P. v. Zito























Filed 1/23/13 P. v. Zito 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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




>

PEOPLE, Plaintiff and Respondent, v. JENNIFER JOANNE ZITO, Defendant and Appellant.

2d Crim. No. B233685 (Super. Ct. No. 2009005679) (Ventura County)

Jennifer Joanne Zito
(Zito) stands convicted of stealing more than $800,000 in cash and five vehicles
over the five-year period she worked as a bookkeeper for Simi Valley Cycles
(SVC). The trial court sentenced her to
18 years in prison. In this appeal, Zito
does not dispute the evidence of her guilt.
Instead, she argues that many of the charges are time-barred or
duplicative, and that her sentence is procedurally defective. We modify the judgment to include a court
facility assessment fee, and affirm the judgment in all other respects.

FACTS
AND PROCEDURAL HISTORY

I.
The Crimes

In 1999, Rod Kubes
(Kubes), the owner of SVC, hired Zito as a bookkeeper on the recommendation of
a friend that Zito was honest. From 2001
until she quit in March 2006, Zito pocketed cash from SVC's daily receipts. She concealed her embezzlement by
manufacturing, altering, or destroying SVC's internal records. Her actions made it nearly impossible to
detect the mismatch between the actual bank deposits and SVC's records of those
deposits. Through these means, Zito
siphoned more than $800,000 in cash over a five-year period. She used this money to finance her horse
training and show business, to remodel her home, and to lease or buy expensive
cars and boats.

On five occasions during
that period, Zito also stole from SVC:
(1) a Yamaha 50 motorcycle on December 21, 2001; (2) a Yamaha 600 quad vehicle on January 17, 2003; (3) a Grizzly
all-terrain vehicle on September 24,
2003; (4) a 2005 Yamaha TTR230 on February 25, 2005; and (5) a 2006 Yamaha
TTR50 motorcycle on November 10, 2005. Zito concealed these vehicle thefts by having
a straw purchaser tender a check, which Zito then removed from SVC's daily
deposits. Zito used the vehicles
herself, gave them away, or resold them for a profit.

II.
Discovery of the Embezzlement

When Kubes hired Zito,
he had his former bookkeeper's associates train her on SVC's procedures. Kubes did not double check Zito's work
because he mistakenly believed that his tax accountant was independently
verifying the accuracy of the deposits.
When the accountant in 2003 complained that Zito was late with the data
he needed, Kubes hired Zito an assistant.
Zito objected to having an assistant in her office, so Kubes moved the
assistant elsewhere because he did not want to "ruffl[e]" Zito's
"feathers" and because he trusted Zito. In May 2005, the accountant informed Kubes
that the sales information Zito had provided for the first quarter of 2005 was
identical to the data for the same quarter in 2004, and suggested Zito was
overworked or had sent the wrong figures.

Kubes would occasionally
have to loan money to SVC because SVC's accounts would sometimes become
overdrawn. Kubes viewed such loans as
"part of doing business" because SVC was often called upon to make
advance payments for sales taxes and inventory.
Throughout this time, Kubes thought SVC should have been more
profitable, but his accountant assured Kubes that SVC's five percent profit
margin was average.

It was not until March
2006 that Kubes became suspicious of wrongdoing. That is when Zito told Kubes that SVC's
financial data had been lost on the computer, which Kubes discovered was
untrue. It is also when Zito told Kubes
that the accountant kept SVC's deposit records, which Kubes also learned was
untrue.

