Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment and order of the Superior Court of San Diego County No. SCD209526 Charles R. Gill, Judge.
O'ROURKE, J.
Gregory Scott Beauchamp pleaded guilty to forgery (Pen. Code, § 470, subd. (d)), filing a false instrument (§115, subd. (a)), making a false financial statement (§532a, subd. (a)(1)) and grand theft of personal property (§ 487, subd. (a)).
All statutory references are to the Penal Code unless otherwise stated.
The trial court placed Beauchamp on five years probation under section 1203 and sentenced him to one year in jail to be served in a work furlough program. Following a hearing, the court ordered Beauchamp to pay $523,666.04 in restitution.
Beauchamp contends the trial court abused its discretion in denying his motion to withdraw his plea, which was induced by coercion and also based on mistake and ignorance regarding the prosecution's right to amend the information. He contends the proposed amendment violated his due process rights and was legally barred because he had waived his right to a preliminary hearing on the charged crimes. Beauchamp further contends he received ineffective assistance of counsel. He also challenges several aspects of the restitution order.
We affirm both the judgment of conviction and the restitution order.
FACTUAL AND PROCEDURAL BACKGROUND
During a June 10, 2009 pretrial proceeding, Beauchamp moved in limine to admit evidence of fraud by crime victims Rolando and Josephine Abella. The prosecutor immediately proposed amending the information, stating: "[I]f we start talking about the merits of this motion — I have in my hand, and I've advised everybody, an amended information and I'm prepared to file it, and that amended information includes three allegations: It includes an allegation of presumptive prison; it includes an allegation of the taking of over [$]50, 000; and it includes the taking of over [$]150, 000. [¶] Furthermore, ... if [Beauchamp] was to be found guilty, if the judge was just to sentence him on the middle term of one count and the [section] 22.6 allegation, he's looking at four years in prison. [¶] Furthermore, I reserved the opportunity to come before the court and amend the information to conform with proof and add other charges prior to this case going to the jury."
Defense counsel advised Beauchamp under In re Alvernaz (1992) 2 Cal.4th 924, 934 regarding a plea offer involving five years probation and up to 355 days of work furlough in lieu of actual custody, cautioning him that under the amended information he would face approximately seven years in state prison.
The court denied the motion in limine, ruling that under Evidence Code section 352, the probative value of evidence about the Abellas' fraud was "so miniscule, " that the amount of court time it would require was not justified and such evidence would confuse the jury. Consequently, defense counsel obtained a promise from the prosecutor to wait at least 24 hours before "the amended information is filed and Mr. Beauchamp is arraigned on it."
The next day, Beauchamp accepted the plea offer in exchange for the prosecutor not filing the amended information. The trial court reviewed the change of plea form with Beauchamp. He identified his initials on the plea form and stated he had reviewed it with his counsel, who had answered his questions about the form. Beauchamp had no questions for the court regarding the plea form.
The prosecutor stated the factual basis for the charges, claiming the People could prove them beyond a reasonable doubt: In August 2006, Beauchamp unlawfully, with intent to defraud, falsely made, altered, forged and attempted to pass, alter, as true and genuine, a sales agreement for the Leucadia Inn Motel located at 960 North Coast Highway, knowing it was false, altered or forged, in violation of section 470, subdivision (d). Beauchamp signed the agreement as the buyer by forging the Abellas' signature retrieved from a previously recorded quitclaim deed. In November 2006, Beauchamp also knowingly and unlawfully procured and offered a false and forged deed to be filed, registered, and recorded in a public office. Beauchamp represented that he was a trustee of a family trust and owned the property, in violation of section 115, subdivision (a). On February 7, 2007, he knowingly and unlawfully made a false statement in writing — that he was the rightful owner of both the motel and another property located on 452 Fourth Avenue in Encinitas, California — intending that a money lender, Sunni K. Ho, would rely on it regarding Beauchamp's ability to repay a loan and credit, in violation of section 532, subdivision (a). Finally, on February 27, 2007, he represented himself as the owner of the property and accepted $150,000 from Mr. Ho, in violation of section 487, subdivision (a).
