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Filed 7/6/16 P. v. Prezzy CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE, Plaintiff and Respondent,

v. RAYMOND PREZZY
, Defendant and Appellant. A 147064
( Solano County Super. Ct. No. FCR311609 )

Raymond Prezzy (appellant) appeals from his post

- jury trial conviction and sentence for one count of grand theft by embezzlement (Pen

. Code
, 1 487 , subd. (a)). Appellant’s counsel has filed an opening brief in whi ch no issues are raised
, and asks this court for an independent review of the record as required by People v. Wende (1979) 25
Cal.3d 436. Counsel has declared that appellant has been notified that no issues were being raised by counsel on appeal
, and that an independent review under Wende instead was being requested. Appellant was also advised of h is right personally to file a supplemental brief raising any issues he chooses to bring to this court’s attention

. No supplemental brief has been filed by appe llant personally.

P rocedural and Material Factual Background
An a mended criminal complaint was filed on June 30, 2015
, by the Solano County District Attorney charging appellant with one count of grand t heft by e mbezzlement

1 All further statutory references are to the Penal Code, unless otherwise indicated.2

( § 487 , subd. (a)), with the allegation that the violation was not discovered until August 23, 2011. Appellant pleaded not guilty to this charge on June 30, 2015.
A n i nformation charging the same offense and making the same allegation of discovery was subsequently filed on July 7, 2 015

. 2 A demurrer to the charge was filed by appellant contending that count one was barred by the appl icable statute of limitations. That demurrer ultimately was heard on August 19 , 2015
, and overruled

. In doing so, the trial court determined that the f our

- year statute of limitations set forth in section 801.5 applied to the charged crime, and the

am ended complaint and subsequent i nformation which alleged that the embezzlement was not discovered until August 2011 was legally sufficient

. A two

- day jury trial was held in October 2015 . The evidence presented at trial included the following: The victim, Valencia Goodings (Goodings) , testified that she first met appellant at Geovera Holdings, Inc., a property and casualty insur ance company where she was

em ployed , in 2006 or 2007. Appellant had been hired as a temporary employee in accounts receivable and the two interacted all day lo ng on a daily basis. Appellant was later given a job offer for a permanent position with Ge overa

. At some point appellant t old Goodings that he was interested in starting his own business “flipping” real estate. Goodings expressed interest in t his potential new venture. After appellant left Ge overa , he met with Goodings to talk about his business. He explained to her that he would flip properties and put the net proceeds into a real estate
Roth IRA for investors

. They met again on September 23, 2007 . During that meeting, Goodings told appellant that her goals were to pay off the second mortgage on her home
, and to
accumul ate an emergency fund to help them in the event either she or her husband suddenly became unemployed. Goodings testified that appellant told her t hat the real estate Roth IRA was a good vehicle to meet these goals. He showed her some potential

2 The discovery allegation was included to meet the statute of limitations, which is four years from discovery or from when discovery would reasonably have occurred.3

properties in the $100,000 range that he was considering buying as investments. Goodings and appellant agreed that appellant would locate properties, present them to her, and then they would discuss whether or not she and her husband wanted to purchase
them. Goodi ngs signed a contract at this meeting and gave appellant one check for $10,000 and another for $1,000 to be used to go forward with the real estate Roth IRA

. The $10,000 would stay in the account earning interest until it was needed to purchase property. The $1,000 was to cover “initial” fees

. Goodings testified that at that time she and her husband Alexander recently had
moved to California
, and they wanted to find someone local to handle their taxes.
B ecause she knew and felt comfortable with appellan t, she and her husband also hired appellant to prepare their taxes. Appellant prepared the Goodings ’ taxes in 2008, 2009,
and 2010. Alexander then lost his job , and Goodings had been on his health insurance. The couple became unable to pay bills because of Alexander’s unemployment and Gooding s ’ s resulting lack of adequate medical insurance

. Goodings testified that she decided to liquidate their Roth IRA account in 2009
, and told appellant that she wished to do so. Appellant told Goodings that she and her
husband were “taking the bread and butter out of his mouth,” and so Goodings decided to leave the money where it was and instead to focus on her health.
O n July 18, 2011, Goodings told appellant again that she wished to liqu idate the

account. A ppellant told her about the penalties and fees associated with liquidation
, and Goodings said she and husband would pay them

. Goodings sent a n email to appellant
confirm ing their decision

. Appellant did not respond. One month later, Goodings received a deficiency notice from the Internal Revenue
Service (IRS) stating that she and her husband owed $32,000. She then called the IRS
and learned that it had sent three notices
, but she had not receive d them. Among other things, she also learned from the IRS that the address on their tax return s was not theirs.
The notices had been sent to SC Investments in Suisun City, which was appellant’s4

company

. Goodings testified that she did not authorize a ny change of address for the tax

returns. Goodings continued to email appellant to liquidate her account, but appellant did not respond. Finally, after she emailed him again on October 30, 2011, appellant responded via email that he would proceed to liquidate the account , noting that it would

t ake 30 days to complete . Goodings replied that the ir contract did not say that liquidation would take 30 days, and she asked again that he liquidate the account immediately

. Appellant responded that it would take until the end of the year to conclude. G oodings
testified that she did not hear back from appellant after that exchange, and that she and
her husband never received thei r $10,000.
Officer Steven Garcia with the Fairfield Police Department testified that the Goodings came to his office on August 23, 2011
, to file a police report. He called appellant, but app ellant did not return his call.
At the conclusion of the evidence d efense counsel made a motion for judgment of acquittal ( § 1118.1)
, arguing there was insufficient evidence to support the c harge
because the prosecution had not proven that appellant had the specific intent to deprive the victims of their funds, or that he converted the Goodings’ money for his personal gain. The motion was denied by the court
, which concluded there was substantial
evidence to support a verdict of guilt.
T he jury then was instructed on the applicable law. In addition to the question of guilt, the issue of whether the prosecution was commenced within the four

- year statute of
li mitations period was submitted to the jury for decision. In this regard, the jury was instructed that to meet the limitations period, the prosecution must have been commenced within four years from the date the crime should have been discovered by the vic tim; that is, “when the victim was aware of facts that would have alerted a reasonably diligent person in the same circumstances to the fact that a crime may have been committed.” 3

3 The four

- year statute of limitations was applicable because the charged crime is one those enumerated in section 803, subdivision (c)(1). This instruction also follows CALCRIM No. 3410 and is consistent with applicable law as to the commencement of the running of the statute of limitations. ( People v. Zamora (1976) 18 Cal.3d 538, 561.)5

T hereafter the jury found appellant guilty of the charged offense, and fou nd the offense

was not barred by the statute of limitations.
A sentencing hearing took place on December 3, 2015, at which time the court suspended imposition of sentence , and placed appellant on five years formal probation

. In addition , various conditio ns of probation were ordered
, including that appellant serv e one year in the county jail. This sentence followed the probatio n department’s
recommendations. Appellant filed a timely notice of appeal on December 8, 2015. Conclusions Based Upon Independent Record Review Upon our independent revi ew of the record, we conclude there are no meritorious issues to be argued or that require further briefing on appeal. A ppellant’s demurrer on statute of limitations grounds was properly overruled, and his motion for judgment of acquittal was properly denied . The jury was properly instructed on the applicable law, and the jury’s subsequent findings were supported by the evidence. The sentence appellant received was within the discretion of the trial court and was factually and legally supported. At all times appellant was represented by counsel.
DISPOSITION The judgment is affirmed.6 _________________________ RUVOLO, P. J.

We concur:

_________________________ REARDON, J.

_________________________ RIVERA, J.

A147064, People v. Prezzy