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The People v. Francisco Rudy Lopez

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)


January 14, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
FRANCISCO RUDY LOPEZ, DEFENDANT AND APPELLANT.

Super. Ct. Nos. 08F03541 & 05F10870

The opinion of the court was delivered by: Blease , Acting P. J.

P. v. Lopez 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

This case comes to us pursuant to People v. Wende (1979) 25 Cal.3d 436. Counsel filed an opening brief that sets forth the facts of the case and asked this court to review the record and determine whether there are any arguable issues on appeal. Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief. Defendant filed a supplemental brief, disputing his guilt, and asked this court to review the record. We consider this a challenge to the sufficiency of the evidence, in addition to our review of the record as required by Wende, and, with a correction to the abstract, affirm the judgment.

Following the well-established rule of appellate review, we recite the facts in the light most favorable to the judgment, drawing all reasonable inferences in support thereof. (People v. Bogle (1995) 41 Cal.App.4th 770, 775.)

Defendant worked as the assistant purchasing agent for Nutter Electric from 2006 to February 2008, purchasing items such as electrical materials and fulfilling purchase orders for construction jobs. Around February 1, 2008, defendant's supervisor, Kevin McClain, received an invoice from Home Depot showing the purchase of a patio heater for the Costco Woodland account on December 28, 2007. McClain's initials appeared on the invoice but he had not created the purchase order.

McClain asked defendant about the invoice and defendant claimed he did not know anything about it and suggested some other employees may have been involved in the unauthorized purchase. McClain then contacted the loss prevention department at Home Depot and was informed that Home Depot had a surveillance video of the person who purchased the patio heater. When McClain told defendant he was going to Home Depot to look at the video of the person who made the unauthorized purchase, defendant apologized and told McClain he took the patio heater, but that he needed to do it because he had a sick daughter at home.

McClain went to Home Depot and viewed the video. The video, however, was not clear enough for him to identify defendant as the person purchasing the heater. After discussing the matter with Norm Nutter and Project/Service Manager Stacy King, McClain met with defendant and King. Defendant said he felt bad for stealing the heater, apologized, and again explained that he needed to do it for his family. Defendant's employment was terminated.

McClain reviewed the company purchase orders and discovered three additional patio heaters that were ordered but never seen in the warehouse, as well as other miscellaneous items that were purchased but not located.

Defendant testified that he did not steal the heater and denied admitting he had done so to McClain or King. He claimed he ordered the patio heater for the warehouse because it was cold, but that the heater disappeared two days later. He mistakenly indicated on the purchase order that the heater was for a job, rather than for stock. He claimed he purchased three more heaters but each disappeared from the warehouse. He did not know how the initials on the first purchase order were changed to McClain's, but claimed McClain's initials were on one of the other purchase orders (for two heaters) because he used one of McClain's open purchase orders that time. He also mistakenly charged a job, rather than stock, for the second heater he ordered. Defendant and his wife also denied that the family needed money for their daughter's medical treatment because, they claimed, they were adequately insured. Police searched defendant's home but did not locate any patio heaters.

The jury found defendant guilty of violation of Penal Code section 508 (embezzlement by a clerk, agent, or servant). The trial court found defendant had violated his probation in case No. 05F10870, which involved a conviction for assault in violation of Penal Code section 245, subdivision (a)(1). The trial court sentenced defendant to the low term of two years in state prison for the assault and a consecutive eight months for the embezzlement. Defendant was ordered to pay $647.34 in restitution and was awarded 360 days of custody credit.

"In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Bolin (1998) 18 Cal.4th 297, 331.) We presume every fact in support of the judgment that the trier could reasonably deduce from the evidence. (People v. Kraft (2000) 23 Cal.4th 978, 1053.) Reversal is warranted only if it appears "'that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].'" (People v. Bolin, supra, 18 Cal.4th at p. 331, quoting People v. Redmond (1969) 71 Cal.2d 745, 755.) "In reviewing the record, we do not reweigh the facts. We look for evidence '"of ponderable legal significance . . . reasonable in nature, credible, and of solid value."' [Citations.] The testimony of one witness, unless it is physically impossible or inherently improbable, is sufficient to support a conviction." (People v. Provencio (1989) 210 Cal.App.3d 290, 306.)

Applying this standard, we find the evidence sufficient to support the judgment.

Penal Code section 508 provides in pertinent part: "Every clerk, agent, or servant of any person who fraudulently appropriates to his own use, or secretes with a fraudulent intent to appropriate to his own use, any property of another which has come into his control or care by virtue of his employment as such clerk, agent, or servant, is guilty of embezzlement."

Viewing the evidence in the light most favorable to the jury's verdict as set forth above, it was established that defendant was entrusted with making purchase orders for Nutter Electric and, instead, used his position as an assistant purchasing agent to order a patio heater which he converted for his own use. Thus, the evidence supports the judgment.

We do note, however, an omission from the abstract of judgment. The trial court ordered defendant to pay $647.34 in victim restitution. This order needs to be reflected on the abstract.

Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant.

DISPOSITION

The judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment reflecting the $647.34 in victim restitution and forward a certified copy thereof to the Department of Corrections and Rehabilitation.

We concur:

ROBIE , J.

MAURO , J.

20110114

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