Beauchamp stated he understood the terms of the plea agreement and the constitutional rights he was giving up, and pleaded guilty to the charges under People v. West (1970) 3 Cal.3d 595. The People never filed the amended information.
On August 31, 2009, following a hearing under People v. Marsden (1970) 2 Cal.3d 118, the court relieved the public defender's office and appointed new counsel for Beauchamp.
On September 15, 2009, Beauchamp moved to withdraw his guilty plea on grounds he was unduly influenced by threats, coercion and fear, and the proposed amended information was unauthorized because those charges were not proved at a preliminary hearing since none was held on the original information. He claimed he received ineffective assistance of counsel, who failed to prevent the prosecutor's threats.
At the hearing on the motion to withdraw the guilty plea, Beauchamp testified that after the trial court denied the motion in limine, his trial counsel seemed unwilling to litigate the case, claiming the case had been gutted. Beauchamp was scared into pleading guilty by his belief the prosecutor would do anything to incarcerate him.
Beauchamp's wife, Lisa Beauchamp, testified that the night before Beauchamp pleaded guilty, she and he had agreed he should reject the plea offer and proceed to trial. However, the next day, during a break from court proceedings, Beauchamp telephoned her. She believed his attorney was pressuring him to accept the plea offer or else the prosecutor would add to the charges. She spoke to Beauchamp's attorney, who advised her that if the case went to trial Beauchamp would certainly lose and go to prison for several years. During the phone call, she cried hysterically and told Beauchamp he should take the plea to resolve the matter quickly and easily.
Beauchamp's trial counsel testified he guided Beauchamp through the change of plea form and advised him about its consequences. Trial counsel also had signed the change of plea form, indicating he concurred in Beauchamp's plea and waiver of constitutional rights.
The court denied the motion to withdraw the plea, ruling: "I believe that the prospect of the filing of the amendment, that if, in fact, it had been filed, that [defense counsel] would have objected, and I assume that I would have done the appropriate and proper decision on that if it had been filed. [¶]... [Defense counsel's] testimony indicated that he was objecting to it, that he had indicated that in chambers, ... the threat as characterized by both [defense counsel and the prosecutor] for the filing of the amendment played a relatively minor role in the ultimate decision by Mr. Beauchamp to plead guilty to the charges contained in this information.... [T]here has not been clear and convincing evidence for me to find that there's good cause for granting the motion to withdraw the plea.... [T]he threats and/or coercion, while they are clearly stressful, did not rise to the level of improper [threats], nor do I believe that [the defense counsel at the pleading stage], based on the evidence that I heard, was ineffective in his counseling of Mr. Beauchamp."
DISCUSSION
I.
A.
Beauchamp relies on People v. Winters (1990) 221 Cal.App.3d 997 (Winters) and People v. Peyton (2009) 176 Cal.App.4th 642 (Peyton) for his contention that he was ignorant that, as a matter of law, the prosecutor could not have amended the information because no preliminary hearing was held regarding the original information. On the same grounds, he contends his guilty plea was induced by the prosecutor's coercion. He concedes, "[t]he prosecutor cannot be faulted for telling [him] that he intended to put [him] in prison or intended to obtain a conviction for existing charges. That is part of the process." Nonetheless, he claims the prosecutor "sought to coerce a guilty plea from [him] by threatening [him] with the filing of an Amended Information despite the fact that the law did not allow the filing of such an Amended Information." He contends the proposed amendment was inaccurate and misleading and barred by due process considerations. Finally, he contends he received ineffective assistance of counsel.
