People v. Dearman CA1/1

Filed 6/30/14 P. v. Dearman CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, A141063 v. JO ANN DEARMAN, (San Mateo County Super. Ct. No. SC076038A) Defendant and Appellant.

Defendant Jo Ann Dearman appeals from a final judgment after no contest pleas to misappropriation of public funds and embezzlement. As required under People v. Kelly (2006) 40 Cal.4th 106, 124, we affirmatively note counsel for defendant has filed a Wende brief (People v. Wende (1979) 25 Cal.3d 436) raising no arguable issues, counsel apprised defendant of her right to file a supplemental brief, and defendant did not file such a brief. Upon review of the record for potential error, we conclude no arguable issues are presented for review and affirm the judgment. STATEMENT OF FACTS AND PROCEDURAL HISTORY1 Defendant was employed from January 1, 2009 until May 16, 2011, as a financial director for the San Mateo County Mosquito and Vector Control District (District). After an outside firm conducted a forensic accounting audit, it determined defendant had embezzled public funds in the amount of $351,918.83, and her codefendant, who defendant hired, embezzled over $88,000. The audit showed defendant used five of the

1 The facts are taken from the probation report.

District’s credit cards for personal expenses, issued herself unauthorized pay, deposited unauthorized funds into her retirement account, and electronically transferred $143,352.62 of the District’s funds to her personal bank account. The investigation further revealed defendant used $20,000 of the embezzled funds to pay attorney fees for her two prior felony embezzlement cases. Restitution was requested in the amount of $761,663.95, which included the cost ($259,066) for a financial audit. An information was filed by the San Mateo District Attorney’s Office charging defendant with five counts of misappropriation of public funds (Pen. Code,2 § 424, subd. (a); counts 1–5), five counts of misappropriation of public funds by altering, falsifying, or destroying an account (§ 424, subd. (a)(4); counts 6–10), five counts of embezzlement by a public or private officer (§ 504; counts 11–15), and five counts of falsifying government documents (Gov. Code, § 6200; counts 16–20). It was further alleged defendant committed multiple felonies involving fraud or embezzlement resulting in a total loss of more than $100,000 (§ 186.11, subd. (a)(1)), committed multiple felonies pursuant to a common plan or scheme amounting to a total loss of more than $200,000 (§ 12022.6, subd. (a)(2)), and served two prior prison terms (§ 667.5, subd. (b)). After defendant filed a section 995 motion, the People dismissed counts 6 through 10, and the trial court dismissed counts 16 through 20. Less than a month later, defendant entered pleas of no contest to counts 1 through 5 and 11 through 15, and admitted all of the enhancements. As part of the plea agreement, defendant acknowledged the maximum sentence the court could impose was 11 years. However, if defendant made “substantial restitution,” determined by the court to be 50 percent or more, the maximum sentence would be five to seven years. In a sentencing memo, the People requested the trial court impose the maximum sentence of 11 years in state prison, victim restitution in the amount of $761,663.95, and a $997,011.62 fine (double the value of the taking of $498,505.61) under section 186.11,