P. v. Hatzell CA1/1

Filed 7/30/13 P. v. Hatzell CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, Plaintiff and Respondent, A136286 v. TIMOTHY MARK HATZELL, (Solano County Super. Ct. No. FCR277485) Defendant and Appellant.

Defendant Timothy Mark Hatzell entered a no contest plea to one count of grand theft by embezzlement (Pen. Code, §§ 487, subd. (a), 503). The trial court placed him on three years’ probation on the condition that he serve 90 days in jail and pay restitution to the victim. After a restitution hearing, the court ordered defendant to pay restitution in the amount of $40,695. Defendant contends the restitution order is not supported by substantial evidence. Defendant also contends the trial court abused its discretion by failing to employ a method rationally designed to determine the victim’s economic loss, and by failing to make a clear statement of the calculation method used. We agree the trial court failed to clearly state the methodology underlying its computation of the restitution amount. Accordingly, we reverse the restitution order and remand for further proceedings. I. PROCEDURAL BACKGROUND & FACTS According to the probation report, the victim, Carol Rewick, owned the Fleet Feet store in Vacaville. Defendant was a manager at the store. Rewick reported to police that defendant “used his personal credit card and had falsely credited his account through

fraudulent returns for items that were never purchased.” Rewick discovered defendant’s embezzlement by noticing a return for $260.10, not accompanied by a receipt and traced it to defendant’s credit card. When confronted by Rewick, defendant admitted he had been embezzling for about a year and promised to make full restitution. Based on his bank records, defendant estimated he had taken about $10,000 in fraudulent returns. He claimed he never took cash. According to the probation report, Rewick estimated her loss to be $6,069.14, and possibly an additional loss of $841.01. In her victim restitution claim form, Rewick claimed a loss of $70,167.67. At the restitution hearing, the prosecutor represented to the court that defendant had already paid Rewick $10,000. Rewick testified defendant worked at her store from November 2007 to June 2010. She discovered defendant had used his credit card to make suspicious returns of items which had not been purchased or were not in stock. She confirmed defendant had confessed to her he had been stealing for about a year. Looking back into her records, she was able to identify a number of returns involving defendant’s credit card. She also noticed a large number of returns using her employee number, which was “suspicious” because each employee was supposed to use his or her own number for returns. She had six or seven employees working at the store at the same time as defendant. Rewick had her office manager, Ashley Dobson, examine the records to look for transactions that appeared fraudulent. One indication of fraud was an item returned at a different price from the sale price. Rewick and Dobson prepared a spread sheet, admitted as People’s exhibit 1, showing records of specific transactions. Rewick admitted on cross-examination it was difficult to match returned items to her inventory because her inventory “was never quite right” or “was always off.”1 Exhibit 1 showed certain returns were done when defendant was working, but the exhibit could not directly link the returns to defendant. All the returns were processed