The defendant has the burden to show good cause for withdrawal of a guilty plea by clear and convincing evidence. (§ 1018; People v. Huricks (1995) 32 Cal.App.4th 1201, 1207.) Good cause exists if the defendant was operating under mistake, ignorance, inadvertence, fraud, duress, or any other factor overcoming the exercise of free judgment. (People v. Huricks, at p. 1208.) "When a defendant is represented by counsel, the grant or denial of an application to withdraw a plea is purely within the discretion of the trial court after consideration of all factors necessary to bring about a just result." (People v. Shaw (1998) 64 Cal.App.4th 492, 495-496.) "Guilty pleas resulting from a bargain should not be set aside lightly and finality of proceedings should be encouraged." (People v. Hunt (1985) 174 Cal.App.3d 95, 103.) We defer to the trial court's factual findings if they are supported by substantial evidence. (People v. Ravaux (2006) 142 Cal.App.4th 914, 917.)
Winters and Peyton are inapposite because in both cases the trial court permitted the prosecution to amend the information to add another charge after the close of its case-in-chief, but the defendants had waived their right to a preliminary hearing. Accordingly, the appellate courts reversed on grounds that under section 1109, "an indictment or accusation cannot be amended so as to change an offense not shown by the evidence taken at the preliminary examination." (Peyton, supra, 176 Cal.App.4th at p. 653; Winters, supra, 221 Cal.App.3d at p. 1007-1008.) The Peyton court explained further, "When, as here, the defendant waives his right to the preliminary hearing, with the acquiescence of the district attorney and court, and there is therefore no preliminary hearing transcript upon which new or amended charges may be based, the pleading on file at the time of the defendant's waiver must serve as the touchstone of due process notice to the defendant of the time, place, and circumstances of the charged offenses. [Citation.] Thus, it is the amended complaint that must be looked to for purposes of determining whether defendant received due process notice." (Peyton, supra, at pp. 658-659, citing to Winters, supra, at pp. 1006-1007.)
Beauchamp misapprehends the holdings in Winters and Peyton, which do not stand for the proposition that in the context of a plea bargain the prosecutor is barred from raising the possibility of amending the information to add charges. Rather, those cases hold that under section 1109, a trial court errs in permitting an amendment to an information to add charges whose factual bases were not established in a preliminary hearing.
We conclude that Beauchamp's case is two steps removed from the purview of Winters and Peyton because, first, the prosecution did not file the amended information; second, the trial court therefore did not have an opportunity to rule on the amended information. Before Beauchamp accepted the plea offer, the prosecutor had informed the parties he would delay filing the information for 24 hours, and indicated he intended to seek Beauchamp's arraignment on the amended information. If the prosecution had amended the information, it would have had an opportunity to set aside the original information and arraign Beauchamp on the charges in the amended information because trial had not yet begun. The fact the amended information was not filed obviates Beauchamp's claim the proposed amendment was inaccurate, or improperly used to coerce his guilty plea, and his appellate claims predicated on Winters and Peyton must fail. We also note the trial court found that although the plea bargain process was stressful for Beauchamp, the prosecutor did not improperly coerce him to accept the plea. We are bound by that finding, which is supported by the record.
In his reply brief, Beauchamp claims, "Although the Attorney General postulates that the prosecutor could have dismissed and filed a new case, this is not what the prosecutor threatened. He threatened to amend the pleading and proceed to trial on the amended pleading. There was no mention of filing a new case." When the prosecutor stated his intention to arraign Beauchamp on the amended information, it was implied he would dismiss the original information and file new charges.
B.
The standard for evaluating Beauchamp's due process claim that the plea was coerced is outlined in Bordenkircher v. Hayes (1978) 434 U.S. 357 (Bordenkircher), in which the United States Supreme Court held that a prosecutor's decision to carry out a threat made during plea discussions does not violate the Due Process Clause. (Id. at p. 358.) The prosecutor in Bordenkircher had offered to recommend a five-year sentence if the accused pleaded guilty to a one-count indictment. If the accused did not plead guilty, the prosecutor threatened to seek an indictment under the state's habitual criminal act, which would have subjected the accused to the risk of a mandatory life term. The court reasoned that the prosecutor's actions did not offend due process because the prosecutor had "no more than openly presented the defendant with the unpleasant alternatives of forgoing trial or facing charges on which he was plainly subject to prosecution." (Id. at p. 365.)
