P. v. Latou



Filed 1/5/11 P. v. Latou 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE, Plaintiff and Respondent, v. CATHY A. LATOU, Defendant and Appellant.

2d Crim. No. B224045 (Super. Ct. No. 1295300) (Santa Barbara County)

Cathy A. Latou appeals a judgment of conviction entered after she pleaded nolo contendere to grand theft by embezzlement, and forgery (20 counts). Latou also admitted that the theft exceeded $200,000, and that the criminal offenses involved a pattern of related felony conduct. (Pen. Code, §§ 487, subd. (a), 470, subd. (d), 12022.6, subd. (a)(2), 186.11, subd. (a)(1), (2).)[1] We conclude that the trial court did not err in sentencing and affirm.
FACTS AND PROCEDURAL HISTORY
Craig and Cynthia Makela, owners of the Santa Barbara Olive Company, employed Latou as the financial controller of the business. On March 2, 2009, Latou informed them that she had embezzled approximately $360,000 through her personal use of the business credit card. After their investigation, the Makelas discovered that Latou had embezzled $361,127 through misuse of the credit card, and approximately $156,522.84 by forging 20 business checks. Latou used the funds to gamble at an Indian casino, pay personal vehicle and mortgage payments, and obtain cash, among other things.
Prior to the preliminary examination and trial, Latou pleaded nolo contendere to one count of grand theft by embezzlement (count 1) and 20 counts of forgery (counts 2 through 21). (§§ 487, subd. (a), 470, subd. (d).) She also admitted that the theft exceeded $200,000, and that the criminal offenses involved a pattern of related felony conduct. (§§ 12022.6, subd. (a)(2), 186.11, subd. (a)(1), (2).)
The trial court sentenced Latou to an upper-term of three years of imprisonment for grand theft by embezzlement, enhanced by three years and two years respectively for the special allegations, for a total of eight years. The court imposed midterm sentences of two years for counts 2 through 21, to be served concurrently. It also ordered $517,649.84 restitution to the Makelas, imposed a $10,000 restitution fine, and a $10,000 parole revocation restitution fine, among other fines, and awarded 672 days of presentence custody credits.
Latou appeals and contends that 1) section 654 precludes punishment for counts 2 through 21, and 2) the trial court erred by imposing the upper term of imprisonment for count 1.
DISCUSSION
I.
Latou argues that the trial court erred by not staying sentence on the forgery convictions (counts 2 through 21), pursuant to section 654. She asserts that the forgeries were a means of committing the embezzlement charged in count 1. (People v. Harrison (1989) 48 Cal.3d 321, 335 [defendant may be punished only once where crimes are the means of accomplishing or facilitating one objective].) Latou contends that all counts were committed during an indivisible course of conduct with the single intent and objective of theft.
Section 654, subdivision (a) precludes punishment of an act or omission under more than one provision of law. "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." (Ibid.) Section 654 applies not only to a single act or omission, but also to a course of conduct that violates more than one statute. (People v. Wynn (2010) 184 Cal.App.4th 1210, 1214.)
Application of section 654 turns on a defendant's intent and objective in violating multiple statutory provisions. (People v. Britt (2004) 32 Cal.4th 944, 951-952.) If all the criminal offenses are incident to one objective, a defendant may be punished for only one offense. (People v. Wynn, supra, 184 Cal.App.4th at pp. 1214-1215.) The determination whether a defendant held more than one objective is a factual one that must be supported by substantial evidence. (Id. at p. 1215; People v. Hairston (2009) 174 Cal.App.4th 231, 240.) The trial court's findings regarding a defendant's intent and objective may be explicit or implicit. (People v. Tarris (2009) 180 Cal.App.4th 612, 626.)
Here the felony complaint charged Latou with one count of embezzling more than $400, and 20 counts of forgery, each with a specific check number and amount. Latou misused the business credit card and incurred $361,127 in fraudulent charges. She also forged 20 checks, amounting to theft of an additional $156,522.84. The crimes occurred during a period of 28 months. Sufficient evidence supports the trial court's implied conclusion that Latou held more than one intent and objective. (People v. Williams (1980) 106 Cal.App.3d 15, 20 ["intent to defraud" too general an objective to constitute one transaction and preclude punishment for divisible separate offenses].)
II.
Latou contends that the trial court abused its discretion by imposing the three-year upper term based upon the large amount of the theft because the special allegations enhanced her sentence for the same reason. (Cal. Rules of Court, rule 4.420(c).) She points out that section 1170, subdivision (b) precludes imposition of an upper term of imprisonment "by using the fact of any enhancement upon which sentence is imposed under any provision of law." Latou adds that her psychological problems, early plea, and lack of a criminal record are mitigating factors in selecting punishment.
For several reasons, we reject Latou's contention. First, she has forfeited this particular argument because she did not specifically raise it in the trial court. The absence of a timely objection works a forfeiture when the trial court erred in its discretionary sentencing choices, including instances in which it "double-counted a particular sentencing factor." (People v. Scott (1994) 9 Cal.4th 331, 353.) The reason for this rule is to encourage prompt detection and correction of error and to reduce unnecessary appellate challenges. (Id. at p. 351.) The rule applies here because Latou did not specifically object to the dual use of the amount taken to impose both the upper term and the sentence enhancements. (People v. de Soto (1997) 54 Cal.App.4th 1, 8.)
Second, when a trial court has stated proper and improper reasons for a sentence choice, a reviewing court will set the sentence aside only if it is reasonably probable that the trial court would have chosen a lesser sentence had it known that some of its reasons were improper. (People v. Price (1991) 1 Cal.4th 324, 492.) Moreover, only a single aggravating factor is required to impose an upper term of imprisonment. (People v. Osband (1996) 13 Cal.4th 622, 728.)
Here the sentencing court stated several aggravating factors: the criminal scheme reflected planning and sophistication; Latou took advantage of a position of trust; and the large amount of money taken. The trial judge also stated that he had a particular length of imprisonment "in mind" that he thought was appropriate. Given the trial court's statement of reasons and comments, it is not reasonably probable that Latou would have received a lesser sentence had the trial court not relied upon the amount of the theft as an aggravating factor. (People v. Bravot (1986) 183 Cal.App.3d 93, 98.)
The judgment is affirmed.
NOT TO BE PUBLISHED.




GILBERT, P.J.


We concur:



COFFEE, J.



PERREN, J.

George Eskin, Judge

Superior Court County of Santa Barbara

______________________________


Richard B. Lennon, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Linda C. Johnson, Supervising Deputy Attorney General, Eric J. Kohm, Deputy Attorney General, for Plaintiff and Respondent.


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