Filed 12/22/14 P. v. Gonzalez 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                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                         (Butte)
                                                            ----




THE PEOPLE,                                                                                  C075154

                   Plaintiff and Respondent,                                    (Super. Ct. No. CM032852)

         v.

GLORIA ANNA GONZALEZ,

                   Defendant and Appellant.




         Defendant Gloria Anna Gonzalez pled guilty to embezzlement, filing a false
income tax return, illegally procuring a state-issued income tax return refund, and
drafting multiple insufficient funds checks (writing bad checks). The trial court
sentenced defendant to seven years in state prison. The court imposed the upper term of
three years for embezzlement, with a two-year enhancement for loss exceeding $200,000.
The trial court ordered one-third the middle term (eight months each) for the three
remaining counts. The trial court found the crimes and objectives to be independent of
one another and ordered the sentence for each count to run consecutively.

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       On appeal, defendant contends the trial court erred by imposing the upper term for
embezzlement because the court: (1) considered elements of embezzlement as
aggravating factors; and (2) ignored additional mitigating factors. Defendant also
contends her sentence for writing bad checks must be stayed pursuant to Penal Code1
section 654 because the only objective in writing those checks and in the embezzlement
was to steal money from the City of Gridley (the city). We disagree and affirm.
                   FACTUAL AND PROCEDURAL BACKGROUND
       In August 2010, Melanee Montero located a check in her name from her
employer, the city, that was not issued to her, and that was sent to a post office box that
was not hers. She reported the check to the Gridley Police Department. Officer Scott
Olsgard determined the check was deposited into defendant’s bank account and
defendant rented the post office box listed on the check.
       Defendant worked as a senior accountant technician for the city. Her duties
included payroll, sending and receiving bank account statements by the city, and signing
checks to certain vendors. Karin Helvey, the finance director for the city, instituted an
internal audit of the city’s funds. She found 22 checks fraudulently reissued or voided
and then later deposited into defendant’s personal account.
       On September 14, 2010, officers from the Gridley Police Department executed a
search warrant at defendant’s home. The officers seized several computers, checks
written to and from the city, and bank statements. Officers found a paper spreadsheet
containing the names of numerous city employees, social security numbers, and personal
account numbers. On defendant’s computer, police found defendant’s tax returns for
2008 and 2009 and a bank statement for the city. According to defendant’s tax returns,
she filed fraudulent income tax returns and illegally obtained refunds for tax years 2008




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

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and 2009. A spreadsheet on defendant’s computer listed the bad checks and tracked
money transfers with color-coding and abbreviations.
       Over the three-year period under investigation, the city’s loss totaled $373,873.10.
       On July 22, 2013, defendant pled guilty to embezzlement, filing a false income tax
return, illegally procuring a state-issued income tax return refund, and writing bad
checks. Defendant admitted two enhancements for participation in a theft exceeding
$100,000 and taking property exceeding $200,000.
       On October 25, 2013, the trial court sentenced defendant to seven years in state
prison. The trial court imposed an aggravated three-year term for the embezzlement
count because it found “on balance, that the circumstances in aggravation outweigh[ed]
the circumstances in mitigation.” The trial court found: (1) the crime was committed in
a manner that indicated planning, sophistication, and professionalism; (2) the crime
involved the taking of great monetary value; (3) defendant took advantage of a position
of trust or confidence; and (4) defendant involved her children in her embezzlement
scheme.
       At sentencing, the court noted as follows: “[D]efendant involved her children, one
of whom was a teenager when she recruited her in her embezzlement scheme. Her two
daughters are now convicted felons; her son is now a convicted felon due to her
involvement of them in her crimes.” When her crimes were discovered, defendant had
access to all of the city’s accounts, financial records, and financial systems. She
produced the city’s checks; she had access to all of the employees’ accounts and
passwords. Defendant’s coworker, Montero, who was also a relative by marriage, wrote
to the court stating that defendant had used her name to embezzle approximately $58,000
by forging her signature on several checks. Montero suffered “a lot of anguish over the
violation of her trust and knowing that . . . defendant . . . had access to all of her financial
and personal security information.”