Bordenkircher controls and here, as in Bordenkircher, supra, 434 U.S. 357, the government gave Beauchamp the choice to plead guilty or face the possibility of much greater punishment. In both cases, the accused had lawyers to help them understand the consequences of the government's offers. (See id. at p. 363 ["Defendants advised by competent counsel and protected by other procedural safeguards are presumptively capable of intelligent choice in response to prosecutorial persuasion"].) Accordingly, Beauchamp's due process claim fails.
C.
Beauchamp contends that, in the change of plea proceedings, his counsel rendered ineffective assistance by not advising him the proposed amended information was impermissible at that late stage. Without citation, he asserts, "It does not matter that defense counsel may have discovered the state of the law when he briefed the issue for the court, such a brief was never filed and Mr. Beauchamp never had the benefit of such analysis. Defense counsel's effectiveness must be measured not by what he would have done had the issue come up in a motion setting, but by how he advised his client in the context of the plea."
To establish entitlement to relief for ineffective assistance of counsel the burden is on the defendant to show (1) trial counsel failed to act in the manner to be expected of reasonably competent attorneys acting as diligent advocates and (2) it is reasonably probable that a more favorable determination would have resulted in the absence of counsel's failings. (People v. Pope (1979) 23 Cal.3d 412, 425, overruled on another ground in People v. Berryman (1993) 6 Cal.4th 1048, 1081, fn. 10; People v. Fosselman (1983) 33 Cal.3d 572, 584; see also Strickland v. Washington (1984) 466 U.S. 668, 687-696 (Strickland).) "[W]here the record shows that counsel's omissions resulted from an informed tactical choice within the range of reasonable competence, the conviction must be affirmed." (People v. Pope, at p. 425.) "In some cases, however, the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged. In such circumstances, unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, these cases are affirmed on appeal." (Id. at p. 426.)
A reviewing court will indulge in a presumption that counsel's performance fell within the wide range of professional competence and that counsel's actions and inactions can be explained as a matter of sound trial strategy. Defendant thus bears the burden of establishing constitutionally inadequate assistance of counsel. (Strickland, supra, 466 U.S. at p. 687; In re Andrews (2002) 28 Cal.4th 1234, 1253.)
It is not necessary to determine whether counsel's challenged action was professionally unreasonable in every case, however. If the reviewing court can resolve the ineffective assistance claim by first deciding whether there is a reasonable probability that the outcome would have been different absent counsel's challenged actions or omissions, it may do so. (Strickland, supra, 466 U.S. at p. 697.)
In light of our conclusions that the trial court did not abuse its discretion in denying the motion to withdraw the plea, Winters and Peyton are inapplicable, and under Bordenkircher his due process rights were not violated, it is not reasonably likely Beauchamp would have received a different outcome; therefore, his ineffectiveness of counsel claim has no merit.
II.
A.
Beauchamp contends the trial court abused its discretion in ordering restitution under section 1202.4 because he was denied due process regarding notice of the amount of restitution claimed and an opportunity to challenge the claimed damages; no evidence existed of actual economic losses caused by his criminal conduct; attorney fees were not recoverable as restitution; Beauchamp's associate, John Conlon, caused the Abellas to incur most of the attorney fees; substantial evidence did not support the lost profits claim; and he received ineffective assistance of counsel at the restitution hearing.
Background
Rolando Abella testified at the restitution hearing that Beauchamp recorded a lien against the motel, impeding him from taking out a loan against it. The court admitted into evidence a document Abella had prepared outlining his request for $100,880 for lost revenue based on the motel's annual revenue from 2004. He testified that revenue declined in 2007, when "Beauchamp stole the title to the hotel." For 2008 and 2009, the hotel did not have any revenue. He separately claimed restitution for legal fees incurred in protecting his interests. He testified on cross-examination that John Conlon, a real estate agent and Beauchamp's employer, had rented the motel's top floor.
