People v. Superior Court (50 Cal. App. 4th 1216, 1996)

Opinion

McKINSTER, J.

In this matter the People challenge the trial court’s decision to place defendant and real party in interest Donald C. Dorsey on probation, although as a result of his convictions he is presumptively ineligible. They also complain of the trial court’s failure to impose a restitution fine and to consider costs under a tax statute of which Dorsey was convicted. We have determined that the matter must be remanded for resentencing.

Facts of the Case

There is no dispute over the essential facts of the case. Donald C. Dorsey, defendant in the criminal proceedings below (and hereinafter sometimes defendant) was for many years the Sheriff of Inyo County. Following a jury trial, he was convicted of several offenses arising out of the disappearance of a substantial amount of public money which had been entrusted to him. Dorsey was convicted, inter alia, of misappropriating public funds (Pen. Code, § 424, subd. 1), embezzling public funds (§§ 504, 514), and subscribing a false tax return (Rev. & Tax. Code, former § 19405, subd. (a)(1).) The jury made special findings that Dorsey embezzled public moneys, and that he embezzled and misappropriated sums in excess of $100,000.

The major part of the People’s case at trial involved money which Dorsey had received as “special funds” designated for undercover or street operations. Evidence presented by the People tended to establish that this money did not reach the officers and projects for whom and which it was intended; evidence presented by defendant suggested that he did apply the money as he was expected to do, and that his errors were those of accounting, not malfeasance.

As a result of his conviction for embezzling public funds, Dorsey was presumptively ineligible for probation pursuant to section 1203, subdivision (e)(7). He was also presumptively ineligible due to the finding that the total amount taken exceeded $100,000. (§ 1203.045.) At sentencing, however, the trial court granted probation. Its “findings” were as follows: “The Court finds that this is an unusual case, by classic definition, and the interest of justice and of the public will be best served by the granting of probation. [