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The People v. Kathy Ann Green

August 5, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
KATHY ANN GREEN, DEFENDANT AND APPELLANT.



APPEAL from a judgment of the Superior Court of Riverside County, David B. Downing, Judge. (Super. Ct. No. INF051265)

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

CERTIFIED FOR PUBLICATION

Affirmed in part; reversed in part.

Penal Code*fn1 section 12022.6, subdivision (b) provides the losses incurred in the commission or attempted commission of all felonies may be aggregated for purposes of imposing the prison enhancements provided under this statute if the defendant admits, or the trier of fact determines, the losses arose from a "common scheme or plan."

The jury in 2009 convicted defendant Kathy Ann Green of two counts of grand theft by embezzlement. (§§ 487, subd. (b), 503.) The jury also found true the one-year sentence enhancement in then-applicable subdivision (a)(1) of section 12022.6 based on its implicit finding the losses from the two counts arose from a "common scheme or plan."

Green contends the evidence is insufficient to support the jury's finding the losses from the two counts arose from a "common scheme or plan" as provided in subdivision (b) of section 12022.6. As we explain, we agree and reverse the imposition of the one-year sentence enhancement. In all other respects, the judgment of conviction is affirmed.

FACTUAL AND PROCEDURAL BACKGROUND*fn2

A. Count I

Green in 2003 became the president of the board of the homeowners association (HOA) where she lived. When she took over in that capacity, the HOA was without a bookkeeper. Green thus was the interim bookkeeper for the HOA and was responsible for paying the HOA's bills and keeping the checkbook reconciled.

HOA policy required the signature of two board members to sign checks drawn on the HOA bank account and board approval of any check over $500. Under no circumstances were board members allowed to draw on the HOA's funds to pay personal expenses.

While in control of the HOA's checkbook, Green used money from the HOA account to pay her own expenses. To overcome the two-signature policy, Green forged the signatures of other board members on the checks. Overall, Green spent about $12,000 of the HOA's money for her personal benefit. Her theft came to light in August 2004 when the HOA's bank notified another board member the HOA's account was "severely overdrawn." An audit of the HOA bank records revealed the accounting discrepancy. When the accounting discrepancy surfaced, Green stated she intended all along to pay back the money.

B. Count 2

Green worked for 14 years at D&L Auto Parts (D&L) in Blythe, California, until her termination in September 2004. As the office manager and secretary, Green's responsibilities at D&L included reconciling the daily sales invoices and receipts from the Blythe store and a second store, preparing the sales reports and depositing money into D&L's bank account. Green had access to the D&L computer system and had the authority to modify, adjust or delete sales invoices.

In summer 2004, the manager of D&L, who also was the son of the owners, found the amount of cash Green was depositing in D&L's bank account did not always match the amount of cash generated the previous day by the business. By way of example only, on September 1, 2004, the manager counted $400.68 in cash, yet Green only deposited $177.72 in cash. There also was a bank payout of $20 on that day.

In June 2004, one of the owners of D&L discovered an invoice for a refund check of $2,943 from a workers' compensation insurer. Although the invoice was in the file, when questioned, Green claimed she did know what became of the check itself. D&L's owners conducted a thorough audit of its records, which brought to light multiple accounting discrepancies attributable to Green:

Green deleted invoices from the D&L computer system to free up cash in the till. She also delayed depositing customer checks to increase the amount of the deposit to offset the cash she stole from the business. Green also took cash from the business and recorded the amount as "cash paid-out" for dummy transactions allegedly made on behalf of the business. Green's theft from D&L resulted in a loss to the company of about $49,000.

In November 2009, a jury convicted Green of two counts of grand theft embezzlement (§ 487, subd. (a), 503) and found true the enhancement under subdivision (a) of section 12022.6 after the jury aggregated the losses from counts 1 and 2 based on its implicit finding the losses arose from a "common scheme or plan" and exceeded $50,000.*fn3 (See § 12022.6, subds. (b), (c).) The trial court sentenced Green to the midterm of two years for count 1, plus one-third the midterm or eight months for count 2, plus one year under the enhancement for a total sentence of three years eight months. Among other assessments, the court ordered Green to pay $61, 681.63 in victim restitution ($12,681.63 on count 1, and $49,000 on count 2). Green challenges only the one-year sentence enhancement.

DISCUSSION

A. Governing Principles

"The rules governing statutory construction are well settled. We begin with the fundamental premise that the objective of statutory interpretation is to ascertain and effectuate legislative intent." (People v. Flores (2003) 30 Cal.4th 1059, 1063; see also People v. Trevino (2001) 26 Cal.4th 237, 240.) "To determine legislative intent, we turn first, to the words of the statute, giving them their usual and ordinary meaning. [Citations.] When the language of a statute is clear, we need go no further. However, when the language is susceptible of more than one reasonable interpretation, we look to a variety of extrinsic aids, including the ostensible objects to be achieved, the evils to be remedied, the legislative history, public policy, contemporaneous administrative construction, and the statutory scheme of which the statute is a part." (People v. Flores, supra, 30 Cal.4th at p. 1063.)

We thus turn to the words of ...


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