People v. Green
197 Cal. App. 4th 1485
| Cal. Ct. App. | 2011Background
- Section 12022.6(b) permits aggregating losses from multiple felonies if they arise from a common scheme or plan.
- Green was convicted in 2009 of two counts of grand theft by embezzlement and an enhancement under former section 12022.6(a)(1) based on aggregated losses over $50,000.
- Count 1 involved embezzlement from the HOA where Green was interim bookkeeper and president, totaling about $12,681.63.
- Count 2 involved embezzlement from D&L Auto Parts, totaling about $49,000, with various schemes to misstate cash and invoices.
- The trial court aggregated losses from counts 1 and 2 to exceed $50,000, producing a total enhancement of one year.
- On appeal, the court reversed the enhancement due to lack of evidence that the losses from the two counts arose from a common scheme or plan.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Meaning of common scheme or plan | Green argued no common scheme or plan existed. | State contends a common scheme or plan existed to defraud both entities. | EWoldt-based ordinary meaning; not technical; requires concurrence of common features. |
| Whether counts 1 and 2 losses arose from a common scheme or plan | Losses were linked by Green's role and timing, suggesting a common plan. | Losses were distinct in victims, methods, and schemes. | No sufficient common features tying the two losses to a single plan; not a common scheme or plan. |
| Proper interpretation of aggregation under 12022.6(b) | Aggregation allowed if losses from multiple felonies exceed thresholds and arise from a common scheme. | Aggregation requires a demonstrable common scheme or plan across counts. | Aggregation requires a common scheme or plan; lacking here, so enhancement reversed. |
| Impact of statutory history and Ewoldt framework | Legislation intended to deter large-scale white-collar crime via aggregation. | Statutory history does not redefine common scheme; Ewoldt framework controls. | Adopts Ewoldt framework; ordinary meaning governs, with cross-statutory consistency. |
Key Cases Cited
- People v. Ewoldt, 7 Cal.4th 380 (Cal. 1994) (defines test for common design or plan; governs admissibility and similarity standards)
- People v. Tassell, 36 Cal.3d 77 (Cal. 1984) (prior rule on common design; later overruled by Ewoldt)
- People v. Bowman, 210 Cal.App.3d 443 (Cal. App. 1989) (aggregation of losses legislative context; not controlling for multiple offenses here)
- People v. Lisenba, 14 Cal.2d 403 (Cal. 1940s) (early articulation of design or plan evidence in criminal conduct)