III.
Prosecution

The People filed a
felony complaint against Zito on July 21,
2009. In March and April
2011, Zito proceeded to trial on the Second Amended Felony Information. The People charged Zito with six counts of
corporate embezzlement (Former Fin. Code, § 3531, repealed by Stats. 2011,
ch. 243, § 1, eff. Jan. 1, 2012)
in counts 1 through 6, and six parallel counts of grand theft (Pen. Code,
§ 487), in counts 7 through 12.href="#_ftn1" name="_ftnref1" title="">[1] The counts corresponded to the same
underlying conduct―the aggregated theft of more than $800,000 in currency
from SVC (counts 1 and 7) and the taking of each vehicle (the remaining
counts). Related to these counts, Zito
was tried on loss-related enhancements under section 186.11, subdivision (a)(2)
and 12022.6, subdivisions (a)(2) and (b).
Zito was also tried on five counts of href="http://www.fearnotlaw.com/">filing false tax returns (Rev. & Tax.
Code, § 19706 - counts 13-17) and one count of grand theft against a
different victim (§ 487, subd. (a) - count 19).

The jury convicted Zito
on these counts and found the enhancement allegations to be true.href="#_ftn2" name="_ftnref2" title="">[2] The jury also found that the prosecution was
timely. Before making this finding, the
jury was instructed that timeliness turned on "when the victim was aware
of facts that would have alerted a reasonably diligent person in the same
circumstances that that specific instance of embezzlement or theft may have
been committed." (CALCRIM No.
3410.) The jury was not asked to make
any findings about whether the theft of currency and vehicles was committed
with a single intention, general impulse or plan.

IV. Sentencing

Prior to sentencing, the
Probation Department issued its report and the parties filed their statements
in aggravation and mitigation. After
entertaining counsel's arguments, the trial court pronounced sentence and
denied Zito probation.

The court selected count
1 (the corporate embezzlement count) as the principal count and imposed
the upper term of four years. The court
cited four reasons for choosing the upper term: (1) Zito's crime showed "planning
and sophistication"; (2) "there was a great amount of
loss"; (3) Zito violated a position of trust and confidence; and (4) Zito
"rather cruelly stood by" as "a firsthand eyewitness"
"to the pain and difficulties that she was causing [Kubes] and [SVC], and
that was not sufficient to make her stop."
To this four-year base term, the court added another five years of
consecutive time for two different loss enhancements—namely, a two-year enhancement
under section 12022.6, subdivisions (a)(2) and (b), and a three-year
enhancement under section 186.11, subdivision (a)(2).

The court then imposed
consecutive subordinate terms of one year (one-third the middle term of three
years) on each of the vehicle embezzlement counts (counts 2 through 6). The court acknowledged that the vehicle
thefts were part "of an overarching scheme of stealing from the
employer." However, the court opted
for consecutive rather than concurrent terms.
In the court's view, "[t]he crimes were independent of each
other"; "[t]hey were committed at different times"; and
"there were thefts of different items and vehicles." As such, the crimes were "not part of
such a tightly woven scheme that one can say this should be treated as part and
parcel of the same ongoing offense."
The court stayed the parallel grand theft counts under section 654. The court also ran the tax fraud and other
theft conviction consecutively, yielding a total sentence of 18 years. The court did not impose the mandatory court
facilities assessment for each count as required by Government Code section
70373.href="#_ftn3" name="_ftnref3" title="">[3]

>DISCUSSION

I. The
Prosecution Was Timely

Zito argues that her
convictions under counts 1 through 5 and 7 through 11 must be overturned
because the jury's finding that the prosecution was timely is not supported by
substantial evidence. Specifically, she
argues that Kubes was not reasonably diligent in uncovering her embezzlement. We review the jury's finding for substantial
evidence (People v. Wong (2010) 186
Cal.App.4th 1433, 1444 (Wong)), and
that finding is amply supported here.

