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Filed 12/22/14 P. v. Gonzalez 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication 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

(Butte)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

GLORIA ANNA GONZALEZ,

Defendant and Appellant.

C075154

(Super. Ct. No. CM032852)

Defendant Gloria Anna Gonzalez pled guilty to embezzlement, filing a false 

income tax return, illegally procuring a state-issued income tax return refund, and 

drafting multiple insufficient funds checks (writing bad checks). The trial court 

sentenced defendant to seven years in state prison. The court imposed the upper term of 

three years for embezzlement, with a two-year enhancement for loss exceeding $200,000. 

The trial court ordered one-third the middle term (eight months each) for the three 

remaining counts. The trial court found the crimes and objectives to be independent of 

one another and ordered the sentence for each count to run consecutively. 
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On appeal, defendant contends the trial court erred by imposing the upper term for 

embezzlement because the court: (1) considered elements of embezzlement as 

aggravating factors; and (2) ignored additional mitigating factors. Defendant also 

contends her sentence for writing bad checks must be stayed pursuant to Penal Code1

section 654 because the only objective in writing those checks and in the embezzlement

was to steal money from the City of Gridley (the city). We disagree and affirm. 

FACTUAL AND PROCEDURAL BACKGROUND

In August 2010, Melanee Montero located a check in her name from her 

employer, the city, that was not issued to her, and that was sent to a post office box that 

was not hers. She reported the check to the Gridley Police Department. Officer Scott 

Olsgard determined the check was deposited into defendant’s bank account and 

defendant rented the post office box listed on the check. 

Defendant worked as a senior accountant technician for the city. Her duties 

included payroll, sending and receiving bank account statements by the city, and signing 

checks to certain vendors. Karin Helvey, the finance director for the city, instituted an 

internal audit of the city’s funds. She found 22 checks fraudulently reissued or voided 

and then later deposited into defendant’s personal account. 

On September 14, 2010, officers from the Gridley Police Department executed a 

search warrant at defendant’s home. The officers seized several computers, checks 

written to and from the city, and bank statements. Officers found a paper spreadsheet 

containing the names of numerous city employees, social security numbers, and personal 

account numbers. On defendant’s computer, police found defendant’s tax returns for 

2008 and 2009 and a bank statement for the city. According to defendant’s tax returns, 

she filed fraudulent income tax returns and illegally obtained refunds for tax years 2008 

 

1 All further section references are to the Penal Code unless otherwise indicated. 
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and 2009. A spreadsheet on defendant’s computer listed the bad checks and tracked 

money transfers with color-coding and abbreviations. 

Over the three-year period under investigation, the city’s loss totaled $373,873.10. 

On July 22, 2013, defendant pled guilty to embezzlement, filing a false income tax 

return, illegally procuring a state-issued income tax return refund, and writing bad

checks. Defendant admitted two enhancements for participation in a theft exceeding 

$100,000 and taking property exceeding $200,000. 

On October 25, 2013, the trial court sentenced defendant to seven years in state 

prison. The trial court imposed an aggravated three-year term for the embezzlement 

count because it found “on balance, that the circumstances in aggravation outweigh[ed] 

the circumstances in mitigation.” The trial court found: (1) the crime was committed in 

a manner that indicated planning, sophistication, and professionalism; (2) the crime 

involved the taking of great monetary value; (3) defendant took advantage of a position 

of trust or confidence; and (4) defendant involved her children in her embezzlement 

scheme. 

At sentencing, the court noted as follows: “[D]efendant involved her children, one 

of whom was a teenager when she recruited her in her embezzlement scheme. Her two 

daughters are now convicted felons; her son is now a convicted felon due to her 

involvement of them in her crimes.” When her crimes were discovered, defendant had 

access to all of the city’s accounts, financial records, and financial systems. She 

produced the city’s checks; she had access to all of the employees’ accounts and 

passwords. Defendant’s coworker, Montero, who was also a relative by marriage, wrote 

to the court stating that defendant had used her name to embezzle approximately $58,000 

by forging her signature on several checks. Montero suffered “a lot of anguish over the 

violation of her trust and knowing that . . . defendant . . . had access to all of her financial 

and personal security information.” 
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In mitigation, the trial court recognized defendant had no prior criminal history 

and had expressed remorse in her letter to the court. 

In addition to the upper term of three years for embezzlement, the court imposed a 

two-year enhancement for loss exceeding $200,000. The trial court then imposed the 

upper term of three years for each of the three remaining counts, but ordered one-third the 

middle term on each count. The trial court found the crimes and objectives to be 

independent of one another and ordered the sentences for each count to run 

consecutively. 

DISCUSSION

I

The Trial Court Did Not Abuse Its Discretion In 

Imposing The Upper Term For Embezzlement

Defendant contends the trial court abused its discretion by imposing the upper

term for embezzlement because the court: (1) considered elements of embezzlement as 

aggravating factors; and (2) ignored additional mitigating factors. We disagree.