Attorney Jack Fitzmaurice testified the Abellas retained his law firm in 2006 and incurred approximately $257,000 in legal fees. His billing records were admitted into evidence without objection. During cross-examination, defense counsel asked for copies of his fee agreements with the Abellas, and he declined, claiming they are "privileged communications." Fitzmaurice testified that his billing rates were laid out in an initial engagement agreement. He and the Abellas signed a subsequent contingency agreement. He also testified that Conlon signed a lease for rental of the motel, and to his knowledge Beauchamp and Conlon were longtime friends.
Defense counsel requested the court compel Fitzmaurice to produce the documents and grant a continuance of a "couple of weeks" for her to review them, and resume the hearing for her to cross-examine Fitzmaurice. The prosecutor objected, stating, "[Fitzmaurice] has testified, he has provided an accounting of the charges to his clients. And that is perfectly sufficient for this proceeding. [¶]... I gave defense counsel a copy of the document weeks ago. And it was well within her rights to request more or subpoena additional documents. And she chose not to do so."
The court denied the motion to compel and the continuance request, ruling, "I think for purposes of a restitution hearing, the testimony of Mr. Fitzmaurice as relates to [his billing records] as well as his oral statements are more than adequate for the People to meet their burden.... And I am not in a position nor do I believe it's necessary for the purposes of this hearing to address such issues as attorney work product and/or to see those types of documents."
William Ho sought restitution for $211,215, representing his loan plus interest. He testified that based on Beauchamp's representation that he owned the motel, he loaned Beauchamp $150,000 that was secured by the motel's grant deed. Without objection, the court admitted into evidence the grant deed, a document containing Ho's calculation of the loan amount, and a copy of the note Beauchamp signed for the loan, which provided for annual interest of 14 percent to the lender, "William K. Ho (and/or) Sunni K. Ho."
Beauchamp did not present evidence at the restitution hearing.
The trial court ordered $523,666.04 in restitution as follows: $253,478.70 to the Abellas for attorney fees and $58,972.34 for lost revenues, which the court computed using the average of revenues received for 2004 and 2005, less the revenues actually received in 2006 and 2007, less the estimated costs to the Abellas for compliance with the Americans with Disability Act (ADA). The court stated, "with no evidence of the
ADA costs, the court assumed such costs to be one third of the annual revenues... for 2008... and 2009." In an amended restitution order, the court awarded William Ho restitution for the $150,000 loan plus unpaid interest of $61,215.
General principles of law
The parties dispute the statutory basis for the restitution order. The defense claims section 1202.4 applies and therefore restitution is "limited to actual economic losses proximately caused by the criminal conduct at issue." The People counter that section 1203.1 applies because Beauchamp was placed on probation. We agree with the People. "When probation is granted to a defendant, sections 1203.1 and 1203.04 govern restitution imposed as a condition of probation. Section 1203.1 requires the court to 'consider whether the defendant as a condition of probation shall make restitution to the victim or the Restitution Fund.' " (People v. Foster (1993) 14 Cal.App.4th 939, 949, superseded by statute on other grounds as noted in People v. Sexton (1995) 33 Cal.App.4th 64, 70.)
The California Supreme Court explained the difference between the two statutes: "Trial courts continue to retain authority to impose restitution as a condition of probation in circumstances not otherwise dictated by section 1202.4. In both sections 1203.1 and 1202.4, restitution serves the purposes of both criminal rehabilitation and victim compensation. But the statutory schemes treat those goals differently. When section 1202.4 imposes its mandatory requirements in favor of a victim's right to restitution, the statute is explicit and narrow. When section 1203.1 provides the court with discretion to achieve a defendant's reformation, its ambit is necessarily broader, allowing a sentencing court the flexibility to assist a defendant as the circumstances of his or her case require." (People v. Anderson (2010) 50 Cal.4th 19, 29 (Anderson).)
Section 1203.1 gives trial courts broad discretion to impose probation conditions to foster rehabilitation and to protect public safety. The court may impose upon probationers "reasonable conditions, as it may determine are fitting and proper to the end that justice may be done, that amends may be made to society for the breach of the law, for any injury done to any person resulting from that breach, and generally and specifically for the reformation and rehabilitation of the probationer." (§ 1203.1, subd. (j).) "There is no requirement the restitution order be limited to the exact amount of the loss in which the defendant is actually found culpable, nor is there any requirement the order reflect the amount of damage that might be recoverable in a civil action." (Anderson, supra, 50 Cal.4th at p. 27.)
