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The People v. Kimi Kollette Matsuno

December 27, 2012

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
KIMI KOLLETTE MATSUNO, DEFENDANT AND APPELLANT.



(Super. Ct. No. SF112602A)

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

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Defendant Kimi Kollette Matsuno pleaded guilty to charges of 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)),*fn1 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 ...


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