P. v. Dye

1
Filed 6/23/05 P. v. Dye CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or
ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Butte)
----
THE PEOPLE,
Plaintiff and Respondent,
v.
CORINNE ELIZABETH DYE,
Defendant and Appellant.
C047570
(Super. Ct. No.
CM020106)
Defendant Corinne Elizabeth Dye pleaded no contest to grand
theft by embezzlement. (Pen. Code, § 487, subd. (a).)1 The
court suspended imposition of sentence and placed her on
probation for 36 months. As a condition of probation, she was
required to pay $16,727.78 in restitution to Cleo’s, a hair
salon, which included $13,447 missing from the salon’s safe and
$3,280.78 missing from the salon’s cash register.
1 Further undesignated statutory references are to the Penal
Code.

-- 1 of 10 --

2
On appeal, defendant claims the order directing her to pay
$13,447 must be stricken because the prosecutor presented
insufficient evidence she was responsible for stealing from the
safe and the court used an irrational method and unreliable
information to compute the amount, denying her due process of
law. We affirm the judgment.
FACTS2 AND PROCEDURAL BACKGROUND
On October 17, 2003, a Chico police officer spoke to Sherri
Panucci, owner of Cleo’s, about a report of embezzlement.
Panucci told the officer the cash register consistently had been
“coming up short” and a deposit bag containing cash, checks,
credit card slips, and receipt tapes was missing from the
salon’s safe. A surveillance camera had videotaped defendant
taking a total of $370 in cash from the cash register on five
different occasions and $34.40 worth of hair care products.
After the officer viewed the videotape and told defendant
its contents, defendant apologized to Panucci, offered to pay
restitution, and explained she took the money to pay her bills.
She denied taking the missing items from the safe.
Panucci estimated defendant took a total of $16,727.78 from
the salon: $13,447 from the safe and $3,280.78 from the cash
2 Because defendant pleaded no contest, the facts are taken
from the probation report.

-- 2 of 10 --

3
register. She provided the probation officer with 93 pages of
documentation on which she based these calculations.3
After defendant pleaded no contest to grand theft by
embezzlement, the court held a restitution hearing at which the
following evidence was adduced.4 Defendant was employed at the
hair salon from October 15, 2002, to October 17, 2003. Because
of shortages in the cash register, Panucci installed a
surveillance camera. The camera recorded defendant stealing
money from the cash register on October 8, 10, 11, and 13, 2003,
and $34 worth of merchandise.
On these days, either Panucci, or the manager, Debbie
Rhodes, or the assistant manager, Arelia Contreras, had the
responsibility of closing out the cash register. A register
closeout was completed by adding up the cash, checks, and credit
card slips in the cash register, placing these items into an
envelope, and dropping the envelope through a slot in the
salon’s safe.
On October 10, 2003, Panucci requested Contreras perform a
closeout of the cash register and make a deposit into the safe
at 10:00 a.m., right before defendant was scheduled to come to
work. Contreras then left work at 11:00 a.m. and defendant was
the sole employee remaining in the salon. Contreras returned at
3 These documents were also admitted into evidence at
defendant’s restitution hearing.
4 Sherri Panucci testified under the name Sheree Gregory at
the restitution hearing.

-- 3 of 10 --

4
2:00 p.m. and, one hour later, after defendant had left work,
Contreras closed out the cash register for a second time and
made an additional deposit into the safe. The next day, Panucci
discovered the 10:00 a.m. deposit missing from the safe.
The safe weighed 30 to 40 pounds, was not bolted to the
ground, and was the size of a post office mailbox. An envelope
deposited into the safe could be removed by turning the safe
upside down and shaking it to the point where the envelope
“peek[ed]” out of the slot.5
Defendant had a key to the salon and had access to the mall
even when closed. On one occasion when a deposit into the safe
had been stolen, Contreras found defendant inside the salon
before it was scheduled to open.
Panucci performed an audit of the cash register for the
time period of June 24, 2003, through October 16, 2003. Her
audit showed a cash and check shortage of $3,280.78. She also
performed an audit of the deposits into the safe for the time
period of September 5, 2003, through October 18, 2003. Her
audit showed $13,447 in missing cash and checks from the
deposits. This amount excluded the credit card slips because,
although the slips were also missing, the money had been
electronically wired to the credit card companies at the time
the client made the charge. The audit further showed, before
5 The police officer who came to the salon demonstrated this
process to Panucci.

-- 4 of 10 --

5
September 2003, no money was missing from the salon.6 A couple
of weeks after defendant was arrested, Panucci installed a new,
heavier safe and did not suffer further losses.
Defendant testified at the restitution hearing she did not
have a key to the safe, did not take any items out of the safe,
and never picked up the safe and tried to extract money from it.
Defense counsel argued insufficient evidence supported a
finding defendant took money from the safe.
The court found, by a preponderance of evidence, defendant
took money from the cash register and safe and ordered
restitution in the full amount claimed.
DISCUSSION
I
On appeal, defendant renews her claim of insufficient
evidence to support the finding she was responsible for stealing
from the safe. We disagree.
Section 1202.4, subdivision (f), provides: “In every case
in which a victim has suffered economic loss as a result of the
defendant’s conduct, the court shall require that the defendant
make restitution to the victim or victims in an amount
established by court order, based on the amount of loss claimed
by the victim or victims or any other showing to the court.”
The standard to be employed at a restitution hearing is one of
preponderance of the evidence. (People v. Baumann (1985) 176
6 Panucci went back in her records six months from September
2003.