In determining victim restitution, the court is entitled to consider a wide variety of information, including the probation report. (People v. Baumann (1985) 176 Cal.App.3d 67, 81.) "When the probation report includes information on the amount of the victim's loss and a recommendation as to the amount of restitution, the defendant must come forward with contrary information to challenge that amount." (People v. Foster, 14 Cal.App.4th at p. 947; but see People v. Harvest (2000) 84 Cal.App.4th 641, 653 [probation officer's report "may satisfy notice requirements for due process [citation], but it cannot take the place of evidence"].) "This approach complies with the statutory mandate that the amount of restitution is to be based on the 'loss claimed by the victim' and the designated right of the defendant to a hearing 'to dispute the determination of the amount of restitution.' " (People v. Fulton (2003) 109 Cal.App.4th 876, 886 (Fulton).) "At the conclusion of the hearing the trial court must then make an independent judicial determination of the amount of restitution the defendant shall be required to pay based on the available evidence of the replacement or repair cost of the stolen or damaged property." (People v. Hartley (1984) 163 Cal.App.3d 126, 130.)
When a factual and rational basis exists for the amount of restitution ordered, there is no abuse of discretion. (People v. Prosser (2007) 157 Cal.App.4th 682, 686.) If the circumstances reasonably justify the court's findings, we may not overturn the order on grounds the circumstances might support a contrary finding. (Id. at pp. 686-687.) We do not reweigh or reinterpret the evidence but simply determine " 'whether there is sufficient evidence to support the inference drawn by the trier of fact.' " (Id. at p. 687.)
Due Process Challenge
Beauchamp recognizes that the probation officer's report, filed approximately six months before the restitution hearing, stated that restitution owed to the victims was $150,000 for the mortgage loan and $170,000 for the Abellas' attorney fees. Nevertheless, he contends his due process rights were violated because the probation report did not list interest associated with the $150,000 loan, and at the restitution hearing the prosecution increased the attorney fee request to $332,000, and the court awarded $253,478.70. Moreover, neither the probation report nor the motion for restitution notified him that the Abellas would seek $100,880 for lost revenue. Citing to no legal authority, Beauchamp contends, "As to items such as alleged loss of profits and attorney's fees, which are alleged to have been proximately caused by Mr. Beauchamp's criminal conduct but where causal connection is less than certain, certainly something other than mere notice of the sums being sought is required."
Due process requires that a criminal defendant be afforded a reasonable opportunity to be heard on the restitution issue. (People v. Resendez (1993) 12 Cal.App.4th 98, 114; People v. Sandoval (1989) 206 Cal.App.3d 1544, 1550.) Generally, the scope of this due process right is "very limited." (People v. Cain (2000) 82 Cal.App.4th 81, 86 [A "trial court violates the defendant's due process right at a hearing to determine the amount of restitution [only when] the hearing procedures are fundamentally unfair"].)
At the start of the restitution hearing, the prosecutor informed the court that a day earlier he had forwarded to the defense attorney points and authorities regarding the attorney fees request and all of the proposed exhibits, including some obtained through discovery. The court asked defense counsel if she had any comments and she replied, "I am comfortable." The restitution hearing ended with the court saying, "It will be my intention to provide some type of a written order.... [¶] If there is a desire to contest it or [if] there needs to be some reconsideration, I will leave it to counsel if you want to put it on calendar to contest it."