For crimes involving
breach of a fiduciary duty or grand theft, the statute of limitations period is
four years and begins to run once the commission of the offense is discovered
or completed, whichever comes later. (§§
801, 801.5, 803, subd. (c).) For these
purposes, a crime is discovered when the victim or law enforcement (1) learns
of the crime or (2) "learns of facts which, when investigated with
reasonable diligence, would make the person aware that a crime had
occurred. [Citation.]" (People
v. Bell (1996) 45 Cal.App.4th 1030, 1061; People v. Zamora (1976) 18 Cal.3d 538, 571-572.) Under the second prong, the facts must
indicate that a crime, criminal activity or, at a minimum, wrongdoing, has
occurred. (Zamora, supra, at pp.
571-572; People v. Kronemyer (1987)
189 Cal.App.3d 314, 334 (Kronemyer).) Facts indicating a loss or other irregularity
are not enough by themselves to trigger the running of the limitations
period. That is because "[t]he law
does not require an employer to investigate an employee absent circumstances
that are sufficient to make the employer suspicious of a crime." (>Wong,
supra, 186 Cal.App.4th at p. 1447, italics added; Kronemyer, supra, at p.
334; People v. Lopez (1997) 52
Cal.App.4th 233, 248.) A victim's duty
to investigate is even less onerous when a fiduciary relationship is
involved. (People v. Crossman (1989) 210 Cal.App.3d 476, 482.)

Zito argues that Kubes
should have started double checking her work from the outset. At a minimum, Zito contends, Kubes was surely
alerted that something was amiss when SVC's profits did not match his
expectations, when he had to repeatedly loan SVC money, when Zito sent the
wrong sales figures to the accountant, and when Zito asked to have her
assistant moved.

Zito's contention that
Kubes was obligated to be suspicious from the beginning is wrong as a matter of
law because it would impose a duty to investigate on the date of hire. The remaining factors Zito cites at best
alerted Kubes to a possible loss or to Zito's incompetence; they did not alert
him to any crime or wrongdoing. Kubes's
accountant found nothing unusual or criminal about SVC's profit margin or the
submission of the wrong sales figures.
Kubes regularly loaned money to SVC.
Kubes reasonably interpreted Zito's reaction to the assistant as a
concern about job security. In sum, the
jury's finding that these facts did not put Kubes on notice of criminal
wrongdoing is supported by substantial evidence.

II.
The Embezzlement of Cash and
Vehicles Are Separate Offenses

Zito next argues that
her five embezzlement convictions for the SVC vehicles must be overturned. She asserts that those counts are not
"separate and distinct" from the embezzlement of cash underlying
count 1. Separate convictions, she
argues, run afoul of People v. Bailey
(1961) 55 Cal.2d 514 (Bailey). Zito argues that she ran one scheme, with a
single overarching intent to steal from SVC and a single methodology of removing
checks or cash from the daily deposits.
Because Zito did not submit the issue to the jury, our review is limited
to assessing whether, as a matter of law, the "only reasonable conclusion
that the jury could have drawn" was that Bailey bars multiple convictions.
(People v. Jaska (2011) 194
Cal.App.4th 971, 983-985 (Jaska).)

Under >Bailey, a defendant may be convicted of
multiple counts of theft or embezzlement against the same victim if "the
evidence shows that the offenses are separate and distinct and were not
committed pursuant to one intention, one general impulse, and one plan. [Citation.]" (Bailey,> supra, 55 Cal.2d at p. 519; >Jaska, supra, 194 Cal.App.4th at p. 981.)
Bailey's mandate is
nuanced. Bailey requires more than a showing that the defendant had the
common intent to steal from the victim.
Instead, Bailey turns on a
fact-intensive inquiry into the similarity of the offenses, their proximity,
and even the defendant's motive in committing them. (Jaska,> supra, at pp. 984-985.)

