The opinion of the court was delivered by: Blease , Acting P. J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Following his convictions for embezzlement (Pen. Code, § 508)*fn1 and grand theft (§ 487, subd. (b)(3)), the court ordered defendant to pay $40,000 in victim restitution and denied his section 17, subdivision (b) motion to reduce the felony convictions to misdemeanors. On appeal, defendant contends the restitution order and denial of his motion constituted abuses of discretion. We affirm the judgment.
Between 2003 and 2006, defendant Randy Scott Barr worked at the Cheese Cakes Unlimited restaurant for his close friends, Nicholas Parker and Cory Gabrielson. In early 2004, they trained him for a position as manager, stressing the need for accurate daily record keeping, documenting daily sales and entering daily financial data in the computer accounting program.
Among defendant's duties as manager was daily bookkeeping. At the end of each day, the servers would turn in their cash, checks, and credit card slips. The server would generate an "X-out" ticket, a calculation of the total sales for each server generated by a program in the cash register. The X-out ticket was checked against the cash, check and credit receipts of the server to ensure they matched. As the manager, defendant collected these records and then created a "Z-out" ticket. The "Z-out" ticket was a calculation of the day's total sales generated by a program in the cash register. Defendant was responsible for verifying the server totals and ensuring that cash totals balanced. He then prepared a "daily envelope" containing all the checks, credit card slips, X-out and Z-out tickets, and wrote the daily sales amount on the front of the envelope. The cash was placed in a separate bag, which was deposited in the bank generally once a week. Cheese Cakes Unlimited retained the daily envelopes as part of their business records. On February 20, 2006, defendant abruptly quit his job as manager. After his departure, Parker resumed responsibility for the financial records of the restaurant. Almost immediately, the actual daily cash amounts "increased drastically" from the periods reported during defendant's time as manager. Parker and Gabrielson then noticed several discrepancies between the slips in the daily envelopes and the amounts written on the outside. Parker examined all the records for the period of time when defendant was the manager and noted serious discrepancies on an almost daily basis. Parker and Gabrielson did a "recomputation" of the restaurant's daily sales figures for the period of March 13, 2004, through February 2006. The difference between the collective amount of revenue taken in, and the revenue reported by defendant, was $44,141.66.
There were occasional innocent discrepancies noted in the accounting as a result of human error, missing server slips, comped meals and tips paid out to cooks and servers. Also, during some of the relevant time frame, there was another employee suspected of embezzling approximately $5,500 in cash.
Following a jury trial, defendant was convicted of embezzlement (§ 508) and grand theft. (§ 487, subd. (b)(3).) Prior to sentencing, defendant moved to have his convictions reduced to misdemeanors under section 17, subdivision (b). Defendant's motion challenged the strength of the evidence at trial, and whether the entirety of the monetary discrepancies could be attributed to defendant. The motion pointed out defendant's lack of any significant criminal history, his active family and community life, the support of his neighbors and his employment history. The motion also noted the financial burden a felony conviction would place on defendant's family. The People opposed the motion. The court considered the parties' written and oral arguments on the matter, and denied the motion.
Prior to imposing sentence, the court specifically asked the parties to address the direct victim restitution amount noting, "I did have concerns during the trial about the -- the People having established with sufficient certainty that particular amount [$44,141.66]. There was another person accused of embezzlement during the same period of time, there were some poor accounting practices, I thought, and the jury didn't make any special finding about the amount embezzled. There were some missing server slips on different occasions, I feel comfortable that it's a high figure . . . ." The People argued the $44,141.61 figure was appropriate and the exact number could not be determined with greater accuracy. Defendant argued there were a number of ways in which the amount testified to could be inaccurate, and thought the "fair and equitable" resolution was to set the amount of restitution "in the middle."
The court found the prosecution had "substantiated . . . the vast majority" of the $44,141.66 figure, but felt it was appropriate to make a downward adjustment to account for some of the discrepancies noted. The court considered the evidence at trial and found $40,000 was a fair and reasonable amount for restitution and approximately equaled the amount embezzled as proved by a preponderance of the ...