Filed 7/6/16 P. v. Prezzy CA1/4
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                 DIVISION FOUR


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A147064
v.
RAYMOND PREZZY,                                                      (Solano County
                                                                     Super. Ct. No. FCR311609)
         Defendant and Appellant.


         Raymond Prezzy (appellant) appeals from his post-jury trial conviction and
sentence for one count of grand theft by embezzlement (Pen. Code,1 487, subd. (a)).
Appellant’s counsel has filed an opening brief in which no issues are raised, and asks this
court for an independent review of the record as required by People v. Wende (1979) 25
Cal.3d 436. Counsel has declared that appellant has been notified that no issues were
being raised by counsel on appeal, and that an independent review under Wende instead
was being requested. Appellant was also advised of his right personally to file a
supplemental brief raising any issues he chooses to bring to this court’s attention. No
supplemental brief has been filed by appellant personally.
                            Procedural and Material Factual Background
         An amended criminal complaint was filed on June 30, 2015, by the Solano County
District Attorney charging appellant with one count of grand theft by embezzlement


         1
         All further statutory references are to the Penal Code, unless otherwise
indicated.


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(§ 487, subd. (a)), with the allegation that the violation was not discovered until
August 23, 2011. Appellant pleaded not guilty to this charge on June 30, 2015.
       An information charging the same offense and making the same allegation of
discovery was subsequently filed on July 7, 2015.2
       A demurrer to the charge was filed by appellant contending that count one was
barred by the applicable statute of limitations. That demurrer ultimately was heard on
August 19, 2015, and overruled. In doing so, the trial court determined that the four-year
statute of limitations set forth in section 801.5 applied to the charged crime, and the
amended complaint and subsequent information which alleged that the embezzlement
was not discovered until August 2011 was legally sufficient.
       A two-day jury trial was held in October 2015. The evidence presented at trial
included the following:
       The victim, Valencia Goodings (Goodings), testified that she first met appellant at
Geovera Holdings, Inc., a property and casualty insurance company where she was
employed, in 2006 or 2007. Appellant had been hired as a temporary employee in
accounts receivable and the two interacted all day long on a daily basis. Appellant was
later given a job offer for a permanent position with Geovera.
       At some point appellant told Goodings that he was interested in starting his own
business “flipping” real estate. Goodings expressed interest in this potential new venture.
After appellant left Geovera, he met with Goodings to talk about his business. He
explained to her that he would flip properties and put the net proceeds into a real estate
Roth IRA for investors.
       They met again on September 23, 2007. During that meeting, Goodings told
appellant that her goals were to pay off the second mortgage on her home, and to
accumulate an emergency fund to help them in the event either she or her husband
suddenly became unemployed. Goodings testified that appellant told her that the real
estate Roth IRA was a good vehicle to meet these goals. He showed her some potential
       2
          The discovery allegation was included to meet the statute of limitations, which
is four years from discovery or from when discovery would reasonably have occurred.


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properties in the $100,000 range that he was considering buying as investments.
Goodings and appellant agreed that appellant would locate properties, present them to
her, and then they would discuss whether or not she and her husband wanted to purchase
them. Goodings signed a contract at this meeting and gave appellant one check for
$10,000 and another for $1,000 to be used to go forward with the real estate Roth IRA.
The $10,000 would stay in the account earning interest until it was needed to purchase
property. The $1,000 was to cover “initial” fees.
       Goodings testified that at that time she and her husband Alexander recently had
moved to California, and they wanted to find someone local to handle their taxes.
Because she knew and felt comfortable with appellant, she and her husband also hired
appellant to prepare their taxes. Appellant prepared the Goodings’ taxes in 2008, 2009,
and 2010.
       Alexander then lost his job, and Goodings had been on his health insurance. The
couple became unable to pay bills because of Alexander’s unemployment and
Goodings’s resulting lack of adequate medical insurance.
       Goodings testified that she decided to liquidate their Roth IRA account in 2009,
and told appellant that she wished to do so. Appellant told Goodings that she and her
husband were “taking the bread and butter out of his mouth,” and so Goodings decided to
leave the money where it was and instead to focus on her health.
       On July 18, 2011, Goodings told appellant again that she wished to liquidate the
account. Appellant told her about the penalties and fees associated with liquidation, and
Goodings said she and husband would pay them. Goodings sent an email to appellant
confirming their decision. Appellant did not respond.
       One month later, Goodings received a deficiency notice from the Internal Revenue
Service (IRS) stating that she and her husband owed $32,000. She then called the IRS
and learned that it had sent three notices, but she had not received them. Among other
things, she also learned from the IRS that the address on their tax returns was not theirs.
The notices had been sent to SC Investments in Suisun City, which was appellant’s



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company. Goodings testified that she did not authorize any change of address for the tax
returns.
       Goodings continued to email appellant to liquidate her account, but appellant did
not respond. Finally, after she emailed him again on October 30, 2011, appellant
responded via email that he would proceed to liquidate the account, noting that it would
take 30 days to complete. Goodings replied that their contract did not say that liquidation
would take 30 days, and she asked again that he liquidate the account immediately.
Appellant responded that it would take until the end of the year to conclude. Goodings
testified that she did not hear back from appellant after that exchange, and that she and
her husband never received their $10,000.
       Officer Steven Garcia with the Fairfield Police Department testified that the
Goodings came to his office on August 23, 2011, to file a police report. He called
appellant, but appellant did not return his call.
       At the conclusion of the evidence defense counsel made a motion for judgment of
acquittal (§ 1118.1), arguing there was insufficient evidence to support the charge
because the prosecution had not proven that appellant had the specific intent to deprive
the victims of their funds, or that he converted the Goodings’ money for his personal
gain. The motion was denied by the court, which concluded there was substantial
evidence to support a verdict of guilt.
       The jury then was instructed on the applicable law. In addition to the question of
guilt, the issue of whether the prosecution was commenced within the four-year statute of
limitations period was submitted to the jury for decision. In this regard, the jury was
instructed that to meet the limitations period, the prosecution must have been commenced
within four years from the date the crime should have been discovered by the victim; that
is, “when the victim was aware of facts that would have alerted a reasonably diligent
person in the same circumstances to the fact that a crime may have been committed.”3
       3
         The four-year statute of limitations was applicable because the charged crime is
one those enumerated in section 803, subdivision (c)(1). This instruction also follows
CALCRIM No. 3410 and is consistent with applicable law as to the commencement of
the running of the statute of limitations. (People v. Zamora (1976) 18 Cal.3d 538, 561.)


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Thereafter the jury found appellant guilty of the charged offense, and found the offense
was not barred by the statute of limitations.
       A sentencing hearing took place on December 3, 2015, at which time the court
suspended imposition of sentence, and placed appellant on five years formal probation.
In addition, various conditions of probation were ordered, including that appellant serve
one year in the county jail. This sentence followed the probation department’s
recommendations.
       Appellant filed a timely notice of appeal on December 8, 2015.
                Conclusions Based Upon Independent Record Review
       Upon our independent review of the record, we conclude there are no meritorious
issues to be argued or that require further briefing on appeal. Appellant’s demurrer on
statute of limitations grounds was properly overruled, and his motion for judgment of
acquittal was properly denied. The jury was properly instructed on the applicable law,
and the jury’s subsequent findings were supported by the evidence. The sentence
appellant received was within the discretion of the trial court and was factually and
legally supported. At all times appellant was represented by counsel.
                                      DISPOSITION
       The judgment is affirmed.




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                                _________________________
                                RUVOLO, P. J.


We concur:


_________________________
REARDON, J.


_________________________
RIVERA, J.




A147064, People v. Prezzy


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