People v. Nazary
191 Cal. App. 4th 727
| Cal. Ct. App. | 2010Background
- Nazary was convicted by a jury of embezzlement by an employee (Pen. Code, § 508) and grand theft by an employee (§ 487, subd. (b)(3)); the trial court sentenced him to two years on count 1 and stayed count 2 under § 654.
- The ARCO station at Oceanside was owned by K.A. Management; Nazary served as onsite manager from 2002 to late 2006.
- PIC machines on pumps deposited cash into canisters; armored transport removed canisters thrice weekly; tallies were reconciled with PIC receipts.
- Forensic investigation and surveillance were initiated after RFN identified growing shortages in a suspense account; Casarez and KA owners installed office surveillance and planned precounts to document losses.
- Nazary was confronted on October 23, 2006 with evidence of shortages captured on videotape; the confrontation was partially shown to the jury.
- Nazary did not present a defense other than challenging the sufficiency of the evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether embezzlement and grand theft by an employee can both stand | Nazary—two offenses merge into theft; cannot convict of both | Nazary—two offenses are lesser included or same crime | Convinctions proper; distinct elements remain after § 484 consolidation |
| Whether grand theft by an employee is a lesser included offense of embezzlement | Nazary claims embezzlement precludes other theft theories | Nazary argues only one theft theory applies | Not a lesser included offense; both convictions upheld |
| Whether the videotaped confrontation violated section 632 or privacy rights | Video should be excluded as confidential communication | Recording was not confidential; permissible | Video properly admitted; any error was harmless |
| Whether Stegall’s testimony about PIC testing required exclusion | Hearsay/ foundation problems | Expert testimony properly grounded in specialized knowledge | No reversible error; testimony properly admitted as expert basis |
| Whether PIC receipts and related testimony were inadmissible hearsay | Receipts prove theft via machine-generated data | Receipts admitted for nonhearsay purposes; foundation adequate | Hearsay objections overruled; receipts admitted for investigation framework; not prejudicial |
| Cumulative error claim | Multiple errors harmed due process | No prejudicial errors found cumulatively | No reversible cumulative error |
Key Cases Cited
- People v. Davis, 19 Cal.4th 301 (Cal. 1998) (elements of embezzlement and theft distinctions maintained after consolidation)
- People v. Sanders, 67 Cal.App.4th 1403 (Cal. App. 1998) (consolidation under theft umbrella; elements preserved)
- Tullos v. Superior Court, 57 Cal.App.2d 233 (Cal. App. 1943) (elements preserved post-consolidation; separate offenses retain distinct elements)
- People v. Tabb, 170 Cal.App.4th 1142 (Cal. App. 2009) (distinguishes scenario with multiple convictions not involving same plan)
- People v. Hawkins, 98 Cal.App.4th 1428 (Cal. App. 2002) (computer printouts; machine-generated data not hearsay; reliability via cross-examination)