No-Contest Plea Ends Ex-Valet’s Theft Trial : Courts: Former aide to restaurant tycoon is placed on probation on a misdemeanor count of tax evasion. Four felony charges are dismissed.

A former personal valet accused of stealing more than $430,000 from the founder of the El Torito restaurant chain pleaded no contest to a single misdemeanor Wednesday after an Orange County Superior Court judge took the unusual step of dismissing the most serious charges against him.

Clarence R. Wheeler was sentenced to one year of probation as part of an agreement with prosecutors reached after Judge Robert R. Fitzgerald dismissed four felony counts of theft and credit card fraud against him as closing arguments in the case were about to begin.

The judge said there was no evidence of theft because restaurant founder Larry J. Cano of Newport Beach had given Wheeler unlimited authority to use money from Cano’s bank account by assigning him power of attorney.

“A general power of attorney allows you to do any darn thing that you want to do” with the money, he said.

Outside the courtroom, Wheeler said he was “tired and happy that it’s all over.”

“I should not have been here in the first place,” said Wheeler, 39. “It’s been a numbing experience, but now I want to try get on with my life.”

Wheeler’s attorney, Scott Well, said “the judge made the decision (prosecutors) should have made a year ago. My client has been falsely prosecuted. The real tragedy of this case is that after 16 years of loyal service, Mr. Wheeler has nothing to show for it.”

Deputy Dist. Atty. Joe D’Agostino said he “respectfully disagreed” with the judge’s decision not to send the case to the jury.

“It was a question for the jury to make up their minds about the defendant’s guilt or innocence,” D’Agostino said. “I trust in our jury system and thought the jury should make that determination, not the judge. I’m disappointed.”

Cano said through a spokesman Wednesday night that he was “greatly disappointed that the case never got to the jury,” but declined further comment.

Wheeler pleaded no contest to one misdemeanor count of tax evasion. In addition to the probation, he was fined $25 and ordered to serve 20 days in jail. But Fitzgerald suspended the fine and gave Wheeler credit for 20 days served shortly after he was arrested in December, 1992.

During an eight-day trial,D’Agostino presented evidence that the valet, who earned $33,000 a year, lived a lavish lifestyle. Wheeler wore expensive Armani suits, dined at the finest restaurants and drove a $42,000 BMW for which he paid cash.

The prosecutor alleged that Wheeler, who was entrusted to keep track of Cano’s finances, dipped into Cano’s bank accounts and abused his credit cards to buy clothing, antiques and expensive jewelry for the restaurateur’s chauffeur, 29-year-old Thomas John Gioa, with whom the valet was romantically involved.

Wheeler, who testified in his own defense, denied the charges, saying that he enjoyed a close relationship with Cano, whom he said had given him a free hand to spend money from his accounts.

Nancy Frederickson, an official of Pacific National Bank in Newport Beach, had testified earlier that Cano had signed documents giving Wheeler power of attorney.

The 69-year-old Cano, a former bartender and East Los Angeles native who started the El Torito restaurant chain, testified during the trial that he never knowingly gave permission to Wheeler to use his money and that he could not remember signing the power of attorney.

But the judge said he believed Frederickson’s testimony that Cano did authorize Wheeler to make transfers and write checks from his personal accounts.

Outside the courtroom, members of the jury said they were surprised by the judge’s decision. All 12 indicated they would have found the valet guilty of the charges.

“This was anticlimactic,” said Jennifer McKay, a 25-year-old interior designer from Newport Beach. “We should have been able to make the decision. . . . After eight days, this was a lot of people’s time wasted.”

But Well said the district’s attorney’s office should not have taken the case to trial. He noted that prosecutors dropped the charges for lack of sufficient evidence last March, but reinstated them six months later.