(Berkeleyside) - When Jared Brandt, co-owner of Donkey & Goat Winery, went to do inventory shortly after he fired three employees suspected of stealing wine, he discovered nine empty boxes that had been taped up to look as if they were full.

The empty boxes were hidden on the bottom rows of pallets stacked with 55 cases of wine, according to Brandt, who made the discovery in October 2014. Among the missing wines were numerous bottles of 2005 Broken Leg Pinot Noir, made from a vineyard in the Anderson Valley the year his oldest daughter was born.

“It had sentimental value because it was 12 to 17 bottles of my daughter’s birth year and it’s gone now,” said Brandt. The wine was worth about $700, he said.

Brandt’s testimony about the empty boxes came during a four-day preliminary hearing in Alameda County Superior Court from Jan. 25-29 to determine whether there was probable cause to hold three former employees over for trial. In the end, Judge C. Don Clay determined that Zachary Gomber, 29, who worked for Donkey & Goat on and off for three years, should face two felony counts of embezzlement and receiving stolen property. Clay ruled that Kate Sylvan, who worked in the tasting room once a week for just five months, should also face a felony count of receiving stolen property. But he dismissed the felony embezzlement charge against Morgan Hall, once Donkey & Goat’s tasting-room manager and part-time bookkeeper. Instead, Judge Clay determined that Hall should just face a misdemeanor count of receiving stolen property. 

The judge denied a motion to suppress evidence (bottles of wine) that were taken by Berkeley police from Sylvan’s car. All three were ordered to return to court for arraignment Feb. 11.

In addition to the testimony by Brandt and his wife, Tracey Brandt, about their discovery in 2014 that thousands of dollars of wine was missing from the winery, the prosecution based its case on inventory records, testimony from a fellow worker, the results of a police search warrant, and surveillance videos taken in September 2014 that allegedly showed Gomber and Hall taking wine without permission from the winery at 1340 Fifth St.

The main question at the center of the hearing was what wine the three employees were entitled to as part of their employment at Donkey & Goat, and what wine they may have taken without permission. The prosecution contended that Gomber and Hall embezzled wine and Sylvan knew about it. The defense attorneys contended that their clients had a right to the wine found in their possession.

When the Brandts first discovered that a significant amount of wine was missing, they went to the Berkeley Police Department in the summer of 2014 and reported that around 223 cases of wine were not accounted for. A more refined check of the inventory brought that number down to 137 cases. In December 2014, the Alameda County District Attorney charged Gomber and Hall with embezzlement and receiving stolen property. Sylvan was also charged with the latter. The missing wine was worth around $70,490.

But at the preliminary hearing, Jeanette Tan, the accountant for Donkey & Goat, testified that further calculations had reduced the winery’s “shrinkage,” leading her to believe that 74 cases were actually missing, although she also said she could not be totally sure of that number.