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       In mitigation, the trial court recognized defendant had no prior criminal history
and had expressed remorse in her letter to the court.
       In addition to the upper term of three years for embezzlement, the court imposed a
two-year enhancement for loss exceeding $200,000. The trial court then imposed the
upper term of three years for each of the three remaining counts, but ordered one-third the
middle term on each count. The trial court found the crimes and objectives to be
independent of one another and ordered the sentences for each count to run
consecutively.
                                      DISCUSSION
                                             I
                     The Trial Court Did Not Abuse Its Discretion In
                      Imposing The Upper Term For Embezzlement
       Defendant contends the trial court abused its discretion by imposing the upper
term for embezzlement because the court: (1) considered elements of embezzlement as
aggravating factors; and (2) ignored additional mitigating factors. We disagree.
       When a judgment of imprisonment is to be imposed and the statute specifies three
possible terms, the choice of the appropriate term rests within the sound discretion of the
court. (§ 1170, subd. (b).) In exercising its discretion to impose judgment, the court may
consider circumstances in aggravation or mitigation, and any other factor reasonably
related to the sentencing decision. (Cal. Rules of Court, rule 4.420(b).)
       Circumstances in aggravation may justify imposition of the upper of three possible
prison terms. (§ 1170, subd. (b).) Aggravating circumstances are facts that make the
offense distinctively worse than the ordinary, including those relating to the crime and
relating to the defendant. (Cal. Rules of Court, rule 4.421; People v. Black (2007) 41
Cal.4th 799, 817.) The court is not permitted to use a reason to impose a greater term if
that reason also is either: (1) the same as an enhancement that will be imposed; or (2) an
element of the crime. (Cal. Rules of Court, rule 4.420(d); People v. Clark (1992) 12

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Cal.App.4th 663, 666.) A sentencing factor is an element of the offense if the crime as
defined by statute cannot be accomplished without performance of the acts which
constitute such factor. (See People v. Garcia (1989) 209 Cal.App.3d 790, 793-794.)
       The court must put forth on the record the reasons for imposing the term selected,
but the court may minimize or even entirely disregard mitigating factors without stating
its reasons. (§ 1170, subd. (b); People v. Lai (2006) 138 Cal.App.4th 1227, 1258; citing
People v. Salazar (1983) 144 Cal.App.3d 799, 813.) The trial court’s sentencing decision
under the amended sentencing scheme is reviewed for abuse of discretion. (People v.
Sandoval (2007) 41 Cal.4th 825, 847.)
                                             A
                              Circumstances In Aggravation
       First, defendant argues the trial court was wrong to consider the manner of
“planning, sophistication and professionalism” in the embezzlement as an aggravating
circumstance because it is an element of the crime of embezzlement. According to
defendant, “the planning, sophistication and professionalism of every embezzlement is a
given, because of the specific relationship of trust and the intent to defraud.” Defendant
is mistaken.
       “ ‘ “ ‘The essential elements of embezzlement are the fiduciary relation arising
where one intrusts property to another, and the fraudulent appropriation of the property
by the latter.’ ” ’ ” (Breceda v. Superior Court (2013) 215 Cal.App.4th 934, 956.) The
California Rules of Court allow the trial court to consider in aggravation the manner in
which the crime was carried out as it indicates planning, sophistication, or
professionalism. (Cal. Rules of Court, rule 4.421(a)(8).)
       The elements of embezzlement do not require that a defendant have any level of
sophistication, planning, or professionalism in his or her scheme. (Breceda v. Superior
Court, supra, 215 Cal.App.4th at p. 956). That the city trusted defendant as a senior
accountant technician and she took advantage of that relationship to embezzle over

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$350,000 does not by statute require she did so with planning, sophistication, or
professionalism. Because planning, sophistication, and professionalism are not elements
of the crime, the trial court correctly considered the manner in which defendant
embezzled money from her employer as an aggravating circumstance. (Cal. Rules of
Court, rule 4.421(a)(8).)
        Second, defendant argues the trial court was wrong to consider the “taking of a
great value” as an aggravating circumstance because the court imposed a two-year
enhancement for the same reason. (Cal. Rules of Court, rule 4.420(d); People v. Wilks
(1978) 21 Cal.3d 460, 470.) Defendant ignores the fact that she embezzled from the city
an amount exceeding the minimum required for enhancement.
        The California Rules of Court provide that a taking or damage of great monetary
value may be considered as a circumstance in aggravation. (Cal. Rules of Court, rule
4.421(a)(9).) Here, defendant embezzled $373,873.10 from her employer. As the People
point out, this amount was far and above the minimum loss necessary to qualify for
imposition of the enhancement.
        Finally, defendant argues the trial court was wrong to consider the fact defendant
“took advantage of a position of trust or confidence” as an aggravating circumstance
because it was an element of the crime. Defendant argues “in order to embezzle from the
City of Gridley, [defendant] had to have an intent to defraud her employer with whom
she had a relation of trust and confidence.” We read the record differently.
        Where the facts surrounding the charged offense exceed the minimum necessary
to establish the elements of the crime, the trial court can use such evidence to aggravate
the sentence. (People v. Castorena (1996) 51 Cal.App.4th 558, 562.) As to the city, that
defendant took advantage of her position of trust or confidence is an element of the crime
and thus cannot be considered in aggravation (People v. Clark, supra, 12 Cal.App.4th
663, 666); however, the trial court’s review did not end with the financial harm to the
city.