In light of Beauchamp's failure to object to the lack of notice at the start of the proceedings, the due process claim on appeal is forfeited. (People v. Valtakis (2003) 105 Cal.App.4th 1066, 1071, fn. 3; People v. Birmingham (1990) 217 Cal.App.3d 180, 183-184.) In any event, the restitution hearing was not fundamentally unfair. Beauchamp knew when he signed the note that the loan included interest. Further, the probation officer's report stated that restitution would be sought, including for the loan and the Abellas' attorney fees. Prosecution witnesses testified in reference to documents admitted into evidence, and under cross-examination, regarding their financial losses. At the end of the hearing, the court permitted the parties to contest the restitution order, including by bringing a motion for reconsideration. Beauchamp elected not to challenge the restitution order in the trial court.
Beauchamp appears to claim, with no citation to authority, that the monetary amount of all restitution sought must be provided to the defendant as an absolute prerequisite to fundamental fairness. We found no case standing for that proposition. The issue is whether the defendant had a full and fair opportunity to refute the claimed amount, not whether the amount was identified in a particular document before the hearing. Beauchamp has failed to prove he was deprived of a full and fair hearing.
Beauchamp contends the court erred in not granting his request, made at the restitution hearing, to conduct discovery regarding Fitzmaurice's itemization of attorney fees between those incurred by Beauchamp and Conlon. He argues, "As this court can see from the court records accompanying [his] request for judicial notice, it is Mr. Conlon, not [he], that drove up the attorneys' fees in the underlying civil matter."
In a previous order we denied Beauchamp's request for judicial notice of those records, which were not introduced at the restitution hearing. Therefore, we do not address those records here, or Beauchamp's arguments regarding apportionment purporting to establish for the first time on appeal that "claims by and against Mr. Conlon were the driving force in this litigation." We note that at the restitution hearing, Beauchamp's stated reason for requesting the continuance was to obtain and review Fitzmaurice's documents regarding the attorney fees agreement and not, as Beauchamp claims, for the first time on appeal, to obtain more billing records to assist in apportioning the attorney fees between Beauchamp and Conlon. In any event, the court did not abuse its discretion in denying Beauchamp's request.
A continuance in a criminal case may be granted only for good cause. (§ 1050, subd. (e).) Whether good cause exists is a question for the trial court's discretion. (People v. Jenkins (2000) 22 Cal.4th 900, 1037.) The court must consider " ' "not only the benefit which the moving party anticipates but also the likelihood that such benefit will result, the burden on other witnesses, jurors and the court and, above all, whether substantial justice will be accomplished or defeated by a granting of the motion." ' " (Ibid.) While a showing of good cause requires that both counsel and the defendant demonstrate they have prepared for trial with due diligence (ibid.), the trial court may not exercise its discretion "so as to deprive the defendant or his attorney of a reasonable opportunity to prepare." (People v. Sakarias (2000) 22 Cal.4th 596, 646.) A reviewing court considers the circumstances of each case and the reasons presented for the request to determine whether a trial court's denial of a continuance was so arbitrary as to deny due process. Absent a showing of an abuse of discretion and prejudice, the trial court's denial does not warrant reversal. (People v. Doolin (2009) 45 Cal.4th 390, 450.)
The prosecutor had provided defense counsel the billing documents weeks before the restitution hearing. Accordingly, with reasonable diligence, Beauchamp could have challenged those records at the restitution hearing or filed a petition for rehearing. At any rate, Fitzmaurice's testimony and billing records sufficed to support the trial court's reasonable calculation of the attorney fees. On this record, Beauchamp was not deprived of due process of law.
B.
For the first time on appeal, Beauchamp contends the trial court abused its discretion in requiring him to pay restitution for attorney fees that John Conlon incurred.
Beauchamp's argument has been forfeited because notwithstanding receiving notice from the probation report that the victims sought attorney fees, and his receipt of the Fitzmaurice billing records weeks before the restitution hearing, he failed to present the trial court with a basis for apportioning the attorney fees between himself and Conlon. (In re S.S. (1995) 37 Cal.App.4th 543, 547-548 [concluding that "had the objections now raised here been presented to the trial court, it could have exercised its discretion and perhaps obviated them"].)
