Metropolitan News-Enterprise


Monday, August 8, 2011


Page 3


C.A. Reverses Enhancement for Riverside Woman’s Fraud Sentence


By a MetNews Staff Writer


The Fourth District Court of Appeal on Friday threw out a sentencing enhancement applied to a Riverside woman’s sentence for defrauding the homeowners association of the residential complex where she lived and embezzling from her former employer.

Div. One concluded that Kathy Ann Green’s thefts did not arise out of a “common scheme or plan” for purposes of Penal Code Sec. 12022.6’s and ordered one year be subtracted from Green’s of three year, eight month sentence.

Green became president of the board of the homeowners association where she lived in 2003. When she took over in that capacity, she served as the bookkeeper for the association and was responsible for paying its bills.

She was accused of spending about $12,000 of the association’s money for her personal benefit before her theft came to light in August 2004, when the bank notified another board member that the association’s account was “severely overdrawn.”

Green had also worked for 14 years at D&L Auto Parts in Blythe, Calif., as its office manager and secretary, before being terminated in 2004.

Her responsibilities 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.

In June 2004, the owners of D&L discovered multiple accounting discrepancies attributable to Green.

Green allegedly deleted invoices from the D&L computer system to free up cash in the till, delayed depositing customer checks to increase the amount of the deposit to offset the cash she stole from the business, and took cash from the business and recorded the amount as “cash paid-out” for dummy transactions allegedly made on behalf of the business.

Her theft from D&L resulted in a loss to the company of about $49,000.

She was charged with two counts of grand theft embezzlement. A jury found her guilty of both charges in November 2009, and found true an enhancement under Sec. 12022.6, based on its aggregation of the losses from both counts and its implicit finding the losses arose from a “common scheme or plan,” as required by the statute.

Riverside Superior Court Judge David B. Downing sentenced Green to the midterm of two years for count one, plus one-third the midterm for count two, and a one-year enhancement under Sec. 12022.6. He also ordered Green to pay $61, 681.63 in victim restitution.

When Green committed the charged crimes, Sec. 12022.6(a)(1) provided for a one-year enhancement if a defendant “takes, damages or destroys any property in the commission …of a felony, with the intent to cause that taking, damage[] or destruction,” and the loss exceeds $50,000. Subdivision (b) of this statute allowed losses to be aggregated “if the aggregate losses to the victims from all felonies exceed the amounts specified in this section and arise from a common scheme or plan.”

Writing for the appellate court, Justice Patricia D. Benke noted that Sec. 12022.6, as originally enacted, had contained no provision for aggregating losses. In 1990, the Legislature amended it to permit aggregation, and amended it again in 1992 to raise the statutory minimum for imposition of the enhanced terms.

This 1992 amendment also provided for the first time the aggregation of losses if they arose from a “common scheme or plan,” but the Legislature did not define the meaning of these words.

Benke explained that the courts “typically presume that the Legislature meant what it said,” and reasoned “the words ‘common scheme or plan’ in subdivision (b) of section 12022.6 do not have a technical meaning, but rather are understood to have a plain, ordinary meaning these words commonly convey.”

She noted that the Legislature has used this phrase, or similar wording, in multiple statutes, such as the money laundering statute, Sec. 186.10(c)(2)(B); Sec. 500, which governs the failure by a person to transmit funds to a foreign country as instructed by a customer; and Welfare and Institutions Code Sec.10980, which addresses welfare fraud.

Such wording is also frequently used in discussing the admissibility of evidence under Evidence Code Sec. 1101 to prove, among other things, the defendant committed the act charged, Benke added.

If the Legislature had intended this phrase to have a technical meaning, she posited that “it undoubtedly would have expressed that intent in the statute, in the legislative history of the amendment to the statute or in at least one of the related ‘network of statutes’ that use the exact same words.”

Based on this construction of Sec. 12022.6, however, the justice concluded the losses attributable to Green in count one and count two were not shown to be part of the same overarching plans.

She emphasized that “the two victims in counts 1 and 2 were not connected; the crimes were not intertwined; the methods of theft Green used to commit each crime were dissimilar; and the schemes to defraud were separate and distinct and not contingent on each other.”

Joined by Justices James A. McIntyre and Cynthia Aaron, Benske said “[w]e thus agree with Green there is insufficient evidence in the record to support the jury’s finding the losses in counts 1 and 2 arose from a ‘common scheme or plan’ as we have defined those words in this opinion.”

The case is People v. Green, 11 S.O.S. 4300.


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