People v. Camacho

THE PEOPLE, Plaintiff and Respondent, v. SANTANA MARIELENA CAMACHO, Defendant and Appellant.

A157651

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION TWO

March 26, 2021

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Contra Costa County Super. Ct. No. 51814425)

Defendant Santana Marielena Camacho appeals from her judgment of conviction for embezzlement, forgery and identity theft on two grounds: first, that the trial court erred in ordering her to pay restitution to the victim company not only for the amount she embezzled, but also for IRS penalties the company incurred as a result of her failure to pay the company's federal payroll taxes and for related attorney fees, and, second, that her three-year period of probation should be reduced from three to two years based on the retroactive application of recently amended Penal Code section 1203.1, subdivision (a). We agree with both arguments. We reverse the restitution order to the extent it requires Camacho pay the victim company's federal payroll tax penalties and related attorney fees for lack of evidentiary support, and remand with the instruction that the trial court instead order that Camacho pay the company restitution totaling $28,737.60, the minimum amount the parties agree she should pay as a result of her embezzlement. We also order that Camacho's period of probation be reduced to a term of two years.

BACKGROUND

In August 2018, the Contra Costa County District Attorney filed an information charging Camacho with 10 felony counts for her alleged criminal misconduct between January 21, 2014, and August 31, 2015, while employed by Enchanted Planting, Inc., an Orinda, California landscaping company. Camacho was charged with one count of grand theft by embezzlement of money and personal property exceeding $950 in value in a consecutive 12-month period (Pen. Code, § 487, subd. (a)1)¹; four counts of forgery exceeding $950 in value (§§ 470, subd. (d) and 473, subd. (a)); and five counts of identity theft (§ 530.5, subd. (a)).²

Camacho subsequently agreed to a negotiated disposition of the case. She pleaded no contest to all 10 felony counts and stipulated that she owed $28,948.09 in victim restitution to Enchanted Planting, with the understanding that the actual restitution amount she could be ordered to pay remained open. The court convicted her of the 10 counts, ordered her to serve 180 days in county jail (with the understanding that she would apply for electronic home detention), awarded her five days of custody and conduct credits and granted her formal probation for a period of three years. Among other things, the court also ordered her to pay a $300 restitution fine and reserved ruling on the amount of victim restitution she was to pay.

The court subsequently held a contested restitution hearing. The prosecution presented the testimony of Richard Sullivan, who co-ownedEnchanted Planting with his wife, Shari Bashin-Sullivan. Sullivan said the company had employed about 20 people in 2014 and 2015, including Camacho, who, Sullivan said, was "hired to be a bookkeeper. So to look after the usual office tasks of . . . making payments to our vendors, to receive payments from our clients, and to take care of payroll, paying the employees their paychecks."

Sullivan testified that, as indicated in emails between him and Camacho when she was hired, her position was entitled "office assistant." Nonetheless, he said, Camacho was the one person at the company responsible for paying payroll taxes. The company paid its payroll taxes weekly online to the state and federal governments. Thus, "part of the process of doing the payroll is that you make those deposits, and it's usually done by direct deposit from our bank account into the government agency's bank account." Camacho was responsible for making these deposits.

Sullivan said that at some point in 2015, Camacho went on maternity leave. The company hired a new bookkeeper, which led to the discovery that Camacho was defrauding the company and diverting company funds illegally to herself, including through the company's payroll system. For example, it was discovered that a W-2 form had been sent to a former employee for a period when the company had not employed that person, and that Camacho had issued payroll checks in that person's name and diverted these funds via direct deposit to her own bank account. Camacho had also forged the signatures of Sullivan and his wife on unauthorized company checks payable to herself, these checks totaling $28,737.60. Defense counsel immediately stipulated to that "initial amount." The prosecution introduced through Sullivan an exhibit displaying forged checks and listing their amounts (with a total stated as $28,737.76).

