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Name: People v. Green
Case #: D057178
Court: CA Court of Appeal
District 4 DCA
Division: 1
Opinion Date: 08/05/2011

Aggregation of losses to impose a Penal Code section 12022.6 great taking enhancement is improper where comparison of offenses does not reflect sufficient concurrence of common features showing an overall plan. A jury convicted appellant of two counts of grand theft based on her embezzlement from a homeowners association and from her employer. Regarding the trial court’s imposition of a one-year enhancement under Penal Code section 12022.6, subdivision (a)(1), appellant contended there was no “common scheme or plan” within the meaning of subdivision (b). Analogizing to the discussion of “common plan” in Evidence Code section 1101 cases, the Court of Appeal found that “common scheme or plan” is not a technical term and can be understood to have a plain meaning. To determine whether there was a “common plan” under section 12022.6, the court compared the losses from each count to “determine whether there are ‘”a concurrence of common features that the various [losses] are naturally to be explained as caused by a general plan'”” rather than a series of similar acts. Here, appellant’s embezzlement from the homeowners association was a simple plan which involved forging association checks. Appellant’s embezzlement from her employer was a complicated scheme encompassing the manipulation of invoices, under-reporting of income, phony transactions and deposit delays. The two thefts lacked common features and reflected no overarching plan. Enhancement reversed.