California Court of Appeals, Fourth District, Third Division
[REVIEW GRANTED BY CAL. SUPREME COURT]
[CERTIFIED FOR PARTIAL PUBLICATION[*]]
Appeal from a judgment of the Superior Court of Riverside County No. RIF1105527, Edward D. Webster, Judge.
Valerie G. Wass, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Michael Pulos, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found defendant Juanita Vidana guilty of one count of grand theft by larceny (Pen. Code, § 487, subd. (a)) and one count of grand
theft by embezzlement (§ 503). The trial court suspended imposition of sentence and granted defendant 36 months of formal probation. She was ordered to serve 240 days in jail: 30 straight days, and the remainder to be served on weekends. In addition to the usual fines and fees, defendant was ordered to pay $58, 273.02 in victim restitution. (§ 1203.1, subd. (a)(3).)
Defendant raises four issues on appeal. First, she contends the two counts, larceny and embezzlement, are not separate offenses, but two ways of committing a single offense: theft. Second, she contends substantial evidence does not support the verdict. Third, she contends the court abused its discretion in denying her motion to reduce the charges to misdemeanors (§ 17, subd. (b)). Fourth, she contends the court abused its discretion in setting the amount of restitution at $58, 273.02. In the published portion of this opinion, we agree with her first contention and strike her conviction under count 2 (grand theft). In the unpublished portion of this opinion, we reject her remaining contentions and affirm the remainder of the judgment.
Defendant worked for Robertson’s Ready Mix (Robertson’s), a company that sells concrete, from 2005 to 2011 as a credit agent. Her duties included ensuring invoices were paid, and providing a material release once an account was paid (most of Robertson’s customers would not have to pay for the concrete until the customer was paid on the particular job). Robertson’s recourse if it did not get paid was to file a lien. The credit agents were responsible for tracking the relevant time periods to ensure that, if necessary, a lien was timely filed. Each credit agent was assigned particular customers, up to as many as 400.
When a customer came into Robertson’s to pay an invoice with cash, the customer would tender payment to the assigned credit agent. The credit agent would then write a receipt for the customer. Next, the credit agent would write the customer number and amount of cash on an envelope, put the cash in the envelope, and take the cash to either Teri Bernstein or Megan Levato. If neither of them were available, the cash would go to a backup employee, Rosa. Bernstein or Levato would then count the cash and double check that the amount written on the envelope was accurate. Once the amount was verified, Levato would lock the money in her desk to be deposited in the bank. If the money came in too late to be deposited that day, Levato would put it into a safe. If Levato were not there, the money could be given to Kaye Bennett (defendant’s supervisor), the president of the company, or the ...