According to Sullivan, the company also discovered Camacho had not paid payroll taxes to the federal government, and that as a result the company had incurred IRS penalties and fees. The prosecutor showed Sullivan an IRS document which lists five outstanding payments, from June 30, 2014, to June 30, 2015, totaling $308,674.17, including $193,910.69 in penalties. Sullivan confirmed Enchanted Planting had owed these amounts to the IRS for that time period, during which Camacho was responsible for the company's bookkeeping and payroll. Sullivan further testified, "we have no problem paying the tax, obviously, because we're liable for that. But the penalties and the assessments of fines, et cetera, was something that . . . our lawyer worked to get reduced by the IRS. As a result, the company had negotiated with the IRS to pay only $95,000 in penalties, not $193,910.69, and sought only that amount in penalties as restitution from Camacho.

Sullivan directly attributed this $95,000 of penalties to Camacho's criminal misconduct because, he said, "part of [Camacho's] task was to pay the payroll taxes. And if it was a case of simple oversight, or oh, I forgot to pay them this week, then she could have said, I didn't do this and I can do it next week. And then this problem would never have occurred. [¶] But this was over a period of over a year where no taxes were paid. It's completely to be expected that within her duties as—as a bookkeeper and responsible for payroll, that she would have paid the taxes." In his opinion, Camacho did not pay the taxes in order to divert funds to herself without the company noticing. He stated, in a sometimes confusing way that we will discuss further in the discussion section, that in his view, Camacho, by keeping a large amount of funds in the company's bank account, including what should have been paid to the IRS in payroll taxes, could obscure her diversion of asignificant amount of funds to herself. He said it would have been difficult to determine that the account contained excess funds because the company worked on a contracting basis with clients who owed or made sizeable payments at any given point in time, causing fluctuations in the amount of funds in the company's account.

Sullivan also said the company was seeking restitution for its attorney fees related to its IRS tax liability, which totaled $19,209.89. Thus, he said, the total amount of restitution that Enchanted Planting sought from Camacho was $142,946.49, which was comprised of the amount of company funds Camacho stole, the fines and fees the company owed the IRS as a result of Camacho's criminal misconduct, and the related attorney fees incurred by the company in dealing with the IRS.

The defense called as witnesses the co-owner of Enchanted Planting, Shari Bashin-Sullivan, and Camacho. Bashin-Sullivan testified she "was not really a person who was in the office," indicated Sullivan dealt with office matters, and did not recall talking with Camacho about preparing an office manual for her replacement around July 2015.

Camacho testified that Sullivan asked her to prepare a manual for the person who was "coming in to do bookkeeping" when Camacho went on maternity leave, which manual was admitted into evidence. The two-and-a-half-page document, entitled "Office Assistant Manual," lists a variety of responsibilities, including "Payroll," which was to be processed every Wednesday. It does not refer to payroll taxes.

Camacho said she was not a "trained accountant" or a "bookkeeper," but acknowledged that she had had some training in accounting and bookkeeping before working at Enchanted Planting, having taken QuickBooks online courses. She was responsible for preparing the company'spayroll but was not asked to do, and was not responsible for, payment of the company's payroll taxes. Sullivan "was responsible for signing all tax documentations." Camacho also testified, "It's against the law for somebody who is not legally the owner of the company to actually sign those documents. So it kind of makes sense why I wouldn't have done it my whole time being there."

Camacho admitted to diverting between $28,000 and $30,000 from Enchanted Planting to herself over more than a year and a half by writing herself payroll checks without the company knowing about it, and she said she was prepared to pay the restitution amount to which she had stipulated. She also said she did not steal any money that was meant for payroll or payroll taxes. She had access to the company's payroll funds and payroll checks, but it had been Sullivan's responsibility to pay taxes, including on the unauthorized payroll checks she wrote to herself without the company's knowledge. She also acknowledged that she embezzled funds from another company that she worked for after leaving Enchanted Planting.

In closing argument, the prosecutor argued that Camacho clearly was the person at Enchanted Planting...