People v. Vasquez CA3

Filed 1/27/16 P. v. Vasquez CA3 NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Shasta) ----

THE PEOPLE, C077425

Plaintiff and Respondent, (Super. Ct. No. 14F166)

v.

SHERYL LYNN VASQUEZ,

Defendant and Appellant.

Following her plea of guilty to grand theft by embezzlement, the trial court ordered defendant Sheryl Lynn Vasquez to pay $15,933.81 in direct victim restitution to Ken Blackstone. On appeal she contends the order of restitution must be modified to conform to the trial court’s statement of calculation. The People concede. We do not agree. We conclude defendant forfeited the claim of error by failing to object to the restitution order in the trial court. Moreover, we do not agree the trial court overstated

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the amount of restitution. Rather, we conclude there was a calculation error which we correct to order full restitution to the victim in the amount of $15,934.51. BACKGROUND Defendant worked as a shift manager for a McDonald’s owned and operated by Ken Blackstone. Between December 2010 and December 2011, she embezzled funds from the restaurant by processing fraudulent customer refunds and keeping the money for herself. Defendant pleaded guilty to grand theft by embezzlement. (Pen. Code, § 487, subd. (a).) The trial court suspended imposition of sentence and granted her three years’ formal probation conditioned on her serving 150 days in jail. At the restitution hearing, Blackstone testified he had calculated the losses caused by defendant’s actions as $1,543.98 in 2009, $4,808.34 in 2010, and $8,842.63 in 2011, for a total of $15,194.95. Blackstone also incurred an additional $924.30 ($865.20 plus $59.10) in costs to accumulate the necessary data and calculate the losses. The total claimed losses were $16,119.25. In an earlier police report, the restaurant supervisor, Robert Flowers, calculated the losses in 2011 at $8,657.89. Defendant testified she had stolen money from the McDonald’s between April and October 2011, and claimed the amount she had stolen was approximately $3,000 to $4,000. The trial court ruled, stating: “I’m going to . . . fix the amount of restitution in the amount of $15,933.81. That number is achieved by adding together five numbers, $1,524.92 for ’09, $4,008.34 from 2010, $8,657.89 from 2011 plus $865 for Flowers’s time and $59.10 for copies.” The clerk’s minute order indicates the trial court ordered defendant to pay $15,933.81 in direct victim restitution.1