
some missing server slips on different occasions, I feel comfortable that it’s
a high figure . . . .” The People argued
the $44,141.61 figure was appropriate and the exact number could not be
determined with greater accuracy.
Defendant argued there were a number of ways in which the amount
testified to could be inaccurate, and thought the “fair and equitable” resolution
was to set the amount of restitution “in the middle.”
The court found the
prosecution had “substantiated . . . the vast majority” of the $44,141.66
figure, but felt it was appropriate to make a downward adjustment to account
for some of the discrepancies noted. The
court considered the evidence at trial and found $40,000 was a fair and
reasonable amount for restitution and approximately equaled the amount
embezzled as proved by a preponderance of the evidence. Defendant was granted three years felony
probation, conditioned on serving 120 days in county jail.
DISCUSSION
I
Defendant contends the
trial court abused its discretion in ordering him to pay $40,000 in victim
restitution. In making this argument,
defendant claims any award of direct victim restitution would be speculative,
there was no expert accountant to differentiate between losses due to
accounting error and embezzlement, and there is no evidence of fraud. We find no abuse of discretion.
Under section 1202.4,
where the victim has suffered economic loss as a result of the defendant’s
criminal conduct, the court is required to order the defendant to make
restitution to the victim in an “amount that is
sufficient to fully reimburse” the victim for those losses. (§ 1202.4, subd. (f)(3).) “A restitution order is reviewed for abuse of
discretion and will not be reversed unless it is arbitrary or capricious. [Citation.]”
(People v. Gemelli (2008) 161
Cal.App.4th 1539, 1542.) There is no
abuse of discretion where there is a rational and factual basis for the amount
of restitution ordered. (
“‘[T]he 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. [Citation.]’ [Citation.]” (People
v. Prosser (2007) 157 Cal.App.4th 682, 686-87.)
The trial
court may consider almost any kind of information in calculating restitution. (People
v. Phu (2009) 179 Cal.App.4th 280, 283–284.) There is no requirement that the order
reflect the exact amount of the loss the defendant is found culpable of causing
or that the order set an amount of damages that might be recoverable in a
v. Carbajal (1995) 10 Cal.4th 1114, 1121.)
A trial court may accept statements by the victims of the crimes about
the value of the property stolen, and such statements constitute prima facie evidence
of value for purposes of restitution. (
Cal.App.4th at p. 690.) “‘Once the
victim makes a prima facie showing of economic losses incurred as a result of
the defendant's criminal acts, the burden shifts to the defendant to disprove
the amount of losses claimed by the victim.’”
(People v. Tabb (2009) 170 Cal.App.4th 1142, 1154.) Upon a prima facie showing of loss, the
burden shifts to the defendant to rebut the victim's statement of losses. (People
v. Gemelli, supra, 161 Cal.App.4th at p. 1543.)
Here, the trial
testimony by Parker and Gabrielson reflected their calculations of their losses
during the relevant period at $44,141.66.
This testimony was prima facie evidence of their loss. At sentencing, defendant made no argument
disproving the amount of the claim, rather he argued as a general proposition
there were possible inaccuracies in the amount and posited the “fair and
equitable” thing to do was to set the amount “in the middle.” On appeal, defendant still makes no argument
disproving the amount of claimed economic losses. At best, his arguments challenge the weight
to be given the evidence supporting the claim.
The weight of the evidence is not a matter within this court's province
on review. (See People v. Tabb, supra, 170 Cal.App.4th at p. 1154.)
In reaching its determination of the
amount of restitution due, the court found the prosecution had “substantiated .
. . the vast majority” of the $44,141.66 figure, but also felt given some of
the noted discrepancies it was appropriate to adjust the amount downward. The court considered the victims’ statements
of their losses and determined $40,000 was a fair and reasonable amount for
restitution and approximately equaled the amounted embezzled as proved by a preponderance
of the evidence. The trial testimony
provides a rational and factual basis for this determination. Accordingly, we find no abuse of discretion.
II
Defendant
next contends the trial court abused its discretion in denying his motion to
reduce his felony convictions to misdemeanors under section 17, subdivision
(b). He contends “[b]ecause there was no
competent evidence to support any dollar amounts that the jury found – the jury
findings were based on speculation and their felony findings should be
struck. And certainly no proof of the
element of fraud.” Defendant’s argument,
to the extent he makes one, again challenges the weight to be accorded the
evidence. On appeal, we do not reweigh
the evidence. Again, we find no abuse of
discretion.
Section 17, subdivision (b) allows a
trial court to choose between alternative felony or misdemeanor punishment
based on the language of the charging statute.
(People v. Superior Court
(Alvarez) (1997) 14 Cal.4th 968, 974.)
A court's discretion is to be exercised in accordance with the rules of
law and not moved by sympathy or prejudice.
(Id. at p. 977.) A party attacking
a court's discretionary sentencing ruling must show that the decision was
irrational or arbitrary. (
“In the absence of such a showing, the trial court is presumed to have
acted to achieve legitimate sentencing objectives, and its discretionary
determination to impose a particular sentence will not be set aside on
review.' [Citation.]" (Alvarez,
supra, 14 Cal.4th at pp. 977-978.) A
trial court “‘exceeds the bounds of reason’” when its decision goes beyond an
individualized consideration of “‘the offense, the offender, and the public
interest.’” (Id. at p. 978.)
The record reflects the trial court
considered the facts and circumstances of the case, defendant’s lack of any
significant criminal history, his social history, his active family and
community life, the support of his neighbors, his employment history, whether
defendant would be a danger to the community and the financial burden a felony
conviction would place on defendant’s family.
After considering these factors, the court denied the motion finding it
was not in the interests of justice to reduce the felonies to misdemeanors. The court properly considered the relevant
factors and acted to achieve legitimate sentencing objectives. Accordingly, we find no abuse of discretion.
DISPOSITION
The judgment is
affirmed.
BLEASE , Acting P. J.
We concur:
HULL
, J.
MAURO
, J.
name="_ftn1" title="">[1] Undesignated statutory references are to
the Penal Code.