When a judgment of imprisonment is to be imposed and the statute specifies three 

possible terms, the choice of the appropriate term rests within the sound discretion of the 

court. (§ 1170, subd. (b).) In exercising its discretion to impose judgment, the court may 

consider circumstances in aggravation or mitigation, and any other factor reasonably 

related to the sentencing decision. (Cal. Rules of Court, rule 4.420(b).)

Circumstances in aggravation may justify imposition of the upper of three possible 

prison terms. (§ 1170, subd. (b).) Aggravating circumstances are facts that make the 

offense distinctively worse than the ordinary, including those relating to the crime and 

relating to the defendant. (Cal. Rules of Court, rule 4.421; People v. Black (2007) 41 

Cal.4th 799, 817.) The court is not permitted to use a reason to impose a greater term if 

that reason also is either: (1) the same as an enhancement that will be imposed; or (2) an 

element of the crime. (Cal. Rules of Court, rule 4.420(d); People v. Clark (1992) 12 
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Cal.App.4th 663, 666.) A sentencing factor is an element of the offense if the crime as 

defined by statute cannot be accomplished without performance of the acts which 

constitute such factor. (See People v. Garcia (1989) 209 Cal.App.3d 790, 793-794.) 

The court must put forth on the record the reasons for imposing the term selected, 

but the court may minimize or even entirely disregard mitigating factors without stating 

its reasons. (§ 1170, subd. (b); People v. Lai (2006) 138 Cal.App.4th 1227, 1258; citing 

People v. Salazar (1983) 144 Cal.App.3d 799, 813.) The trial court’s sentencing decision 

under the amended sentencing scheme is reviewed for abuse of discretion. (People v. 

Sandoval (2007) 41 Cal.4th 825, 847.)

A

Circumstances In Aggravation

First, defendant argues the trial court was wrong to consider the manner of 

“planning, sophistication and professionalism” in the embezzlement as an aggravating 

circumstance because it is an element of the crime of embezzlement. According to 

defendant, “the planning, sophistication and professionalism of every embezzlement is a 

given, because of the specific relationship of trust and the intent to defraud.” Defendant 

is mistaken. 

“ ‘ “ ‘The essential elements of embezzlement are the fiduciary relation arising 

where one intrusts property to another, and the fraudulent appropriation of the property 

by the latter.’ ” ’ ” (Breceda v. Superior Court (2013) 215 Cal.App.4th 934, 956.) The 

California Rules of Court allow the trial court to consider in aggravation the manner in 

which the crime was carried out as it indicates planning, sophistication, or 

professionalism. (Cal. Rules of Court, rule 4.421(a)(8).) 

The elements of embezzlement do not require that a defendant have any level of 

sophistication, planning, or professionalism in his or her scheme. (Breceda v. Superior 

Court, supra, 215 Cal.App.4th at p. 956). That the city trusted defendant as a senior 

accountant technician and she took advantage of that relationship to embezzle over 
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$350,000 does not by statute require she did so with planning, sophistication, or 

professionalism. Because planning, sophistication, and professionalism are not elements 

of the crime, the trial court correctly considered the manner in which defendant 

embezzled money from her employer as an aggravating circumstance. (Cal. Rules of 

Court, rule 4.421(a)(8).) 

Second, defendant argues the trial court was wrong to consider the “taking of a 

great value” as an aggravating circumstance because the court imposed a two-year 

enhancement for the same reason. (Cal. Rules of Court, rule 4.420(d); People v. Wilks

(1978) 21 Cal.3d 460, 470.) Defendant ignores the fact that she embezzled from the city 

an amount exceeding the minimum required for enhancement.

The California Rules of Court provide that a taking or damage of great monetary 

value may be considered as a circumstance in aggravation. (Cal. Rules of Court, rule 

4.421(a)(9).) Here, defendant embezzled $373,873.10 from her employer. As the People

point out, this amount was far and above the minimum loss necessary to qualify for 

imposition of the enhancement. 

Finally, defendant argues the trial court was wrong to consider the fact defendant 

“took advantage of a position of trust or confidence” as an aggravating circumstance 

because it was an element of the crime. Defendant argues “in order to embezzle from the 

City of Gridley, [defendant] had to have an intent to defraud her employer with whom 

she had a relation of trust and confidence.” We read the record differently.

Where the facts surrounding the charged offense exceed the minimum necessary 

to establish the elements of the crime, the trial court can use such evidence to aggravate 

the sentence. (People v. Castorena (1996) 51 Cal.App.4th 558, 562.) As to the city, that 

defendant took advantage of her position of trust or confidence is an element of the crime 

and thus cannot be considered in aggravation (People v. Clark, supra, 12 Cal.App.4th 

663, 666); however, the trial court’s review did not end with the financial harm to the 

city. 
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Here, the court noted defendant had access to all of the employees’ accounts and 

passwords. The court specifically referenced Montero’s victim statement during 

sentencing. Montero stated that defendant had used her name to embezzle approximately 

$58,000. Montero suffered “a lot of anguish over the violation of her trust and knowing 

that . . . defendant . . . had access to all of her financial and personal security 

information.” Defendant’s position of trust extended beyond her employment 

relationship with the city and included her coworkers whose personal information she 

was able to access. The trial court did not abuse its discretion in considering defendant’s

violation of trust with her coworkers as a circumstance in aggravation.

