Trial court committed harmless error in making a determination that embezzled funds were “public funds,” as this was a jury question. Defendants, husband and wife, founded a charter school in the Los Angeles school district. During a random audit of the school’s finances a number of irregularities surfaced, which led to the prosecution of defendants for embezzlement and other financial crimes. One issue on appeal faulted the trial court for failing to instruct the jury to determine whether the funds embezzled exceeded $950, and whether they were “public funds.” (Pen. Code, § 514.) Held: Affirmed. Generally, embezzlement is punished like its analogues, petty and grand theft, i.e., embezzlement of property valued at $950 or less is punishable as a misdemeanor whereas the offense is a wobbler if the amount exceeds $950 (Pen. Code, § 514). However, if the funds embezzled are “public funds,” the offense is a felony punishable by a state prison sentence regardless of the value of the property embezzled. Here, the jury was not asked to make a section 514 finding. At sentencing, the prosecution asked the court to make a “public funds” finding, and the court did so over defense objection. This was error. In Apprendi v. New Jersey (2000) 530 U.S. 466, and Alleyne v. U.S. (2013) 133 S.Ct. 2151, the Court held that any fact (other than the fact of a prior) that increases the statutory maximum (Apprendi) or minimum (Alleyne) punishment for an offense must be found by a jury beyond a reasonable doubt. Thus, the trial court’s “public funds” finding violated Alleyne by mandating the embezzlement be treated as a felony rather than a wobbler. However, as the record reveals beyond a reasonable doubt that the jury would have made the same finding had it been asked to do so, the error was harmless.

The full opinion is on the court’s website here: http://www.courts.ca.gov/opinions/documents/B252894M.PDF