In any event, the claim fails. Based on Fitzmaurice's billing records, and in the absence of evidence regarding Conlon's attorney fees, the trial court had sufficient basis for requiring Beauchamp, as a condition of probation, to pay the entire amount of the attorney fees, and we discern no abuse of discretion. "A trial court's determination that claimed attorney fees are reasonable will not be disturbed on appeal unless the court abused its discretion." (Fulton, supra, 109 Cal.App.4th at p. 890.)
Although Beauchamp and Conlon were not tried as codefendants, the reasoning of case law finding codefendants jointly and severally liable for restitution is instructive here. In People v. Campbell (1994) 21 Cal.App.4th 825, 834, the court held that under section 1203.1, the court did not err in holding defendant and codefendant jointly and severally liable for restitution because, "The defendant's obligation is clear; he must pay the full amount of restitution and may pay less if the codefendant also meets his restitution obligation." (Id. at p. 833.) This court held that " '[w]here two or more persons act in concert, it is well settled both in criminal and in civil cases that each will be liable for the entire result.' " (People v. Flores (1961) 197 Cal.App.2d 611, 616.)
C.
Beauchamp contends insufficient evidence supported the restitution award to the Abellas for lost revenue. He argues the trial court failed to allocate comparative fault for the lost revenue based on Abella's testimony that he was unable to use the property as a motel because of ADA violations; instead, the court "simply 'assumed' that costs would be approximately one third of the average annual revenue." He further contends that the evidence regarding lost revenue did not also refer to corresponding expenses.
It is well settled that "statements by the victims of the crimes about the value of the property stolen constitute 'prima facie evidence of value for purposes of restitution.' " (People v. Keichler (2005) 129 Cal.App.4th 1039, 1048.) Once the victim has made a prima facie showing of his or her loss, the burden shifts to the defendant to demonstrate that the amount of the loss is other than that claimed by the victim. (Fulton, supra, 109 Cal.App.4th at pp. 886-887.) "At the conclusion of the hearing the trial court must then make an independent judicial determination of the amount of restitution the defendant shall be required to pay based on the available evidence of the replacement or repair cost of the stolen or damaged property." (People v. Hartley (1984) 163 Cal.App.3d 126, 130.) As we stated in People v. Goulart (1990) 224 Cal.App.3d 71, 83, a trial court may use any rational method of fixing the amount of restitution which is reasonably calculated to make the victim whole. Here, the court's method of calculation was rational and Beauchamp failed to carry his burden of challenging that amount at the hearing or in a post-hearing motion for reconsideration. He "had ample opportunity to present evidence discrediting the estimate. He made no effort to do so." (Ibid.) The trial court did not abuse its discretion in determining the amount of the Abellas' lost revenue.
D.
Beauchamp contends he received ineffective assistance of counsel, who despite being on notice of the attorney fees sought, failed to investigate Conlon's share of the fees or cross-examine Fitzmaurice about it. He further contends his counsel "never questioned Mr. Ho regarding the details of the purchase of the property belonging to Mr. Beauchamp and whether the sums in the note formed a part of the credit bid for that purchase" or seek further discovery on this issue. Finally, Beauchamp alleges that "counsel in the restitution hearing intermingled the words 'revenue' and 'profits' from the motel with no apparent distinction between the two terms, " and failed to seek discovery regarding the motel's finances to determine the legitimacy of the victims' claimed losses.
Applying the standards set forth above for ineffective assistance of counsel claims, we conclude that Beauchamp's claims fail because a different outcome was not reasonably probable absent counsel's challenged actions. It is likely that any objection would have been futile because the trial court had broad discretion in setting the restitution amount and the evidence supported its restitution order. (People v. Tucker (1995) 37 Cal.App.4th 1, 6.) Specifically, as noted, Beauchamp was liable for all the attorney fees. Next, the trial court's calculation of the loan repayment to Mr. Ho was based on the note that Beauchamp signed and Mr. Ho's testimony. Finally, the trial court's formula for calculating lost profits from the motel was reasonable and based on Rolando Abella's testimony.
DISPOSITION
The judgment of conviction and the restitution order are affirmed.
WE CONCUR: BENKE, Acting P. J., HUFFMAN, J.