Thus, when a defendant
is engaged in a continuous scheme using the same methods and obtaining the same
objects, separate charges are inappropriate.
(See People v. Packard (1982)
131 Cal.App.3d 622, 626-627 [defendant's scheme to falsely bill movie studio
may not be broken into three crimes, one for each calendar year]; >Kronemyer, supra, 189 Cal.App.3d> at p. 364 [defendant's scheme to drain
victim's four bank accounts may not be broken into four crimes, one for each
account]; People v. Tabb (2009) 170
Cal.App.4th 1142, 1149 [defendant's scheme to steal and resell scrap metal may
not be broken into multiple counts]; cf. People
v. Camillo (1988) 198 Cal.App.3d 981, 993-994 [defendant's scheme to obtain
welfare payments properly charged as a single offense].) Similarly, multiple convictions are
prohibited when the defendant steals multiple objects as part of the same
indivisible transaction. (See> People v. Richardson (1978) 83
Cal.App.3d 853, 866, overruled on other grounds in People v. Saddler (1979) 24 Cal.3d 671, 682, fn. 8 [defendant's
theft of four warrants for money at same time may not be broken into four
counts, one for each warrant]; People v.
Brooks (1985) 166 Cal.App.3d 24, 30-31 [defendant's theft from 14
consignees at a single auction may not be broken into 14 counts, one for each
victim]; People v. Gardner (1979) 90
Cal.App.3d 42, 47 [defendant's simultaneous shooting and theft of five pigs may
not be broken into five counts, one for each pig].)

But when the defendant
uses different means or acts opportunistically, separate charges are
permissible. Thus, in >Jaska, the court upheld separate charges
against an employee who embezzled from his employer from the petty theft
account, from company checks, and from the payroll account. (Jaska,
supra, 194 Cal.App.4th at pp. 971,
985; see also People v. Church (1989)
215 Cal.App.3d 1151, 1159 [defendant properly charged with three
petty-theft-with-a-prior counts for thefts from three offices in same
building]; People v. Woods (1986) 177
Cal.App.3d 327, 331-332 [defendant properly charged with 12 counts, one for
each bank account she used under a fictitious name, as part of a scheme to
commit welfare fraud]; People v. Sullivan
(1978) 80 Cal.App.3d 16, 20-21 [defendant not barred, as a matter of law, from
being charged separately for each cashier's check created from deposit of
single victim's check, but court erred in not submitting issue to jury as
defendant requested].)

The facts underlying the
embezzlement counts in this case do not compel the conclusion that they are all
part of the same "intention," "impulse" or
"plan." The embezzlements
charged in counts 1 through 6 dealt with different items (cash and different
vehicles), were committed on different dates, and had different purposes (to
use, to give away, and to resell).
Although Zito admittedly sought to steal from SVC when she embezzled the
vehicles and the cash, "Bailey
does not prohibit multiple convictions where the defendant commits a series of
thefts based on separate intents,
even if the defendant acts pursuant to the same
intent on each occasion.
[Citation.]" (>Jaska, supra, 194 Cal.App.4th at p. 984.)
Because the method, object, and motive varied in each of the six counts,
their consolidation is not mandated as a matter
of law.

III.
The Theft Offenses Are Not
Lesser-Included

Offenses
of the Embezzlement Offenses

Zito further asserts
that the grand theft counts (in counts 7 through 12) must be vacated for two
reasons. First, she posits that a jury
following the court's instructions could not find that she violated the
corporate embezzlement statute without also finding that she violated the grand
theft statute. Because the elements of
these two crimes overlap, she contends her convictions of the lesser-included
grand theft offense must be overturned under People v. Reed (2006) 38 Cal.4th 1224, 1227-1228. Second, Zito argues that embezzlement is a
theft offense under section 490a, and it is impermissible to stand convicted of
the same crime under two different theories.

Each of Zito's arguments
was rejected in People v. Nazary
(2010) 191 Cal.App.4th 727. There, the
defendant argued that grand theft by an employee was a lesser-included offense
of embezzlement by an employee under section 508. The Court of Appeal rejected the argument
because each crime required proof of an element the other did not—namely, theft
required proof of intent to deprive the owner of the property, and embezzlement
required proof of intent to defraud. (>Nazary, supra, at p. 742.) It
further rejected the defendant's subsidiary argument that these two offenses
were not separate crimes, but were instead alternative theories underlying a
single crime of theft. The Court
concluded that "the elements of embezzlement and grand theft by an
employee, and the distinction between them, continue to exist. [Citations.]" (Ibid.;
accord People v. Davis (1998) 19
Cal.4th 301, 304.)