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       Here, the court noted defendant had access to all of the employees’ accounts and
passwords. The court specifically referenced Montero’s victim statement during
sentencing. Montero stated that defendant had used her name to embezzle approximately
$58,000. Montero suffered “a lot of anguish over the violation of her trust and knowing
that . . . defendant . . . had access to all of her financial and personal security
information.” Defendant’s position of trust extended beyond her employment
relationship with the city and included her coworkers whose personal information she
was able to access. The trial court did not abuse its discretion in considering defendant’s
violation of trust with her coworkers as a circumstance in aggravation.
                                               B
                                 Circumstances In Mitigation
       Defendant argues the trial court failed to address additional mitigating factors
presented at sentencing and in moving papers. According to defendant, the trial court
failed to consider restitution of a “substantial amount” -- $54,856.25 -- paid from her
retirement fund, and her mental and physical health issues. We find no error.
       The presumption from a silent record is that the trial court properly exercised its
duties. (In re Julian R. (2009) 47 Cal.4th 487, 499.) Because the record is silent on
defendant’s “substantial amount” of restitution and mental and physical health issues, we
presume the trial court properly exercised its duties. (Ibid.) Defendant has not overcome
this presumption with evidence the trial court erred in disregarding these mitigating
factors without stating its reasons. (People v. Lai, supra, 138 Cal.App.4th at p. 1258,
citing People v. Salazar, supra, 144 Cal.App.3d at p. 813.) Here, the trial court noted as
follows: “In mitigation, I do recognize that she has no prior criminal history and she did
express remorse in her letter to the Court.” The trial court considered these factors in
mitigation and found “on balance, that the circumstances in aggravation outweigh[ed] the
circumstances in mitigation.” We find no error in the trial court’s exercise of discretion.



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                                             II
                  Section 654 Does Not Preclude Consecutive Sentences
                       For Writing Bad Checks And Embezzlement
       Defendant contends her sentence for writing bad checks must be stayed pursuant
to section 654 because the objective in writing the checks was the same objective for
embezzling the funds from the city. Defendant argues in both instances she “sought
enrichment from the City of Gridley and used her workplace authority and relationships
to accomplish her objective.” We find defendant’s argument unpersuasive.
       Section 654, subdivision (a) provides in relevant part as follows: “[a]n act or
omission that is punishable in different ways by different provisions of law shall be
punished under the provision that provides for the longest potential term of
imprisonment, but in no case shall the act or omission be punished under more than one
provision.” (People v. Atencio (2012) 208 Cal.App.4th 1239, 1243.) At its simplest,
section 654 precludes multiple punishment for a single act or for a course of conduct
comprising indivisible acts. (People v. Jones (2002) 103 Cal.App.4th 1139, 1143.)
       Whether a course of criminal conduct is divisible depends on the intent and
objective of the actor. (People v. Jones, supra, 103 Cal.App.4th at p. 1143.) A
defendant’s intent or objective must not be viewed too broadly or amorphously;
specifically, to characterize a defendant’s intent and objective as simply to steal money
can be viewed as overbroad and amorphous. (People v. Perez (1979) 23 Cal.3d 545, 552
[finding “assertion of a desire for wealth as the sole intent and objective in committing a
series of separate thefts” is overbroad and violates statute’s purpose]; see People v. Neder
(1971) 16 Cal.App.3d 846, 849-850, 854-855 [defendant properly separately punished for
three forgery counts for using a stolen credit card to charge purchases in three different
departments in the same store on the same day; the criminal objective should not be
defined too broadly].) Further, a course of conduct divisible in time, although directed to
one objective, may give rise to multiple violations and punishment. (People v. Louie

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(2012) 203 Cal.App.4th 388, 399.) This is particularly so where the offenses are
temporally separated in such a way as to afford the defendant opportunity to reflect and
to renew his or her intent before committing the next one, thereby aggravating the
violation of public security or policy already undertaken. (People v. Andra (2007) 156
Cal.App.4th 638, 640.)
       We review the court’s determination of defendant’s “ ‘separate intents’ ” for
sufficient evidence in a light most favorable to the judgment, and presume in support of
the court’s conclusion the existence of every fact the trier of fact could reasonably deduce
from the evidence. (People v. Andra, supra, 156 Cal.App.4th at pp. 640-641.) The
defendant’s intent and objective are factual questions for the trial court. (People v.
Coleman (1989) 48 Cal.3d 112, 162.)
       Defendant’s consecutive sentences are not precluded by section 654 because
defendant showed “ ‘separate intents’ ” in her deceptive techniques and collaboration
over three years to enrich herself from the city’s coffers. Although the objective was
always financial enrichment from the city, this reading is too broad. Defendant accessed
and stored the names and personal information of numerous city employees for her
enrichment. After investigation, the city found 22 checks either fraudulently reissued or
voided then later deposited into defendant’s personal account. That defendant accessed
numerous coworkers’ personal accounts and embezzled money with that information
through fraudulent checks in 22 transactions supports the trial court’s findings. In
addition, the period of three years invested reflects that defendant had the opportunity to
reflect and to renew her intent before committing the next fraudulent transaction.




                                      DISPOSITION
       The judgment is affirmed.



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                                       ROBIE   , J.



We concur:



     NICHOLSON   , Acting P. J.



     MAURO       , J.




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