-- 5 of 10 --

6
Cal.App.3d 67, 80.) We uphold the trial court’s findings of
fact if supported by substantial evidence. (People v. Brown
(1990) 216 Cal.App.3d 1442, 1447.) Substantial evidence is
evidence of credible and solid value from which a reasonable
finder of fact could determine the alleged facts were true
(People v. Cuevas (1995) 12 Cal.4th 252, 260), including
circumstantial evidence and the reasonable inferences flowing
therefrom. (In re James D. (1981) 116 Cal.App.3d 810, 813.)
Panucci testified defendant was first recorded on the
surveillance camera taking money from the cash register on
October 8, 2003. On October 10, 2003, she had assistant manager
Contreras perform a closeout of the cash register and make a
deposit into the safe at 10:00 a.m. Contreras then left the
salon for three hours and defendant was the sole employee
remaining. The next day, Panucci discovered the 10:00 a.m.
deposit missing from the safe. Panucci further testified the
contents of the safe could be removed by turning the safe upside
down. Finally, Panucci testified her salon suffered no losses
prior to defendant’s employment and no losses after the time
defendant was arrested and the new safe installed. This was
sufficient circumstantial evidence defendant was stealing from
the safe.
Defendant, however, points out the area containing the safe
was not videotaped, she was not charged with the duty of closing
out the cash register or taking money to the safe, and no
evidence was presented she handled the envelopes which were
deposited into the safe. Defendant, in essence, is asking us to

-- 6 of 10 --

7
reweigh the evidence; however, our job is to determine whether
sufficient evidence supports the inference drawn by the trier of
fact. (People v. Perry (1972) 7 Cal.3d 756, 785, overruled on
other grounds in People v. Green (1980) 27 Cal.3d 1, 28.)
Having done so, we find no error.
II
Defendant claims the court used an irrational method and
unreliable information to compute the amount of restitution
attributable to the loss from the safe, denying her due process
of law. Respondent argues defendant has forfeited this claim
because she disputed only the allegation she had taken money
from the safe. Defendant replies she “objected to the
sentencing documents . . . by setting the matter for a contested
restitution hearing, and arguing against including the amount
missing from the safe at that hearing.”
An appellate court ordinarily will not consider rulings in
connection with relief sought where an objection could have
been, but was not, presented to the trial court. (People v.
Saunders (1993) 5 Cal.4th 580, 589-590.) “Although the loss of
the right to challenge a ruling on appeal because of the failure
to object in the trial court is often referred to as a ‘waiver,’
the correct legal term for the loss of a right based on failure
to timely assert it is ‘forfeiture,’ because a person who fails
to preserve a claim forfeits that claim.” (In re S.B. (2004) 32
Cal.4th 1287, 1293, fn. 2.)
The following evidence in the record supports application
of the forfeiture doctrine. When Panucci testified, the

-- 7 of 10 --

8
prosecutor asked if she brought to court the documents
supporting her claim of the amount of money stolen from the cash
register and the safe. She replied, “Yes.” The prosecutor then
marked Panucci’s documents regarding the audit of the safe as
“People’s Number 1” and the documents regarding the audit of the
cash register as “People’s Number 2.”7 The court stated the
documents had to be received into evidence and asked whether
defense counsel had an objection. After defense counsel stated,
“No, your Honor,” the court said it would receive the documents
into evidence. Defense counsel then clarified he had no
objection to the court receiving the documents into evidence and
stated their evidentiary value was “subject to this hearing” and
“other potential objections.” The prosecutor then said to let
him know if there was any objection.
After this exchange, Panucci testified in detail regarding
the accounting practices she employed to calculate the amount
stolen from the safe. Defense counsel interposed no objection
to the testimony, her accounting practices, or her
documentation. After Panucci’s testimony, defense counsel
stated he was not disputing the restitution for the cash missing
from the register and “just want[ed] to deal with the safe
theft.” At the end of all testimony, defense counsel argued
only insufficiency of evidence as it related to the money taken
from the safe.
7 Defense counsel acknowledged he had copies of these
documents.

-- 8 of 10 --

9
Given defense counsel’s notice to interpose objections to
the evidence proffered showing the loss from the safe and cash
register and his lack of objection to Panucci’s accounting
practices and documentation, defendant has forfeited the issue
on appeal.
Moreover, even if defendant had preserved the issue, we
would find no error in Panucci’s calculation of the amount taken
from the safe and would find substantial evidence to support the
calculation.
In determining the amount of restitution and the victim’s
loss, “any rational method” may be employed and due process is
satisfied as long as the “informational inputs” are reasonably
accurate and reliable. (People v. Goulart (1990) 224 Cal.App.3d
71, 83.) Defendant bears the burden of showing the victim’s
estimates are excessive. (Id. at pp. 83-84.)
In “People’s Number 1” and “People’s Number 2” and in
attachments to the probation report, Panucci explained how she
calculated the loss from the deposits into the safe: “The loss
was calculated by subtracting the grand totals before and after
the theft, adding back in the last closure (money not lost) and
then subtracting the credit card totals (also money not lost).
The total loss for cash and checks stolen from the safe from
September 5, 2003 thru [sic] October 18, 2003 is in the amount
of $13,447.00.”
In addition to this explanation of her accounting method,
Panucci provided approximately 84 pages of receipts from her
salon and transaction information to verify the informational

-- 9 of 10 --

10
inputs she used to calculate the loss. Her method and
information, which the court impliedly adopted when ascertaining
the loss, was not unreliable or irrational and provided
substantial evidence on which to base the restitution award for
money taken from the safe.
DISPOSITION
The judgment is affirmed.
NICHOLSON , J.
We concur:
SCOTLAND , P.J.
MORRISON , J.

-- 10 of 10 --