Nazary controls. Here, the
statutory elements of grand theft and corporate embezzlement each contain a
different element. Grand theft requires
proof of intent to deprive the owner of the property stolen. (CALCRIM No. 1806.) Embezzlement requires proof of intent to
injure or defraud and that the defendant be an officer of a corporation. (CALCRIM No. 3410.) It does not matter that the grand theft
instruction in this case cross-referenced the corporate embezzlement
instruction for the definition of "embezzlement." The instruction incorporated the definition
for the act of embezzlement; in no
way did it incorporate the intent for
embezzlement. The offenses are
distinct. Because they are, >Nazary compels our rejection of Zito's
related argument that her theft convictions are invalid because they are
alternate theories of a singular crime of theft.

IV.
Zito's Sentence Is Not Defective

Zito raises two
challenges to her sentence. She contends
that the trial court violated California Rules of Court, rule 4.420(c) because
its reasons for imposing the upper term sentence on the principal embezzlement count
were already elements or enhancements of that offense. She also asserts that the trial court erred
in imposing consecutive sentences for the subordinate embezzlement counts
because they were part of the same overarching scheme.

Zito has forfeited these
claims by failing to object to the trial court's sentence. (People
v. Scott (1994) 9 Cal.4th 331, 350-353.)
Zito asks us to excuse her forfeiture because she had no opportunity to
object. A court need not explain its
reasoning with a tentative sentence before pronouncing judgment as long as the
court is willing to consider objections "at any time during the sentencing
hearing . . . ." (>People v. Gonzalez (2003) 31 Cal.4th
745, 752.) Although Zito raised no
objections after the court pronounced sentence, the record indicates that Zito
was advised of the possibility of an upper term and consecutive sentences in
the Probation Report, was given ample time to address the court prior to the
pronouncement of judgment, and was asked if there was "anything else"
to address after the pronouncement.
Zito's counsel was also not ineffective for not objecting because, as we
discuss next, her arguments lack merit.

Zito's objection to the
imposition of the upper term fails. We
may set aside a sentence "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. [Citation.]" (People
v. Cruz (1995) 38 Cal.App.4th 427, 433-434.) Even if we accept Zito's argument that the
trial court's reference to planning and sophistication, the amount of loss and
the violation of a position of trust constitutes a prohibited "dual use of
facts," we have no doubt that the trial court would have imposed the upper
term based on the fourth factor alone—that Zito was unmoved by the hardship her
crimes caused. Because a single factor
can support the imposition of an upper term sentence (People v. Castellano (1983) 140 Cal.App.3d 608, 615), there is no
basis for reversal.

Zito's objection to the
imposition of consecutive sentences fails for much the same reason we rejected
her Bailey claim. Her embezzlement of the vehicles was
sufficiently distinct from her embezzlement of cash. Those crimes were "committed at
different times . . ., rather than being committed so closely in time and place
as to indicate a single period of aberrant behavior." (Cal. Rules of Court, rule 4.425(a)(3).) We find no error in her sentence.

DISPOSITION

We modify the judgment
to include the imposition of a court facilities fee of $30 per count (18 counts
for a total of $540) and instruct the superior court to amend the abstract of
judgment accordingly and forward a copy to the Department of Corrections and
Rehabilitation. We affirm the judgment
in all other respects.

NOT TO BE PUBLISHED.







HOFFSTADT,
J.href="#_ftn4" name="_ftnref4" title="">*



We concur:





GILBERT, P. J.







PERREN, J.

James
P. Cloninger, Judge



Superior
Court County of Ventura

______________________________





Sylvia Whatley Beckham,
under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris,
Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E.
Winters, Senior Assistant Attorney General, Colleen M. Tiedemann, Daniel C.
Chang, Deputy Attorneys General, for Plaintiff and Respondent.