B

Circumstances In Mitigation

Defendant argues the trial court failed to address additional mitigating factors 

presented at sentencing and in moving papers. According to defendant, the trial court 

failed to consider restitution of a “substantial amount” -- $54,856.25 -- paid from her 

retirement fund, and her mental and physical health issues. We find no error. 

The presumption from a silent record is that the trial court properly exercised its 

duties. (In re Julian R. (2009) 47 Cal.4th 487, 499.) Because the record is silent on 

defendant’s “substantial amount” of restitution and mental and physical health issues, we 

presume the trial court properly exercised its duties. (Ibid.) Defendant has not overcome 

this presumption with evidence the trial court erred in disregarding these mitigating 

factors without stating its reasons. (People v. Lai, supra, 138 Cal.App.4th at p. 1258, 

citing People v. Salazar, supra, 144 Cal.App.3d at p. 813.) Here, the trial court noted as 

follows: “In mitigation, I do recognize that she has no prior criminal history and she did 

express remorse in her letter to the Court.” The trial court considered these factors in 

mitigation and found “on balance, that the circumstances in aggravation outweigh[ed] the 

circumstances in mitigation.” We find no error in the trial court’s exercise of discretion. 
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II

Section 654 Does Not Preclude Consecutive Sentences 

For Writing Bad Checks And Embezzlement

Defendant contends her sentence for writing bad checks must be stayed pursuant 

to section 654 because the objective in writing the checks was the same objective for

embezzling the funds from the city. Defendant argues in both instances she “sought 

enrichment from the City of Gridley and used her workplace authority and relationships 

to accomplish her objective.” We find defendant’s argument unpersuasive. 

Section 654, subdivision (a) provides in relevant part as follows: “[a]n act or 

omission that is punishable in different ways by different provisions of law shall be 

punished under the provision that provides for the longest potential term of 

imprisonment, but in no case shall the act or omission be punished under more than one 

provision.” (People v. Atencio (2012) 208 Cal.App.4th 1239, 1243.) At its simplest, 

section 654 precludes multiple punishment for a single act or for a course of conduct 

comprising indivisible acts. (People v. Jones (2002) 103 Cal.App.4th 1139, 1143.) 

Whether a course of criminal conduct is divisible depends on the intent and 

objective of the actor. (People v. Jones, supra, 103 Cal.App.4th at p. 1143.) A 

defendant’s intent or objective must not be viewed too broadly or amorphously; 

specifically, to characterize a defendant’s intent and objective as simply to steal money 

can be viewed as overbroad and amorphous. (People v. Perez (1979) 23 Cal.3d 545, 552 

[finding “assertion of a desire for wealth as the sole intent and objective in committing a 

series of separate thefts” is overbroad and violates statute’s purpose]; see People v. Neder

(1971) 16 Cal.App.3d 846, 849-850, 854-855 [defendant properly separately punished for 

three forgery counts for using a stolen credit card to charge purchases in three different 

departments in the same store on the same day; the criminal objective should not be 

defined too broadly].) Further, a course of conduct divisible in time, although directed to 

one objective, may give rise to multiple violations and punishment. (People v. Louie
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(2012) 203 Cal.App.4th 388, 399.) This is particularly so where the offenses are 

temporally separated in such a way as to afford the defendant opportunity to reflect and 

to renew his or her intent before committing the next one, thereby aggravating the 

violation of public security or policy already undertaken. (People v. Andra (2007) 156 

Cal.App.4th 638, 640.)

We review the court’s determination of defendant’s “ ‘separate intents’ ” for 

sufficient evidence in a light most favorable to the judgment, and presume in support of 

the court’s conclusion the existence of every fact the trier of fact could reasonably deduce 

from the evidence. (People v. Andra, supra, 156 Cal.App.4th at pp. 640-641.) The 

defendant’s intent and objective are factual questions for the trial court. (People v. 

Coleman (1989) 48 Cal.3d 112, 162.) 

Defendant’s consecutive sentences are not precluded by section 654 because 

defendant showed “ ‘separate intents’ ” in her deceptive techniques and collaboration 

over three years to enrich herself from the city’s coffers. Although the objective was 

always financial enrichment from the city, this reading is too broad. Defendant accessed 

and stored the names and personal information of numerous city employees for her 

enrichment. After investigation, the city found 22 checks either fraudulently reissued or 

voided then later deposited into defendant’s personal account. That defendant accessed 

numerous coworkers’ personal accounts and embezzled money with that information 

through fraudulent checks in 22 transactions supports the trial court’s findings. In 

addition, the period of three years invested reflects that defendant had the opportunity to 

reflect and to renew her intent before committing the next fraudulent transaction. 

DISPOSITION

The judgment is affirmed. 
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 ROBIE , J.

We concur:

 NICHOLSON , Acting P. J.

 MAURO , J.