P. v. Matsuno

















Filed 12/27/12 P.
v. Matsuno 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NOT TO BE PUBLISHED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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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

(San Joaquin)




>

THE PEOPLE, Plaintiff and Respondent, v. KIMI KOLLETTE MATSUNO, Defendant and Appellant.

C068008 (Super. Ct. No. SF112602A)

Defendant
Kimi Kollette Matsuno pleaded guilty to charges of href="http://www.fearnotlaw.com/">embezzlement and burglary. She was awarded probation, ordered to pay
various fines and fees, and ordered to pay $28,600 in restitution to her
victim. Defendant appeals, claiming the
restitution order was an abuse of the trial court’s discretion, and the court
erred in calculating the amount of restitution.

We
do not agree the restitution order was an abuse of the trial court’s
discretion; we do, however, agree the court’s calculations are not supported by
the record on appeal. Accordingly, we
will remand the matter for the limited purpose of directing the trial court to
explain the basis for its calculations on the record and make all necessary
corrections to the restitution order, if any.

BACKGROUND

From
October 2007 to July 2009, defendant worked as a bookkeeper for Central Valley
Appliance (CVA), a business owned by Reinhard Kummerle. She was terminated from her position in July
2009, after Kummerle learned defendant was embezzling money from the
business. Defendant was subsequently
charged with grand theft by embezzlement (Pen. Code, § 487, subd. (a)),href="#_ftn1" name="_ftnref1" title="">[1] embezzlement (§ 503), and second degree commercial burglary (§
459). The alleged victim was identified
as CVA, and it was alleged the crimes were committed on or about April 1, 2009, through July 15, 2009. It was further alleged that defendant was
previously convicted of two felonies and served a prior prison term.

Defendant
pleaded guilty to embezzlement and burglary.
In exchange for her plea, the remaining charge was dismissed and the
enhancement allegations stricken.
Defendant was placed on five years of formal probation, ordered to serve
365 days in county jail, and ordered to pay various fines and fees. Defendant also was ordered to pay restitution
to the victim in an amount to be determined.

The
hearing on restitution began on May 12, 2010. Kummerle testified that he was contacted by
the company who handled the credit card processing for CVA. Together they discovered $3,569.01 in credit
card refunds that should have been credited to CVA’s account, but were credited
to either defendant’s account or her boyfriend’s.

The
People then introduced into evidence two “packets of documents,” one for 2008
and one for 2009; both included invoices and receipts for appliances at
CVA. Defendant objected to the 2008
documents, arguing that the amended information only charged her with crimes
committed in 2009. The court overruled
the objection.

When
asked how he compiled the documentation to support his claimed losses, Kummerle
explained that he and “two other secretaries” went “through all the paperwork”
to determine whether there were losses other than the money found by the credit
card company. They pulled any invoices
with irregularities in an effort to find appliances that were purchased by CVA
but were not in the warehouse and for which CVA had no record of payment by a
customer.

Kummerle
then separated those documents into the two packets produced by the People, one
for losses in 2008 and one for losses in 2009.
The paperwork in each year was then broken into two more groups: one reflected missing inventory for which he
had some documentation, the other was for missing inventory for which there was
no documentation. Kummerle acknowledged
that calculating his total losses was difficult because defendant “had full
control over all of [the] paperwork,” during the time she worked for him and he
may not be “correct in all of these.” He
was, however, certain that these types of losses did not occur before defendant
began working for him and stopped occurring after she was fired.

Thus,
according to Kummerle’s records, his total losses attributable to defendant
were $49,952.45. The matter was
continued to allow defendant the opportunity to investigate the invoices
Kummerle claimed were irregular.

The
hearing resumed nearly one year later. As
a result of defendant’s investigation, the People agreed that $18,224.28 of the
losses claimed by Kummerle were not attributable to defendant. Defendant was thus ordered to pay $28,600 in
direct restitution to Kummerle.

DISCUSSION

I

Defendant
contends the trial court abused its discretion in ordering defendant to pay,
without a Harveyhref="#_ftn2" name="_ftnref2" title="">[2] waiver, losses that were outside the dates alleged in the
information. Defendant is wrong.

When
a defendant is awarded probation as part of a href="http://www.mcmillanlaw.com/">plea agreement and the plea “does not
expressly or impliedly include uncharged incidents, a >Harvey waiver is not required.” (>People v. Snow (2012) 205 Cal.App.4th
932, 939 (Snow).)

