People v. Hagen

Opinion

McKINSTER, J.

A jury convicted defendant of grand theft (Pen. Code, § 487, subd. (a)) (count I) and three counts of filing a false tax return (Rev. & Tax. Code, former § 19405, subd. (a)(1)) (counts II, III & IV). The jury also found true an allegation that the property taken exceeded $100,000.

[380]

(Pen. Code, § 12022.6, subd. (b).) At defendant’s initial sentencing on August 14, 1995, the trial court sentenced defendant to a total of seven years as follows: the upper term of three years on count I, two consecutive years for the great taking enhancement, and a consecutive term of eight months on each of the three false tax return counts. The trial court also ordered defendant to pay the victim restitution of $178,699.70.

Defendant and her codefendant husband appealed to this court unsuccessfully in case No. E016805.

1

On May 15, 1998, defendant began serving her sentence. On August 9, 1999, after receiving a letter from the Department of Corrections dated March 18, 1999, the trial court resentenced defendant to the same total of seven years, this time as follows: the upper term of three years on count I, one consecutive year for the great taking enhancement, a consecutive indeterminate three-year term on count II, and two indeterminate terms of three years on counts III and IV, to be concurrent with the term on count II.

On appeal, defendant contends: (1) the indeterminate three-year sentences imposed on counts II, III and IV were illegal because Penal Code section 1168 requires a determinate sentence of 16 months, two years, or three years; and (2) the trial court improperly used the same sentencing factors to impose a consecutive sentence on count II that it used to impose the upper term on count I, and this error was prejudicial. In response, the People contend that the one-year sentence for the great taking enhancement is unauthorized by law because only a two-year sentence was authorized by law.

Statement of Facts

Defendant was the office manager of an insurance agency.

2

As part of her ordinary duties, defendant made weekly deposits of cash received from clients into the agency’s trust account and recorded the amount of cash so deposited. In June of 1990, the owner and operator of the insurance agency noticed a discrepancy between recent revenues and bank deposits. He then compared the agency’s records of cash receipts against the records of cash bank deposits. The owner discovered that in 1988 approximately $64,000 more in cash was received than was deposited, in 1989 about $57,000 more and, through June 30, 1990, about $12,000 more. A certified public accountant who later reviewed the agency’s records testified that a total of about $130,000 in cash receipts had not been deposited.