Moreover,
“section 1203.1, subdivision (j) grants broad discretion to the trial courts to
prescribe the conditions of probation to foster rehabilitation and to protect
public safety. [Citation.] The court is
not limited to the transactions or amounts of which defendant is actually
convicted. Indeed, restitution has been
found proper where the loss was caused by related conduct not resulting in a
conviction. [Citation.] Restitution has also been found proper for
conduct of which a defendant has been acquitted [citation] uncharged conduct,
and conduct for which the statute of limitations has run [citation]. ‘[I]t is well settled that a court may impose
a victim restitution order as a condition of probation regardless of whether or
not the defendant has been convicted of the underlying crime.’ [Citation.]” (Snow,
supra, 205 Cal.App.4th at pp. 939-940, fn. omitted.)

“The
test for determining the validity of a restitution order as a condition of
probation is the same as for any other condition of probation that requires or
forbids conduct that is not itself criminal.
The condition must reasonably be related either to the crime of which
defendant is convicted or to the goal
of deterring future criminality.
[Citations.] We review the
imposition of any condition of probation for abuse of discretion and reverse
only when the trial court’s determination is arbitrary or capricious or
‘ “ ‘ “exceeds the bounds of reason, all of the circumstances
being considered.” ’ ” ’
[Citation.]” (>Snow, supra, 205 Cal.App.4th at p. 940.)

The
order that defendant pay restitution to the victim for business losses
attributable to her satisfies either prong of that test. Defendant was convicted of embezzling from
Kummerle; ordering her to reimburse him for the amount she embezzled is directly
related to the crime for which she was convicted. Moreover, compelling defendant to reimburse
Kummerle for the money she embezzled is likely to deter her from committing
similar crimes in the future.

We
thus conclude the trial court’s order was neither arbitrary nor capricious.

II

Defendant
further contends the trial court abused its discretion by basing the amount of
restitution upon information that was “vague or inaccurate.” Specifically, defendant argues the victim’s
testimony regarding his losses was “vague, unreliable, and inaccurate.
. . .” We are not persuaded.

In
determining the amount of restitution and the victim’s loss, “ ‘any
rational method’ ” may be employed and due process is satisfied as long as
the “ ‘informational inputs’ ” are reasonably accurate and reliable. (People
v. Goulart (1990) 224 Cal.App.3d 71, 83.)
Defendant bears the burden of showing the victim’s estimates are
excessive. (Id. at pp. 83-84.)

At
the restitution hearing, Kummerle explained how he and his secretaries
identified irregular invoices, which reflected “missing” inventory, during the
time defendant was working for CVA.
Kummerle itemized those invoices for the court to support his claimed
losses. Kummerle said CVA did not have
losses such as these before he hired defendant and CVA no longer had them after
she was fired. Kummerle admitted he was
not certain all of the irregular invoices he identified were attributable to
defendant embezzling; he was, however, as certain as he could be given that she
was the person in control of the paperwork during that time period.

Given
the circumstances here, where defendant was the person in charge of paperwork
and admittedly embezzling from CVA, Kummerle’s method for determining his
losses was not irrational. That
defendant was able to prove $18,224.28 of the claimed losses were not
attributable to her does not diminish the rationality of the methodology used
to identify losses attributable to defendant, nor does it render Kummerle’s
testimony “suspect” as defendant contends.
What defendant’s investigation does show, is that the methodology
accepted by the trial court to calculate restitution was not perfect. The trial court is not required to be perfect
in its methodology for calculating restitution, only rational. (People
v. Goulart, supra, 224 Cal.App.3d at
p. 83.)

We
thus conclude the court did not abuse its discretion in relying on Kummerle’s
testimony and documentation to calculate restitution.

III

Defendant
further claims that, even excluding the other claimed errors on appeal, the
amount of restitution ordered by the trial court is not supported by the
record. The People agree “it is not
clear from the record how the court arrived at the total amount of
restitution,” but argues we need not remand the matter for clarification.

After
reviewing the record, we agree it is unclear how the trial court reached
$28,600 based on the amounts testified to at the restitution hearing. The amounts recited by the court on the
record are inconsistent with the amounts testified to at the restitution
hearing. There may have been some
discussion off the record that resulted in a change to the numbers found in the
record, there may have been a math error, or a simple transcription error. In any event, we are not in a position to
determine precisely what the trial court was looking at or taking into account
when ordering the final amount of restitution.

Accordingly,
we remand this matter for the limited purpose of having the trial court clarify
how the amount of restitution was calculated and make any necessary corrections
to the restitution order based on that clarification.

DISPOSITION

The
matter is remanded for the limited purpose of allowing the trial court to
clarify how the amount of restitution was calculated and make any necessary
corrections to the amount of restitution order based on that
clarification. The judgment is otherwise
affirmed.





BLEASE ,
Acting P. J.





We
concur:





HULL , J.





DUARTE , J.